<*• "y: /ImaAjl T^v)^w^ #
REPORTS
OF
CASES AT LAW AND M CHANCERY
AKGUED AND DETERMINED IN THE
SUPREME COURT OF ILLINOIS.
NORMAN L. FREEMAN,
REPORTER.
VOLUME LXXII.
Containing the remaining cases submitted at the January Term
1874, the cases submitted at the June Term, 1874, and
a portion of the cases submitted at the
September Term, 1874.
PRINTED FOR THE REPORTER.
PRINGFIELD:
1877.
Entered according to Act of Congress, in the year 1877, by
NORMAN L. FREEMAN,
In the office of the Librarian of Congress, at Washington.
JOURNAL COMPANY,
STEREOTYPERS, PRINTERS AND BINDERS,
Springfield, 111.
JUSTICES OF THE SUPREME COURT
DURING THE TIME OF THESE REPORTS.
PINKNEY H. WALKER, Chief Justice *
SIDNEY BREESE, Chief Justice.
SIDNEY BREESE,
PINKNEY H. WALKER,
JOHN M. SCOTT,
BENJAMIN R. SHELDON, ) Justices.
william k. McAllister,
john scholfield,
alfred m. craig,
ATTORNEY GENERAL,
JAMES K. EDSALL, Esq.
REPORTER,
NORMAN L. FREEMAN.
CLERK IN THE SOUTHERN GRAND DIVISION,
R. A. D. WILBANKS, Mt. Vernon.
CLERK IN THE CENTRAL GRAND DIVISION,
E. C. HAMBURGHER, Springfield.
CLERK IN THE NORTHERN GRAND DIVISION,
CAIRO D. TRIMBLE, Ottawa.
*Mr. Justice Walker became Chief Justice at the June Term, 1874.
Digitized by the Internet Archive
in 2012 with funding from
State of Indiana through the Indiana State Library
http://archive.org/details/reportsofcasesatv72illi
TABLE OF OASES
REPORTED IN THIS VOLUME.
PAGE.
Allen et al. v. Hart 104
ads. Outhouse 529
v. Smith etal 331
Allin et al. v. Millison 201
Alton, City of, v. Hartford Fire
Insurance Co 328
American Bible Society ads.
Starkweather et al 50
American Board of Foreign
Missions v. Nelson 564
Arter v. Cairo Democrat Co. et
al 434
Atkins et al. v. Billings 597
Aubery et al. ads. Low man.. . . C19
B
Ball et al. ads. Bates 108
Barnes et al. ads. McLaurie 73
Bates v. Ball et al 108
Beckemeier ads. Rockford,
Rock Island and St. Louis R.
R. Co 267
Bennett et al. ads. Howard 297
Billings ads. Atkins et al 597
Bloom ington, City of, The Peo-
ple ex rel. ads. Chicago and
Alton R. R. Co 82
Board of Education, etc., ads.
Peers 508
Boester v. Byrne, Admr. 466
Bond et al. v. Ramsey et al 550
Bracket* v. The People ex rel.
McGowan 593
PAGE.
Braid wood et al. ads. Eureka
Coal Co.. 625
Britz ads. St. Louis and S. E.
Railway Co . 256
Brockschmidt v. Hagebusch et
al 562
et al. ads. U. S. Savings
Institution 370
Bull ads. Illinois Central Rail-
road Co 537
Byrne, Admr., ads. Boester 466
ads. Filkins , 101
c
Cairo Democrat Co. et al. ads.
Arter 434
Cairo and St. Louis Railroad
Co. v. Holbrook 419
Cairo and Vincennes Railroad
Co. v. Dodge et al 253
v. Joiner 520
Calhoun ads. Shephard 337
Callison ads. Cutler 113
Campbell et al. ads. North 380
Capen et al. ads. Gridley 11
Capps ads. St. Louis, Vandalia
and Terre Haute R. R. Co . . . 188
Carpenter et al. v. Davis et al.. . 14
Carter v. Marshall 609
ads. Kentucky Baptist
Education Societ3>- 247
Casner ads. St. Louis and South-
eastern Railway Co 384
Chambers et al. v. Jones 275
VI
TABLE OF CASES REPORTED.
PAGE.
Chester and Tamaroa Coal and
R. R. Co. v. Lickiss et al 521
Chicago and Alton R. R. Co.
ads. E wing 25
v Mock, Admx 141
0. Rockford, Rock Island
and St. Louis R. R. Co 34
v. The People exrel. City
of Bloomington 82
Chicago and Northwestern Ry.
Co. v. Miller 144
City National Bank of Cairo
ads. Lewis 543
Coates v. The People 303
Cobb, Blaisdell & Co. ads. Illi-
nois Central R. R. Co 148
Cotfe3r v. Fosselman 69
Cold Spring Township ads.
Springfield and Illinois S. E.
Ry. Co. 603
Cottingham et al. ads. Snell et
al 161,124
Coulterville, Village of, v. Gil-
len 599
Cousley ads. Western Screw and
Manufacturing Co 531
Craig v. McKinney 305
Cutler v. Callison 113
D
Daniels ads. Warren 272
Davie v. Wisher 262
Davis et al. ads. Carpenter et al. 14
Davis v. Pickett 483
Derning et al. v. James 78
Dewey v. Willoughby. 250
Dobschuetz ads Mathes et al.. 438
Dodge et al. ads. Cairo and Vin-
cennes R. R. Co 253
Dorman ads. St. Louis ?nd S.
E.Ry.Co 504
E
East St. Louis and Carondelet
Ry. Co. ads. McGanahan 557
PAGE.
Eddy ads. Toledo, Wabash and
Western Ry. Co 138
Eggleston v. Eggleston et al. . . 24
Ellison ads. Wittmer 301
Eureka Coal Co. v. Braidwood
et al 625
Evans et al. ads. Morgan et al. . 586
Ewing v. Chicago and Alton R.
R.Co. 25
Farmer v. Farmer 32
Admr., ads. Ruflin,
Admx 615
Fentz v. Meadows 540
Filkins v. Byrne 101
First National Bank of Centra-
lia <o. Strang et al 559
Flagg et al. ads. Stowe 397
Fleming ads. King 21
Fosselman ads. Coffey 69
Frazier et al. ads. Stokes et al . 428
Gsebe, Admr., ads. Garvin 447
Garvin v. Gsebe, Admr 447
Garnhart v. Rentchler et al 535
Geier ads. Hund 393
Gillen ads. Village of Coulter-
ville 599
Gilmore et al. ads. Martin 193
Goddard, Admx., ads. 111. Cent.
R. R. Co 567
Graham ads. Sherfy 158
Grand Tower Manufacturing
and Trans. Co. v. Hawkins.. . 386
Gray ads. The People 343
Gridley «. Capen et al 11
Grimshaw v. Scoggan 103
Grout et al. ads. Prout et al 456
Groves et al. v. Maghee et al. . . 526
et al. v. Webber 606
TABLE OF CASES REPORTED.
VII
H
PAGE.
Hackethal ads. Indianapolis and
St. Louis R. R. Co 612
Hagebusch et al. ads.. Brock-
schmidt 562
Hall ads. Illinois Cent. R. R.
Co 222
et al. ads. Shannon et al. 354
Hamilton Primary School ads.
Terry et al 476
Hammer ads. Illinois Central
R. R.Co 1 347
Hart ads. Allen et al 104
Hartford Fire Insurance Co.
ads. City of Alton 328
Hartman ads. Meyer , ... 442
Harts, The People ex rel. v. Lip-
pincott, Auditor 578
Hawkins ads. Grand Tower
Manufacturing and Trans. Co 386
Hedges et al. v. Mace et al 472
Herrick et al. v. Swartwout... 340
Hewett v. Johnson 513
Hewitt v. Jones 218
Hicks v. Russell 230
Higgins ads. Wiggins Ferry
Co 517
Hillmer ads. Rockford, Rock
Island and St. L. R. R. Co. . . 235
Hoehn ads. Luton 81
Holbrook ads. Cairo and St. L.
R. R. Co 419
Hopkins et al. v. Roseclare Lead
Co 373
Houck, Admr., ads. 111. Cent.
R. R. Co 285
Howard v. Bennett et al 297
Howe et al. ads. Keedy 133
Howett ads. McArthur 358
Hughes v. Washington et al. . . 84
Hund v. Geier 393
Hungate et al. v. Reynolds 425
Hurd ads. Wickersham 464
I
PAGE.
Illinois Cent. R. R. Co v. Bull. 537
v. Cobb, Blaisdell & Co. 148
v. Goddard, Admx 567
v. Hall 222
v. Hammer 347
v. Houck, Admr 285
v. Irvin 452
v. Keen, Admx 512
Indianapolis, Bloomington and
Western Ry. Co. v. Murray et
al 128
Indianapolis and St. L. R. R.
Co. v. Hackethal 612
Irish ads. Rockford, Rock
Island and St. L. R. R. Co. . . 404
Irvin ads. Illinois Central R R
Co 452
J
Jackson ex rel v. Norris et al. . 364
James ads. Deming et al 78
Johnson ads. Hewett 513
v Johnson 489
Admx , ads. Sebastian. . . 282
v. Visnuskki 591
Joiner ads. Cairo and Vin-
cennes R. R. Co 520
Jones ads. Chambers etal 275
ads. Hewitt 218
v. Neely 449
K
Keedy v. Howe et al 133
Keen, Admx , ads. Illinois Cen-
tral R R Co 512
Keiser v. Topping et al 226
Kentucky Baptist Education
Society v. Carter 247
Ketchum et al. ads. The People. 212
King v. Fleming 21
Kinmundy, City of, v. Mahan
etal 462
Kizer et al. ads. North 172
VIII
TABLE OF CASES REPORTED.
PAGE.
Latham et al. v. Roach 179
Lewis v. City National Bank of
Cairo 543
Lickiss et al. ads. Chester and
Taniaroa Coal and R. R. Co. 521
Lill v. Stookey 495
Lippincott, Auditor, ads. The
The People ex rel. Harts 578
Lisenby et al. ads. Melvin et al. 63
Loornis et al. v. Stave 623
Louisville, New Albany and St.
Louis Ry. Co. ads. Smith
Bridge Co 506
Love et al. ads. Riggin et al.... 553
Lowman v. Aubery et al 619
Lurton et al. ads. St L., Jack-
sonville and Chicago R R.
Co 118
Luton v. Hoehn 81
Lynch ads. Songer 498
M
Mace et al. ads. Hedges et al. . . 472
Mngheeetal. ads Groves et al. 526
Mahan et al. ads. City of Kin-
mundy 462
Marshall ads. Carter 609
Martin v. Gilmore et al 193
Mathes et al. v. Dobschuetz 438
Matthews et al. v. Storms et al. 316
Maxcy et al. v. Williamson
County et al 207
Maxfield ads. Toledo, Wabash
and Western Ry Co 95
McArthur v. Howett 358
McCart v. Wakefield, Admr., et
al 101
McFarland v. The People 368
McGanahan v. East St L. and
Carondelet Ry. Co 557
McG-innis ads. Varnell 445
McG-owan, The People ex rel.
ads. Brackett c 593
McKinney ads. Craig 305
McLaurie v. Barnes et al 73
PAGE.
Meadows ads. Fentz 540
Meints ads. U. S Express Co.. 293
Melvin et al. v. Lisenby et al... 63
Meyer v. Hartman 442
v. Temme 574
Meyers v. Phillips 460
Millerads. Chicago and North-
western Ry Co 144
ads. Wilson 616
Millison ads. Allin et al 201
Miushall ads. Heirs of Wright. 584
Mitchell v. Robinson 382
v. Shook 492
Mix v. The People ex rel. Pier-
pont 241
Mock, Admx., ads. Chicago and
Alton R. R. Co 141
Morgan etal. v. Evans et al 586
ads. T , W. and W. Ry
Co 155
Murray et al. ads. I., B. and W.
Ry.Co 128
N
Neely ads. Jones . . . . 449
v. Wright 292
Nelson ads. American Board of
Foreign Missions 564
Newton et al. v. The People. . . 507
Ncetling v. Wright 390
Noleman v. Weil 502
Norris et al. ads. Jackson ex rel. 364
North v. Campbell et a, 380
v. Kizer et al 172
Ohio and Mississippi Ry. Co.
ads. Wiggins Ferry Co 360
Outhouse v. Allen 529
Padfield v. Padfield et al 322
v Pierce 500
Parisher et al. v. Waldo etal.. 71
TABLE OF CASES REPORTED.
PAGE.
Peers v. Board of Education,
etc 508
People ex rel. McGowan ads.
Brackett 593
ex rel. City of Bloorning-
ton ads. C. and A. R. R. Co. . 82
ads. Coates 303
v Gray 343
v. Ketchum et al 212
ex rel. Harts v. Lippin-
cott, Auditor 578,
ads. McFarland 368
ex rel. Pierpont ads. Mix 241
ads. Newton et al 507
ads. Raflerty 37
ads. Reitz 435
ads. Rietzell 416
ads. Shepherd 480
ads. Wilhelm 468
v. Woodside 407
v. Young 411
Phelps v. Phelps 545
Phillips ads. Meyers 460
Pickett ads. Davis 483
Pierce ads. Padfield 500
Pierpont, The People ex rel. ads.
Mix 241
Prout et al. v. Grout et al 456
Q
Quincy, Alton and St. Louis R.
R Co. v. Wellhoener 60
Quitzow ads. St. John 334
R
Rafferty «. The People 37
Ramsey et al. ads. Bond et al.. 550
Reitz v. The People.... 435
Rentchler etal ads. Garnhart. . 535
Reynolds ads. Hungate et al.. . 425
ads. Toledo, Wabash and
Western Ry. Co 487
Rietzell v. The People 416
Riggin et al. v. Love et al 553
Roach ads Latham et al 179 i
PAGE.
Roan v. Rohrer 582
Robinson ads. Mitchell 382
Rockford, Rock Island and St.
L. R. R Co. v. Beckemeier.. 267
— — ads. Chicago and Alton
R. R Co 34
v. Hillmer 235
v. Irish 404
v. Rose. 183
Rohrer ads. Roan 582
Rose ads. Rockford, R. I. and
St. L R. R. Co 183
Roseclare Lead Co. ads. Hop-
kins et al 373
Rountree ads. Wilson et al 570
Ruffin, Admx., v. Farmer,
Admr 615
Russell ads. Hicks 230
s
Scoggan ads. Grimshaw 103
Sebastian v. Johnson, Admx. . . 282
Shannon et al. v. Hall et al. . . 354
Shephard v. Calhoun 337
Shepherd v. The People 480
Sherfy v. Graham 158
Shook ads. Mitchell 492
Smith et al. ads. Allen 331
Smith Bridge Co. v. Louisville,
N. A and St. L. Ry. Co 506
Snell et al. v. Cottingham et
al 161,124
Songer v. Lynch 498
Springfield and 111. S. E. Ry.
Co v. Cold Spring Township. 603
Starkweather et al. v. Ameri-
can Bible Society 50
Stave ads. Loomis et al 623
St. John v. Quitzow 334
St. Louis, Jacksonville and Chi-
cago R. R. Co. v. Lurton 118
St. Louis and S. E. R}^. Co. v.
v. Britz. 256
v. Casner 384
v. Dorman 504
v. Wheelis 538
TABLE OF CASES REPORTED.
PAGE.
St. Louis, Vandalia and T. H.
R. R. Co. v. Capps 188
Stokes et al. v. Frazier et al 428
Stookey ads. Lill 495
Storms et al. ads. Matthews et al. 316
Stowe v. Flagg et al 397
Strang et al. ads. First National
Bank of Centralia 559
Swartwout ads. Herrick et al... 340
T
Temme ads. Meyer 574
Terry et al. v. Hamilton Pri-
mary School 476
Toledo, Wabash and Western
By Co. v. Eddy . . . . : 138
o.Maxfield 95
v. Morgan 155
v. Reynolds 487
.Topping ads. Keiser 226
u
United States Express Co. v.
Meints 293
United States Savings Institu-
tion v. Brockschmidt etal... 370
V
Varnell v. McG-innis 445
Visnuskki ads. Johnson 591
w
Wakefield, Admr., et al. ads.
McCart 101
PAGE.
Waldo et al. ads. Parisher et al . 71
Warren v. Daniels 272
Washington et al. ads. Hughes. 84
Webber ads. Groves et al 606
Weil ads. Noleman 502
Wellhoener ads. Quincy, Alton
and St. Louis R. R. Co 60
Wescott v. Wicks et al 524
Western Screw and Manufac-
turing Co. v. Cousley 531
Wheelis ads. St. L. and S. E.
Ry. Co 538
Wickersham v. Hurd 464
Wicks et al. ads. Wescott 524
Wiggins Ferry Co ads. Hig-
gins 517
v. Ohio and Mississippi
Ry.Co 360
Wilhelm v. The People 468
Williamson Co. et al. ads. Max-
cy et al 207
Willoughby ads. Dewey 250
Wilson v. Miller 616
et al. v. Rountree 570
Wisher ads. Davie 262
Wittmer v. Ellison 301
Woodside ads. The People 407
Wright ads. Neely 292
ads. Ncetling 390
— — heirs of, v. Minshall. . . . 584
Young ads. The People 411
CASES
IN THE
SUPREME COURT OE ILLINOIS.
CENTRAL GRAND DIVISION
JANUARY TERM, 1874.
ASAHEL GRIDLEY
V.
L. W. Capen et al.
1. Practice — setting aside a continuance when no objection is made, is
not error. The plaintiff took leave to amend his declaration, and there-
upon an order of continuance was entered. On the next day the order
of continuance was set aside, the defendant filed a demurrer, and also a
plea of the general issue, and the parties went to trial before the court with-
out a jury; no exception was taken to the order setting aside the contin-
uance : Held, there was no error.
2. Guarantor — extent of the liability. A guarantor of a promissory
note is one who engages that the note shall he paid, but is not an indorser
or surety, and he is regarded as an original promisor, and he is liable as
well for the payment of any damages stipulated for in the note as for the
amount of the note itself.
3. So, where a promissory note provided for the payment of twenty
per cent per annum, if not paid at maturity, as liquidated and agreed
damages, and the guaranty was, "for value received, we guarantee the
payment of the within note when due," it was held, that the guarantor
was liable for the stipulated damages as well as for the amount specified
in the note.
12 Gridley v. Capen et ah [Jan. T.
Opinion of the Court.
Writ of Error to the Circuit Court of McLean county; the
Hou.^Thomas F. Tipton, Judge, presiding.
Mr. O. T. Reeves, for the plaintiff in error.
Messrs. Williams, Burr & Capen, for the defendants in
error.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This is a writ of error to the circuit court of McLean
county, to review and reverse a judgment rendered in that
court in an action of debt brought by Lawrence W. Capen,
for the use of Flavius J. Biggs, and against Asahel Gridley.
The point made by plaintiff in error is, setting aside an
order of continuance granted the plaintiff on taking leave to
amend his declaration.
The record shows that, on the 12th day of September, this
order of continuance was made. On the next day, the order
was set aside, and defendant filed a demurrer, and also a plea
of the general issue, and the cause proceeded to trial and
judgment. It may be well to state that the plea filed was not
a plea to the action, but the parties went to trial on it before
the court, without a jury. It does not appear defendant took
any exception to the action of the court in setting aside the
continuance, but, voluntarily and without objection, put in
his pleas. Moreover, there does not appear to have been any
ground for objection. The parties were in court, and no in-
jury could have accrued. Besides, the action of the court
in the matter was largely discretionary.
The other point brings up the question of the extent of the
liability of the defendant, as guarantor of the note. The
note was payable six months after date, with this provision:
If not paid at maturity, to forfeit and pay twenty per cent
interest per annum till paid, as liquidated, agreed and assessed
damages thereon for said detention and non-payment.
1874.] Gridley v. Capen et al. 13
Opinion of the Court.
On the back of the note was written : " For value received,
we guarantee the payment of the within note, when due," etc.
Appellant insists his guaranty extended only to the pay-
ment of the note at maturity; that his contract is, by its
terms, expressly limited to the amount of the note, and that
it can not be extended, by implication, beyond the terms used.
He insists his undertaking was special.
The definition of a guaranty, by text-writers, is, an under-
taking by one person that another shall perform his contract
or fulfil his obligation, or that, if he does not, the guarantor
will do it for him. A guarantor of a bill or note is said to
be one who engages that the note shall be paid, but is not an
indorser or surety. 2 Pars, on Bills and Notes, 117. If this
be so, then he must be regarded as an original promisor, and
this, we believe, is the doctrine of adjudged cases.
The presumption in this case is, as there is no date to the
indorsement, it was made at the date of the note and simul-
taneous therewith. In such case the indorser is regarded as
an original promisor, and bound to discharge the obligation.
Carroll v. Weld, 13 111. 682.
The only question, then, is, what was the obligation? The
answer is, to pay the note. Now, the damages therein stipu-
lated are as much a part of the note as the sum stipulated to
be paid. The contract on the part of the guarantor is, that
the note shall be paid when due, according to its tenor. The
guarantor is, therefore, liable as well for the stipulated dam-
ages as for the principal sum. He would certainly be liable
for the interest which would be given on suit brought, by way
of damages; then, why not for stipulated damages?
We see no force in the objection to this judgment, and it
must be affirmed.
Judgment affirmed.
14 Carpenter et al. v. Davis et ah [Jan. T.
Syllabus.
Alva Carpenter et al.
v.
Harriet Davis et al.
1. Trust — express trust created by verbal agreement to buy land for the
use of another. Where a husband agreed, with his wife, that if she would
sell land devised to her by a former husband he would invest the pro-
ceeds in other land, and have it conveyed to her for the use of her child-
ren by her first husband, and she accordingly sold her land, and her
husband used the money in payment for land bought by him and con*
vej-ed to him, it was held, that there was an express trust created in favor
of the wife's children by her former husband in the land thus purchased,
which could only be avoided by invoking the Statute of Frauds, because
it was not declared in writing.
2. s Same — binding, although verbal, unless the Statute of Frauds is set up.
A defendant is always regarded as waiving the Statute of Frauds, unless
he, in some manner, relies on it in his pleading; and on a bill to have a
trust declared and enforced, where it appears that the trust was created
by verbal agreement, if the defendant fails to set up the statute, he can
only contest the fact that the trust was created by verbal agreement, as
charged.
3. Same — silence of wife not evidence of assent to violation of trust by her
husband. Where a wife sold her separate land upon the agreement of her
husband to invest the proceeds in other land in her name, and the hus-
band takes the deed to the other land purchased in his own name, and
gives the deed to his wife, her silence will not be regarded as an implied
assent to the deed being taken to her husband instead of to herself.
4. Same— purchaser of trust property. A purchaser of trust property,
even if he purchases it without notice of the trust and in good faith, can
not hold it as against the cestui que trust, unless he has paid the purchase
money or his notes have been negotiated.
5. Same — rents and profits of trust property chargeable to the trustee.
Where a husband and wife convey the land of the wife, and the husband
agrees to invest the proceeds in land for the use of the children of the
wife by a former husband, the husband has no curtesy in the land thus
purchased, and if, in violation of his agreement, he takes the title to him-
self, a court of equity will enforce the trust in favor of his step-children,
and will require him to account for rents and profits, even during the
lifetime of the wife.
6. Costs. In chancery causes the question of costs is in the discretion
of the court.
1874.] Carpenter et al. v. Davis et al. 15
Statement of the case.
Writ of Error to the Circuit Court of Tazewell county ;
the Hon. Charles Turner, Judge, presiding.
Messrs. Harper & Cassell, and Mr. S. D. Puterbaugh,
for the plaintiffs in error.
Messrs. Stevenson & Ewing, for the defendants in error.
Mr. Justice Walker delivered the opinion of the Court:
This was a bill, filed by the guardian of defendants in error,
to have a trust declared and enforced, in their favor, for
eighty acres of land. It appears that their mother, Diana
Carpenter, had been previously married to one James M.
Davis, their father; that prior to his death he made his will,
by which he devised to their mother forty acres of land, to
hold in fee, as also ten acres in another tract. Mrs. Davis
subsequently intermarried with plaintiff in error, Alva Car-
penter. As the fruits of the first marriage, three children
were born. Alva and his wife sold the forty acre tract de-
vised to her by her former husband for $1500, and a little
more than two months afterwards he purchased of one Miller
the eighty acre tract in controversy, for the sum of $2600.
And it is claimed that the forty acre tract was sold with the
express agreement between Alva and his wife, that the pro-
ceeds thereof should be used in purchasing other lands in her
name, for the use of her children by her first husband. When
he received the deed from Miller for the eighty acre tract, it
was made to him and not to his wife. When the purchase
money was collected for the forty acre tract, it, as Alva him-
self states, was placed in a pocket book where the common
fund of the family was kept, and the custody of which was
entrusted to his wife. She, subsequently, died, and Bowen
was appointed the guardian of defendants in error, and after-
wards brought this suit to recover the land for his wards. It
also appeared that Mrs. Carpenter received from the estate
of Davis $763.77, as her dower, etc., in his estate.
16 Carpenter et al. v. Davis et al [Jan. T.
Opinion of the Court.
On the hearing in the court below, on the bill, answers,
replication and proofs, the court granted the relief sought,
from which this writ of error is prosecuted.
After a careful examination of the evidence, we can see no
reason for doubting that Alva Carpenter did agree, with his
wife, that if she would sell the forty acre tract of land devised
to her by her former husband, he would purchase other lands,
in her name, to be held by her for defendants in error ; that
he repeatedly said to different persons, he had purchased this
land with the proceeds of the sale of the forty acres ; that he
took the deed in his own name, instead of that of his wife, to
prevent defendants in error from getting any interest in the
land. These facts are proved by witnesses who stand unim-
peached, and their evidence is clear as to the agreement, or
by his admissions that the purchase was so made. We regard
the evidence establishing these propositions as being clear and
convincing. They are sworn to, in part, by his brother, his
sister, and his brother-in-law, besides various other persons.
Opposed to this array of disinterested testimony is his un-
supported denial and contradiction of their statements. The
evidence of these witnesses is consistent with the case and
with each other. Even his brother, Reuben, the purchaser
of this and Alva's other property, admitted to several differ-
ent witnesses that the latter had informed him, defendants in
error had a claim of $1500 on the land, and this information,
we think the evidence shows, was communicated before he
purchased. All the evidence tends to establish, almost with-
out doubt, that he made the purchase of this eighty acres in
pursuance to an express agreement with his wife, that the
forty acre tract should be sold, and the proceeds put into this
or other lands, and that they were placed in this in pursuance
to that agreement, and it was understood and intended as a
trust fund for defendants in error.
It is true, plaintiffs in error contend that all of this evi-
dence was given by persons with whom Alva was at variance.
If that were admitted, it would not be ground for rejecting
1874.] Carpenter et al. v. Davis et al. 17
Opinion of the Court.
their testimony. It can not, in the nature of things, be at
all probable that eight or ten persons, a portion of them his
brother, sister and brother-in-law, would all wilfully perjure
themselves, simply because they had ill feelings towards Alva
Carpenter. Whilst individuals may be found, occasionally,
to so act, we can not presume large numbers of persons will
all do so, without an exception. Our experience has not
taught us that people are liable to generally so act. It is, no
doubt, a ground for scrutinizing evidence closely, and to con-
sider carefully all the surrounding circumstances appearing
in evidence, to see if they harmonize with their evidence ;
but when we have done so in this case, we do not find it im-
paired by the circumstances attending the case.
The trust being established, shall it be enforced in equity?
It is contended that this is not a resulting or implied trust,
as the very money received from the sale of the forty acre
tract was not paid for it. This is, no doubt, true of a result-
ing trust, but this is an express trust, and as such it could
only be avoided by invoking the Statute of Frauds, because
it was not declared in writing; but in this case that statute
has not been set up by plea, answer, or in any other mode, in
the pleadings. Plaintiffs in error having failed to so urge
the defense of the statute, the parol trust may well be estab-
lished and enforced. In fact, in such a case the court has no
discretion to refuse to carry it into effect as it is proved. A
defendant is always regarded as waiving the defense of the
statute, unless he shall rely on it in some manner in his plead-
ings. Plaintiffs in error having failed to do so in this case,
they can only contest the fact that it was declared by the
verbal agreement.
In this case, it is eminently just, and appeals strongly to
equitable principles, that the agreement should be executed.
Alva had no equitable claim to the property. It had belonged
to the former husband of his wife, and had she died it would
have descended to her children by both husbands, in equal
parts. When the wife agreed that her land might be sold
2— 72d III.
18 Carpenter et al. v. Davis et al. [Jan. T.
Opinion of the Court.
and invested in this or some other land, the purchase was
made in pursuance of an agreement based on an ample con-
sideration, as the wife furnished the money for the purpose.
He did not invest his own money in the portion decreed to
defendants in error. If he advanced anything individually,
it was refunded when he collected his wife's money on the
sale of the forty acre tract. He has lost nothing, is liable for
nothing, and does not have the shadow of an equitable claim
to the interest of the defendants in error to this land, and it
would be inequitable and unjust to permit him to hold it.
The mere fact that he was the step-father of these children
gave him no such claim, and it is the duty of the courts to
prevent advantage being taken of the relation to convert the
property of the step-children, and appropriate it to the use
of the step-parent.
It is urged that Alva swore that he at once placed the deed
from Miller for this tract of land in the hands of his wife, and
that she made no objections to the fact that the land was con-
veyed to him and not to her. Even if this were conceded to
be true, from the evidence, we should hardly expect that she
would have remonstrated, nor can we infer an implied assent
from a wife by such silence. It might be, in many cases,
prudence would dictate silence, and a want of it would be
cause of discord and want of harmony between the husband
and wife. It should not be required of her that she at once
protest vigorously, and demand that the deed be rectified, and,
on the husband failing to do so, bring a suit in equity. If
such prompt and vigorous action were required in such cases,
we fear that they would generally result in breaking up the
family, or at least in destroying its harmony. The relation
is not adapted to such altercations, and they should not be
required to protect such rights.
It is urged that the evidence fails to show that Alva made
a fraudulent conveyance, to avoid the claim of defendants in
error. We think the evidence shows that the sale was only
colorable ; but if it were not, there is no pretense that the
1874.] Carpenter et al. v. Davis et aL 19
Opinion of the Court.
purchase money was paid by Reuben, and having received
the trust property he can not hold it, even if he purchased in
good faith and without notice, unless he has paid the purchase
money or his notes have been negotiated, neither of which
has been shown in this case. It was a fraud, on the part of
Alva, to convey this trust property, and the court will always,
in such cases, arrest the fraud, unless the purchase money has
been paid by an innocent purchaser, or he is so situated that
the loss must wrongfully fall on him. But such is not shown
to have been the case here. The evidence shows that a note
was given for this large sum, and only credited by what is
claimed to have been due from Alva to Reuben, amounting
to from $500 to $700. There was no error, then, in setting
aside the conveyance, so far as this trust property is involved,
and decreeing it unto defendants in error.
It is urged that Alva had an estate by the curtesy in the
land, and was, therefore, not liable to account for rents and
profits received during his life. Having married his wife in
1859, before the passage of what is known as the "Married
Woman's Law/' of 1861, he acquired the right to receive the
rents and profits during their joint lives, and when living
issue was born of the marriage, he became invested with an
estate by curtesy initiate, depending for its consummation on
his surviving his wife and their not selling the property. It
then follows, that he was not accountable for the rents and
profits of the forty acre tract before it was sold ; but when he
and his wife conveyed the forty acre tract, he thereby extin-
guished all of his claim to curtesy in the premises, and he
could have none in the money, nor did it revive or attach to
the eighty acre tract purchased subsequently to the passage
of that law with the wife's money. For this reason he agreed
that the property, when purchased, should be conveyed to
and held by his wife, in trust, for the benefit of the Davis
heirs.
It is urged that the court allowed too large a sum for rents
and profits. If it be conceded that Alva made improvements
20 Carpenter et al. v. Davis et al. [Jan. T.
Opinion of the Court.
and paid taxes to the extent of $750, which is the sum proved,
and he were allowed interest on the share found to belong to
defendants in error, being within a fraction of one-fourth of
the tract, and they should be allowed $4 per acre, annually,
from 1864 until the trial, and interest be allowed them on
each year's rent, it will be found to approximate very closely
to the amount allowed by the court. If it varies from that
amount, it is, perhaps, more than was allowed.
But it is said that rents should not be allowed against
Alva during the lifetime of his wife. If the property had
been her own, then the proposition might be true, unless she
insisted upon receiving them and controling them as her own;
but it must be borne in mind that, by agreement between him
and his wife, the property became a trust fund, and the ces-
tuis que trust were entitled to the rents and profits. Their
mother had no power to appropriate them, or to permit others
to misapply them, so as to prevent the cestuis que trust from
recovering them. Alva knew the rents arose from trust
property, and should have known that he was misapplying
their portion of the rents and profits, and he must account for
them.
As to the question of costs in chancery causes, as the stat-
ute declares and we have repeatedly held, they are in the
discretion of the court, and in the decreeing o'f costs there was
no error.
Perceiving no error in the record for which the decree
should be reversed, it is affirmed.
Decree affirmed.
1874.] King v. Fleming. 21
Opinion of the Court.
James W. King
v.
James M. Fleming.
1. Contracts — executed on Sunday. The execution of a promissory
note is not complete until it is delivered to the payee, or some one for
him, and it will not be void, though signed on Sunday, if delivered on
another day.
2. It is not sufficient, to avoid a contract, that it may have grown out
of a transaction on Sunday. It must have been finally closed on that
day to avoid it.
3. Same — executed on Sunday, valid if ratified afterwards. Although a
contract may be entirely closed on Sunday, yet, if ratified by the parties
upon a subsequent day when it is lawful to make contracts, it is valid.
4. Where a promissory note made by two, one of whom signed it on
Sunday, was, on a subsequent day, delivered by one of the makers to the
pa}ree, who was ignorant of the fact that it had been signed on Sunday, it
was held, that such delivery was a subsequent ratification of the note, and
made it valid.
5. A promissory note was signed by one of two makers, on Sunday,
in a State where the statute made a note executed on Sunday void. It
appeared that the note was written on another day and signed by one
maker on Sunday, and on Monday the other maker delivered it to the
payee, who had no knowledge of its having been signed on Sunday : Held,
that, in such case, the note was within the control of the makers until
delivered, the possession of one being the possession of both, and that
the delivery of the note on Monday was a ratification of it, and rendered
it valid.
Appeal from the Circuit Court of Vermilion county- the
Hon. James Steele, Judge, presiding.
Mr. E. S. Terry, for the appellant.
Mr. William H. Mallory, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This action was brought on a promissory note made in the
State of Indiana. The defense urged is, it was executed on
Sunday, and, by the laws of that State, it is made unlawful
22 King v. Fleming. [Jan. T.
Opinion of the Court.
to engage "in common labor" or "usual avocations, works
of charity or necessity, only, excepted." Hence it is insisted
the note is void.
The testimony shows the note was written sometime during
the week prior to the day it bears date. It was, in fact,
signed by appellant on Sunday, but not delivered to appellee
until Monday. There is no evidence as to when the other
maker signed his name. In the absence of proof, it will be
presumed it was done on a day when it was lawful to do secu-
lar labor. It is proven appellee had no knowledge, when he
received the note, it had been executed on Sunday by either
maker.
In Reynolds v. Stevenson, 4 Ind. 619, it was held, the making
of a promissory note on Sunday was "common labor," within
the meaning of the statute of that State which forbids the
transaction of all secular business on Sunday.
A replevin bond executed on Sunday was declared to be
void, its execution being in violation of the statute which
forbids "common labor" on that day. Lush v. Clemmens, 7
Blackf. 479.
In a later decision of that court, it was declared a sale of
goods made on Sunday was void, as being against the statute,
yet it was held, the parties, by subsequently acting upon the
contract as a valid and subsisting agreement, might ratify it,
on the principle that contracts made on Sunday form an ex-
ception to the general rule that void contracts are not sus-
ceptible of ratification. Banks v. Werts, 13 Ind. 2034; Adams
v. Gay, 19 Verm. 358.
In Love v. Wells, 25 111. 503, it was held, a deed, though
signed and acknowledged on Sunday, if delivered on another
day, is valid, whatever may be the effect on the acknowledg-
ment, for the reason it did not take effect as a deed until after
delivery.
The execution of a promissory note is not complete until
it is delivered to the payee, or some one for him. The de-
cisions seem to be, promissory notes will not be void, though
1874.] King v. Fleming. 23
Opinion of the Court.
signed on Sunday, if delivered on another day. The prin-
ciple is, such contracts are not tainted with any general ille-
gality, but are illegal only as to the time in which they are
entered into. It is not sufficient, to avoid them, that they
may have grown out of a transaction on Sunday. They must
be finally closed on that day.
The weight of authority seems to be, although such con-
tracts be entirely closed up on Sunday, yet, if ratified by the
parties upon a subsequent day, they are valid. Adams v. Gay,
supra; Commonwealth v. Kenedy, 2 Penn. St. 448; Qough v.
Davis, 9 N. H. 500; Hilton v. Houghton, 35 Maine, 143; Love-
joy v. Whipple, 18 Verm. 379.
In the case at bar, the note, though signed by one of the
makers on Sunday, was delivered to the payee on Monday,
the day it bears date. The payee was ignorant of the fact
the note had been signed on Sunday. The delivery was made
by one of the makers. This was a subsequent ratification,
and brings the case clearly within the principles of the cases
cited.
It is objected, appellant did not himself deliver the note;
that parol authority to deliver it upon another day is within
the statute, and therefore void.
The case, in our judgment, is not affected by the principle
insisted upon. In this instance, the note was delivered by
one of the makers, in pursuance of an arrangement previously
made, upon a day on which it was lawful to perform " com-
mon labor."
Although the note was signed by one of the makers on
Sunday, it was within their control until Monday, when it
was delivered to the payee. The possession of one of the
joint makers must be regarded as the possession of both.
No error appearing in the record, the judgment must be
affirmed.
Judgment affirmed.
24 Eggleston v. Eggleston et al. [Jan. T.
Opinion of the Court.
Betsey Eggleston
William Eggleston et al.
Homestead — widow not entitled to as against children and heirs. The
widow of one who died prior to the time when the acts of 1872 and 1873,
exempting the homestead from the laws of descent and devise, went into
effect, is not entitled to the right of a homestead in addition to a right of
dower, as against the children and heirs.
Appeal from the Circuit Court of Stark county; the Hon.
Joseph W. Cochran, Judge, presiding.
Mr. Miles A. Fuller, for the appellant.
Messrs. Henderson & Trimble, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court:
This was a bill for partition, and the assignment of dower
in certain real estate, of which John T. Eggleston died seized
in 1871, brought by a portion of his children and heirs against
his minor children and widow.
The question presented by the record is, whether, as against
children and heirs, the widow is entitled to the right of a
homestead in addition to a right of dower. This was decided
by this court in the negative, in Turner v. Bennett, 70 111. 263.
The cases are essentially alike, except that the present
suit was commenced after the time when the acts of 1872 and
1873, exempting the homestead from the laws of descent and
devise, went into effect. But John T. Eggleston, the husband
and father of these parties, died December 7, 1871, before
the passage of those acts, and the rights of the parties to this
suit were fixed at the time of his death, and must be adjudged
irrespective of those subsequent acts. The decision in the
former case governs the present.
The decree is affirmed.
Decree affirmed.
1874.] Ewing v. C. & A. K. E. Co. 25
Syllabus.
Christopher Ewing
v.
The Chicago and Alton Railroad Company.
1. Negligence in railroads— failure to fence — what is a village. A rail-
road company is not required to fence its track within the limits of a
village, but when an animal is killed near a village by a train of cars of
the company, the presumption is, that the houses compose the village,
and if the place where the animal is killed is beyond them, it is beyond
the village, and if the town extends beyond the houses, the railroad com-
pany must prove it in order to relieve itself of the necessity of fencing its
road at such point.
2. "Where a railroad company fails to fence its track, as required by
law, it is sufficient, to fix its liability, if the plaintiff's stock, in conse-
quence thereof, and without any contributory negligence on his part,
goes upon the track of the railroad, and is there killed or injured by the
company's locomotive or train.
3. The fact that the owner of stock permits it to run at large, in viola-
tion of the act prohibiting domestic animals from running at large, does
not relieve railroad companies from their duty to fence their roads, or
their liability for stock injured in consequence of their failure to do so.
4. Same — contributory negligence — permitting cattle to run at large con-
trary to law. In a suit against a railroad company for stock killed
or injured in consequence of the neglect of the company to fence its
road, where it appears that such stock was permitted to run at large
in violation of law, the question whether the owner of the stock has
been' guilty of contributory negligence in permitting them to run at
large is one of fact, to be determined by the jury from the circumstances
of the case.
5. It is not sufficient, to charge a plaintiff with contributory negli-
gence, in a suit against a railroad for injury to stock, to show simply that
the owner permitted the stock to run at large in violation of law; but it
must appear that he did so under such circumstances that the natural
and probable consequence of so doing was, that the stock would go upon
the railroad track and be injured.
Appeal from the Circuit Court of Logan county; the Hon.
Lyman Lacey, Judge, presiding.
Messrs. Parks & Allen, for the appellant.
Messrs. Williams, Burr & Capen, for the appellee.
26 Ewing v. C. & A. E. E. Co. [Jan. T.
Opinion of the Court.
Mr. Justice Scholfield delivered the opinion of the
Court :
This appeal is prosecuted by the plaintiff in the cpurt
below to reverse a judgment rendered against him for costs,
in an action on the case brought by him for the value of a
cow alleged to have been killed by the negligence of the
defendant.
It is shown, by the evidence, that the cow was killed by a
locomotive drawing a train of cars on the defendant's road,
about 3 o'clock in the morning of the 16th of December,
1872, in the immediate vicinity of Lawndale, in Logan county.
The road at this point runs north and south, or at least approxi-
mately so, and Lawndale is composed of a few houses, ranging
in the same direction, and has a^ population of about 200 per-
sons. The train by which the cow was killed was passing
south at a high rate of speed, and she was struck some little
distance north of the section-house, and carried to within a
short distance of that point, when she was thrown from the
track, as is to be inferred from the subsequent appearance of
the track, and broken pieces of the head-light and cow-
catcher attached to the locomotive, found on the track, as
described by the witnesses. There is some controversy whether
the place where the cow was killed is within the limits of a
village, it being conceded that the defendant had not erected
and maintained suitable fences on the sides of its road, to
prevent the encroachments of cattle at that point.
That Lawndale is a village, within the limits of which the
defendant is not bound to fence its road, is sufficiently ap-
parent from the evidence, on the authority of Illinois Central
Railroad Co. v. Williams, 27 111. 48; but in Ohio and Missis-
sippi By. Co. v. Irvin, id. 178, it was held, "the presumption is,
that the houses compose the village, and if the place where
the cow was killed was beyond them, it was beyond the vil-
lage. If the town extended beyond the houses, the defendant
should have shown it." The evidence here is clear and
1874.] Ewing v. C. & A. R. R. Co. 27
Opinion of the Court.
uncontradicted that there are no houses or streets as far north
as the section-house, and there is no evidence that the adja-
cent territory is a part of the village, by user or otherwise.
We are, therefore, of opinion that the place at which the cow
was killed was beyond the limits of the village, and that it
was defendant's duty to have erected and maintained fences
there, as required by the statute.
Among other instructions which the court gave to the jury,
at the instance of the defendant, are the following :
"The court instructs the jury, on behalf of the defendant,
that, although the jury may believe, from the evidence, that
the engine of the defendant struck and killed the cow of the
plaintiff, yet the jury will find the defendant not guilty, if
they believe, from the evidence, that the carelessness and
negligence of the plaintiff was the chief cause of the death
of said cow."
"The court instructs the jury, on behalf of the defendant,
that it is negligence for a person to allow his cow to run at
large contrary to law."
The act of February 14, 1855, relating to the duties and
liabilities of railroad companies (Laws of 1855, p. 173, sec. 1),
declares, in express terms, that railroad companies failing to
erect and maintain fences, as therein required, shall be liable
for all damages which shall be done by the agents or engines
of such companies to any cattle, etc., upon its road; and it
has uniformly been held by this court, in the absence of evi-
dence of contributory negligence on the part of the plaintiff,
that it is sufficient, to fix the liability of the defendant rail-
road company, to prove its failure to erect and maintain the
necessary fences; that plaintiff's animals, in consequence,
went upon its road, and that they were killed or injured by
the defendant's locomotive or train. The defendant, however,
conceding that this was the law, in order to evade its applica-
tion to the present case, shows, by stipulation between the par-
ties, that the act in force October 1, 1872, prohibiting domestic
28 Ewing v, C. & A. E. R. Co. [Jan. T.
Opinion of the Court.
animals from running at large, was continued in force in
Logan county by a vote of a majority of the legal voters of
that county, at the regular election in November, 1872, and
insists that the plaintiff, by permitting his cow to run at large
in violation of the provisions of that act, was guilty of such
negligence as precludes him from recovering, notwithstand-
ing the negligence of the defendant in failing to erect and
maintain fences. This can only be true upon the hypothesis
that the act in force October 1, 1872, shall be held to repeal
or nullify the act of 14th of February, 1855, for, if both acts
be conceded to be in force, it must necessarily follow that the
defendant's liability, prima facie, will still follow from proof
of the same facts by which it was established prior to October
1, 1872, and the question of contributory negligence on the
part of the plaintiff must remain as it then was — a question
of fact for the jury, and not one of law for the court.
It was held in Ohio and Mississippi Railway Co. v. Jones,
63 111. 472 (and the same construction was inferentially
applied in Chicago and Northwestern Railway Co. v. Harris,
54 id. 528), that a local law prohibiting domestic animals
from running at large in St. Clair county did not repeal, by
implication, the act of 14th February, 1855. Although the
act in force October 1, 1872, is, by its terms, general, yet its
application being left to the decision of the voters in each
county, it is, in fact, a local law; so the cases cited are, in all
respects, analogous. The principle of construction, more-
over, correctly applied, as we think, in those cases, would be
equally applicable if the act in force October 1, 1872, were a
general law.
The act of February 14, 1855, is entitled "An act to regu-
late the duties and liabilities of railroad companies." It is
a most salutary police regulation, intended not merely to pro-
tect the owners of the domestic animals therein specified
from injury and loss, but to promote the safety of that very
large class of the public whose duty or inclination renders it
necessary for them to travel by rail, by preventing dangerous
1874.] Ewing v. C. & A. E. E. Co. 29
Opinion of the Court.
obstructions to the railway tracks, which would otherwise
frequently occur by these animals getting upon them. On
the other hand, the act in force October 1, 1872, is simply
entitled "An act to prohibit domestic animals from running
at large in this State;" and it neither directly repeals nor
makes any reference to the act of Feb. 14, 1855. Its effect
is to repeal the common law rule in reference to domestic
animals running at large, as it has been held by this court to
exist in this State, and enact the old English common law
rule in that respect; and the chief benefit anticipated to flow
from it, and which was, no doubt, the controlling motive that
induced its enactment, is the relief thereby afforded to
farmers from the burden and expense of fencing their tilla-
ble lands so as to protect their crops from depredation by
such animals. There is nothing, therefore, either in the
language of the act itself, or in the public necessities which
we may suppose induced its enactment, from which we feel
authorized to conclude it was intended to relieve railroad
companies from their then existing liabilities and duties in
regard to fencing their roads.
The question,then, is, are these instructions in harmony with
that law when applied to the evidence before us?
In St. Louis, Alton and Terre Haute Railroad Co. v. Todd,
36 111. 413, the action was for negligence in killing plaintiffs
horses, and the act of negligence charged was in failing to
erect and maintain necessary fences. The plaintiff had turned
his horses into a field to graze, one side of the field being
adjoining to defendant's road and no fence intervening. He
had left blind bridles on his horses, which, in some degree,
tended to prevent their seeing approaching danger as readily
as they otherwise would. The court said: "The company
being bound to fence their road, and having failed to perform
that duty, were consequently guilty of negligence. It appears
that defendant in error turned the horses into the field with
blind bridles on, which would seem an act of negligence.
The failure of the company to perform their duty did not
30 Ewing v. C. & A. K. E. Co. [Jan. T.
Opinion of the Court.
authorize other persons to place stock on their road, or to
place them so that they would necessarily or most likelv get
upon the track. Nor did it absolve other parties from using
ordinary care to prevent them from getting upon the road.
The owner, no doubt, had the right to turn his horses into
the field, but in so doing he should not have blinded them
so that they would be incapable of avoiding the danger. If
his so placing the horses in the field was greater negligence
than that of the company in not fencing, or if his. negligence
rendered it impossible, with the highest degree of diligence
which employees of the road could exercise, to prevent the
injury, then he would have no right to recover. But the
company being- in default by not fencing, and that being neg-
ligence, the negligence of the owner did not excuse them
from the use of every reasonable means within their power
to avoid the injury, and the failure of the company to employ
such means would be gross carelessness, amounting to wilful
injury."
In Chicago and Northwestern Railway Co. v. Hams, supra,
it was said: "But while it was a violation of law to permit
them (plaintiff's horses) to be at large, the company were vio-
lating another law in permitting the gate to remain open
which, if shut at the proper time, would have prevented the
horses from getting upon the track and receiving the injury.
It may be, appellee was liable to answer to whoever might
prosecute for his breach of the statute he had violated, but
that did not relieve appellants from their duty, under the
statute that required them to keep their fences in such a con-
dition as to prevent stock from getting upon their track.
Because appellee may have violated another law, the com-
pany were not at liberty to omit their duty, and thereby kill
appellee's horses."
Consistently, then, with these cases, we must hold that the
fact the plaintiff's cow was suffered to be at large in violation
of law, formed no justification or excuse for the defendant's
neglect to erect and maintain necessary fences, and that, being
1874.] Ewing v. C. & A. E. E. Co. 31
Opinion of the Court.
negligent in this respect, it was bound to the use of every
reasonable means within its power to avoid the infliction of
injury.
We may concede that the violation of the statute prevent-
ing domestic animals from running at large is evidence of
negligence when considered only as an abstract question, but
the negligence of the plaintiff, of which the defendant can
avail in a suit like the present, must be contributive — that is,
such that the natural and probable consequence of the negli-
gent act tended to produce the injury complained of — and its
effect in preventing a recovery must be determined by com-
parison with the negligence of the defendant. Thus, in St.
Louis, Alton and Terre Haute Railroad Co. v. Todd, supra, it
was said : "But the rule of this court is, that negligence is
relative, and that a plaintiff, although guilty of negligence
which may have contributed to the injury, may hold the de-
fendant liable if he has been guilty of a higher degree of
negligence, amounting to wilful injury."
Whether, therefore, the fact that plaintiff permitted his
cow to run at large, contrary to law, was contributive negli-
gence, depended upon whether he did so under such circum-
stances that the natural and probable consequence of his act
was that the cow should go upon the defendant's track, as she
did ; or whether her going there was the result of accidental
circumstances which could not reasonably have been foreseen
or anticipated. It is not sufficient to say that the act of per-
mitting her to run at large directly contributed to the act,
merely because if she had been kept within an inclosure she
could not have got upon the track, for the same logic would
prove the plaintiff guilty of contributive negligence by the
simple act of owning a cow. It is the proximate, and not
the remote cause that is to be considered. This, then, is
purely a question of fact, as is also the question of the com-
parative negligence of the plaintiff and defendant, to be de-
termined by the jury from all the evidence ; and the court,
in stating that permitting the cow to run at large, contrary
32 Farmer v. Farmer. [Jan. T.
Opinion of the Court.
to law, was negligence, clearly usurped the province of the
jury. It may or may not have been negligence, in the sense
in which alone the question was important in the determina-
tion of the case.
In so far as the instructions given are in conflict with the
views here expressed, they are erroneous, and should not have
been given.
The judgment is reversed and the cause remanded.
Judgment reversed.
James F. Fakmer
Eliza J. Farmer.
Practice — postponing case after commencement of trial. It is a matter
in the discretion of the court, to postpone a case after the trial has com-
menced, to enable a party to procure the attendance of a witness who
has not been subpoenaed, and it is not error for the court to refuse to do so.
Writ of Error to the Circuit Court of Morgan county;
the Hon. Cyrus Epler, Judge, presiding.
Mr. Oscar A. DeLeuw, and Mr. George W. Smith, for
the plaintiff in error.
Messrs. Epler & Gallon, for the defendant in error.
Mr. Justice Craig delivered the opinion of the Court:
This was an action of replevin, in the circuit court of Mor-
gan county, brought by Eliza J. Farmer against James F.
Farmer, to recover a horse.
A jury was waived, and the cause was tried by the court,
and the issue found for the plaintiff. The defendant brings
the case here, and insists upon a reversal of the judgment
on two grounds : First, because the judgment is contrary to
1874.] Farmer v. Farmer. 33
Opinion of the Court.
the evidence ; and second, for the reason the court refused to
postpone the cause until the defendant could send and get a
witness after the evidence was heard.
While the evidence is not as satisfactory in favor of the
plaintiff as we could desire, yet we do not think the judg-
ment is so manifestly against the weight of the testimony as
to justify a reversal upon that ground.
The plaintiff testifies that, in 1868, the defendant, her
father, agreed with her that, if she would remain at home for
one year, and wait upon her mother, who was then in feeble
health, he would give her a sucking colt which he then had,
to which she assented. A few months after this, the defend-
ant traded this colt and another for a sorrel horse. After-
wards, the defendant, with the consent of plaintiff, traded the
sorrel horse for a horse called "Wild Bill." He then told
plaintiff that this horse was not suitable for her, and he would
trade him for another, and he then traded this horse for the
one in controversy.
The plaintiff then proved, by five witnesses, that defendant
told them, on various occasions, that the horse in controversy
belonged to the plaintiff. The plaintiff also proved that, on
a certain occasion, the defendant was a witness, and testified
that this horse belonged to the plaintiff.
There was nothing to contradict all of this evidence, ex-
cept the oath of the defendant himself.
This court has repeatedly held that a judgment will not be
reversed on the ground that it is contrary to the evidence,
unless it is clearly against the weight of the evidence. Test-
ing this one by that rule, we must decline to disturb the
judgment.
Neither can we disturb the judgment on the other point
raised.
It appears that, after the plaintiff had introduced her evi-
dence, and the defendant had testified, he then asked the court
to postpone the cause until the next morning, until he could
get another witness that had not been subpoenaed, which the
3— 72d III.
34 C. & A. R. R. v. K., R. I. & St. L. R. R. [Jan. T.
Syllabus.
court refused. In this there was no error. It was purely a
matter of discretion with the court. Had the defendant de-
sired the witness, he should have had her subpoenaed, and then
used the process of the court to compel her attendance. This
he failed to do, and it was his own neglect that he was de-
prived of the evidence.
Perceiving no error in the record, the judgment will be
affirmed.
Judgment affirmed.
The Chicago and Alton Railroad Co.
V.
The Rockford, Rock Island and St. Louis R. R. Co.
1. Abstract — its requisites. The whole evidence, uncondensed, with
the questions and answers just as they were taken down by the reporter,
should not be given in that form in the abstract filed in this court.
2. Railroad .crossing — duty of drivers of trains at the crossing of two
railroads. If the driver of a railroad train who has the right to the road
at the crossing of another railroad knows, or has good reason to believe,
he will come in collision with a train not entitled to the crossing if he
attempts to exercise his right, prudence requires him not to attempt the
exercise of his right, and he might be criminally culpable for so doing.
Appeal from the Circuit Court of Scott county ; the
Hon. H. M. Vandeveer, Judge, presiding.
Mr. Chas. P. Wise, for the appellant.
Mr. N. M. Knapp, and Mr. James M. Riggs, for the ap-
pellee.
Mr. Chief Justice Breese delivered the opinion of the
Court:
This was an action on the case, for negligence, brought by
one railroad corporation against another, resulting in a ver-
dict for the plaintiff.
1874.] C. & A. E. K. v. E., E. I. & St. L. E. E. 35
Opinion of the Court.
The declaration alleged the negligence to consist in this :
That it was the duty of the defendant company to stop its
locomotive and cars within four hundred feet of the crossing,
in order to avoid collision with the engine and cars of plain-
tiff. The plaintiff corporation was the Eockford, Eock Island
and St. Louis Eailroad Company, whose line of road at the
town of Brighton, in the direction of St. Louis, ran about one
hundred feet distant from the line of defendants' road, the
Chicago and Alton railroad, when it crossed the last named
road north-east of Brighton station, and at an angle of about
30 degrees.
The plaintiffs aver that they were running a locomotive
and train of freight cars over this crossing with all due care
and caution, and that defendants were running a passenger
train, approaching the same crossing, and negligently and
recklessly refused to stop their train at a point not less than
four hundred feet from the crossing, and culpably and reck-
lessly ran into the locomotive and train of cars of the plaintiffs,
without stopping, as it was their duty to do.
The second count alleges the duty to stop at a reasonable
distance from the crossing, which defendants neglected to do.
Another count declared, generally, for carelessly and recklessly
running their engine and cars into the engine and cars of
plaintiffs.
The defense is, that plaintiffs were guilty of as much or
more negligence than the defendants, and, therefore, under
repeated rulings of this court, they are not entitled to recover.
The defendants were going north from St. Louis and plain-
tiffs south to St. Louis. The collision happened on a dark
evening, about half-past seven o'clock, of the fourth day of
April, 1872.
The only question pressed upon our attention is that of
negligence, appellants claiming the collision happened by rea-
son of the negligence and carelessness of the driver of appel-
lees' engine ; that his negligence was greatly in excess of that
of appellants, if they were guilty of any negligence.
36 C. & A. E. K. v. R., R. I. & St. L. R.E. [Jan. T.
Opinion of the Court.
All the testimony in the cause is directed to this point, and
it is given to ns in the record and abstract as it was taken
down by the reporter — not abstracted or condensed in the
least ; and to get at the facts, we have been obliged to read
a mass of questions and answers which should have no place,
in that form, in an abstract.
But we have carefully examined and weighed the wholg
of the testimony, and, on the question of right to the road, as
affecting the question of negligence, the great preponderance
of the evidence is in favor of the verdict. There is some
conflict, as there will always be in such cases. We can not,
and will not, attempt to reconcile it, nor is it our duty. We
think the evidence conclusively shows appellants' train was
suffered to proceed when the driver knew the way was not
clear.
We fail to see any negligence proved against appellees'
driver. He did all that was required of him, and when he
found a collision could not be avoided, he heroically stood at
his post, and by the management of his engine avoided a
much greater calamitv.
We think the weight of the evidence is, as to the rights of
trains at or approaching a crossing, that the train, be it
passenger or freight, which first reaches it, makes the required
stop within the required distance of the crossing, and from
such stop gets first in motion, has the right to the cross-
ing. But if, in the attempt to exercise such right, the
driver should know, or have good reason to believe, he will
come in collision with a train not entitled to the crossing,
prudence would require him not to attempt the exercise of
his right, and he might be criminally culpable for so doing.
No question of law is raised upon this record. The ques-
tion of negligence alone is presented, and that, we think, has
been properly settled by the verdict.
The judgment of the circuit court is affirmed, for want of
error in the record.
Judgment affirmed.
1874.] Bafferty v. The People. 37
Syllabus.
Christopher Rafferty
V.
The People of the State of Illinois.
1. Change of venue — matter of right, in a capital case. An applica-
tion for a change of venue by one indicted for murder, is not addressed
to the discretion of the court, but, upon a proper application being made,
the prisoner is entitled to it as a matter of right.
2. Criminal law — killing an officer tohen making illegal arrest, not mur-
der, but manslaughter, unless there be previous or express malice. If a pub-
lic officer be resisted and killed by a person whom he is attempting to
illegally arrest without color of authority of law, the killing will be man-
slaughter only, unless the evidence shows previous or express malice.
3. Same — warrant, when void. Where a justice of the peace signs a
number of blank warrants, and, in his absence, a police sergeant fills out
one of them and inserts the name of a person, as a defendant, such war-
rant is void, and will not afford even color of justification for the arrest
of such person.
4. If an officer be resisted and killed by one whom he is illegally
attempting to arrest, and it appears that the party who does the killing
was actuated by previous or express malice in so doing, such killing is
murder, notwithstanding the illegality of the attempted arrest.
5. Same — new trials in criminal cases — when granted. If, when the evi-
dence is all carefully considered and weighed, in a criminal case, it ap-
pears that it is wholly wanting in respect to some necessary element of
the crime, or if there is a conflict of evidence, and there is such a clear
preponderance against the verdict as to suspend the judicial mind in
serious doubt as to the guilt of the accused, then, in either case, a new
trial should be granted.
6. Where a conviction rests solely upon the evidence of an accomplice,
if the jury choose to believe him, the court could not reverse, where that
fact was the only one affecting his credibility, although it might believe
that faith should not be reposed in such a witness. But, where a verdict
rests solely upon the evidence of a single witness, and direct evidence of
impeachment is introduced to such an extent as to lead to the conclusion
that the jury were actuated by passion or prejudice in disregarding such
impeaching evidence, then the court ought to set the verdict aside, and
direct a new trial.
7. Express malice. Where a party procures a weapon for the express
purpose of resisting an arrest, whether legal or illegal, by a particular
officer or by one of a particular class of officers, and such officer attempts
38 Bafferty v. The People. [Jan- T.
Syllabus.
to arrest him, and, before any violence is done or offered to him, he kills
such officer with the weapon thus provided, the jury will be justified in
finding that he was actuated by previous or express malice, and the kill-
ing is murder, notwithstanding the attempted arrest was illegal.
8. Instructions— should not caution jury against giving credence to the
evidence of a designated witness. It is not proper for the court, in a crim-
inal case, to designate the evidence of a witness who is not an acknowl-
edged accomplice, and caution the jury against giving credence to it.
Casting the influence of the court against the testimony of a particular
witness, or the character of the evidence he gives, is not the usual way of
either affecting the credibility of witnesses or the weight of testimony.
9. Evidence — as to testimony of a witness on a former trial. Evidence
as to what a witness may have sworn to on a former trial, is only com-
petent for the purpose of affecting the credibility of such witness, and
can not be used to prove the facts previously sworn to.
10. Where the defense, on an indictment for murder, is, that, at the
time of the killing, the deceased was assisting an officer in illegally
arresting the defendant, the burden of proving that fact is on the defend-
ant, and evidence that the officer, on a former trial of the case, testified
that the deceased was so assisting him, is not competent to prove the
fact, but is only competent so far as it affects the credibility of the officer,
when, on another trial, he testifies that such was not the fact.
11. Practice—; judge communicating with the jury from his lodgings.
When the court adjourns, the judge carries no powers with him to his
lodgings, and he has no more authority over the jury than any other per-
son, and any direction to them, from him, either verbal or in writing, is
improper.
12. If the judge sends from his lodgings a message to the jury, of a
character to probably operate to the prejudice of the accused, the fact
that his counsel, in his absence, consented to it, would not, in a capital
case, cure the error. Yet, if by no possibility it could work an injury to
the prisoner, it ought not to vitiate the verdict.
Writ of Error to the Circuit Court of Lake county; the
Hon. T. D. Murphy, Judge, presiding.
Mr. E. A. Small, for the plaintiff in error.
Mr. Charles H. Reed, State's Attorney, for the People.
1874.] Kafferty v. The People. 39
Opinion of the Court.
Mr. Justice McAllister delivered the opinion of the
Court :
This case has been before us, upon writ of error, on two
former occasions. On the first, the conviction was reversed
upon the ground that the Criminal Court of Cook county
erred in denying the prisoner's application, upon a sufficient
petition, for a change of venue. This court held, in accord-
ance with the views of the profession and circuit judges all
over the State, as shown by the general course of practice,
that the application was not addressed to the discretion of
the court, but, upon a proper application being made, the
prisoner was entitled to it, as a matter of right. For depriv-
ing him of that right, the judgment of the court below was
reversed and the cause reriianded. Mafferty v. The People, 66
111. 118.
Upon the second trial, in the county to which the venue
was changed, evidence was given by Scanlan directly tending
to show that he and O'Meara, the deceased, at the time the
latter was shot, were attempting to arrest the prisoner upon a
warrant, not in the hands of O'Meara, but Scanlan. Where-
upon, the prisoner's counsel gave evidence showing, without
contradiction, that the pretended process upon which such
arrest was attempted, was a blank taken from a number which
the police magistrate had signed in blank, and which, on
August 4, 1872, had been filled out by a mere police sergeant,
in the absence of the magistrate, by inserting the prisoner's
name, but dated as of August 5, 1872.
When the evidence of the illegality of the process was
given, the court, on motion of the State's Attorney, excluded
it from the jury, to which the prisoner's counsel excepted.
This evidence having been excluded, the case was then sub-
mitted to the jury by the court below, upon the ordinary pre-
sumption of implied malice, and as if no such element as an
illegal arrest being attempted at the time of the homicide,
was in the case. The prisoner was convicted of murder, and
40 Rafferty v. The People. [Jan. T.
Opinion of the Court.
sentenced to suffer the penalty of death. An application was
made, upon a transcript of the record preserving the evidence
and rulings of the court, for the allowance of a writ of error
from this court, which was granted, and that brought the case
before us a second time. As the case then stood, not having
been submitted to the jury upon the question of express mal-
ice, and the evidence tending to show O'Meara's participation
in an attempted arrest, and the evidence excluded showing
that the supposed warrant on which the arrest was being made
did not afford even the color of justification, because it was not
issued in the course of justice at all, but fabricated by a mere
police sergeant, we could not pass upon the merits of the case,
because a portion of the evidence affecting the merits had
been excluded.
It is true, the fact of the homicide was established beyond
doubt, but every killing of a human being is not necessarily
murder. The character of the act depends upon the attend-
ing circumstances. The propriety of the ruling of the court
in excluding that evidence was therefore before us, and we
could not escape its decision.
We held, as we have no doubt, properly, and in accordance
with all the decisions in England and this country, that, if a
public officer be resisted and killed by a person whom he is
attempting to illegally arrest, without color of authority of
law, the killing will be manslaughter only, unless the evi-
dence shows previous or express malice. Rafferty v. The
People, 69 111. 111.
As we have before said, as the case was then presented,
there was evidence clearly tending to prove O'Meara's parti-
cipation, and the evidence excluded would have shown the
warrant utterly void, as we have stated ; then it followed,
upon principle and authority, that the exclusion of the evi-
dence was wrong, was prejudicial to the legal rights of the
prisoner. For, when it appeared that a question con Id be
properly raised as to the legality of the arrest which Scanlan
was undoubtedly attempting to make, and the evidence tended
1874.] Eafferty v. The People. 41
Opinion of the Court.
to show deceased was aiding him, the obvious and proper
course was, to let the excluded evidence go to the jury, and
they be required, by the directions of the court, to find whether
deceased was in fact participating in an attempted arrest by
Scanlan under the supposed warrant, if such were the facts ; and
then told that, if the prisoner resisted such illegal arrest, and
committed the homicide, it was manslaughter only; but if he
was actuated by previous or express malice, it would, never-
theless, be murder. This was the only proper course to have
been pursued by the court below, and the departure from it
was so plain a departure from established principles of crim-
inal jurisprudence, that we, as a court of last resort, could
not do otherwise than reverse the conviction and direct a new
trial. In the opinions then filed, it was announced, if, when
the question was made a direct issue in the cause, as to whether
O'Meara was, in fact, participating with Scanlan in an at-
tempted illegal arrest, it should be found that he was not, the
rule laid down would not apply; or if, on the other hand, the
evidence should show express malice, then it would be murder
at all events.
The case was sent back under these rulings, and again tried,
with the same result as before. A transcript of the record,
duly certified, with an assignment of errors, was presented in
vacation, for the allowance of a writ of error. It was allowed,
and the case is now before us for the third time.
The evidence as to the illegality of the supposed warrant
was admitted on this trial, and it was made a direct issue in
the cause, whether or not O'Meara was participating in the
arrest, and whether the prisoner was actuated by previous or
express malice.
The prisoner's counsel earnestly insists that the evidence
would sustain a conviction for manslaughter only, and that
this court should revise the finding of the jury upon the evi-
dence, and set it aside. It is true, the statute has clothed
this court with a revisory power over the verdicts of juries in
criminal as it has in civil cases ; and it is also true, that there
42 Kaffeety v. The People. [Jan. T.
Opinion of the Court.
is some difference between the two classes of cases, for, in
criminal cases, the guilt of the accused must be established
beyond a reasonable doubt, while, in civil cases, the issue is
determined by a preponderance of evidence. In the latter
class, it is the established rule, if the verdict is wholly unsup-
ported as to any necessary element, or if there is evidence
upon both sides, and the verdict appears to be manifestly
against the clear weight and preponderance of the evidence,
we set it aside. In criminal cases, this court has, as yet,
established no fixed, definite rule, and it is doubtful if any
can be established farther than this: If, when the evidence is
all carefully considered and weighed, it appears that it is
wholly wanting in respect to some necessary element of the
crime, or if there is a conflict of evidence, and there is such
a clear preponderance of evidence against the verdict, as to
suspend the judicial mind in serious doubt as to the guilt of
the accused, then, in either case, we ought to grant a new
trial.
Questions of the credibility of witnesses are peculiarly for
the jury. As, for instance, suppose the conviction rests solely
upon the evidence of an accomplice. If the jury choose to
believe him, we could not reverse when that fact was the only
one affecting his credibility, although we may believe that
faith should not be reposed in such a witness. But, when a
verdict rests solely upon the evidence of a single witness, and
direct evidence of impeachment is introduced to such an ex-
tent as to lead to the conclusion that the jury were actuated
by passion or prejudice in disregarding such impeaching evi-
dence, then we ought to set the verdict aside, and direct a
new trial. We are satisfied that, under no rule which ought
to govern, in reviewing the verdicts of juries in criminal cases,
upon the evidence, can we consistently interfere in this case.
The evidence is different from what it was when the case was
last before us; it fails to show that deceased was, in fact, par-
ticipating in any degree in an attempt by Scanlan to arrest the
prisoner upon the supposed warrant. But it is said Scanlan
1874.] Eafferty v. The People. 43
Opinion of the Court.
has committed perjury, in testifying as he did; that his tes-
timony on the former trial was introduced, from which it
appears that deceased was standing against the door, with a
slung-shot suspended from his wrist, to prevent egress by
the prisoner from the room, and was thereby assisting. It is
true, such evidence was introduced, but that evidence only
tended to affect the credibility of Scanlan, was competent for
that purpose only, and could not be used to prove the facts
previously sworn to. This was a part of the prisoner's de-
fense, to be established by him. The question of Scanlan's
credibility was for the jury, and the evidence opposed to him
was very slight.
But there is another view of the evidence which would
entirely override the question of illegal arrest, or O'Meara's
participation in it, and that was the evidence of previous or
express malice. Only some three days previously, the prisoner
declared, in substance, that no Bridgeport policeman should
arrest him while he had a pistol. It appears that, although
finding him in the saloon was a matter of pure accident, he
was already prepared with the very weapon alluded to in his
threat. These officers were Bridgeport policemen, and it
appears that he did not use it upon the deceased merely be-
cause he was preventing his egress from the saloon, but when
he had shot him through the breast, then, without offering to
go out of the door, he instantly turned around and fired two
shots at Scanlan, who was back of him, and had no agency
in preventing egress from the room, either by personal vio-
lence or constructively, by guarding the door.
In Rex v. Patience, 7 Carr. & Payne, 775, the prisoner was
indicted for stabbing William Beechy. It appeared, upon the
trial before Parke, B., that John Beechy was a constable of
Witney, and had a warrant for the apprehension of the pris-
oner. He employed his two sons to take him. The sons, one
of whom was William, went in pursuit of the prisoner, while
the father stayed behind. They found him lying under a
hedge about a mile from Witney. He had an open knife in
44 Eafferty v. The People. [Jan. T.
Opinion of the Court.
his hand, which he was running into the ground. William
laid hold of him while his father was in sight, about a quar-
ter of a mile away. Parke, B. : " That was not a lawful
arrest. You had better examine as to whether he had pre-
pared the knife before the witness took him by the collar."
The witness then stated : " The prisoner said that, if I did
not let him go, he would cut my fingers off; he stabbed me
with the knife ; when I first came up, he had the knife in
his hand, and was running it into the ground ; he had got up
from the ground to run away; I had collared him before he
wounded me, but not before he had begun to run away ; I
first saw him a quarter of a mile off, and he was then running
the knife into the ground."
Parke, B. : "The arrest was illegal, as the father was too
far off to be assisting in it, and there is no evidence that the
prisoner had prepared the knife beforehand, to resist illegal
violence. If a person receives illegal violence, and he resists
that violence with any thing he happens to have in his hand,
and death ensue, that would be manslaughter. If the pris-
oner had taken out this knife on seeing the young man come
up, it might be evidence of previous malice; but that is not
so, as we find that the knife was in his hand when the young
man first came in sight. The prisoner must be acquitted."
Now, this case, though not parallel in its facts, illustrates
the principle, for there is no difference upon the question of
previous malice between 'the fact of taking out the knife, upon
seeing these young men approach, and that of the prisoner
providing himself with a pistol for the purpose of resisting
any arrest, whether legal or otherwise, attempted by Bridge-
port policemen.
It is true, that evidence of a threat previously uttered, is a
kind of evidence which, under many circumstances, ought to
be received with caution. Still, when that is taken in connec-
tion with the undisputed facts, that the prisoner had provided
himself with a pistol, and no other reason is shown for his
doing so, and that he used it in the manner stated, before any
1874.] Kafferty v. The People. 45
Opinion of the Court.
violence was done him by either of the policemen, the threat
seems natural, and no other conclusion can be arrived at, than
that of previous or express malice. We think the jury were
entirely justified, by the circumstances in evidence, in so
finding.
There is no assignment of error for the giving of instructions
on behalf of the people, but we have examined those given,
and think they correctly presented the law of the case to »the
jury. Complaint is, however, made, and error assigned for
the refusal by the court of the 12th instruction asked on be-
half of the prisoner. It is as follows:
"12. On the question of express malice, the court in-
structs the jury that the alleged declaration of a person
accused of crime, should be received with extreme caution by
them, in a case involving the life of a fellow creature. In
this spirit, the jury are enjoined by the court to pass upon
and determine the just weight to be given to the testimony
of the witness, Bedell, relative to the alleged declaration of
the defendant to said witness on Friday, the 2d of August,
1872. This caution should be more especially observed, if
the jury find, from the evidence, that there is no other testi-
mony in the case which tends to show express malice on the
part of the defendant towards said O'Meara."
We think this instruction was properly refused, on the
ground that it would trench upon the province of the jury.
If the undisputed facts of the Case tended to show, independ-
ently of any threat, a previous determination on his part to
resist any attempt of Bridgeport policemen to arrest him, and
the preparation of a pistol for the purpose, the threat was a
natural one, and we are unable to perceive any reason why
the truth of the fact of his having made such a threat should
not be considered in connection with the other evidence, with-
out any injunction from the court to receive tne evidence of
the threat with extreme caution, the same as the truth of any
other fact in the case.
46 Eafferty v. The People. [Jan. T.
Opinion of the Court.
It is a general rule of evidence, that alleged declarations,
made by a prisoner out of court, should be received with ex-
treme caution. But sometimes they are made with such
deliberation and freedom from extraneous influence, as to
amount to evidence of the most satisfactory character. We
are disinclined to recognize the right of the court to designate
the evidence of a witness, who is not an acknowledged
accomplice, and caution the jury against giving credence to
it. If it could be properly done in case of a witness for the
people, it could also in that of a witness for the accused.
Casting the influence of the court against the testimony of
a particular witness, or the character of the evidence he gives,
is not a usual way of either affecting the credibility of wit-
nesses or the weight of testimony.
The only remaining point we deem worthy of consideration,
arose upon the motion for a new trial, and was based upon an
alleged improper commuuication made to the jury by the
deputy sheriff in charge, whilst they were deliberating upon
their verdict. It appeared, by the affidavit of such officer,
that, on Wednesday evening, November 26, after the jury had
been out about eight hours, the officer was sent for by the
presiding judge, who was then at his hotel, and instructed by
him to inform the jury that he would meet them at 7 o'clock
the next morning, being the 27th ; that deponent understood
the judge to say to him that he, the judge, regarded it as his
privilege to adjourn until the following Monday morning, and
to so inform the jury; and he states that he did so inform
the jury; that it was his understanding, and he believed the
jury also understood, that unless a verdict was rendered by
7 o'clock the next morning, the jury would be kept together
until the ensuing Monday; that the jury finally came to an
agreement within a very few minutes to 7 o'clock the ensu-
ing morning, and deponent knows that such agreement of the
jury was hastened by the knowledge on the part of the jury
that, unless they agreed, they would be kept together for sev-
eral days longer.
1874.] Eafferty v. The People. 47
Opinion of the Court.
It appears by the record that, at about 9 o'clock P. M. of
the 26th day of November, 1873, while the jury were delib-
erating in their room, the judge of said court, with the con-
sent of both the State's Attorney and the counsel for prisoner,
sent word to the jury, by the officer in charge, that he would
meet the jury at 7 o'clock the next morning, said judge being
at the time at his lodgings, and the prisoner not personally
present.
It has been held by a court of the highest respectability,
that, when the court adjourns, the judge carries no -powers
with him to his lodgings, and has no more authority over the
jury than any other person, and any direction to them from
him, either verbal or in writing, is improper. Sargent v.
Roberts et al. 1 Pickering, 337. This is doubtless sound and
judicious doctrine.
If the words sent by the judge from his lodgings were of
a character to probably operate to the prejudice of the accused,
the fact that his counsel, in his absence, consented to it, would
not, in a capital case, cure the error. Although the message
was improperly sent, yet, if by no possibility it could work
an injury to the prisoner, it ought not to vitiate the verdict.
The message, as sent, would be understood by the jury as
simply showing a proper consideration for their comfort, by
lessening the time of their confinement. It was sent at 9
o'clock in the evening of the 26th, and merely assumed that
they might agree within ten hours. With sensible men, of
whom the jury are presumed to have been composed, this
could not hasten their verdict. Mclntyre v. The* People, 38
111. 514.
If this were all, the question would be free from difficulty.
But as one irregularity is likely to lead to others, so here, the
officer went beyond the scope of the message sent, and in-
formed the jury that he understood the judge as saying that
it was his privilege to adjourn court until the next Monday
morning; that he so told the jury, and he knew it hastened
their agreement to a verdict.
48 Eafferty v. The People. [Jan. T.
Opinion of the Court.
The 27th of November was Thursday, and Thanksgiving
day. It was the expectation that they would be kept together
until the next Monday morning, if they did not agree by 7
o'clock Thursday morning, which is supposed to have had the
effect of hastening the verdict. This communication on the
part of the officer was highly improper. We are unwilling
to give the slightest sanction to such practices, and, this being
a capital case, if the evidence of guilt had been less clear, in
any substantial degree, we should not hesitate to set the ver-
dict aside, on account of the probable prejudice the message
might have occasioned by hastening the verdict of the jury.
But here, all legal evidence offered by the accused had been
admitted; the fact of the commission of the homicide by the
prisoner, and the attending circumstances, were uncontro-
verted, except merely as to the extent to which tne deceased
was participating in the attempt by Scanlan to make an
arrest, which, although illegal, had not proceeded to any vio-
lence on the part of the officer. There was evidence as to
the attending circumstances and previous threat, wholly un-
contradicted, which strongly tended to show previous or ex-
press malice ; indeed, the inference of such malice, as the
record now stands, is almost irresistible. This was the third
trial of the case, with the same result each time. Neither the
prisoner nor his counsel can have any just cause of complaint,
that this cause has not received, at the hands of this court,
all the patient attention and careful consideration demanded
by the great and solemn issues involved. Absolute exemp-
tion from error is unattainable. There has been no error, in
respect to the bringing the whole scope of the case before the
jury. They, after considering it 18 hours, returned the ver-
dict they did. The prisoner's counsel had the right to poll
them, but did not see fit to do so.
Under the circumstances, we do not feel it our duty to set
the verdict aside for the irregularity indicated, and must
affirm the judgment.
Judgment affirmed.
1874.] Eaffeety v. The People. 49
Mr. Justice Scott, dissenting.
Mr. Justice Scott, dissenting :
I joined in granting a supersedeas in this cause, on the
ground a fatal irregularity occurred at the trial in permitting
the officer having charge of the jury to carry to them a mes-
sage purporting to come from the judge of the court. After
more mature reflection, I find no reason to change the judg-
ment then deliberately formed.
The law is well settled, the judge, at his lodgings, has no
control over the jury, and that it is improper for him to send
them any communication, no matter what its character may
be. If it becomes important, for any reason, to communicate
with them, they should be brought into open court, in the
presence of the parties. Any other rule is liable to great
abuse.
Whether the officer in this instance obeyed his instructions
or not, is wholly immaterial. The message delivered to the
jury was given as coming from the judge, and was, no doubt, .
received in that belief. The effect, therefore, was the same
had the judge in fact sent the identical message delivered by
the officer.
It is conceded, in the opinion of the majority of the court,
it was grave error that such a communication was given to
the jury. Whether it was sent by the judge or not, that can
not be palliated or tolerated in the proper administration of
the law. But the judgment is affirmed on the ground the
evidence shows the accused was guilty beyond a reasonable
doubt. This does not answer the whole objection. The con-
clusion would be more logical, and could be more easily main-
tained, if the punishment in such cases was absolutely fixed
by law. Such is not the case. Under our statute, in all cap-
ital cases, the jury are invested with a discretion to say what
the punishment shall be — whether it shall be death by hang-
ing, or imprisonment for life in the penitentiary.
The evidence in the record leaves no room to doubt the
jury were hastened in their finding by the message delivered
4— 72d III.
50 Starkweather et al. v. Am. Bible Soc. [Jan. T.
Syllabus.
to them by the officer. In view of the fact the measure of the
punishment to be inflicted, in case of conviction, was in the
discretion of the jury, who can say they were not hastened in
their verdict to the prejudice of the accused? It is the right
of every one charged with crime to have the calm and delib-
erate judgment of the jury selected to try his cause, and the
fact their deliberations may have been unduly influenced by
any cause whatever, is error so prejudicial, in a case like this,
that it ought to be a ground for the reversal of the judgment.
It is not a mere irregularity. It may have injuriously affected
the merits of the case.
For the reasons indicated, I feel constrained to enter my
dissent to the judgment about to be pronounced.
Ealph E. Stakkweathee et oil.
V.
The Ameeicatt Bible Society.
1. Foreign corporations — acquiring title to real estate. A corporation
created by the laws of another State, which, by the laws of such State, can
not there acquire and hold title to real estate by devise, is incapable of
acquiring title to real estate, by devise, in this State.
2. The American Bible Society being incapable, under the laws of the
State of New York, where it was incorporated, of acquiring title to real
estate by devise, can not acquire title to real estate in this State b}r devise;
and real estate devised to it in this State is intestate estate, and descends
to and vests in the heirs of the testator.
3. Chancery — has no power to convert real estate into money, to enable a
corporation to realize benefits. Where real estate is devised to a corpora-
tion incapable of acquiring title in that way, a court of chancery has no
power to convert such real estate into money, and direct the payment
thereof to such devisee.
Appeal from the Circuit Court of Cook county; the Hon.
W. W. Farwell, Judge, presiding.
1874.] Starkweather et al. v. Am. Bible Soc. 51
Opinion of the Court.
Messrs. Miller & Frost, for the appellants.
Messrs. Lawrence, Winston, Campbell & Lawrence,
for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
Appellants, as devisees and heirs at law of Charles R. Stark-
weather, deceased, filed their bill in the circuit court of Cook
county, to establish their title to the real estate owned by
testafor in his lifetime, under what is known as the "Burnt
Record Statute," and, amongst others, the American Bible
Society was made a defendant. The society appeared, and
claimed an interest in the property under the fifth clause in
his will. Its right was contested, and the court below ren-
dered a pro forma decree in favor of the Bible Society, to
reverse which this appeal is prosecuted.
There is no question raised as to the proper execution and
probate of the will, nor is it disputed that the will contained
a devise of the interest claimed by appellee. The clause in
the will is this: "I give and bequeath to the trustees of the
American Bible Society, established in 1816, an undivided
eighth of my estate, to have and to hold the same for the use
of said society; provided, that said Bible Society is not to
be entitled to the same, or to the income of the same, till my
youngest child becomes of age."
The society was incorporated by a statute of the State
of New York, passed on the 25th of March, 1841, for the
purpose of publishing and promoting the general circulation
of the scriptures, without note or comment. It was vested,
by its charter, with the powers granted to corporations in that
State by their Revised Statutes, amongst which is this power:
"To hold, purchase and convey such real and personal estate
as the purposes of the corporation shall require, not exceeding
the amount limited in its charter." The Statute of Wills in
that State, adopted in March, 1813, authorizes persons having
real estate to devise the same to any person or persons, except
52 Starkweather et al. v. Am. Bible Soc. [Jan. T.
Opinion of the Court.
bodies corporate and politic, by their last will and testament.
Again, in 1822, in revising the statutes, it was provided that
corporations might take, purchase and hold real estate, but
it was declared that no devise to a corporation should be valid
unless such corporation be expressly authorized by its charter
to take by devise.
Thus it will be seen that the charter of this company does
not prohibit it from taking property by devise, but the
Statute of Wills does expressly declare that no devise to a
corporation shall be valid, unless such corporation is author-
ized, by its charter or by statute, to take in that manner.
These provisions, thus found in different chapters of the stat-
utes of New York, have given rise to litigation in that State
to obtain a construction of these acts. The courts of last re-
sort in New York have held, that a devise to a corporation
not thus expressly authorized to so take real estate in that
State was void, and that such corporations have no power to
so receive and hold real estate. See Downing v. Marshall, 23
N. Y. E. 366, McCarter v. Orphans' Asylum, 7 Cow. 437. In
these cases it was held, that these statutes must be regarded
as being in pari materia, and should be construed together,
and we have seen the result at which their courts arrived.
At the common law it is believed that no such devise could
be made, and the 32 Hen. 8, ch. 1, and the 34 Hen. 8, ch. 5,
commonly called the Statute of Wills, gave power to every
person having sole estates in fee of manors, etc., "to give,
dispose, will or devise to any person or persons, except to
bodies politic or corporate, by his last will and testament,
such lands," etc. Thus it will be seen that New York adopted
this enactment in substance, and the policy of these statutes
was, undoubtedly, to prevent gifts to these bodies in mort-
main. It is also said, that "where the Statute of Wills ex-
cepts bodies politic as competent devisees, the usual power
given to corporations by charter or act of incorporation to
purchase lands, etc., has been construed not to qualify them
to take by devise, the word 'purchase' being understood in its
1874.] Starkweather et al. v. Am. Bible Soc. 53
Opinion of the Court.
ordinary and not in its legal and technical sense." Angell &
Ames on Corp. Ill, and in support of the text they refer
to JaeJcson v. Hammond, 2 Caines* Cases, 337, Me Carter v.
Orphans' Asylum, supra, Canal Co. v. Railroad Co. 4 Gill &
Johns. 1, which sustain the rule.
We, then, find a corporation created and located in New
York, incapable, by devise, of taking and holding real estate
there, claiming to hold real estate here, devised to it by a citi-
zen of this State. Appellee contends that the Statute of Wills
in New York only operates as a disability upon all persons
in that State to become devisors of real estate to this com-
pany, and that the charter does not prevent them from receiv-
ing lands in other States, by devise, from persons beyond the
limits of the State, and hence this devise is valid and binding.
We have seen that the courts of New York have held that
such companies are not authorized to so take and hold prop-
erty in that State; and if incapable of doing so there, how, it
may be asked, can it exercise powers and discharge functions
bevond the limits of that State which it is not capable of
doing under the laws of the State which created and endowed
it with its powers and functions? Such bodies have such
powers, only, as are conferred upon them by the laws of the
State in which they are created.
It does not matter whether this body is prohibited by its
charter or by the Statute of Wills in New York from taking
lands by devise. W^hether the one or the other statute creates
the disability, the effect is the same, as it goes to the power
of so taking and holding. When this body was incorporated,
the Statute of Wills was in force, and the courts of New York
hold that it controled the powers of the company as though
both provisions had been contained in the same enactment.
If so, the disability is fundamental. It operated to create a
corporation that might perform the acts and exercise the
privileges conferred, but without power to receive lands by
devise. Such a prohibition goes to the power of the body,
as well as to persons disposed to devise lands to them. If,
54 Starkweather et al. v. Am. Bible Soc. [Jan. T.
Opinion of the Court.
then, the corporation was created without power to so take,
it is incapable of doing so, no matter where the devisor may
reside or the lands are situated. The reasons operating on
the legislature when they refused to endow this and other
similar organizations with such capacity, grew out of consid-
erations of sound public policy in thus preventing them from
receiving and holding lands in mortmain — and this was effect-
ually accomplished by their Statute of Wills.
We can perceive no difference whether the disability or
prohibition is contained in the one or the other enactment,
inasmuch as it operates on the body, as the New York courts
hold, with the same effect, and produces the same results.
It carries out the policy of the State- as effectually in the one
mode as in the other, and goes to the power to thus take real
estate, and operates as a prohibition and a want of power;
and the power not existing in the body to so take, all such
devises to it must be held ineffectual to pass title, without
reference to where the devisor may reside or the lands may
be situated.
We are aware that other courts, of the highest respecta-
bility, have held that the laws of New York can not prevent
this corporation from taking land out of that State, by devise,
so that the devisor does not reside there ; but we are unable
to concur with them in so holding, as we think the inhibition
is fundamental, and goes to the power to thus receive real
estate.
It may be said, that, the lands not being in New York, it
can, in nowise, affect the policy of that State for the company
to hold lands in another State. Such bodies can only exer-
cise their privileges and functions in other States by permis-
sion, expressed or implied. When by implication, it is
denominated comity between States. For such bodies to hold
property or transact business in a State different from that of
their creation, they must have such permission. This being so,
New York has no power to create a body incapable of taking
lands by devise in that State, and yet with power to do so iD
1874.] Starkweather et al. v. Am. Bible Soc. 55
Opinion of the Court.
a foreign jurisdiction. If their legislature was to so enact,
and other States were to consent, then such bodies might, no
doubt, so receive and hold lands ; but that legislature has not
so enacted in this case, nor has our State so consented.
The will in this case was probated on the 16th day of Sep-
tember, 1867, and we are aware of no statute of our legisla-
ture, ihenaii force, which authorized foreign corporations to
hold lands, by devise, in this State.
In the case of Carroll v. East St. Louis, 67 111. 568, this
court held, that a foreign corporation could not hold lands in
this State, beyond what was reasonably necessary for the trans-
action of the business for which they were created ; that a
corporation created in another State, for the purpose of buy-
ing and selling lands, could not come to this State and pursue
the business for which the corporation was created ; that
conveyances to it of lands in this State were void, and failed
to pass title to the corporation. The inability was placed on
the ground that it was opposed to the policy of this State,
deduced from the course of its general legislation.
The principles there announced apply, with full force, to
this case, as all of the inconveniences and injuries are as likely
to ensue in this, and other cases like it, as in that. We,
however, deem it unnecessary to repeat the reasons which
led us to the conclusions announced in that case ; but we
must hold, that case is conclusive of this. Then, whether
this corporation is incapable of' taking this land under the
laws of New York or under the laws of this State, does not
matter, as the result is the same. We, however, think the
company is incapable of taking under either, nor does the
purpose for which the corporation was created change the
principle. It does not matter how commendable and benefi-
cent the purpose of the organization may be, or what amount
of benefit it is calculated to accomplish, the rules of law
must have their proper application, leaving it to the General
Assembly, if necessary, to make a change.
56 Starkweather et al. v. Am. Bible Soc. [Jan. T.
Opinion of the Court.
It is, however, urged, that even if this devise is void, the
court may, and, nevertheless, should, carry out the intention
of the devisor, by decreeing the sale of this real estate, and
ordering the payment of the proceeds to appellee — that this
is not only sanctioned but required by the former adjudica-
tions of this court.
In the case of Heuser v. Harris, 42 111. 425, a party had
made a will, and had provided that his estate should bej re-
duced to money, and then to be divided: one-half to the
school district in which his farm was situated, and the fund
to be managed by a trustee, to be elected by the people of the
district, for four years, to give security, and to perform the
duties without compensation; the other half to the support
of the poor of the county, but only the interest to be used.
As in the one case it was impracticable to find a person who
would take charge of the fund, and manage it for the use of
schools of the district, and as to the other fund there were no
trustees named, or any mode pointed out by which trustees
might be obtained, the court held, that as these objects were
within the language of the 43 Eliz. chap. 4, which was held
to be in force in this State, there was power to execute the
trust cy pres, and trustees were designated to carry out the
provisions of the will. It was there said, in reference to the
portion set apart for school purposes, the bequest was made
to a corporation capable of taking it, and the mere instrument
to control its application could be readily provided by a resort
to a court of equity; and as to the fund bequeathed to the
poor, the county court was the proper donee of the fund, and
could take and control it, as the trustee of the poor, in the
mode prescribed by the will.
It will be observed, that in that case there were donees
capable of taking as trustees ; but in this case, we have seen,
the donee was incapable of taking and holding the property,
for the want of legal ability. Again, in that case, there was
no change of the fund, nor was it converted from one kind
of property into another, but all that was done was to simply
1874.] Starkweather et aL v. Am. Bible Soc. 57
Opinion of the Court.
declare that the bequest should not be lost for the want of a
trustee, and that one might be appointed cy pres, to carry out
the intention of the donor ; but here we are asked to do more :
to convert this real estate into money, and pay it to appellee.
A reference to the 43 Eliz. chap. 4, will show that all of
the subjects intended to be embraced in that statute are em-
braced in the preamble ; but corporations of the character of
the Bible Society are not enumerated. It embraces u schools
of learning, free schools, and scholarships in universities;"
also, "aged, impotent and poor people." Hence, the fact
that the 43 Eliz. may be in force in this State, does not, by
any means, confer the power claimed in this case, and it is
believed that the doctrine of executing trusts cy pres had its
origin in that enactment.
In the case of The Trustees of the Philadelphia Baptist Asso-
ciation v. Harts'* Exrs. 4 Wheat. 1, Chief Justice Marshall,
in delivering the opinion, has very fully examined into the
grounds of chancery jurisdiction in this country, and it is
there held, that whatever may have been the power of the
king, as parens patriot, in England, or even of the courts of
chancery, when acting under the authority of the royal pre-
rogative and not in the exercise of their ordinary jurisdiction,
in this country the validity of devises and bequests must be
determined by well-defined legal rules and principles, and
not by an arbitrary discretion or by unlimited power by the
court, under the royal prerogative. He, in the opinion, says :
"It is, perhaps, decisive of the question propounded to this
court, to say that the plaintiffs can not take" the property.
In the case of Fountaine v. Ravenel, 17 Howard, 369, which
involved a bequest of property to be appropriated by the ex-
ecutors of the testator to such charitable institutions in South
Carolina and Pennsylvania as they might select and deem
most beneficial to mankind, the executors died without nam-
ing the institutions, and before the time therefor had expired.
It was held to be inoperative, and not capable of being en-
forced in the circuit court of the United States. In that case
58 Starkweather et al. v. Am. Bible Soc. [Jan. T.
Opinion of the Court.
it was held, that such charities were only executed in the
English court of chancery, by virtue of power derived from
the royal prerogative, and which was not inherent in the court
as a court of equity under its ordinary jurisdiction. Chief
Justice Taney, in delivering the opinion of the court, lays
down the doctrine, that the same rules that govern an ordi-
nary trust, and determine its validity, apply to and determine
the validity of a charitable trust, and that if the cestui que
trust or beneficiary is incapable of maintaining a suit in equity
to establish his claim in an ordinary case of trust, the same
rule must be applied where charity is the object, and com-
plainant claims to be recognized as one of its beneficiaries.
The same doctrine is announced in the case of Wheeler v. Smith,
9 Howard, 55. Also, in the case of Vidal v. Girard's Exrs. 2
Howard, 195, where the authorities are extensively reviewed.
In the case of Williams v. Williams, 4 Denio, 542, the court
says, that "the English doctrine is in force here only so far
as it is adapted to our political condition. In that class of
cases, therefore, where the gift is so indefinite that it can not
be executed by the court, and where the purpose is illegal or
impossible, the claims of the representatives of the donor
must prevail over the charity. The reason is, that we have
no magistrate clothed with the prerogatives of the crown, and
our courts of justice are intrusted only with judicial author-
ity." This we regard as the true doctrine, and the execution
of trusts cy pres should be limited to the rule there announced,
and to cases embraced in the 43 Elizabeth.
Where the trust is legal, and is definite as to the person to
whom the gift is made and the thing given, and only requires
a trustee to carry out the purpose of the donor, then a court
of equity may well act in preserving the trust fund from laps-
ing. The case of Williams v. Williams, supra, was followed
in New York by the cases ofBeekman v. Bonsor, 23 N. Y. K.
308, and Bascom v. Albertson, 34 N. Y. R. 610, and they an-
nounce and apply the same rule.
We, however, are asked to go further in this case. We
1874.] Starkweathee et al. v. Am. Bible Soc. 59
Opinion of the Court.
are urged to direct the sale of this real estate, and pay appel-
lee the proceeds. Why should we do so in favor of a charity
of this character, when such relief is denied a natural person?
If a man were to devise lands to a child, and it proved that
he had no title to the property devised, could it be claimed
that the court would carry out the intention of the devisor,
by decreeing to the devisee other property of equal value?
We suppose no one would contend, that simply because the
devisor's intention had been unexpectedly defeated, the court
would therefore make a new will for the devisor, and give the
devisee an equivalent of what was intended.
The testator, no doubt, intended to give this land to appel-
lee, but the means employed failed to accomplish his purpose;
but that does not clothe the court with power to give money
or other property. The courts are so strict, that they will
not permit the terms of a will to be altered, even when the
devisor has, by mistake, misdescribed land in a devise, by
substituting that which could be clearly proved to have been
intended. Kurtz v. Hibner, 55 111. 514. Then why change
the fund from land to money, when the testator intended to
give land and not money ? Why substitute something not
donated, because something was intended to be donated but
did not vest in the donee ?
When the testator died, all of the real estate of which he
died seized, and which was intestate, at once descended to and
vested in his heirs; and as appellee was incapable of taking
title to the real estate attempted to be devised, that became
thereby intestate property, and descended to and the title
vested in his heirs, as would any other intestate real estate.
This being the case, we have no more power to order their
property to be sold to satisfy this void devise, than that of
any other person. Had there been beneficiaries capable of
taking directly by devise, and had this case fallen within the
Statute of Charitable Uses, but the devise had failed simply
for the want of a trustee, then the beneficiary would probably
have taken an equitable title to the property devised. But
60 Q., A. & St. L. K. R. Co. v. Wellhoener. [Jan. T.
Syllabus.
here the beneficiaries are the whole world, to whom the bibles
are to be distributed, and they are incapable of taking, and
the corporation is incapacitated from taking, and, hence,
neither a legal nor equitable title has vested in either, but it has
descended to the heirs of the testator. So that, in any view
we have been able to take of the case, we fail to see any well
founded right that appellee has to the property, or the pro-
ceeds of its sale.
The decree of the court below must be reversed, and the
cause remanded for further proceedings in conformity with this
opinion.
Decree reversed.
Mr. Justice Sheldon dissents.
The Quincy, Alton and St. Louis Railroad Co.
v.
Jobst H. Wellhoener.
1. Negligence — in railroads— failure to ring bell or sound whistle does
not, of itself create a liability. It is not enough, to create a liability for
stock killed by a railroad train, to prove the bell was not rung or the
whistle sounded. It must be made to appear, by facts and circumstances
proved, the accident was caused by reason of such neglect.
2. Same — burden of proof on the party charging. The burden of
proving negligence rests on the party alleging it; and when the plain-
tiff charges negligence on the part of the defendant, and the evidence is
equally balanced, the law is for the defendant, and no recovery can be
had.
Appeal from the Circuit Court of Adams county ; the
Hon. Joseph Sibley, Judge, presiding.
Mr. B. T. Scofield, and Messrs. Wheat, Ewing &
Hamilton, for the appellant.
Messrs. Carter & Govert, for the appellee.
1874.] Q., A. & St. L. R. R. Co. v. Wellhoener. 61
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court :
This action was to recover the value of a cow, killed by
the engine and cars on appellant's road. It is admitted it
was killed on the crossing of a highway over the railroad
track, between the cattle guards. No question is raised that
appellant had not properly fenced its road, and constructed
good and sufficient cattle guards, at the crossing where the
accident occurred. It is contended the company is liable on
account of the negligence of its employees in charge of the
train in failing to ring the bell or sound the whistle before
reaching the crossing, and in running the train at an unusual
rate of speed.
We are always reluctant to disturb the finding of a jury,
and especially where the amount involved in the controversy
is trifling ; but the verdict in this case is so manifestly against
the weight of the evidence, we are constrained to reverse the
judgment rendered thereon.
There is no pretense the company can be held liable for
stock killed on a public road crossing, unless the employees
have been guilty of negligence or willful misconduct in the
management of the train.
The cow was killed in the dusk of the evening. There is
not a particle of evidence showing,, or even tending to show,
the engine-driver saw or could have seen her on the track in
time to have stopped the train and avoided the collision.
This case, in its facts, is totally unlike the case of The Chi-
cago and Northwestern Railway Co. v. Barrie, 55 111. 227, cited
by counsel, and is not an authority in point. There, it was
positively proven the cattle on the track were seen, or at
least could have been, by the engine-driver in ample time
to have stopped his train, but this record contains no such
evidence.
This court has repeatedly decided, it is not enough, to cre-
ate a liability for stock killed by a railroad train, to prove
the bell was not rung or the whistle sounded. It must be
62 Q., A. & St. L. E. K. Co. v. Wellhoener. [Jan. T.
Opinion of the Court.
made to appear, by facts and circumstances proven, the acci-
dent was caused by "reason of such neglect." Chicago and
Book Island Railroad Co. v. McKean, 40 111. 218.
The burden of proving negligence rests on the party alleg-
ing it. This record contains no reliable evidence that the
servants of the company in charge of the train were guilty
of any negligence whatever.
Appellee called but two witnesses on the point whether the
bell was rung. One of them, Mary Meekamp, states she was
standing about one hundred and fifty steps from the crossing
when the train passed, but can not tell whether the bell was
rung before reaching the crossing. She thinks it was not
rung, but says, on cross-examination, that she does not re-
member whether she paid any attention to it. The other
witness was a colored man. He exhibits such a low grade
of intelligence, that very little reliance can be placed on his
testimony. But he states he did not hear the bell rung;
thinks it was not, and gives as reason for his belief, it always
frightens his horse, and that he was not frightened on that
occasion.
On the other hand, the proof shows there was a bell on the
engine that was rung by steam. The engine-driver and the
fireman both testify they remember, distinctly, the fact a cow
was killed on the crossing at Kirk's Mill ; that the bell was
rung; that it had been ringing for miles before reaching the
crossing, and that it was not stopped until the train reached
the depot, at Quincy. Being rung by steam, it was kept
ringing continuously while the train was in motion. Both
witnesses testify to this fact. With what propriety can it be
said this positive testimony is overcome by the negative recol-
lection of appellee's witnesses. The most favorable view that
could possibly be taken would be to say, the evidence is
equally balanced. In that event, the law is for the defend-
ant, and no recovery could be had. But this would be an
unfair view to take. It greatly preponderates in favor of
appellant.
1874.] Melvin et al v. Lisenby et al. 63
Syllabus.
There is no warrant in the evidence for saying the train
was run at an unusual rate of speed. The testimony offered
to prove that fact is not of such a character as to make any
impression on the mind.
The judgment must be reversed.
Judgment reversed.
Samuel H. Melvin et al.
V,
Charles S. Lisenbt et al.
1. Elections — rotes cast supposed to be all the legal rotes. The pre-
sumption is, that the vote cast at an election held according to law, is the
vote of the whole number of legal voters, and this presumption can not
be rebutted by proof of the number of votes cast at an election held in
the preceding year.
2. Municipal bonds — when they may "be registered in the Auditor's office,
under the Funding Act of April 16, 1869. Under a law authorizing a
county to subscribe to the stock of a railroad company, upon condition
that a majority of the votes cast at an election on the question should be
in favor of it, an election was held resulting in a majority in favor of the
subscription, and the subscription was made and bonds issued: Held,
that the bonds were rightfully registered in the Auditor's office under the
Funding Act of April 16, 1869, which requires that the subscription upon
which bonds sought to be registered were issued, should have been voted
for by a majority of the legal voters living in the county, it being the
presumption that the vote cast at the election on the question of subscrip-
tion, was that of all the voters of the county.
3. Same — not void by reason of defective execution. "Where bonds of a
county are legally authorized to be issued by a vote of the people, and by
the law authorizing the vote it is provided that the bonds shall be exe-
cuted by certain officers, and countersigned by the treasurer of the count3r,
it was held, that the omission of the treasurer to countersign the bonds is
a mere defect in the execution of them, which a court of equity would,
in the absence of a remedy at law, ordinarily supply, and that an injunc-
tion restraining the collection of taxes for the payment of such bonds
should not be allowed.
64 Melvin et all v. Lisenby et al. [Jan. T.
Opinion of the Court.
Appeal from the Circuit Court of Logan county ; the Hon.
Lyman Lacey, Judge, presiding.
Messrs. Hay, Greene & Littler, for the appellants.
Messrs. Weldon & Benjamin, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a bill filed by sundry citizens and tax-payers of
DeWitt county, in behalf of themselves and all other tax-
payers in the county, to enjoin the collection of certain taxes
extended on the collector's books by the county clerk, in pur-
suance of a certificate of the amount thereof from the Auditor
of Public Accounts, as being necessary to meet the interest
on $175,000 of bonds purporting to be those of DeWitt
county, which had previously been registered in the office of
the Auditor, and to have the bonds declared null and void.
The court below, by its decree, enjoined the collection of any
taxes for the purpose of paying the interest or principal of
the bonds, until they should be countersigned by the treas-
urer of the county.
The defendants appealed.
The only grounds which appellees' counsel, in their argu-
ment, rely upon in support of the bill and decree, are :
1. That a majority of the legal voters living in DeWitt
county were not in favor of the subscription, and that there-
fore the tax levied by the Auditor under the Funding Act of
April 16, 1869, is illegal.
2. That the bonds are invalid, because they are not coun-
tersigned by the treasurer of the county.
The bonds were issued to the Gilinan, Clinton and Spring-
field Railroad Company, on account of a subscription of
$175,000 to the capital stock of said company, which had
been authorized by a popular vote of the county, under the
amendatory act of the company's charter, approved March
10, 1869. The act provided that, to aid in the construction
1874.] Melvin et al. v. Lisekby et al. 65
Opinion of the Court.
of the road, any county lying along or near its line might
subscribe to the capital stock of the company, not exceeding
the sum of §200,000; that no such subscription should be
made until the question of so subscribing had been submitted
to the people of such county. The 4th section of the act
providing that, "if it shall appear that a majority of all the
legal voters of such counties, cities, incorporated towns or
townships voting at such election, have votgd for subscription,
it shall be the duty of the county court, or chairman of the
board of supervisors of such county," etc., "to subscribe to
the capital stock of said railroad company," etc. It is further
provided that the chairman of the board of supervisors shall
also execute to the company, in the name of the county,
bonds for such subscription ; that the bonds shall be signed
by such chairman, and by the county clerk, attested by his
official seal, and countersigned by the treasurer of the county.
To entitle any bonds to be registered under the provisions
of said Funding Act of April 16, 1869, or to receive any of
the benefits of the act, it is thereby required that the sub-
scription creating the debt should have been first submitted
to an election of the legal voters of the county, etc., and that
a majority of the legal voters living in the county, etc., were
in favor of the subscription.
It is admitted, by a stipulation in the record, that, at the
election of county officers in 1868, in the county of DeWitt,
2986 votes were cast for sheriff; that, at the special election,
in June, 1869, (being the election in regard to this subscrip-
tion,) there were cast for subscription to the railroad stock,
1418 ; against the same, 975 ; and that, on the registry list
made for said election, there were 3267 names placed as legal
voters.
The Funding Act of April 16, 1869, requiring, in order to
the registry of the bonds in the office of the Auditor, that
the subscription should have been voted for by "a majority of
the legal voters living in the county," it is urged, is some-
thing different from a majority of the voters voting upon the
5— 72d III.
66 Melvin et al. v. Lisenby et al. [Jan. T.
Opinion of the Court.
question, and that, although there was here the last named
majority, yet, as the number voting for subscription was less
than a majority of the names on the registry list made for
such election, and also less than a majority of the votes cast
at the election in the previous year of 1868, it is contended
that proof is thereby made that "a majority of the legal
voters living in said county" were not in favor of the sub-
scription. But ho\\4 was it to be ascertained whether a majority
of the voters in the county were in favor of the subscription?
The mode provided by law for ascertaining the sense of the
legal voters upon the question, was by a vote at a special
election called for the express purpose of determining the
question, on public notice given. There would appear to be
no other practicable way in which the matter could be deter-
mined.
Similar phraseology, in other cases, has been thus construed
by this court in repeated decisions. Section 5 of article 7 of
the constitution of 1848 required, in order to the removal of
a county seat, that a majority of the voters of the county
should have voted for the removal; and section 6 of the same
article provided, that any county might adopt township organ-
ization, whenever a majority of the voters of the county, at
any general election, should so determine. It has been held,
with respect to each of those cases, that the voters of the county
there referred to, were the voters who should vote at the
election called to vote upon the question ; or that the vote at
such election should be adopted, as the means of ascertain-
ing the number of legal voters of the county. The People
ex rel. v. Warfield, 20 111. 159; The People ex rel. v. Garner,
47 id. 246.
In TJie People ex rel. v. Wiant, 48 111. 263, it was held, in
regard to an election for the removal of a county seat, that,
where there was another election held at the same time, the
return of the votes cast at such latter election might be re-
sorted to as an additional means of ascertaining the whole
number of the voters of the county, and that a majority of all
1874.] Mei/vin et at v. Lisekby et al. 67
Opinion of the Court.
the voters at that election must have been in favor of the pro-
position for the removal of the county seat; but that, where
there was no other election held at the time, then the returns
of the proper officers of the votes on the question would
govern.
In Garner's ease, it was held that the presumptive evidence
that the vote cast at the election upon the question was that
of the whole number of legal voters in the county, could not
be rebutted by the registry lists of the election, and we must
hold, in consistency with previous rulings, that it can not be
rebutted by proof of the number of votes cast at an election
held in the preceding year. See, also, St. Joseph Township v.
Rogers, 16 Wall. 664, and cases there cited.
Dunnovan v. Green, 57 111. 63, referred to, is not in point, as
that was a case on demurrer to the bill, which alleged that a
majority of all the legal voters living in the township had not
voted for the subscription, and the truth of this statement was
admitted by the demurrer. This disposes of the first point, in
favor of the right of having these bonds registered, and it is
only as touching that right, and not the validity of the bonds,
that the question just considered is material, the above amend-
atory act only requiring a majority of the votes at the election
upon the question.
As respects the second point, that the bonds are not coun-
tersigned by the treasurer of the county, it is the case of the
defective execution of an instrument.
The county of DeWitt, by its authorized agent, in pursu-
ance of a vote of the people of the county, made a contract of
subscription of $175,000 to the capital stock of this railroad
company. In attempted execution of the contract, the bonds
in question were issued. They were signed by the chairman of
the board of supervisors and by the county clerk, and attested
by the official seal of the latter, and were delivered to and
accepted by the railroad company, as in completion of the
contract for subscription, and in payment for the stock sub-
scribed for. The bonds were negotiated by the company for
68 Melvin et al. v. Lisekby et aL [Jan. T.
Opinion of the Court.
full value, before the suit was instituted. But the bonds are
not countersigned by the treasurer, as they are required to be
by the act authorizing the subscription. In that circumstance,
they lack in a complete execution. For aught that appears,
it was an accidental and unintentional omission.
To grant the relief asked for by the bill, in such case,
would seem to be to reverse the accustomed action of a court
of equity. It is the especial province of such court to enforce
the specific performance of agreements, to aid and correct de-
fects or mistakes in the execution of instruments and powers.
It is a maxim, that equity looks upon that as done which
ought to have been done — the true meaning of which is, that
equity will treat the subject matter, as to all collateral conse-
quences and incidents, in the same manner as if the final acts
contemplated by the parties had been executed exactly as
they ought to have been, not as the parties might have exe-
cuted them. 1 Story Eq. Jur. sec. 64 g.
The important thing here was the authorizing of the sub-
scription by a vote. That having been done, what followed
to be done consisted in duties which the act prescribed to be
performed by certain officers of the county, and the counter-
signing by the treasurer would seem to be the least essential of
the prescribed circumstances of the execution of the bonds. It
was but the signing, as a subordinate officer, a writing signed by
a principal or superior, to attest the authenticity of the writing.
The statute did not make the bonds void, if not countersigned
by the treasurer.
The supplying of such a defective circumstance in the exe-
cution of an instrument or power would, in the absence of a
remedy at law, be within the ordinary remedial power of a
court of equity.
The court is called upon here, not to aid in the defective
execution of these bonds, and interpose in their support, but
it is asked to lend its aid to enable advantage to be taken of
this defect of execution of the instruments, in defeat of the
execution of a fair agreement, and to prevent the enjoyment
1874.] Coffey v. Fosselman. 69
Syllabus.
of a benefit which might be derivable from the bonds in the
condition they now are. The relief sought appears to us to
be in opposition to all the cardinal principles of the exercise
of equity jurisdiction.
It is a different question from the one, whether an action
at law would be maintainable on the bonds.
We are of opinion that the appellees do not stand upon a
ground of superiority which entitles them to come into a court
of equity for relief, and that there is a countervailing equity
on the other side to induce a court of equity to remain passive.
The decree will be reversed, and the cause remanded for
further proceedings in conformity with this opinion.
Decree reversed.
Mr. Chief Justice Breese and Mr. Justice McAllis-
ter dissent, on the ground that, the statute having prescribed
a particular mode to be pursued by the municipal officers, in
the execution of the bonds, it impliedly prohibits any other
mode. The doctrine of aiding the defective execution of the
power has no application to a power conferred by statute on
public officers, and equity will follow the law.
Thomas C. Coffey
V.
Joseph B. Fosselman.
1. Continuance — will not be granted where there is want of diligence.
Where an affidavit shows that the witness whose testimony is required
resides in an adjoining county, and it appears that no effort has been
made to procure his testimony by deposition, or his appearance in court
by subpoena, a motion for a continuance on account of the absence of
such witness should be overruled.
2. Practice—; judgment on appeal from the county court to the circuit court.
The circuit court, in cases of appeal or writ of error from the county
court, has power to reverse, affirm, or enter final judgment and award
execution.
70 Coffey v. Fosselman. [Jan. T.
Opinion of the Court.
Appeal from the Circuit Court of Scott county; the Hon.
Cyrus Epler, Judge, presiding.
Mr. John G. Henderson, for the appellant.
Mr. ¥m. L. Gross, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This case comes, by appeal, from the circuit court of
Scott county.
Appellant insists upon a reversal of the judgment upon
two grounds : First, because the county court overruled his
motion for a continuance. Second, for the reason that the
circuit court entered judgment and awarded execution.
It appears, from the record, that this suit was originally
commenced before a justice of the peace, and set for trial on
the 31st of July, 1873, at which time appellant appeared and
obtained a continuance until the 21st day of August, at which
time a trial was had and judgment entered in favor of appellee.
On the 6th day of September, appellant filed his bond with the
justice and appealed the cause to the county court. On the
24th of September, 1873, the cause came on for trial in the
county court, and appellant filed an affidavit for a continu-
ance, which was denied, and judgment rendered for $40.20.
This affidavit for a continuance was properly overruled.
The witnesses whose evidence appellant desired all lived in
an adjoining county, except one, and no efforts appear to have
been made to obtain their evidence by deposition, or their
appearance in court by subpoena.
It is but fair to presume the justice of the peace contin-
ued the cause to give appellant an opportunity to obtain the
depositions of these same witnesses, yet no effort whatever
appears to have been made in that direction. After the ap-
peal was taken, appellant had ample opportunity to subpoena
the witnesses and procure their appearance in the county
court before he filed an affidavit for a continuance; but no
1874.] Parishes et al. v. Waldo et ah 71
Syllabus.
subpoenaes were issued or served, and nothing done to obtain
the evidence. This was such a total want of diligence that
the county court could not do otherwise than overrule the
motion for a continuance.
In regard to the second point made by appellant, we per-
ceive no error in the judgment rendered in the circuit court.
The statute declares, "Appeals and writs of error shall be
allowed from the final judgments of the county court, incases
under this act, to the circuit court, to be taken and tried in
the same manner as is now or may hereafter be provided by
law for appeals and writs of error from the circuit to the
Supreme Court."
Under this statute, the circuit court had power to reverse,
affirm, or enter final judgment and award execution. Wiggins
v. The City of Chicago, 68 111. 372.
The judgment of the circuit court will be affirmed.
Judgment affirmed.
Lemuel A. Paeisher et al.
v.
William S. Waldo et al.
1. Judgment — in debt on an appeal bond. In an action of debt on an
appeal bond, it is error to render a judgment for the sum named in the
bond, and also for a further sum as damages. The judgment in such
case should be, that the debt found should be discharged on the payment
of the damages.
2. Costs — how questioned. It is the duty of the clerk to tax the costs
adjudged against the unsuccessful party, and when the fee bill is made
up by the proper officer, it will be regarded as prima facie correct, and
the cost debtor can challenge its correctness only in a direct proceeding,
either by replevying the fee bill or by a motion to retax costs. It is
impracticable to do so in a suit upon an appeal bond.
Appeal from the Circuit Court of Montgomery county; the
Hon. Horatio M. Vandeveer, Judge, presiding.
72 Parisher et ah v. Waldo et aL [Jan. T.
Opinion of the Court.
This was an action of debt, brought by the appellees against
the appellants, upon an appeal bond. Judgment was rendered
against appellants for the sura named in the bond as debt,
and also the sum of $165.90 damages.
Mr. B. T. Burnett, for the appellants.
Messrs. Southworth & Zink, for the appellees.
Mr. Justice Scott delivered the opinion of the Court :
This action was brought on an appeal bond, in the usual
form. Judgment was rendered for $225, the penalty named
in the bond, and also for the sum of $165.90, less the sum of
$13, remitted. This is error. The judgment should have
been, that the debt found should be discharged on the pay-
ment of the damages.
Our laws make it the duty of the clerk to tax the costs
adjudged against the unsuccessful party. When the fee bill
is made up by the proper officer, it must be regarded as prima
facie correct. On being furnished with a copy, if the cost
debtor is dissatisfied with any item, he may replevy the fee
bill and have the error corrected ; or perhaps he could accom-
plish the same thing on a motion to retax the costs. The
judgment debtor must challenge the illegal costs, in one
mode or the other, in some direct proceeding instituted for
that purpose. It will be found impracticable to do it in an
action on an appeal bond — it presents a collateral issue.
For the error indicated in the amount of the judgment
rendered, the judgment will be reversed "and the cause re-
manded.
Judgment reversed.
1874.] McLaukie v. Barnes et al. 73
Opinion of the Court.
Thomas A. McLaukie
v.
Reuben C. Barnes et al.
1. Specific performance — tarred by laches. A party purchased a tract
of land in 1856, to be paid for in three annual instalments, put his con.
tract on record, and took possession of the land. He paid the first and
part of the second note during the first two years, and, after the third
one became due, his vendor moved to another State, and took the notes with
him. The purchaser made no effort to find him, to pay the notes. About
the time the last one became due, the vendor confessed a judgment in
favor of his creditor. An execution was issued on the judgment, the
land sold under it, and the creditor became the purchaser, and acquired
a sheriff's deed in 1860, and thereupon turned the vendee out of posses-
sion, and, on the 23d of February, 1861, the judgment creditor filed a bill
against his debtor and the vendee of such debtor, to remove the contract
of sale between them, as a cloud on his title. The vendee, in September,
1866, filed a cross-bill, to which a demurrer was sustained, and thereupon
the complainant in the cross-bill dismissed it, and the complainant in the
original bill dismissed that. In October, 1867, the vendee filed his bill
against the various parties in interest, for a specific performance of his
contract of purchase: Held, that there was such delay, unexplained by
equitable grounds of excuse, as indicated an abandonment of the pur-
chase, and that he was barred by his laches.
2. Execution — interest in land subject thereto. The interest of the ven-
dor in such case was such an interest as could be properly levied on and
sold under execution.
Writ of Error to the Circuit Court of Champaign county ;
the Hon. Arthur J. Gallagher, Judge, presiding.
Messrs. Black & Gere, for the plaintiff in error.
Mr. E. S. Terry, and Mr. E. L. Sweet, for the defendants
in error.
Mr. Justice Walker delivered the opinion of the Court :
On the 4th day of July, 1855, one Thomas contracted to
sell and convey to defendant Barnes, a 40-acre tract of land.
Barnes went into immediate possession of the premises, and
74 McLaurie v. Barnes et al. [Jan. T.
Opinion of the Court.
the bond was duly recorded. The consideration agreed to be
paid was $2000— $200 in cash, $100 on the 1st of the next
September, $200 the 1st of March, 1866, the balance to be
paid in two equal yearly instalments. Barnes, at different times,
sold small portions of the land to various persons, with the
consent of Thomas, who in some cases received the purchase
money and executed deeds directly to the purchasers.
On the 4th day of July, 1856, Barnes sold to plaintiff in
error 9 acres, a part of the 40-acre tract, for $2500, for which
the latter gave his three several promissory notes, for equal
amounts, due in one, two and three years, with 6 per cent
interest, and Barnes gave to him a bond for the conveyance
of the land on the payment of the purchase money. Plain-
tiff in error immediately went into possession. Within the
first year he paid the first and a portion of the second note.
When the last note fell due, the balance of the money was
not paid or tendered, nor a deed demanded, nor was any ten-
dered to him. In September, 1859, after the money was all
due, Barnes removed to Kansas, taking with him the unpaid
notes.
It is claimed, and there is evidence tending to prove, that from
the sale of the property other than to plaintiff in error, Thomas
was fully paid the purchase money on his sale to Barnes. In
April, 1858, Barnes gave to Thomas a power of attorney to
confess a judgment on the two last notes given to him on
the purchase of the 40-acre tract, on which a judgment was
confessed. An execution was issued on the 13th of July,
1858, which was levied on the 9 acres sold by Barnes to plain-
tiff' in error, and, on the 13th of the following September,
the land was sold by the sheriff to Thomas, for $1770.97, who
gave to him a certificate of purchase, and, on the 14th day
of January, 1860, the land not having been redeemed, the
sheriff executed to Thomas a deed for the 9 acres. There-
upon, plaintiff in error was forcibly ejected from the posses-
sion of the premises.
1874.] McLaueie v. Baknes et ul. 75
Opinion of the Court.
On the 22d of February, 1861, Thomas filed a bill in equity
against Barnes and plaintiff in error, to cancel and remove
the contract between them for the sale of the land, as a cloud
on his title. On a hearing, a decree was rendered in favor
of Thomas, and plaintiff in error appealed the case to this
court, where the decree was reversed and the cause remanded.
Thereupon plaintiff in error, on the 26th of September, 1866,
filed a cross-bill in the case, to which a demurrer was sus-
tained, and, in April following, he voluntarily dismissed his
cross-bill, and Thomas dismissed his bill.
Pending the appeal, Thomas sold the 9 acres in different
parcels to three several persons, and, on the 12th day of
October, 1867, plaintiff in error filed this bill against the
various parties in interest.
On a final hearing, the court below refused the relief asked,
and dismissed the bill. To reverse that decree this writ of error
is prosecuted, and various grounds are urged for a reversal.
But, in the view we take of the case, the great and controlling
question is, whether plaintiff in error has acted with that
promptness in performing his part of the contract, which a
court of equity always requires before specifically enforcing
such contracts; whether he has shown such an equitable ex-
cuse for his non-performance as accounts satisfactorily for the
delay.
If, as is claimed by plaintiff in error, Barnes had paid the
original purchase money on the 40 acres, then the only right
which Thomas acquired by the execution sale and sheriff's
deed of plaintiff in error in the 9 acres, was that held by
Barnes. Nothing more, nothing less. Barnes' interest in
that tract was only subject to sale on execution by virtue of
the 1st section of the chapter entitled Judgments and Exe-
cutions." It provides that lands, tenements and real estate
shall be liable to sale on execution in the manner provided in
that chapter, and the section defines the term, "real estate,"
to embrace "all interest of the defendant or any person to his
use, held or obtained by virtue of any deed, bond, covenant
76 McLaurie v. Barnes et al. [Jan. T.
Opinion of the Court.
or otherwise, for a conveyance, or as mortgagee or mortgagor,
of lands in fee, for life or years." This language is broad
enough to include Barnes' interest, whether under his bond
from Thomas or "otherwise," and the sale was authorized.
After Thomas purchased, and he received his sheriff's deed,
he became possessed of Barnes' interest, and assuming, as the
evidence tends to show, and defendants earnestly claim, the
original purchase money was paid for the 40, including this
tract, then Thomas became liable to perform Barnes' contract
with plaintiff in error, when he should comply with his part
of the agreement. Thomas purchased charged with notice,
as Barnes' bond for a conveyance was recorded before Thomas
obtained his judgment. This, then, left plaintiff in error
only to pay the balance of the purchase money he had agreed
to pay to Barnes, to Thomas, and receive a deed. Thomas
occupying the same relation to the contract that Barnes had
previously done, plaintiff in error only had to pay to Thomas
what he owed on the purchase, and receive his deed. In this
there was no complication or legal difficulty or uncertainty.
This was the undoubted attitude of the parties, and had
plaintiff in error, on receipt of the deed by Thomas, paid
the money, we have no doubt Thomas would have complied
with his plain legal duty, by conveying to him the land, in
pursuance of the terms of Barnes' bond; or had he obsti-
nately refused, he could have made a tender, and kept it
good, and compelled a conveyance. It is, however, said that
plaintiff in error did not know whether his notes were still
held by Barnes, or had been negotiated before maturity. We
presume, as nothing is shown to the contrary, that, had
plaintiff in error made slight efforts, he could have found
where Barnes then resided, and could, by letter or otherwise,
have learned whether he still held the notes. To have done
so, would have required no more than ordinary diligence;
but the record is, so far as we have been able to discover,
barren of all evidence that any effort was made for the pur-
pose.
1874.] McLaukie v. Baknes et al. 77
Opinion of the Court.
There having been no impediment to the payment of the
purchase money by plaintiff in error, when Thomas received
his sheriff's deed but a few days after the last instalment fell
due on the purchase money, plaintiff in error should have
paid, or at least tendered it to Thomas, and demanded a con-
veyance, within a reasonable time; but this he failed to do,
and, so far as we can see, has never made an unconditional
offer to pay the money. He took no active steps toward
asserting his claim and to have it enforced, until he filed his
cross-bill, on the 26th of September, 1866, six years and
nearly nine months after he could have made* payment and
enforced his contract, which he should have been ready,
willing and eager to perform. Such delay, unexplained by
equitable grounds of excuse, we regard as laches, that indi-
cates an abandonment of the purchase.
In such a length of time, great changes are likely to occur
in the situation and condition of parties. Values are subject
to fluctuations and great changes in such a period of time ;
and although time, in this case, was not made of the essence
of the contract, still, in such cases, after such delay, a court
of equity will not enforce the contract unless there are cir-
cumstances which indicate that the non-performance has been
induced, or at least sanctioned, by the vendor, or the parties
have so acted as to render it inequitable to permit the vendor
to hold the land, or some other equity has intervened that
requires a specific performance. We see none such in this
case. It is simply a neglect, on the part of plaintiff in error,
to keep and perform his part of the agreement within such
time as would entitle him to compel a conveyance. He is
barred by his laches.
It could not matter, with plaintiff in error, whether Thomas
overreached and defrauded Barnes or not, as he only had to
pay Thomas the balance of the purchase money in proper
time, and receive a deed. If Thomas defrauded Barnes, that
concerned Barnes and not plaintiff in error. Anything they
did in reference to the judgment sale and receiving the
78 Deming et al. v. James. [Jan. T.
Syllabus.
sheriff's deed, could not affect plaintiff in error, had he stood
upon and performed his part of the agreement. Suppose
Barnes had quitclaimed this land to Thomas, then it is obvi-
ous that he would have been compelled, on payment of the
balance of the purchase money, to convey to plaintiff in error,
although there might have been fraud on the part of Thomas
in procuring the quitclaim deed. And in what does the two
cases differ ?
Perceiving no error in the record, the decree of the court
below is affirmed.
Decree affirmed.
Fkiend A. Deming et al.
John Q. James.
1. Injunction — when sale of property for taxes will be enjoined. When
the collector of taxes levies upon the property of one for the taxes of
another, and the collector is insolvent, and not able to respond in dam-
ages, a court of equity will enjoin the sale of such property.
2. Taxes — agent not liable for tax on property listed by him in the name
and on behalf of his principal. Whilst the statute requires an agent loan-
ing money for others, to list such money for taxation on behalf of the
owners, separately from his own, and to specify the names of the persons
to whom the money belongs, it does not result that his own property is
subject to be seized and sold for the payment of the taxes imposed upon
the money thus listed.
Appeal from the Circuit Court of Coles county; the Hon.
James Steele, Judge, presiding.
Messrs. D. T. & D. S. McIntyre, for the appellants.
Messrs. Ficklin & Fryer, and Mr. A. M. Peterson, for
the appellee.
1874.] Deming et al. v. James. 79
Opinion of the Court.
Mr. Justice Sheldon delivered the opinion of the Court :
The error here assigned is in sustaining a demurrer to a
bill to enjoin the sale of certain property for taxes.
The substantial allegations of the bill are, that the com-
plainants, as agents for various non-residents, had loaned for
them divers sums of money which they had placed in com-
plainants' hands for that purpose; that the notes for the loans
were taken payable to the respective parties who owned the
money loaned, and had been returned to the payees; that some
time in June, 1871, the assessor of taxes applied to complain-
ants, and required of them a list of all persons for whom money
had been loaned by them, and a statement of the amounts of
the loans for the parties, respectively; that the assessor
assessed and listed for taxation the moneys that had been so
loaned against the parties owning the moneys; that they were
not listed or assessed to complainants or either of them ; that
on the 14th of January, 1872, the defendant, the collector of
taxes, applied to complainants and demanded of them divers
specified sums of money, taxes against the several persons
who were the owners of the moneys so loaned, amounting in
the aggregate to the sum of $206, which complainants refused
to pav ; whereupon the defendant levied upon one large iron
burglar-proof bank-safe belonging to the complainants, which
he was about to remove and expose for sale to satisfy said
taxes; that the persons against whom the taxes were assessed
had no interest in the safe; that complainants had no prop-
erty or money of such persons in their hands out of which
to pay the taxes, nor had they any authority from them to
pay the taxes.
The bill alleges that the complainants are partners, engaged
in a general banking business; that the safe was in constant
use, and necessary for the carrying on of their business; that
the defendant was utterly insolvent, and, on account thereof,
any remedy against him for damages would be wholly un-
availing.
80 Deming et al. v. James. [Jan. T.
Opinion of the Court.
It seems quite plain that this property was wrongfully
seized. It was an attempt to collect the taxes of one person
out of another person's property. We know of no warrant
for such a proceeding. It is true, the statute requires an
agent to list for taxation moneys circumstanced as these were,
but he lists it on behalf of others, and he is required to list
it separately from his own, and to specify the name of the
person to whom the property belongs, and it does not result
that his own individual property is subject to be seized and
sold for the payment of the taxes imposed upon the property
thus listed. Tax-payers find their own taxes a sufficient bur-
then, without being charged with the payment of the taxes of
others.
Under the circumstances of this case, we think a court of
equity may well take jurisdiction, notwithstanding its reluc-
tance to entertain bills to restrain the collection of taxes.
It has been held by this court that equity will not inter-
fere to prevent the collection of a tax, for informalities or
irregularities, but that it may do so where the tax is unauthor-
ized by law, or where it is assessed upon property not subject
to taxation, and, as has been intimated, to prevent irreparable
injury. McBride v. The City of Chicago, 22 111. 574; Chicago,
Burlington and Quincy Railroad Co. v. Frary, id. 36 ; Vieley
v. Thompson, 44 id. 9.
The object here is, not to wholly restrain the collection of
a tax, but only to restrain the sale of a particular article of
property, on the ground that it is not subject to the payment
of the tax. There was no adequate remedy at law.
Replevin would not lie, because of inability to make the
oath required by the statute, that the property had not been
taken for any tax levied by virtue of any law of this State.
Defendant, by the showing of the bill, could not be made to
respond in damages. The use of the article of property in
question seems to be almost indispensable in the carrying on
of complainants' business as bankers. There is a likelihood
1874.] Luton v. Hoehn. 81
Opinion of the Court.
of great, if not irreparable injury., unless the relief asked be
granted.
We are of opinion the demurrer should have been over-
ruled, instead of being sustained.
The decree must be reversed, and the cause remanded for
further proceedings in conformity with this opinion.
Decree reversed.
George Luton
v.
Jacob Hoehn, for the use, etc.
1. Garnishment— judgment debtor subject. Under the Revised Statutes
of 1845, which provide that, where any person is indebted, or has any
effects or estate of the defendant in his hands, the same may be the sub-
ject of garnishment, it makes no difference whether such person is a judg-
ment or a simple contract debtor. In either case, the effects or estate in
his hands may be taken to pay his creditor's claim, in the mode provided
by the statute.
2. A judgment debtor, in the circuit court, may be garnisheed, on pro-
cess issued by a justice of the peace.
Appeal from the Circuit Court of Madison county; the
Hon. Joseph Gillespie, Judge, presiding.
Messrs. Gillespie & Happy, for the appellant.
Messrs. Irwin & Krome, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
The only question presented by this record is, whether a
judgment debtor, in the circuit court, can be garnisheed on
process issued by a justice of the peace.
The objection taken proceeds alone on the ground there
will be a conflict of jurisdiction between the lower and higher
court. We see no force in this view of the case. Our statute
6— 72d III.
82 C. & A. R. R. Co. *. The People ex rel [Jan. T.
Syllabus.
on this subject is as broad and comprehensive as it can be
made. It provides, where any person is " indebted," or "hath
any effects or estate" of the defendant in his hands, the same
may be the subject of garnishment. R. S. 1845, section 38,
page 307.
It can make no difference whether such person is a judg-
ment or a simple contract debtor. In either case, the effects
or estate in his hands may be taken to pay his creditor's
claim, in the mode prescribed in the statute.
No doubt some inconvenience may arise in subjecting judg-
ments, upon which executions have already been issued, to this
process, but the general good should be regarded as the para-
mount interest, rather than the mere convenience of the
debtor. The same difficulty would occur in courts of equal
jurisdiction. Indeed, in every case, this process may occasion
inconvenience to the debtor, but the statute should not, for
that reason, be so construed as to be ineffectual for the pur-
poses for which it was enacted. It affords, in many instances,
the only remedy the creditor has for collecting his claim, and
it should always receive a liberal construction. In the few
cases where real injury may be threatened, equity will relieve
the party whose interests are about to be affected.
No error appearing, the judgment is affirmed.
Judgment affirmed.
The Chicago and Alton Railroad Company.
v.
The People ex rel. The City of Bloonrington.
Formeb adjudication — will not be reviewed. When a cause is reversed
by this court, on the ground that a writ of mandamus should have been
awarded in the court below, and upon a remandment of the cause the
circuit court, without any new testimony being heard, awards the writ
in conformity with the opinion of this court, such judgment of the cir-
cuit court will not be reviewed.
1874.] C. & A. E. K. Co. v. The People ex rel 83
Opinion of the Court.
Appeal from the Circuit Court of McLean county ; the
Hon. Thomas F. Tipton, Judge, presiding.
Messrs. Williams, Burr & Capen, for the appellant.
Mr. Ira J. Bloomfield, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This case was before this court at the January term, 1873,
when, upon a full consideration of the merits of the case, an
opinion of the court was pronounced, concluding as follows :
" We are of opinion that a peremptory mandamus should be
awarded," and the judgment was reversed and the cause re-
manded for such other and further proceedings as to law and
justice should appertain.
Such other and further proceeding would be to award a
peremptory writ of mandamus, which was afterward accord-
ingly done by the court below, after the filing of a transcript
of the remanding order. This appeal is taken from the
judgment awarding the peremptory writ of mandamus. It
does not appear, from the record, that any new testimony was
heard after the cause was remanded, and it is not claimed by
appellant's counsel that any such evidence was introduced.
This judgment was but in conformity with the opinion of
this court in the case, and will not be reviewed. The judg-
ment will be affirmed.
Judgment affirmed,
Mr. Justice Scott took no part in this decision.
84 Hughes v. Washington et at [Jan. T.
Syllabus.
Geoege E. H. Hughes
V.
Richard B. Washington et al.
1. Wills — power of executor to sell property. Under a will author-
izing the executor to sell property in such manner, and on such terms,
and for such prices, as to him may seem best for the interest of the child-
ren of the testator, and to reinvest the proceeds arising from such sale in
such other property as he may think best for the testator's children, the
executor has an absolute discretionary power of sale, as a trustee, in the
same manner as he would have held the title if it had been specifically
devised to him.
2. Same — power of executor to make contracts in relation to real estate
of testator. A party living in Virginia owned real estate in Illinois, and
a judgment was rendered against him in the circuit court of the United
States, for the Northern District of Illinois, in 1860, from which he took
an appeal to the Supreme Court of the United States. There were also
deeds of trust on his property in Illinois. In 1861 he was killed in the
confederate arm}', having made a will, containing this clause: "I consti-
tute and appoint my brother, R. B. Washington, Wm. T. Alexander, and
E. C. Turner, executors of this iny last will and testament; and I hereby
empower them, or the survivor or survivors of them, to sell any property
of which I may die possessed, and which is beyond the limits of Virginia,
in such manner, and on such terms and for such price, as to them or him
may seem best for the interest of my children, and to reinvest the proceeds
arising from such sale in such other property as the}^ may think best for
my children." The executor resided in Richmond, Virginia, and had no
means to provide for prosecuting the appeal in the Supreme Court of the
United States, except the property in Illinois: Held, that the executors
were authorized, under the will and the peculiar circumstances of the
case, to make a contract to give to an attorney an interest in the real
estate in Illinois, in consideration of his attending to and protecting the
interest of the estate in relation thereto, and also attending to the cause
in the Supreme Court of the United States, and that such a contract, if
fairly made, should be enforced.
3. Principal and agent — agent must not act adversely to the interest
of his principal. An agent for the owner of real estate has no right to
speculate in property committed to his care, nor has he any right to put
himself in a position adverse to the interest of his principal.
4. Same — agent can not be a purchaser for his own benefit in a sale made
by him for his principal. So, where an agent for the owner of real estate
conducted a negotiation for the sale of the same on behalf of the owner
1874.] Hughes v. Washington et ah 85
Opinion of the Court.
on the one hand, and was really, on the other hand, purchasing for him-
self, jointly, with the ostensible purchaser, although the transaction pur-
ported to be entirely between the owner and such ostensible purchaser, it
was held, that the transaction was a constructive fraud upon the owner,
and that the purchase thus made could not be sustained.
Appeal from the Circuit Court of Cook county; the Hon.
William W. Faewell, Judge, presiding.
Messrs. Lawrence, Winston, Campbell & Laweence,
and Mr. Robert Rae, for the appellants.
Mr. B. D. Magruder, and Mr. Geo. F. Bailey, for the
appellees.*
Mr. Justice Craig delivered the opinion of the Court :
This was a bill in chancery, filed in the circuit court of
Cook county, by Richard B. Washington, executor, and the
heirs at law of John A. Washington, against Geo. R. H.
Hughes and others, to" set aside certain deeds, and a contract
and a settlement, and to vest the title to certain lands in Cook
county in complainants.
The cause was heard on bill, answer, replication and proofs,
and a decree was rendered for complainants, substantially as
prayed for in the bill. Hughes brings the case here by ap-
peal, the other defendants having compromised with the com-
plainants since the rendition of the decree.
This cause, and another between the same parties, have
been considered together as one case, the same evidence hav-
ing been introduced in each, and one argument having been
made in both. This opinion is intended for both cases.
In 1859 John A. Washington, of Virginia, purchased cer-
tain real estate in Cook county, consisting of four tracts, and
* Note by the Reporter : This case, as reported on the former appeal,
in 65 111. 246, does injustice to counsel, in misrepresenting their positions.
Mr. Magruder and Mr. Bailey were counsel for the appellees on the first
appeal, as in this, and Mr. Wm. L. Mitchell was, alone, counsel for the
appellants.
86 Hughes t?. Washington et al. [Jan. T.
Opinion of the Court.
designated, in this case, as the Kingsbury tract, the Webster
tract, the ten acre tract, and the undivided half of sec. 21.
The litigation in this case has grown out of the connection
of Hughes with these lands since the purchase.
In November, 1860, one Ogden recovered a judgment in
the United States Circuit Court for the Northern District of
Illinois, of $36,481, against John A. Washington and Wm. F.
Turner, for an installment due upon a land purchase made
by Washington and Turner of Ogden. An appeal was taken
from this judgment to the Supreme Court of the United States.
Hughes had been engaged in the circuit court as one of the
attorneys of Washington and Turner. In September, 1861,
Washington, who was then a colonel in the confederate army,
was killed. In July, 1861, Washington had given Hughes a
power of attorney to sell the Cook county lands, and it seems,
from the evidence, that, owing to the then troubled condition
of the country, he was exceedingly anxious to make sale of
his Cook county lands, even at a heavy sacrifice.
The Kingsbury tract was incumbered by a deed of trust
for $10,000, due Bishop O'Eegan, due Sept. 21, 1862, with
ten per cent interest. The undivided half of sec. 21 was also
incumbered by a trust deed, to John V. LeMoyne, for $4500,
with ten per cent interest, which became due on the 24th of
February, 1864. The other tracts were clear.
At the time Washington died, there was no communication
between Richmond, his residence, and Chicago, and Hughes
had already advanced some $600 for the purpose of paying
interest on the mortgage upon the half section of land. Taxes
on the lands were maturing. The appeal taken by Washing-
ton and Turner to the Supreme Court of the United States
was pending, and Hughes, Washington's agent, had in his
hands no means to pay taxes or the expense of the suit, which
it was important to have prosecuted to a successful termina-
tion. Under these circumstances Hughes started for Rich-
mond, for the purpose of effecting some arrangement with the
1874.] Hughes v. Washington et al. 87
Opinion of the Court.
executor of the estate of Col. Washington in regard to the
Cook county lands and the pending suit.
Upon reaching Richmond, Hughes had an interview with
Richard Washington, sole executor of the estate of John A.
Washington, deceased, and with Wm. F. Turner, the result
of which was, a written contract was made between Hughes
and the executor, that Hughes should, at his own costs and
expense, prosecute the suit pending in the Supreme Court,
Turner and the estate to be at no expense whatever, either for
costs, attorney fees or otherwise. And in case the judgment
should be affirmed, then Hughes was to receive nothing; but
in case the judgment should be reversed, and the estate and
Turner released from the same, then Hughes was to have one-
third of the proceeds of the Cook county lands belonging to
the estate of Col. Washington, after the payment of the in-
cumbrances, or one-third of the lands, as he might elect.
Turner also owned certain lands in Cook county, and he, on
his part, agreed with Hughes to convey one-third thereof, on
like terms as did the executor, in the event that he was re-
leased of the judgment.
At the same time, another contract was made between the
executor and Hughes, by which Hughes was to take charge
of and manage the real estate in Cook county. He was to
sell so much of the incumbered property as was necessary to
discharge the incumbrances. He was to pay taxes, and take
a general management and control of the property. For his
services in this respect, Hughes was to have one-fourth of
the proceeds of the sales of the incumbered property, after
deducting first the claims that were upon it. In case he ad-
vanced money to pay taxes or discharge incumbrances, this
was to be refunded out of the proceeds of sales, with ten per
cent interest.
After the execution of these agreements, Hughes returned
to Chicago, and employed two eminent attorneys, one in Chi-
cago and the other in Washington, to argue the Ogden case
in the Supreme Court. The cause was heard, and a decision
88 Hughes v. Washington et al. [Jan. T.
Opinion of the Court.
rendered reversing the judgment, and relieving entirely the
Washington estate and Turner from the payment, not only of
the judgment but of other large sums thereafter to become
due on the contract upon which the judgment had been ren-
dered.
On the trial of the cause, the circuit court decreed that
Hughes was not entitled to one-third of the lands or one-third
of the proceeds thereof, and decreed he should have only
$7603.92 for his services and money by him advanced in
defending against the Ogden judgment. This was done on
the ground that the executor had no power to make the con-
tract. This brings us to a consideration of the powers of the
executor under the will of John A. Washington, deceased.
The fourth clause of the will is as follows : "I constitute
and appoint my brother, R. B. Washington, Wm. T. Alex-
ander and E. C. Turner, executors of this my last will and
testament ; and I hereby empower them, or the survivors or
survivor of them, to sell any property of which I may die
possessed and which is beyond the limits of Virginia, in such
manner, and on such terms, and for such price, as to them or
him may seem best for the interest of my children, and to
reinvest the proceeds arising from such sale in such other
property as they may think best for my children. And I
hereby request the court before which they may qualify, not
to require from them any security on their executors' bond."
The question is not, whether, in view of subsequent events,
it would have been better, financially, for the Washington
estate had the executor contracted with Hughes to pay him a
definite sum of money for defending against the Ogden judg-
ment, but the point involved is, had the executor, under the
will, the power to make the contract? If the executor had
the authority, and no undue influence or fraud was practiced
bv Hughes in obtaining the contract, then it is clearly the
duty of courts to enforce the contract according to its terms,
regardless of the fact whether it was profitable or unprofitable
for the estate.
1874.] Hughes v. Washington et al. 89
Opinion of the Court.
There can be no question but it was the duty of the execu-
tor to defend the estate against the Ogden suit. The defense
could not be made except by employing counsel. It is con-
ceded by the counsel for appellees, that the executor had power
to employ counsel, and bind the estate to pay a definite sum
of money for services rendered. It is also a conceded fact,
that the executor had the power, under the will, to sell the
Cook county lands. The executor had no money with which
to defend the suit, except confederate money, and that could
not be sent North, and had it been sent through the lines, it
would have been worthless. He was, practically, compelled
to rely upon the Cook county lands as a means from which
to raise the necessary funds to defend against the Ogden
judgment.
If the executor had sold a definite piece of the Cook county
lands, and obtained money, and used it in the defense of the
suit, appellees would not have complained. In lieu of this,
the executor contracted to give Hughes one-third of the lands
for his services, if successful, and he was to employ and pay
counsel, pay costs, and all other expenses. Practically it
could make no difference whether the executor sold a portion
of the lands to a stranger, and used the money to defend
against the suit, or gave directly a part to the one employed
to defend.
We do not deem it material to determine, under the facts
in this case, whether, under the will, the fee of the Cook
county lands was vested in the executor, or whether the power
of the executor was a naked one, or one coupled with an in-
terest. Upon these questions many nice distinctions are laid
down in the books.
The executor had, under the will, an absolute discretionary
power of sale of those lands. He held this power as a trustee
in the same manner as he would have held the title if it had
been specifically devised to him.
It was the undoubted duty of the executor to preserve the
estate. The will gave him full powers of sale, and clothed
90 Hughes v. Washington et ah [Jan. T.
Opinion of the Court.
hirn with a trust ; and his position was, substantially, the
same as it would have been had the will, in terms, placed the
legal title in him. He was empowered to sell in such man-
ner, on such terms, and for such price, as to him might seem
best for the interest of the children of the testator, and to re-
invest the proceeds in such other property as he might think
best for the children.
In Perry on Trusts, sec. 476, it is said : "There are cir-
cumstances where a trustee must exercise the discretionary
power of an absolute owner, otherwise great loss might hap-
pen to the estate. The exigencies of the moment may demand
immediate action. The cestuis que trust may be numerous and
scattered, or under disability, or not in existence, so that their
sanction can not be obtained without great inconvenience.
The alternative of applying to the court may be attended
with considerable or disproportionate expense, and, perhaps,
delay, so that the opportunity is gone and lost forever. It is,
therefore, evident, that it is for the interest of the cestuis que
trust that the trustee should have a reasonable discretionary
power, to be exercised in emergencies, though no such power
is given in the instrument of trust. And so it is a rule of
equity, that a trustee may safely do that without the decree
of the court, which the court, on a case made, would order
and decree him to do."
We do not decide the executor would have been justified
in making the contract with Hughes had the discretionary
power of sale not existed in the will, although the authority
cited goes to that extent ; but, regarding the act of the exec-
utor, as a trustee, in connection with the discretionary power
of sale given by the will, and considering the peculiar cir-
cumstances under which the executor was situated, and the
perilous condition of the Cook county lands, these things all
considered, we are clearly of opinion the executor was not
only justified, but it was a duty resting upon him, to make
this or some other contract, for the purpose of preserving the
estate of the deceased.
1874.] Hughes v. Washington et aL 91
Opinion of the Court.
It is, however, insisted, this contract is fraudulent in fact.
We do not think the proof shows fraud on the part of Hughes
in obtaining the contract. The onus probandi rests upon the
complainants who assert the fraud. As is to be expected, the
testimony of Hughes and the executor upon this point is in
conflict, but Hughes' version of the transaction is substan-
tially sustained by the evidence of Turner, who is a relative
of the Washingtons. By his testimony, it appears the con-
tract was freely entered into by the executor, after mature
deliberation, and upon the counsel and advice of eminent
attorneys in Richmond: Juda P. Benjamin, the confederate
secretary of war, and Robert E. Scott.
Another strong fact to repel any presumption of fraud is,
that Turner, who was a party to the judgment with John A.
Washington, made a similar contract with Hughes, and, after
the war was over, expressed himself entirely satisfied with the
contract and the action of Hughes under it, and conveyed to
Hughes one-third of the lands he agreed to convey for Hughes'
services in defending against the Ogden judgment. Turner
and the executor entered into their respective contracts with
Hughes under precisely the same circumstances, and upon
the same representations on the part of Hughes ; and it is
very strange that, if fraud was practiced upon the executor
and Turner, the latter was unable to discover it, or even utter
a word of complaint.
Under the facts in this case, we are, therefore, clearly of
opinion the court erred in disregarding this contract, upon
either of the grounds relied upon by appellees.
The next question presented by this record is, can Hughes
hold the title to one-half of the Webster tract, obtained by
deed from the executor to Roberts, and from Roberts to
Hughes ?
It appears, from the record, that in July, 1862, the execu-
tor gave Hughes a power of attorney, authorizing him to
lease, manage, sell and dispose of the Cook county lauds. In
August, 1862, Hughes sold the Kingsbury tract to one Rob-
92 Hughes v. Washington et al. [Jan. T.
Opinion of the Court.
erts, a cousin of his, for $20,250. He did not, however, con-
vey under the power of attorney, but had the land sold on a
trust deed, which had been given by John A.Washington, in
his lifetime, to secure some $10,000. On the 26th day of
January, 1863, this same Roberts submitted to Hughes a
written proposition to purchase the Webster tract, as follows :
"Chicago, Jan. 26, 1863.
"G. R. H. Hughes, Esq.
"Dear Sir — I have made up my mind to offer you for the
tract of land on the South Branch of the Chicago river, shown
me some days ago, known on the city and county map as lots
of J. D. Webster, and containing seventy-one and a half acres,
$18,000, in terms as follows : cash, on delivery of a good and
sufficient title, $6000 ; in six months, $6000 ; in twelve
months, $6000 — interest at six per cent on the deferred pay-
ments. This offer to be accepted in thirty days, or its with-
drawal to be at my option. Letters will reach me, addressed
as below. Respectfully,
"S. Roberts,
"Cincinnati, O."
On the 23d day of April, 1863, Hughes, then being in Bal-
timore, submitted, through a special messenger, to the execu-
tor, then residing in Charlestown, Va., the proposition of
Roberts. He, at the same time, wrote a letter to the executor,
in which he stated the Webster tract was in a slough of the
river, and would not, for many years, come into market ; that
the offer was a good one, and he recommended the sale. A
blank deed was also sent for the executor to execute, convey-
ing the property to Roberts. The executor executed the deed,
and sent it to Hughes.
The contract between Roberts and Hughes was not, how-
ever, at that time, closed. The land was increasing in value,
and in the meantime an offer of $20,000 was submitted to
Hughes for the land. In August, 1863, he wrote Roberts
that he must see him personally — that their business could
not be closed by correspondence. Roberts then went to Chi-
1874.] Hughes v. Washington et al. 93
Opinion of the Court.
cago, and on the 4th of September, 1863, executed a deed to
Hughes for an undivided one-half of the tract. No money
was paid by Roberts on account of the purchase, or security
given. Hughes kept the deed from the executor to Roberts
in his own hands until the 26th day of December, 1863, when
he received $6000, the cash payment, and delivered the deed,
but took no security for the rest of the purchase money. As
early as September, 1863, and before Roberts had made any
payment and received a deed, Hughes, it seems, on taking a
deed for half of the property, agreed, with Roberts, that they
would unite in improving and developing the property, and
Hughes was to take charge of it, and act for Roberts as well
as himself.
These are a few of the many facts appearing in the record
that seem to be ample to convince any unbiased mind that,
in the sale of the Webster tract to Roberts, Hughes was con-
ducting the sale, on the one hand, for the executor, and on
the other was purchasing for himself — in other words, he
assumed the position of both seller and purchaser. Ingenuity
was used to make it appear that Hughes was buying of Rob-
erts, and that Roberts was alone purchasing of the executor ;
but it is apparent the sale to Roberts was for the joint benefit
of Roberts and Hughes.
On November 10, 1863, while Hughes was the agent for
the Washington estate, and Roberts had not concluded the
purchase by making the cash payment, Hughes, no doubt fear-
in^ that he would lose the benefit of the deed from Roberts
to himself, for one-half of the property, unless Roberts closed
up the trade, after offering to let Roberts have f 800 of funds
that belonged to the estate if he would raise $5200, says :
"The most urgent considerations make this advisable, and
especially the rapid advances in the prices of that kind of
property. I lately heard of some prices which were asked
for lots on the North Branch, which were surprising. Every
one expects an active movement in real estate during the
coming spring, and it is, therefore, most important for you
94 Hughes v. Washington et al. [Jan. T.
Opinion of the Court.
to follow the terms of the offer you made, and to get the pur-
chase secured to you before any objections, growing out of
the rapid rise of property, can be taken."
Hughes had no right to speculate on the property commit-
ted to his care. Zeigler v. Hughes, 55 111. 288. Neither had
he, as agent of the executor, any right to put himself in a
position adverse to the interest of the Washingtons. 1 Par-
sons on Cont. 74 ; Cottom v. Holliday, 59 111. 179.
The deed that Hughes obtained of Roberts for an undivi-
ded one-half of the property, was not placed upon record until
after the commencement of this suit, and the executor was
entirely ignorant that Hughes had any interest in the land, as
purchaser, until 1867.
We are aware of no principle of law upon which this pur-
chase can be sustained. It was clearly a constructive fraud
upon the executor and the heirs of John A. Washington.
Hughes, however, is entitled to one-third of the land, under
the original contract with the executor ; the one-sixth he
should be required to convey to the complainants, and account
to them for rents received, after deducting taxes paid, and the
$3000 which Hughes has paid on the land should be refunded
by the complainants, together with six per cent interest from
the time it was received by the executor.
As to the Kingsbury tract, the court find it had passed into
the hands of Bowers, an innocent purchaser, but decided the
contract between Hughes and the executor, under which
Hughes was to have one-third of the proceeds of the sale of
the lands or one-third of the lands for defending against the
Ogden suit, should be set aside, and the only compensation
allowed for the defense of the suit was the item of $7603.92
in the account rendered by Hughes to the executor in the
settlement of 1865.
This was error. As we have before said, in speaking of the
Webster tract, the contract between the executor and Hughes
was binding, and Hughes, on sale of the Kingsbury tract, was
1874.] T., W. & W. Ry. Co. v. Maxfield. 95
Syllabus.
entitled to one-third of the proceeds, as is, by the contract,
provided.
The decrees will be reversed, and the causes remanded for
further proceedings consistent with this opinion.
Decree reversed.
At the January term, 1875, on petition for rehearing, the
following additional opinion was filed :
Per Curiam : The petition for a rehearing has been care-
fully considered in this case, and we fail to perceive any rea-
son for departing from the conclusions reached in the decision
heretofore announced. The rehearing will, therefore, be
denied.
When the case was considered, our attention was not di-
rected to the question of costs. In the petition for a rehear-
ing, appellees have asked that the costs should not all be taxed
against them, and, upon consideration of that question, we are
satisfied equity requires that the judgment as to costs should
be modified.
The circuit court is directed to enter a decree in conformity
to the opinion heretofore filed, and render judgment against
the appellant for all costs in that court. One-third of the
costs in this court will be taxed to appellant, and the remain-
der to appellees.
The "Toledo, Wabash attd Western Railway Co.
v.
Hezekiah Maxfield.
1. Venue — motion for change must be made at earliest opportunity. A
/notion for a change of venue must be made at the earliest opportunity,
and if a party fails to do so, his right will be barred.
2. Practice — special verdict discretionary. Under the Practice Act of
1872, it is discretionary with the court whether it will direct the jury to
96 T., W. & W. Ry. Co. v. Maxfield. [Jan. T.
Opinion of the Court.
find a special verdict, and no error can be assigned on the refusal of the
court to give such an instruction.
3. Negligence — party building a reasonably safe distance from railroad
track not guilty. Whilst a party who erects his buildings on or near a
railroad track is presumed to know the dangers incident to the use of
steam as a motive power, and assumes some of the hazards to which his
property is exposed, yet, where a party erects his building at a reasonably
safe distance from the railroad track, he can not be held guilty of negli*
gence because his building is so situated as to be liable to be set on fire
by another subsequently erected in a dangerous proximity to the track.
Appeal from the Circuit Court of Champaign county ; the
Hon. C. B. Smith, Judge, presiding.
Mr. A. E. Hapmon, for the appellant.
Mr. J. S. Wolfe, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
There was no error in overruling the motion for a change
of venue. Should the notice served upon the opposite party
be regarded as a petition, it is fatally defective in not being
sworn to. The affidavit filed therewith states the knowledge
of the prejudice of the judge of the circuit court came to the
company since the last term of the court, but does not state
the date.
The change of venue was sought on the ground of the
prejudice of the judge of the court, who had recently been
elected. We take judicial notice of the fact the election for
circuit judges took place in June, 1873, and, for aught that
is stated in the affidavit, the knowledge of such prejudice
may have come to the company in time to have made an
application to the judge at chambers to change the venue of
the cause. If so, an earlier application should have been
made. It is a motion the party must avail of at the earliest
opportunity, and a failure to do so will bar the right.
The most serious question in the case arises on the error
assigned, that the verdict is contrary to the law and the evi-
dence.
1874.] T., W. & W. Ey. Co. v. Maxfield. 97
Opinion of the Court.
Appellee's dwelling house and its contents were destroyed
by fire, communicated from the burning of the Larmon ware-
house, which, it is averred, was set on fire through the care-
lessness of appellant's servants, by sparks emitted from a
locomotive on its road. The warehouse was situated on the
" Y" at the junction of the Illinois Central railroad with the
road of appellant, at Tolono, and appellee's building only a
short distance from the warehouse. Soon after the engine
moved off the "Y" to the main track, the warehouse was
discovered to be on fire, and a high wind prevailing, it drove
the flames, with wonderful rapidity, to appellee's dwelling,
which, with its contents, was destroyed in a few minutes.
The house of appellee was situated near enough to the
warehouse so that the burning of the former might be re-
garded as the natural and probable consequence of the burn-
ing of the latter, and therefore within the principle announced
in Fent et al. v. The Toledo, Peoria and Warsaw Railroad Co.
59 111. 349.
Assuming it was incumbent on appellee to prove, substan-
tially as he had averred in his declaration, it was through the
negligent conduct of the servants of the company the ware-
house was set on fire, which was the proximate cause of the
destruction of his own property, we will consider the case
with reference to the question whether there is sufficient
proof of that fact to sustain the verdict.
Larmon brought an action against the company to recover
the value of the warehouse. He recovered in the court be-
low, and on appeal to this court the judgment was reversed.
Toledo, Wabash and Western Railway Co. v. Larmon, 67 111. 68.
The evidence in that record was from the same witnesses, and
was substantially the same as in the present record. We
thought then and still think that the evidence shows the
engine that is said to have caused the fire was equipped with
all the best and most approved appliances to prevent the emis-
sion of fire sparks, and that it was in good repair at the time.
7— 72d III.
98 T., W. & W. Ey. Co. v. Maxfield. [Jan. T.
Opinion of the Court.
If there is any difference, the testimony in this record is
fuller and more satisfactory on that point.
It was said in the former opinion : " The difficult question
in the case is, whether it" (the engine) "was skillfully han-
dled by a competent engineer." Upon that question, it was
said there was a " sharp and direct conflict in the evidence,"
and so there is in the present case.
The judgment in Larrnon's case was not permitted to stand,
for the reason it was thought, in view of the sharp conflict in
the evidence, some of the instructions did not state the law
writh sufficient accuracy, and might have misled the jury.
The erroneous instructions were upon the vital point at issue,
viz : the negligence of the company; for if there was no neg-
ligence, it follows there could be no liability. The errors that
were discovered in that record are not found to exist in the
case at bar. The law was given to the jury with sufficient
accuracy, and there is evidence to warrant the conclusion
the engine-driver was guilty of very gross misconduct in the
management of the engine.
The warehouse was an old one. It stood near the track,
partly on the land of Larmon and partly on the right of way.
It was covered with shingles, and the roof had never been
renewed since its erection. It is more than probable a good
deal of inflammable material had been permitted to accumulate
on the roof, a portion of which descended in the direction of
the track, until it was not higher than the top of a smoke-
stack of an engine. Several witnesses state the engine was
driven over the side-track with great rapidity, emitting an
unusual volume of fire sparks, such as had never been ob-
served by persons long resident there and accustomed to
notice the engines in use. A high wind was prevailing, and
if it is true the engine was throwing off such quantities of
fire, it was gross negligence in the engine-driver not to have
discovered it, and taken measures to have prevented it. One
witness, who was in a temporary structure near the track,
1874.] T., W. & W. Ey. Co. v. Maxfield. 99
Opinion of the Court.
describes the cinders that fell upon the roof as sounding like
the falling of hail.
All this is denied by the witnesses for appellant, but where
the record presents such contradictory testimony from wit-
nesses, so far as we can know, of equal credibility, it is not
perceived how we can disturb the verdict. It is the peculiar
province of the jury to judge of the weight of the testimony,
and, when contradictory, to reconcile it as well as they can.
This they have done, and while it may be true we might,
and perhaps would, have found differently on the testimony
submitted, we are not warranted in saying the verdict is so
clearly against the weight of the evidence as to indicate the
jurv must have been moved by passion or prejudice.
Exception was taken to the refusal of the court to give
instruction numbered two. It was copied from the language
used by this court in announcing its opinion in Larmon's
case. While it is not in the proper form of an instruction,
it nevertheless stated a correct principle of law. The same
principle was stated in another charge asked and given for
appellant, and the court was under no obligation to repeat it.
The court was asked to direct the jury to find a special
verdict and return specific answers to three distinct questions
of fact. The refusal of the court to give such directions is
assigned for error.
This court has several times decided it is discretionary with
the circuit court, under the Practice Act of 1872, whether it
will direct the jury to find a special verdict, and hence no
error can be assigned on the refusal of the court to give such
an instruction. Kane v. Footh, 70 111. 587; Barnes v. Hanson,
71 ib. 607.
The court refused to give another charge, which states, in
substance, that a party who constructs or occupies a house so
situated as to be liable to be set on fire by another erected in
a dangerous proximity to the track, is bound to know the
hazard of such a location. The case of The Toledo, Wabash
and Western Railway Co. v. Larmon, supra, is referred to in
100 T., W. & W. Ry. Co. v. Maxfield. [Jan. T.
Opinion of the Court.
support of this view of the law. No such rule is announced
in that decision. The question did not and could not arise in
that case. It was there declared, and we see no reason to
depart from the doctrine, that a party who himself erects his
buildings on or near a railroad track is presumed to know the
dangers incident to the use of steam as a motive power, and
hence must be held to assume some of the hazards to which
his property would be exposed ; but that is not the case here*
Appellee's property was situated a reasonably safe distance
from the track of appellant's road. It was not in his power
to prevent the erection of the warehouse so near the railroad
track that danger from fire would be constantly imminent. The
fault would rather be upon the company, for permitting its
erection so near its road as to make it a constant exposure to
the property of other parties who have been guilty of no neg-
ligence whatever. It may be true that Larmon was guilty
of such contributory negligence, in erecting his warehouse in
such dangerous proximity to the railroad, as would bar a
recovery on his part, but it by no means follows, persons guilty
of no want of ordinary care in the construction of their own
buildings can not recover. The proof shows the warehouse
was constructed, partly, on the company's right of way. It
was in its power to prevent the erection of the building there,
but the next adjoining landowner had no such authority.
Surely he ought not to be required to abandon the use of his
land on that account. In such a case, if loss should occur, it
is but just it should fall upon either or both the parties in
fault, who rendered it possible for loss to happen. We think
there was no error in refusing the instruction.
Perceiving no sufficient reason for reversing the judgment,
it is accordingly affirmed.
Judgment affirmed.
^o
1874.] Filkins v. Byrne. 101
Syllabus.
KoBERT McCART
V.
Cyrinius Wakefield, Admr. et at.
Lost instrument. In a suit on a bond alleged to be lost, the proof of
loss must be clear and satisfactory.
Appeal from the Circuit Court of McLean county; the Hon.
Thomas F. Tipton, Judge, presiding.
Messrs. Stevenson & Ewing, for the appellant.
Mr. O. T. Beeves, for the appellees.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action of debt, on a bond alleged to be lost.
In such cases, the proof of loss must be clear and satisfac-
tory. There is no sufficient proof that proper search has been
made for the bond. It was last seen in the plaintiff's office,
but no search was made for it there. Again, it was in the
papers in the cause when on trial, and search made for it
since, but how thorough the search was, is not shown. The
clerk was told to look for the bond, but where ? and how did
he obey the direction? Besides, the proof of the contents of
the bond, and its mode of execution, is by no means satisfactory.
For these reasons, the judgment is reversed and the cause
remanded.
Judgment reversed.
Clarissa Filkins
V.
Harry Byrne.
1. Appearance — waiver of service. A defendant, by appearing and
pleading in bar, waives all defects in the service of process, or even the
want of service.,
102 Filkins v. Byrne. [Jan. T.
Opinion of the Court.
2. Affidavit of merits — striking plea from the files. It is not error to
strike a plea from the files for want of an affidavit of merits, in a case
where such affidavit is required by law to accompany the plea.
Appeal from the Circuit Court of Cook county; the Hon.
Henry Booth, Judge, presiding.
Mr. Homer Cook, for the appellant.
Mr. W. H. Richardson, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
It has been repeatedly and uniformly held by this court,
that a defendant, by appearing and pleading in bar, waives
all defects in the service of process, or even the want of ser-
vice. The rule is so elementary and familiar, that we are
unable to understand why the defective return in this case is
urged as error, when defendant appeared and pleaded the gen-
eral issue, and thereby fully submitted to the jurisdiction of
the court. There is no force in this assignment of error.
The case of O'Connor v. Leddy, 64 111. 299, was based
upon the ground that the Practice Act for Cook county was
special, and repealed by the present constitution, which re-
quires the practice of the various courts of the same grade
to be uniform. Since then, however, the General Assembly
has, by the Practice Act, (See Laws 1871-2, sec. 36, p. 344,)
changed the practice, and required pleas in the circuit court,
in cases founded on contract, express or implied, for the pay-
ment of money, and the defendant is a resident of the county
in which the suit is brought, to be accompanied by an affidavit
of merits. This, then, required the defendant below to so
verify her plea, and, having failed to do so, the court did
not err in striking it from the files. We are again at a loss
to understand why this error is assigned, as we presume all
practicing attorneys must be reasonably familiar with the
statute regulating the practice in our courts.
The judgment of the court below is affirmed.
Judgment affirmed.
1874.] Grimshaw v. Scoggan. 103
Opinion of the Court.
Jackson Gkimshaw
v.
Waltee Scoggan.
Trial de novo — on appeal from county to circuit court. Under the act
to increase the jurisdiction of county courts (Laws of 1871-2), an appeal
from the county court to the circuit court only brings in review the deci-
sion of the county court, and does not entitle the parties, to a trial denovo.
Appeal from the Circuit Court of Adams county; the Hon.
Joseph Sibley, Judge, presiding.
Mr. Jackson Grimshaw, pro se.
Mr. Walter Scoggan, pro se.
Mr. Justice Sheldon delivered the opinion of the Court:
The only question here presented is, whether, in the case
of an appeal from the county court to the circuit court, under
the "Act to increase the jurisdiction of county courts," Laws
1871-2, p. 325, a party has a right to a trial de novo in the
circuit court. The third section of the act provides as fol-
lows: "Appeals and writs of error shall be allowed from the
final judgments of the county court, in cases under this act,
to the circuit court, to be taken and tried in the same man-
ner as is now or may hereafter be provided by law for appeals
and writs of error from the circuit court to the Supreme
Court."
We see no room for any question, under the above lan-
guage. It is plain that the appeal is to be tried in the same
manner as one from the circuit to the Supreme Court. As
the latter only brings in review the decisions of the lower
court, and a trial de novo on such appeal is unknown in prac-
tice, so must it be with an appeal from the county to the cir-
cuit court.
Appellant was not entitled to a trial de novo in the circuit
court.
The judgment is affirmed. Judgment affirmed.
104 Allen et al. v. Hart. [Jan. T.
Opinion of the Court.
Thomas H. Allen et al.
v,
James Hart.
1. False representations — when cause for rescinding contract. Any
wilful misrepresentation of a material fact made with, a design to deceive
another, and to induce him to enter into a negotiation he would not other-
wise do, will enable the party who has been overreached to annul the
contract.
2. But it is not indispensable to the right to rescind that the party
making the misrepresentation knows it is false, or whether he is ignorant
of the fact stated, provided it is material, and the other party has a right
to rely upon it, and does so and is deceived.
3. The vendor of a patent match box, and of territory covered by the
patent, represented to the vendee, who had himself no knowledge on the
subject, and no means of obtaining it, that the territory proposed to be
sold was very valuable; that other parties had made purchases, and all
had done well and realized large profits: Held, that the vendee had the
right to rely on these statements, and having done so, and the statements
having proved to be false, he had a right of action to recover back the
money paid for such patent right.
4. Expression op opinion — as to merits of article sold does not vitiate
the sale. A party may express his opinions freely as to the merits of any
article he may have to sell, and can not be held responsible in an action
for the truth or falsity of such expressions. A simple recommendation
of goods, however unwarranted, is not, of itself, sufficient to vitiate a
sale.
Appeal from the Circuit Court of DeWitt county ; the Hon.
Thomas F. Tipton, Judge, presiding.
Mr. S. G. Malone, for the appellants.
Messrs. Weldon & Benjamin, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This action was to recover back the consideration paid by
Hart to Allen & Pasten for an interest in a patent right
known as "Hathaway's Magic Match Safe and Self-lighter,"
1874.] Allen et al. v. Hart. 105
Opinion of the Court.
with the exclusive right to certain territory in the State of
Indiana.
Hart claims he was overreached in the transaction, and
that he was induced to make the purchase by the false and
fraudulent representations of the vendors. Before bringing suit
he tendered back a deed for the territory, which had been
deeded to him, and the only question presented is, whether Allen
& Pasten had been guilty of such fraud in procuring the
making of the contract as would authorize Hart to rescind it
and recover back the consideration. This is much more a
question of fact than of law.
The general proposition is not denied, that any wilful mis-
representation of a material fact, made with a design to de-
ceive the other, and to induce him to enter into a negotiation
he would not otherwise do, will enable the party that has
been overreached to annul the contract. But it is not indis-
pensable to the right to rescind, the party guilty of making
the misrepresentation knew it was false, or whether he was
ignorant of the fact stated, provided it was material, and the
otKer party had a right to rely upon it, did so and was de-
ceived. Many instances are given in the books where a party
purchasing an article may be as effectually injured by a rep-
resentation which the vendor did not know to be untrue, as
by one known at the time to be false. The effect upon the
vendee may be the same in either case.
Mr. Kent, in his Commentaries, says: "The common law
affords to every one reasonable protection against fraud in
dealings, but it does not go to the romantic length of giving
indemnity against the consequences of indolence and folly,
or a careless indifference to the ordinary and accessible means
of information." 2 Kent Com. 484*.
The defense to this cause seems to have been rested on the
principle stated in the text, viz. : the consequences resulting to
Hart from the purchase were to be attributed to his own folly;
that the parties dealt at "arm's length" with each other, the
subject of the contract being before them for inspection, and
106 Allen et al. v. Haet. [Jan. T.
Opinion of the Court.
whatever representations were made by the vendors were
mere expressions of opinion as to the merits of the inven-
tion.
A party, no doubt, may express his opinion freely as to the
merits of any article he may have to sell, and can not be
held responsible in an action for the truth or falsity of such
expressions. Simplex commendatio, however unwarranted, has
never, of itself, been regarded as sufficient to vitiate a sale.
It will be treated as an invitation to purchase, since every
vendor is permitted to allege the good qualities of such wares
or articles as he may have for sale. The exception to this
general rule is where it appears from the evidence, or words
used, it was the clear intention the recommendation should
be a warranty.
But we do not think the evidence in this case will bear out
this theory of the defense. The vendors did vastly more
than express an opinion as to the merits of the invention
they were endeavoring to sell. Had they done nothing more
we would agree with counsel, no cause of action had been
proven. It must be remembered, the parties were not con-
tracting, alone, about the little machine that contained the
matches. That was exhibited to the vendee, and he could
determine for himself whether it was a useful and valuable
invention. But the principal thing about which the parties
were bargaining was the value of the territory covered by the
patent to be included in the purchase. On this subject the
vendee had no knowledge whatever, and no means of obtain-
ing it. The vendors professed to have accurate information
as to its value. The representation was, it was very valua-
ble ; that other parties had made purchases, and all had done
well, realizing large profits. The vendee had a right to rely
on these statements. They were not mere expressions of
opinion as to the value of the invention, but allegations of
facts, about which the vendors claimed to know of their own
knowledge, and about which they could not but know the
purchaser was wholly uninformed.
1874.] Allen et al. v. Haet. 107
Opinion of the Court.
The vendee was induced to believe the territory was of
great value in the market; that large fortunes had been and
could be realized from its sale. It is inconceivable any one,
on seeing the invention, from the description given of it, and
the uses to which it could be applied, could be induced to
believe the thing itself was of any considerable value, or that
it could ever come into general use. It seems hardly possible
any sane person could be persuaded to part with the title to
valuable property for an invention of such trifling impor-
tance, even if it be conceded it does well the work it is
claimed to do» The explanation is to be found in the evi-
dence. The vendee was impressed with the belief, from the
assurances given by the vendors, that very profitable sales
could be made of the territory covered by the patent deed.
This is evident from the fact the purchasers did not go forth
to sell the match safes themselves, but the territory. It was
never contemplated any great profits could be realized from
the sale of the invention, nor was the vendee assured of such
a result. It was in the sale of the patent it was represented
the other purchasers had realized considerable sums of
money.
The fraud that vitiates this transaction consists in the un-
truthful representations as to the value of the territory. It
is proven it was of scarcely any value as a thing of traffic in
the market. This fact was known to the vendors at the time
of the sale, and whether it was or not, it being in fact un-
true, it was equally disastrous to the appellee.
The proof shows that by the most persistent efforts, the par-
ties represented to have made such extravagant profits were
wholly unable to effect sales to any considerable amount.
It will not do to say these were simply expressions of opin-
ion as to the value of the territory to be embraced in the patent
deed. They were intended to be, and were relied upon as
assurances of its value as an article of trade, and being false,
it would be a reproach to the law if it did not afford the
injured party redress.
108 Bates v. Ball et ah [Jan. T.
Syllabus.
On some questions in the case there is very grave conflict
in the evidence. No rule is better settled than is the doc-
trine, it is the province of the jury to harmonize the evi-
dence as well as they can. This they have done. We are
satisfied, from the direct testimony considered, in connection
with the circumstances proven, about which there can be no
real controversy, the verdict is sufficiently sustained.
Complaint is made as to some of the instructions given at
the trial. We are unable, however, to perceive any error that
would warrant a reversal of the judgment. Upon the whole
record, we are satisfied justice has been done, and the judg-
ment must be affirmed.
Judgment affirmed.
Thomas Bates
v.
Owen Ball et ah
1. Evidence. In an action of trover, to recover the value of a prom-
issoiy note alleged to have been obtained from the plaintiff under duress
upon a capias ad respondendum issued at the suit of the defendant, the
constable to whom the capias had been delivered testified that the plain-
tiff was not arrested under it, but under a bail piece, wholly disconnected
from the capias or the transaction upon which it was issued, and that
the plaintiff did not know of the existence of the capias. The constable
was permitted to refer to the recognizance, and it was read in evidence
against the objection of the plaintiff: Held, that there was no error in
permitting the recognizance to be read as a basis for the evidence of the
constable as to the fact that he arrested the plaintiff under it.
2. In an action of trover to recover the value of a promissory note
alleged to belong to the plaintiff, and to have been converted by the de-
fendant, where the plaintiff read in evidence the record of a judgment
rendered upon the note in favor of the defendant, it was proper to per-
mit the defendant to read in evidence the executions issued upon such
judgment, and the return of the sheriff thereon showing that the judg-
ment was unsatisfied.
1874.] Bates v. Ball et al. ' 109
Statement of the case.
3. Drunkenness — when it renders a contract voidable. To render a
transaction voidable on account of drunkenness of a party to it, it should
appear that he was so drunk as to have drowned reason, memory and
judgment, and impaired his mental faculties to an extent that would ren-
der him non compos mentis for the time being, especially when the other
parties connected with the transaction have not aided in or procured his
drunkenness.
4. Instructions — may be given orally by consent of parties. Whilst the
statute requires that the instructions given to the jury shall be in writing,
there is no doubt that the parties may waive that provision of the law,
and when they do so, and consent that the court may instruct the jury
orally, they are estopped from afterwards objecting.
5. Practice in the Supreme Court. If any matter is improperly
embodied in a bill of exceptions, the party alleging it should take the
proper steps to have it stricken out before he assigns errors, and if this
is not done, the case must be decided on the record as it is presented.
Writ of Error to the Circuit Court of Vermilion county;
the Hon. James Steele, Judge, presiding.
This was an action of trover, brought by the plaintiff in
error against the defendants in error, for the conversion of a
promissory note belonging to and payable to the plaintiff in
error. It is alleged in the declaration that the defendants
in error caused the arrest of the plaintiff under a capias ad
respondendum, and whilst he was so under arrest, and for the
purpose of procuring his release and freedom, caused him to
asssign the note to John McVey, one of the defendants, with-
out any consideration whatever other than to procure his
release from duress, and that the said John McVey assigned
the note to Owen Ball, another one of the defendants, who
obtained a judgment on the note in his favor against the
makers. The jury found the defendants not guilty, and judg-
ment was rendered accordingly.
Mr. Edward H. Brackett, and Mr. Luke Keiley, for
the plaintiff in error.
Mr. D. D. Evans, for the defendants in error.
110 Bates v. Ball et al. [Jan. T.
Opinion of the Court.
Mr. Justice Walker delivered the opinion of the Court :
It is objected that the court below erred in admitting im-
proper evidence on behalf of defendants in error. Plaintiff
in error attempted to establish, as a defense, that he had been
arrested on a capias ad respondendum, at the suit of Ball, for
the purpose of compelling him to assign the note in contro-
versy, and that he was thus induced to make the assignment.
Hall, the constable, to whom the capias had been delivered,
and who then held it, testified that plaintiff in error was not
arrested under the capias, nor did he know that it was in ex-
istence, but that he was arrested under a bail piece, wholly
disconnected from the capias or the transaction upon which
it was issued, and he was permitted to refer to the recogni-
zance, and it was read in evidence against the objections of
plaintiff in error. In this there was not the semblance of
error. It was perfectly legitimate, and, as all know, had
plaintiff in error objected to the constable testifying to having
arrested him under the recognizance, it would have been
necessary to read it in evidence, to authorize the oral evidence,
and there could not be the slightest objection to its being read
as a basis for the evidence of the constable as to the fact he
arrested him under it.
It is also objected that the court erred in permitting de-
fendants in error to read in evidence the executions and fee
bills issued on a judgment recovered on the note plaintiff in
error assigned to Ball, and for which this suit was brought.
Plaintiff in error had read the summons, declaration and
judgment in that case, and we do not see why it Avas not
proper for defendants in error to follow it up with these execu-
tions and fee bills in the case. One was as legitimate as the
other.
If plaintiff in error proved that a judgment was recovered
on the note, why should defendants in error be precluded from
proving that the judgment remained unpaid. Plaintiff in
error was endeavoring to prove that the makers of the note
1874.] Bates v. Ball et al 111
Opinion of the Court.
were solvent, and defendants were endeavoring to prove they
were insolvent. If plaintiff in error sought to establish the
inference that defendants in error regarded the makers as sol-
vent, by suing and recovering the judgment, the latter could
surely prove that he was mistaken, by the return of nulla
bona by the officer. In this we perceive no error.
We think that the defense of duress wholly failed. The
constable and Fitzimmons both swear that plaintiff in error
had no knowledge of the existence of the capias, and their
evidence is only opposed by that of plaintiff in error, and it
appears he was largely under the influence of liquor, and, if
arrested as claimed, he could have, no doubt, produced the
docket of the justice of the peace, if not the capias with the
officer's return. We regard the evidence on this question as
preponderating largely in favor of defendants in error.
It is also urged that plaintiff in error was not bound by the
transaction, because he was drunk at the time he assigned the
note. We think the evidence shows that he was at the
time drunk. He swears he was, and he is corroborated by
the evidence of other witnesses. But he was manifestly not
so drunk but he knew what he was engaged in at the time.
He, on the trial, testified to the circumstances attending the
transaction. He says he took out the note and threw it down,
and told them to take it, and that they had better take his
clothes. Had he been so drunk as to render the assignment
void, he could not have known or remembered what he did.
To render the transaction voidable, he should have been so
drunk as to have drowned reason, memory and judgment, and
impaired his mental faculties to an extent that would render
him non compos mentis for the time being, especially as there
is no pretense that any person connected with the transaction
aided in or procured his drunkenness. The rule has never,
so far as our knowledge extends, been announced that mere
drunkenness is sufficient to release a party from his contracts.
We fail to perceive from the evidence that the assignment was
procured by fraud, force or duress, and a careful examination
112 Bates v. Ball et al. [Jan. T.
Opinion of the Court.
of the evidence satisfies us that it largely preponderates in
favor of the verdict of the jury.
It is contended that the court erred in instructing the jury
orally, when the statute requires instructions to be given in
writing. Whilst such is the requirement of the statute,
there can be no doubt that the parties may waive that pro-
vision of the law, and the bill of exceptions shows the court
so instructed by consent of the parties. Having done so, they
are estopped from afterwards objecting. Such a practice as
is contended for can not be sanctioned. It would enable par-
ties to induce such consent, and if the finding should be
adverse, then assign error and reverse the judgment. The
parties, having consented, must be held to their act. They
may waive this provision of the law just as they may others
that have never been challenged in practice.
It is again insisted that the verdict should have been set
aside, because one of the jurors, after they retired to consider
of their verdict, sent the officer for some medicine to relieve
him of an attack of colic and diarrhoea. It appears that it
consisted of brandy, laudanum and pepper. But we are
unable to find any evidence as to the quantity he drank, and
there is no evidence that it in the slightest degree affected his
mind or his vote on the verdict. He, in an unsworn affidavit,
states that he did not know of what the medicine was com-
pounded ; that, before he drank of it, a vote had been taken,
and that he then voted as he did on the final adoption of the
verdict; that none of the other jurors partook of it; that it
in nowise affected his mind; that he had the colic and diar-
rhoea, to attacks of which he was subject. And ten other
jurors certify that they believe his statement to be true.
This unsworn statement and certificate were, as the bill of
exceptions states, read in evidence on the motion for a new
trial, and it does not appear that any exception was made to
its being read in evidence. It is true, it is said that the clerk
improperly copied these papers into the bill of exceptions.
This we can not know. We find them in the record, and it
1874.] Cutlee v. Callison. 113
Syllabus.
imports verity. If improperly copied into the bill of excep-
tions, the proper steps should have been taken to have had them
stricken out, before errors were assigned. The party who
urges that they are not properly a part of the record, brought
the transcript to this court as it now appears, assigned errors
on it, and filed the same, and submitted the cause for decision
thereon, and we must decide the case on it.
We perceive no error in this record, and the judgment
is affirmed.
Judgment affirmed.
Leonard Cutler
Isaac Callison.
1. Boundary lines — may be settled by parol agreement. Although the
title to real estate can not be transferred by. parol, yet it is well estab-
lished that the owners of adjoining tracts of land may, by parol agree-
ment, settle and permanently establish a boundary line between their
lands, which, when followed by possession according to the line so agreed
on, is binding and conclusive, not only upon them, but upon their
grantees.
2. Instructions — should not make improper intimations. Where the
weight of the evidence in a case shows such a contract as is insisted
upon by one of the parties, the court should not instruct the jury that
any loose talk on the subject between the parties could have no bearing
against the party asking the instruction, as to do so would be intimating
to them that the evidence on the subject was mere loose talk.
Appeal, from the Circuit Court of Fulton county; the Hon.
Chauncey L. Higbee, Judge, presiding.
Mr. S. Corning Judd, for the appellant.
Messrs.' Shope & Gray, for the appellee.
8— 72d III.
114 Cutler v. Callison. [Jan. T,
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court:
This was an action of ejectment, brought by appellant,
against appellee, in the circuit court of Fulton county, to
recover a strip of land six rods wide off the west side of the
south-east quarter of the south-west quarter of section 2,
township 8 north, range 1 east. The object of the suit was to
settle the true line between the south-west and south-east quar-
ters of the south-west quarter of section 2.
The cause was tried before a jury, and a verdict returned
in favor of appellee. A motion was made for a new trial,
which the court overruled, and rendered judgment upon the
verdict.
Upon the trial of the cause, much evidence was introduced
for the -purpose of showing the true line between the two
tracts of land, as established by the original survey of the
section, but in the view we take of the case, it is not material
to examine and consider that portion of the evidence, as the
decision of the case rests entirely upon other grounds.
It appears, from the record, that Jacob Dorman originally
owned the two tracts of land. There was then a fence
dividing them, supposed to be on the true line. On the 29th
day of December, 1859, Dorman conveyed to appellee the
east half of the south-west quarter of the south-west quarter
of section 2, and on the 18th day of February, 1866, he con-
veyed the 40-acre tract adjoining this on the east to appellant.
On the trial, appellee proved by Dorman and himself that
at the time he purchased, it was understood and agreed that
the east line of his land came to the fence then standing be-
tween the two tracts of land ; that in the first instance he
contracted for 20 acres, but the land in the field he purchased
overrun, and he then gave Dorman $25, in addition to the
contract price, and it was agreed that he should have all the
land in the field, his east line extending to the fence. This
fence was on what was then known as the Rigdon line.
Appellant claims the true line is six rods further west.
1874.] Cutler v. Callison. 115
Opinion of the Court.
The admission of this parol evidence was objected to by
appellant, and the decision of the court upon the point is now
urged as a ground of reversal.
The question presented in another form is this : Dorman
owned the land on the east side of the line ; he conveyed to
appellee the tract on the west side of the line. Was it com-
petent for them to settle and determine the line between
their lands by parol, which would be conclusive on them and
their grantees?
While it may be regarded as well settled, that the title to
real estate can not be transferred by parol, yet it is a princi-
ple well established, that the owners of adjoining tracts of
land may, by parol agreement, settle and establish perma-
nently a boundary line between their lands, which, when
followed by possession according to the line so agreed upon,
is binding and conclusive, not only upon them, but- their
grantees.
This principle proceeds upon the ground, not that title can
pass by parol agreement, but that the extent of the owner-
ship of the land of each has been agreed upon, settled and
finally determined. Crow ell v. Maughs, 2 Gilman, 419; Kess
v. Norton, 12 Wendell, 127; McCormiek v. JBarnum, 10 Wen-
dell, 109; Vasbrough v. Teator, 32 N. Y. 561.
The courts always look with favor upon the adjustment of
controverted matters of this character by agreement of the
parties in interest, and when an agreement to establish a
boundary line is fairly and clearly made, and possession of
the land held according to the line so agreed upon, no rea-
son is perceived why such agreements should not be conclu-
sive.
It is true, the language used by Dorman and appellee in
making the agreement was not as technical, perhaps, as others,
more skilled in the law, would have used, yet, from the terms
of their contract, there can be no doubt as to the intention,
and the evidence was proper to go to the jury for the purpose
for which it was introduced.
116 Cutler v. Callison. [Jan. T.
Opinion of the Court.
Neither was the admission of this evidence and the first
instruction given for appellee in conflict with the doctrine
announced in the case of Mills v. Graves, 38 111. 455, as in-
sisted by appellant. The facts in that case presented a ques-
tion essentially different from the one under consideration,
and while the law as declared in that case is clearly correct,
it can not be regarded as an authority to govern the questions
involved in this.
It is also urged by appellant that the court erred in giving
appellee's fifth instruction, which was as follows :
"The jury are instructed, that it is perfectly competent
for parties owning adjoining tracts of land to settle, by agree-
ment, where the division line shall be; and if the jury shall
believe, from the evidence, that the plaintiff and defendant
owned adjoining tracts of land, and any question or dispute
had arisen as to where the line now in controversy was, and
the plaintiff and defendant agreed upon the line and estab-
lished it, as between themselves, then, in that case, it is wholly
immaterial where a survey would put the line. Each party
is bound by his agreement, and in determining whether
there was such agreement and fixing of the line, it is com-
petent for the jury to take into consideration acts and state-
ments of the parties at the time, the acts done by each, and
the fixing and adjustment of fences and improvements by
them, under such agreement, if any are proven."
Under the proof in the case, this instruction was clearly
correct. Appellee testified, that in the spring of 1867 or
1868, he and appellant agreed upon the line where the old
fence stood as the true line, and agreed to set out a hedge
upon it. One of the parties furnished the plants, and the
other set them out. James J. Babbitt testified, that he had a
conversation with appellant, three years ago, in regard to the
hedge. Appellant said he and appellee agreed to this hedge
as a permanent line. He showed a stone culvert he had put
across a slough on the line of the hedge, and said it was to be
1874.] Cutler v. Callison. 117
Opinion of the Court.
a permanent line; that he and appellee had agreed to that
line, and made it permanent. Another witness testifies to the
same thing.
Appellant testified that he knew of the trouble about the
line, and that he agreed with appellee to put out the hedge
on the line of the old fence, which should be a permanent
line between their lands, but he claimed it was further un-
derstood, that if the hedge did not turn out to be on the true
line, then he and appellee were to sell and buy/as the case
might be, to come to the hedge.
The evidence was ample upon which to predicate the in-
struction, and if the parties to the record, in order to settle
a controverted line between their lands, agreed upon a
boundary line as permanent, we see no reason why they
should not be concluded by such an agreement. The third
instruction of appellant was properly refused, for the reason
there was no evidence upon which to base it, and it was lia-
ble to mislead the jury. By the instruction, the court was
asked to tell the jury that any loose talk between the parties
about fixing upon and agreeing to a division line or fence
between them, can have no bearing against the plaintiff's
right to recover in this action, unless the division line being
disputed was unconditionally agreed and fixed upon by and
between the parties.
Had the proof on the point in question been mere loose
talk, then, no doubt, the instruction would have been correct;
but the weight of evidence shows a contract, and it would
have been improper for the court to have intimated to the
jury that the evidence on that subject was mere loose talk.
It is also urged that the court admitted improper evidence
for appellee, and refused evidence of appellant which should
have gone to the jury. While this position has been argued
with apparent force by the counsel for appellant, yet, upon a
careful inspection of the record, it clearly appears that the
case has been fully and fairly presented to the jury upon its
merits, and we fail to perceive that injustice has beeu done
118 St. L., J. & C. E. E. Co. v, Ltjrton et al [Jan. T.
Syllabus.
appellant. Under such circumstances, this court has uni-
formly held that the judgment must be affirmed. Tolman v.
Race, 36 111. 472 ; Boynton v. Holmes, 38 111. 59.
The judgment will therefore be affirmed.
Judgment affirmed.
St. Louis, Jacksonville and Chicago Railroad Co.
V.
James H. Lukton et al.
1. Contract — construction. A contract of a railroad company to build
a bridge over its road at a given point, within one year after the comple-
tion of the road, imposes no obligation on the company to complete its
road within any given period, or within a reasonable time, and the other
party to the contract can not recover upon it for a failure of the company
so to do.
2. Measure op damages — on breach of contract to build a bridge over
a railroad. In a suit against a railroad company for a failure to build a
bridge over its road at a given point, in pursuance of a contract so to do,
the measure of damages is not the difference in the value of property to
be affected by the bridge, or the want of it, but it is the cost of building
such a bridge, together with reasonable compensation to the other party
to the contract, for his time and labor in procuring and managing its con.
struction, and perhaps such damage as may be sustained during the time
required to build it.
3. A railroad company contracted with the owner of land over which
its road ran, to build a bridge over its track at a specified point on said
land, within twelve months after the completion of the road. The road
was not completed for several years, and the bridge was never built:
Held, in a suit on the contract by the owner of the land, he was not en-
titled to recover any damages on account of the delay in building the
road.
4. Carrying demurrer back. Where the general issue has been filed
to the whole declaration, a demurrer to a special plea will not be carried
back to the declaration.
Appeal from the Circuit Court of Cass county; the Hon.
Cyrus Epler, Judge; presiding.
1874.] St. L., J. & C. R. R. Co. v. Lurton d ol. 119
Opinion of the Court.
Messrs. Dtjmmee & Brown, for the appellant.
Messrs. Morrison & Whitlock, for the appellees.
Mr. Justice Scott delivered the opinion of the Court :
This action was brought on an agreement in substance as
follows : In consideration of appellees releasing unto the
Jacksonville, Alton and St. Louis Railroad Company the
right of way, and not prosecuting a suit pending in the Mor-
gan circuit court for damages for right of way over lots in
Lurton & Kidzie's addition to Jacksonville, the company
agreed, within twelve months after its road should be com-
pleted and opened for use, to construct a good bridge over its
road on the line of lots 4 and 5, in block 11, in that addition,
or, if found desirable, the company to have the privilege of
grading the cut on each side, so as to make a good crossing
in lieu of the bridge.
The Jacksonville, Alton and St. Louis Railroad Company,
with which this contract was made, had previously instituted
proceedings to condemn the right of way over lots in Lurton
& Kidzie's addition to Jacksonville. The land owners, not
being satisfied with the assessment, took an appeal to the cir-
cuit court. During the pendency of that cause in the circuit
court, Lurton & Kidzie sold all their interest in their addi-
tion to appellees, who, in consideration of the agreement of
the company to build a bridge or construct a passway across
the track of their road on the line of lots 4 and 5, in the
time and manner as set forth in the contract declared on, dis-
missed the appeal and suffered the condemnation theretofore
made to become absolute.
In 1863, the Jacksonville, Alton and St. Louis Railroad
Company and the Tonica and Petersburg Railroad Companv
were consolidated under the name of appellant, the consoli-
dated company assuming all the liabilities of the constituent
companies. Neither the bridge nor the passway over the rail-
road track was ever constructed as contemplated in the con-
120 St. L., J. & C. E. E. Co. v. Ltjrton et al [Jan. T.
Opinion of the Court.
, . ^
tract. The road was not completed and opened to use until
the 1st day of January, 1866. This suit was brought in
1870, to recover damages for a failure to build a bridge or
grade the cut over the track of the road.
Appellees sold and conveyed all their interest in lots 4 and
5 in 1864, without any reservation except the right of way
for the railroad, and an acre and one quarter previously sold
to the trustees of the Insane Hospital. This act of appellees,.
put it out of the power of appellant, after that date, to con-
struct the bridge or grade the cut over its road, no permission
having been obtained from their grantees to enter upon the
premises for that purpose.
The contract was made in 1858. The theory upon which
the declaration counts is, that it was the.duty of the railroad
company to construct and complete its road within a reason-
able time, and that a period of twelve months had elapsed
after the expiration of a reasonable time to finish the road
before appellees parted with their interest in the lots. In
consequence of the failure of the company to comply with
its contract, it is averred they sold lots 4 and 5 for $2500 less
than they would have been worth had it completed the road
within a reasonable time, and constructed the bridge or
graded a passway in twelve months thereafter.
The other count retained in the declaration is, in substance,
the same as the first amended count, except it is averred in it
that appellees sold the lots for what they were worth at the
date of the sale, which was greatly less than they would have
been worth had the company performed its agreement.
To this declaration appellant filed the general issue, to
which the similiter was added, and a number of special pleas.
A demurrer was interposed to some of the special pleas, and
sustained. Appellant obtained leave to amend the 6th and
8th pleas, and filed additional pleas, to which replications
were filed and issue joined thereon.
It is insisted the court erred in sustaining the demurrer to
the special pleas, but should have carried it back to the decla-
1874.] St. L., J. & C. E. K. Co. v. Lurton et at. 121
Opinion of the Court.
ration, which it is now urged was fatally defective. This we
do not think could be done. The general issue had been
filed to the whole declaration, and it is a well settled rule of
practice, a demurrer can not be carried back over that plea,
and be made to reach any defects that may be found to exist
in the declaration.
The defense is two-fold : First, the company maintains
that, when all the circumstances are considered, there was no
unreasonable delay in the completion of its road; and, sec-
ond, that, under the issues joined on the 6th and 8th pleas,
before any right of action had accrued, appellees had sold the
lots on the line of which the bridge was to be erected or the
passway graded, and thus prevented the fulfillment of the
contract.
We have considered the evidence in this record with great
care, and, from our investigation, we are of opinion it does
not sustain the verdict on the theory upon which the case
seems to have been tried, viz: that it was the implied duty
of the company to construct its road within a reasonable time
after making the contract, and to build the bridge or grade
the cut in twelve months after the expiration of that period.
The proof fails to show there was any unreasonable delay
in the prosecution of the work, certainly none before June,
1864, when appellees parted with all their interest in the
lots. It was a work of very considerable magnitude, requiring
an expenditure of a sum between two and two and a half mil-
lions of dollars. The company had but little, if any capital
of its own outside a limited number of municipal and private
subscriptions, and had to rely principally upon the sale of its
bonds to procure funds with which to build the road. These
facts were of public notoriety, and must have been known to
appellees at the time they entered into the contract.
The contract to complete the entire road was let to Sage &
Edgerton in 1857, or in the early part of 1858. The work
was commenced simultaneously at Jacksonville, Carrollton
and Piasa. It was prosecuted with all reasonable dispatch,
122 St. L., J. & C. R. R. Co. v. Lurton et al. [Jan. T.
Opinion of the Court.
so long as the company had or could get money with which
to pay the contractors. Its funds were exhausted, and Sage
& Edgerton, having no means of their own with which to
continue the work, surrendered their contract in 1860. Bonds
of the company were prepared, and every possible effort made
to sell them. The president of the company went to New
York, and employed persons of financial skill to assist him,
but it was found to be impracticable to make sales. It was
thought, in 1860, an arrangement had been made for the sale
of the bonds, but the coming on of the civil war in 1861 put
an end to all negotiations -on the subject. The testimony
shows beyond question that, during the period of financial
depression that followed the breaking out of the rebellion, it
was impossible to make any advantageous sales of the bonds
of the company.
There is not a particle of evidence in the record that even
tends to show the officers of the company did not put forth
every exertion in their power to accomplish the completion
of the road. No witness examined ventures to say they omit-
ted anything that could have been accomplished by the exer-
cise of the highest diligence in the discharge of their official
duties.
In 1863, Mr. Blackstone was induced to contract to finish
the road, and there is no suggestion there was any unneces-
sary delay after he entered upon the work.
There is another error in the record that is equally fatal to
the present recovery. The proof shows a good bridge could
have been built over the road for $150. There is no dispute
as to this fact, and yet the verdict is for $1300. The result is
to be attributed to the rule stated by the court to the jury,
for ascertaining appellees' damages, in case of a recovery.
The jury were instructed, it was the duty of the company to
construct their road within a reasonable time after making the
contract, and "if they find a verdict for the plaintiffs, the
measure of damages is the difference in value of lots men-
tioned and not previously sold or conveyed, with the railroad
1874.] St. L., J. & C. E. E. Co. v. Lurton et al. 123
Opinion of the Court.
track across the same, and without the bridge or grade required
at the time the bridge should have been built or said grade
made, and what the same lots would have been worth at the
said date with the said railroad track across the said premises,
with the bridge, such as the contract contemplated, constructed
at the proper time, or with the grading done at the time and
in the manner provided for, not to include any loss in any
portion of said lots sold before the time that the bridge should
have been built or the grading done."
This instruction is liable to two objections :
First — It contemplates appellees may recover for a failure
to construct the railroad within a reasonable time after making
the contract with appellant. Or the objection may be stated
in another form: Appellees, having sold the lots prior to the
completion of the railroad over the premises, it is stated they
may recover, as damages, the difference between the value of
the lots when sold, and the enhanced value the construction
of the road would have produced. This is not the true con-
struction of the contract. The company never contracted
with appellees to complete its road and open it to use within
any given period. No allusion is made in the agreement as
to when the road shall be finished ready for use. It is not
perceived how appellees can recover of the company for the
non-performance of a thing they never undertook to do within
any specified time. Had it been the agreement the railroad
should be constructed by a given date, it should have been
set down in the written contract, and no doubt it would have
been, if such had been the understanding of the parties.
Having failed to secure an agreement to that effect, appellees
can not recover for the non-construction of the railroad within
a given period or within a reasonable time.
Second — The true measure of damages is not the difference
between the value of the lots, when sold, and the imaginary
or really enhanced value, had the railroad been constructed.
The damages should have been limited to the cost of the
bridge, together with reasonable compensation for the time
124 Snell et al. v. Cottingham et al. [Jan. T.
Syllabus.
and labor of appellees in procuring and managing its con-
struction, and perhaps whatever damages might have been
sustained during the time required to build it.
It is inconceivable appellees would suffer a loss of $2700
in the sale of a part of two lots, as one of them states in his
testimony that could have been avoided by the expenditure
of the trifling sum of $150. This fact makes apparent the
error of the rule laid down by the court in its charge for
ascertaining the damages.
It is manifest the jury estimated damages for the non-com-
pletion of the railroad much more than for the omission to
build a bridge or grade a passway over the track. This they
had no right to do.
Appellant's refused instruction stated the rule as to the
measure of damages that should have been adopted, with suf-
ficient accuracy, and it ought to have been given. It was
error to refuse it.
The judgment must be reversed and the cause remanded.
Judgment reversed.
Thomas Snell et al.
v.
William Cottingham et al.
1. Evidence — as to application of payments. The application of a
payment by either party may be proved as well by circumstances as by
express declarations.
2. Same— statement of defendant competent evidence against Mm, though
involving admission of written contract not produced. In a suit on a con-
tract, where the question at issue is, whether certain payments made by
the defendant to the plaintiff should be applied upon the contract sued
on or not, any statements of the defendant tending to show that the
payments were not made upon that contract, would be admissible in evi-
dence, although they involved the admission that there was another con-
tract in writing between the parties, without producing such other
contract.
1874.] Snell et al. v. Cottingham et al. 125
Opinion of the Court.
3. Instruction — may direct the attention of the jury to the circum-
stances to be considered in determining upon a given fact. In a suit on a
contract, where the only question is. as to the application of certain pay-
ments made by defendant to plaintiff, and it appears that at the time of
making such payments there were two separate contracts existing be-
tween the parties, it is proper to instruct the jury to take into considera-
tion all the evidence in regard to the payments, how they were to be
applied, and what the parties were talking about when the payments were
made, in determining upon which one of the contracts the payments
were made, if made specially on either.
Appeal from the Circuit Court of DeWitt county; the
Hon. Thomas F. Tipton, Judge, presiding.
Messrs. Lawrence, Winston, Campbell & Lawrence,
for the appellants.
Messrs. Moore & Warner, Messrs. Eowell & Hamilton,
and Messrs. Stevenson & Ewing, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action brought to recover for railroad ties fur-
nished by appellees to appellants, under a written contract
for the delivery by Cottingham & Co. to Snell, Taylor & Co.
of 100,000 of such ties at sixty cents each. The plaintiffs
below recovered a verdict and judgment for $5,708.46, and
defendants appealed.
The only point of controversy is in regard to the applica-
tion of three payments of money, evidenced by three respective
receipts for $800, $600 and $1000; appellants claiming that
they should have been allowed those items of payment, whereby
the judgment would have been reduced by their amount.
It appears, by the record, that there were two firms of Cot-
tingham & Co., one interested in a tie contract, and one in-
terested in a railroad construction contract to lay the track and
do the earth work on the same railroad ; the firms being alike,
except that there was one additional member in the latter
firm. The matter of dispute was, on which account these
126 • Snell et al. v. Cottingham et ah [Jan. T.
Opinion of the Court.
payments were made, or should be applied ; whether on the
tie contract, or the construction contract, both the contracts
being with the appellants, and they were being completed at
the same time.
From an examination of the evidence, we think the jury
were fully warranted in the conclusion that these payment's
were made to, and received by the construction firm, for the
purpose of paying off hands engaged in the construction of
the road, and that the appropriation of the payments was
made at the time, upon the construction contract, by the
assent and act of both parties. The application of a pay-
ment by either party may be proved as well by circumstances
as by express declarations. Bayley v. Wynhoop, 5 Gilm. 449.
Without enumerating the circumstances disclosed in the evi-
dence, we regard them as sufficient from which to infer such
an appropriation as above named.
It is objected that the evidence in regard to the construc-
tion contract ought not to have been received; that the con-
tract itself should have been produced, it being claimed that
it was a written one. So far as the record shows, there was
no evidence of the contract being in writing so as to raise the
question; but admitting that the contract was in writing, we
do not regard the objection as well taken. The evidence in
regard to that contract came out principally in the declara-
tions of one of the defendants introduced in evidence, which
tended to show the existence of that contract, and that the
payments might have been made on account thereof. The
contents of that contract were not material to be proved, nor
was the evidence for the purpose of proving them, but to
show that the payments were not made on the tie contract;
and any statements of the defendants tending to show that
they were not so made, must have been admissible in evi-
dence, although they involved the admission that there was
another contract in writing between the parties.
Objections are taken to instructions given for the plain-
tiffs. The second instruction was as follows :
1874.] Snell et al. v. Cottingham et al. 127
Opinion of the Court.
"The court further instructs the jury, for the plaintiffs, that
in deciding whether payments made by defendants to plain-
tiffs were made on the ties or on the construction contract,
the jury will take into consideration all the evidence given
in regard to the payments, how they were to be applied, what
thev were talking about when the payments were made, and
in this manner arrive at the intention of the parties paying
and receiving the money ."
It is objected that this directed the jury that they must
find the application from the conduct of the parties, and left
no room for the operation of the rule of law in making the
application, in the absence of any being made by the parties.
We do not regard the instruction as fairly open to this criti-
cism, or that the jury could have understood that they were
so instructed. Instructions were given on behalf of the de-
fendants as to what application of the payments the law
would make, in case none had been made by the parties.
These would not consist with the idea that the application
could only be made by the parties, and that the jury must
find how they made it. We think the instruction is to be
properly understood as but directing the attention of the jury
to the circumstances to be taken into consideration in deter-
mining upon which one of the contracts the payments were
made, if they were made specially on either one.
It is objected to the third instruction, that in directing that
if the plaintiffs applied the payments on the construction con-
tract, without objection by defendants, the latter could not
have credit therefor in this suit, the instruction was calcu-
lated to create the impression in the minds of the jury that
Cottingham & Co. could make an appropriation of the pay-
ments by their own acts alone which would bind Snell, Taylor
& Co., without any notice to them of such action by the former.
Had the evidence of the alleged application of the payments
to the construction contract consisted alone in the independ-
ent acts of Cottingham & Co., without the assent of the
128 L, B. & W. Ry. Co. v. Murray et al. [Jan. T.
Syllabus.
debtors making the payments, it would be important to con-
sider this objection to the instruction. But there is so much
evidence in the record of a specific application by both
debtors and creditors of these payments at the times they
were made, and no evidence of the application, so far as we
see, resting in any isolated act of the creditors, that we do not
feel called upon to go into the discussion of the legal question
raised by the objection. In view of the evidence we can not
regard the instruction as having been productive of harm to
the defendants, and affording any just ground of error. The
fifth instruction is likewise objected to, but we view it as sub-
stantially correct.
Perceiving no error in the record, the judgment is affirmed.
Judgment affiwned.
Indianapolis, Bloomington and Western Ey. Co,
v.
"William Murray et al.
1. Custom — contracts presumed to be made with reference to it. Where it
is the general and long established custom of a railroad company, in
delivering freight to connecting lines, to deliver as consignors, a ship-
per who has been in the habit of shipping over such road, will be pre.
sumed to be familiar with that custom, and to contract with reference to it.
2. Common carrier — duty of, on delivering goods to other carriers. A
common carrier of goods is not required, in transferring goods to a second
carrier, to ship them otherwise than as directed by the shipper, and
where the directions given by the shipper as to the shipment omits to
give the name of the consignor, the carrier will be guilty of no negli.
gence because it fails to give the name of the consignor, upon delivering
the goods to the second carrier.
3. A contract between a shipper and a railroad company obligated the
company to transport a lot of hogs to a given point, ready to be delivered
to the agent of a connecting line, "consigned, numbered and marked as
per margin," to be by the connecting company carried to their place of
destination, upon condition that the liability of the contracting company
as a common carrier should cease when the hogs arrived at the point
1874.] L, B. & W. Ey. Co. v. Murray et al 129
Opinion of the Court.
named, ready to be delivered to the next carrier. The name of the con-
signor was not given in the margin. The hogs were delivered by the
company to the connecting company, marked to the consignee, as indi-
cated on the margin of the contract, and were duly delivered to the con-
signee. Another shipper of hogs, on the same train, from the same point,
and to the same destination, accompanied his hogs, and received the pay
from the consignee for both lots: Held, that the company, having shipped
the hogs marked as indicated on the margin of the contract, discharged
their whole duty in that regard, and there being no consignor named on
the margin referred to, the company was guilty of no negligence which
led or tended to induce the consignee to pay the wrong person for the
hogs, and were not liable to the owner of the hogs on account thereof.
Appeal from the Circuit Court of McLean county; the
Hon. Thomas F. Tipton, Judge, presiding.
Mr. J. C. Black, Mr. L. Weldon, Mr. T. B. Aldrich,
and Messrs. McNulta & Aldrich, for the appellant.
Messrs. Hughes & McCart, for the appellees.
Mr. Justice Scott delivered the opinion of the Court:
This record contains no evidence that, under the most
favorable view, would support a recovery. The facts may be
briefly stated: On the 21st day of August, 1872, appellees
delivered to appellant, at LeRoy, in this State, a lot of hogs,
which were placed in a double-deck car, No. 2133, belonging
to the Cleveland, Columbus, Cincinnati and Indianapolis
Railroad Company, and consigned to Sadler, Haven & Co.,
Pittsburgh. Appellant's railroad terminates at Indianapolis.
It is in proof it was the general and long established custom
of the company, in delivering freight to connecting lines, to
deliver as consignor, and appellees, having been in the habit
of shipping over this route, may be presumed to have been
familiar with that custom, and contracted in reference to it.
Accordingly, on the arrival of the hogs at the transfer sta-
tion, near Indianapolis, they were delivered to the Cleveland,
Columbus, Cincinnati and Indianapolis Railroad Company,
with the name of appellant appearing on the way-bill as con-
9— 72d III.
130 I., B. & W. Ry. Co. v. Muekay et al [Jan. T.
Opinion of the Court.
signor, and also on the check given with the hogs by appel-
lant to the company to whom the transfer had been made.
Upon the back of the transfer-check was written, "Acct.
Murray Bros. — Sadler, Haven & Co.," but there is so much
uncertainty as to when and by whom these words were placed
there, that we can attach but little importance to them.
The contract entered into between the parties, when the
hogs were placed on board the cars at LeRoy, obligated
appellant to transport them to Indianapolis, ready to be
delivered to the agent of the connecting line, consigned,
numbered and marked as per margin, to be by the connect-
ing company, or companies, carried to the place of destina-
tion designated, upon condition appellant's liability as a com-
mon carrier should cease when the stock shall arrive at the
station named, ready to be delivered to the consignee or the
next succeeding carrier, the company to guaranty the freight
charges shall not exceed in amount the rates indicated in the
contract.
The declaration counts upon this agreement mutually en-
tered into between the parties, and in the second count it is
set out in hcec verba. Having declared upon it, appellees are
estopped to deny it is the contract between them and the
company, and was understanding^ executed.
It is not claimed appellees were damaged by any act done
or omitted by appellant before the stock reached Indianapolis,
and the defense might be rested on the single point, appellees
had expressly agreed appellant should not be responsible for
anything that should occur beyond that station; but the
defense may be placed on the broader and more substantial
ground, appellant has discharged its whole duty to appellees
tinder the contract, has omitted no common law duty, and if
loss has occurred, it must be attributed rather to the negli-
gence of appellees.
The loss is said to have occurred in this way : The hogs
were consigned to Sadler, Haven & Co., at Pittsburgh, arriv-
ing in due time and in good order. Of this there is no com-
1874.] I., B. & W. Ey. Co. v. Murray et al 131
Opinion of the Court.
plaint. It appears one Chapman shipped some hogs of his
own, from LeRoy, at the same time, in the same train with
appellees' hogs, that were consigned to Sadler, Haven & Co.
He accompanied the hogs, was on the train with them from
LeKoy until they reached their destination, and the evidence
tends to show he had the care, to some extent at least, of
appellees' hogs. It is certain there was no one else on the
train that had any care over them, and whatever attention
they did receive was from Chapman. When the hogs reached
Pittsburgh, they were delivered to the consignees, Sadler,
Haven & Co., and the proceeds of appellees' hogs, as wrell as
his own, were paid over to Chapman. He never accounted
to appellees for the money received to their use, and that is
the loss complained of.
The negligence charged against appellant is, that it failed
to indicate or mark on the way-bill or transfer-check the hogs
were consigned to Sadler, Haven & Co., on account of Mur-
ray Bros. The way-bill did not indicate who were the con-
signors, other than that the hogs had been received by the
connecting line from appellant. It is apprehended no one
understood appellant was really the consignor, or claimed
to be.
No other answer need be given to the negligence charged
than to say, the contract between the parties did not obligate
the railroad company to indicate on the way-bill who were
the consignors. Its agreement was, to ship as indicated in
the margin, and by reference to the contract it will be seen
the consignors' names are not mentioned in the margin. No
duty imposed by the contract or by the common law made it
obligatory on the company, on transferring the stock to a
second carrier, to ship it otherwise than as directed by the
shippers. The law imposes no greater diligence upon the
carrier, in this regard, than upon the owner of the goods.
Had the shippers desired to have the way-bill show who were
the consignors, or upon whose account the stock was shipped,
they should have caused their names to be written in the mar-
132 I., B. & W. Ry. Co. v. Murkay et al [Jan. T.
Opinion of the Court.
gin when the directions were given. It would be a singularly
hard rule to charge the carrier with culpable negligence for
omitting to do what the shippers themselves had omitted.
When the stock was delivered to the agent of the forwarding
company, it was billed in exact accordance with the directions
given in the margin of the shippers' contract, and this was
the whole duty of appellant in that particular. The hogs
were delivered to the consignees named by the owners, by the
carriers, without unreasonable delay, and we are at a loss to
understand what obligation appellant was under to see that
the consignees accounted to the proper parties for the pro-
ceeds. It was certainly no part of its duty as a common
carrier, and it had not contracted to do so.
The case of The Chicago and Northwestern Railway Co. v.
Ames, 40 111. 249, cited by counsel, may be distinguished
from the case at bar in principle and in its facts. There, the
judgment was maintained on the ground of the negligence
of the company's station agent at the place of delivery, in
placing the charges on the plaintiff's stock in the same bill with
that of another party, thus indicating to the consignee that
all the stock belonged to that third party. It was through
the negligence of the company's clerk, in making out the
bills, that the consignee paid the proceeds to the wrong party,
whereby the same became wholly lost to the plaintiff, and a
recovery was permitted to stand. But that is not this case.
Had appellant done anything that would have indicated to
the consignees the stock belonged to Chapman, then this case
would be within the principle of that decision. Such is not
the case. The company did nothing that could have misled
the consignees. The fact the way-bill, as was the general
custom, and must have been known to all the principal ship-
pers and others doing business with the railroad companies,
may have shown appellant was the consignor, did not author-
ize the consignees to pay the money realized from the sale of
the hogs, to Chapman. It did not even tend to mislead them
in that direction.
1874.] Keedy v. Howe etal. 133
Syllabus.
The wrongful payment made to Chapman by the consignees,
if it was unauthorized, as between the shippers and the car-
rier, must be attributed to the negligent conduct of the former.
Whether the consignees acted with due caution, is a question
not presented by this record, and upon which we refrain from
expressing any opinion.
The hogs were placed in the custody of the carrier, with-
out any one being sent along with them, and no notice what-
ever was given to the consignees of the shipment. It was
the reasonable duty of the shippers either to put some one in
charge to protect their interests or to have given notice, by
telegram or letter, to the consignees. Perhaps more specific
directions on the shipping contract would have answered the
same purpose. It was negligence to omit all these reasonable
precautions, and the loss that ensued must fall on the party
in fault.
In this view of the case, it will not be necessary to con-
sider the errors assigned on the instructions. No verdict that
could be rendered for appellees, on this evidence, could be
permitted to stand.
The judgment of the circuit court will be reversed.
Judgment reversed.
Joseph L. Keedy
v.
Nancy E. Howe et al.
1. Intoxicating liquor— master liable for damage occasioned by sale
by his clerk. In a civil action by a wife against one for selling liquor to
her husband, it is not proper to instruct the jury, that if the defendant
had given orders to his clerks and agents, whose employment was to sell
intoxicating liquors, not to let the plaintiff's husband have liquor, and
that the defendant did not, in person, let him have liquor, but refused to do
so, then the defendant would not be liable for the acts of his clerks in
violation of such instructions, and without his knowledge and consent.
134 Keedy v. Howe et at: [Jan. T.
Opinion of the Court.
2. Such an instruction might be proper in a criminal prosecution to
recover the penalty. And if the defendant had, in good faith, forbidden
his clerk or bar-tender to let the husband of the plaintiff have liquor,
and the clerk wilfully disobeyed him, without the connivance of defend-
ant, it seems that, in a civil action, this fact should go in mitigation, not
of the actual damages, but of the vindictive damages claimed.
3. Same — rule as to right of recovery of wife for sale of liquor to husband.
In a suit by a wife against one for selling intoxicating liquor to her hus-
band, where there is no evidence that she has been injured by the act
of the defendant, either in her person, her property, or her means of sup-
port, she can not recover actual damages, and consequently she can not
recover exemplary damages.
Appeal from the Circuit Court of Shelby county ; the
Hon. Horatio M. Vandeveer, Judge, presiding.
Messrs. Thornton & Wendling, for the appellant.
Messrs. Henry & Penwell, for the appellees.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action on the case, originally brought to the
Moultrie circuit court, and taken, by change of venue, to
Shelby county, by Nancy E, Howe and others, against Joseph
L. Keedy, under the fifth section of the act of January 13, 1872,
known as "the liquor law," which resulted in a verdict and
judgment for the plaintiffs. To reverse this judgment the
defendant appeals, and assigns substantially the same errors
as were assigned in the case of Kellerman v. Arnold, 71 111.
632, and the discussion of which involves the same consid-
erations we have noticed in that case, and in the cases of
Meidel v. Anthis, 71 111. 241, and Freese v. Tripp, 70 111. 496.
It is complained here that the court refused to give this
instruction, asked for defendant :
"If the jury believe, from the evidence, that Keedy himself,
did not sell or give intoxicating liquors to Howe, after July
1, 1872, and that he refused so to do, and that Keedy gave
1874.] Keedy v. Howe et al 135
Opinion of the Court.
orders to his clerks and agents not to sell or give such liquors
to Howe, that then Keedy is not liable for the acts of his
clerks or agents in violation of his instructions, and without
his knowledge or consent."
In the case of Freese v. Tripp, to which reference has been
made, the jury had been instructed to find exemplary dam-
ages for the plaintiff, whereupon the defendant asked an in-
struction somewhat like the one we are now considering, and
we then held, exemplary damages having been demanded, it
was but fair defendant should have the right to show matters
in mitigation, and if the defendant, in good faith, had for-
bidden his clerk or bar-tender to sell or give liquors to this
drunkard, and the clerk wilfully disobeyed him, without de-
fendant's connivance, it seemed to us it should go in mitiga-
tion, not of the actual damages, but of the vindictive damages
claimed.
Appellant claims this instruction should have been given
as asked. He insists that the effect of refusing to give the
instruction was to inform the jury that the master was not
only liable for the neglect and torts of his servants done
within the scope of their employment, but for all their acts,
whether negligent or wilful, which were expressly forbidden ;
that under the rule as thus announced , the master could not,
by the most prudent management, and the most positive in-
structions, protect himself from the consequences of the
wantonness and malice of his servants. Such a doctrine, he
insists, has no foundation in law, reason or right.
Appellant contends, as this is not a suit at common law,
for negligence, but one on a statute highly penal, it must be
strictly construed, and not extended by implication beyond its
express language. To this, this court has assented, in a modi-
fied form, in one or more of the cases cited, supra. But this
action is a civil suit, authorized by that law. If it was a
prosecution under that law for the penalty, then it might be
held, as in the cases cited, that the one who incurred the pen-
136 Keedy v. Howe et at. [Jan. T.
Opinion of the Court.
alty must be the person punished. The citation of authori-
ties is not entirely apposite, as, in this case, it is undeniable,
the clerk was acting within the scope of his employment,
which was to sell intoxicating drinks. The record shows
liquors were sold by the clerk to Howe, in the presence of
the defendant, without objection from the defendant.
We do not understand the rule to be as contended by de-
fendant. Text writers on agency, Story among others, say,
in a civil case, where an agent does an act in the course of
his employment, although the principal did not authorize or
participate in, or know of such misconduct, or even if he
forbade the acts or disapproved of them, the rule of respon-
deat superior applies. Story on Agency, § 452, and a large
number of cases there cited. The rule is founded upon pub-
lic policy and convenience. It was undoubtedly the duty of
this clerk to obey the orders of his master, if given to be
obeyed, but his disobedience can not exonerate the master.
This court has held this to be the true doctrine in Johnson v.
Barber, 5 Gilm. 425, Tuller v. Voght, 13 111. 285, and Moir v.
Hopkins, 16 ib. 313, where it was said the rule is, that the
principal is liable for the torts of his agent done in the course
of his employment, although the principal did not authorize
or justify, or participate in, or even if he disapproved of them.
If the tort is committed by the agent in the course of his em-
ployment, while pursuing the business of his principal, and
is not a wilful departure from such employment and business,
the principal is liable, although done without his knowledge.
Selling strong drinks was the employment or business, and
it was not a wilful departure from this business to sell to a
drunkard against the orders of the principal, though it
might be held as a wilful departure from the orders of the
master.
This instruction was not asked on the point of exemplary
damages, as inFreese v. Tripp, supra, but went to the recovery
of actual damages, and was therefore inadmissible.
1874.] Keedy v. Howe et aL 137
Justices Scott, Sheldon and Craio, dissenting.
In our examination of this record we find no evidence,
whatever, that the plaintiff has been injured by the act of
the defendant, in her person, her property, or in her means of
support, and has shown no right to recover actual damages,
and consequently, as we said in the cases supra, no right to
recover exemplary damages. The plaintiff is shown to be a
person of abundant means.
The sale of her land, which was mortgaged for an honest
debt years before, voluntarily, and not in consequence of,
or by reason of intoxication, has no place in the consideration
of this case. Appellee's counsel make no point on it, and
considered it so unimportant and irrelevant as not to allude
to it in their argument. It has nothing to do with the case.
We fail to perceive any right of action and recovery on
the part of plaintiff. The judgment must be reversed and
the cause remanded.
Judgment reversed.
Mr. Justice Scott, Mr. Justice Sheldon, and Mr. Jus-
tice Craig, dissenting:
The medical testimony in this record shows, that the cause
of the husband's sickness was a drunken debauch ; and that
his sickness and death were caused by intoxicating liquor.
It was in evidence, that after his death, his widow had to
pay $1000 for him, for which they had before given a mort-
gage on her land ; that the husband was a farmer, and atten-
tive to business when sober. The plaintiffs in the suit are
the widow and four children of the deceased husband, the
ages of the children ranging from two to ten years.
In view of such evidence, we can not say there is no proof
of actual damage, that the widow was not injured in her
property, and that the plaintiffs, in the deprivation, by death,
of a husband and father, were not injured in their means of
support.
We do not thus weigh the effect of evidence.
138 T., W. & W. Ey. Co. v. Eddy. [Jan. T.
Statement of the case.
The Toledo, Wabash and Westeen Eailway Co.
v.
David Eddy,
1. Venue — application for change after first term of court. Where an
application for a change of venue is made at a term of court after the first,
ten days' notice of such application should be given to the other party, or
the affidavit should show that the cause for the change came to the
knowledge of the applicant, for the first time, less than ten days before
the time of making the application.
2. Same — change on account of prejudice of the judge. An affidavit for
a change of venue on account of the prejudice of the judge, which fails
to show against whom the judge is prejudiced, is insufficient.
3. Contributory negligence — duty of servant in using machinery pro-
vided by railroad company. It is the duty of the servant of a railroad
company to see that the machinery which he uses is in repair, and when
it is not, to report the fact to the company, and it is negligence on his
part to fail to do so; and the company will not be liable for any injury
sustained by him, occasioned by such machinery being out of repair.
4. Same — party injured must use diligence to have himself cured. A party
claiming damages for an injury caused by the negligence of another,
must, after the injury is received, act as a prudent man would under the
circumstances, and use due diligence to know whether medical aid is
required, aud to have himself cured. He has no right to act recklessly
in this regard, and then charge the defendant for the effect of such con-
duct; and it should be left to the jury whether the party injured has used
due diligence to have himself cured or not.
Appeal from the Circuit Court of Champaign county ; the
Hon. C. B. Smith, Judge, presiding.
This was an action, brought by David Eddy, an employee
of the Toledo, Wabash and Western Railway Company, against
the company, to recover for injuries sustained by reason of a
fall from a ladder furnished by the company and used by him
in the course of his employment.
Mr. A. E. Harmon, for the appellant.
Mr. J. S. Wolfe, for the appellee.
1874.] T., W. & W. Ey. Co. v. Eddy. 139
Opinion of the Court.
Mr. Justice Walker delivered the opinion of the Court :
It is first urged, that the court below erred in refusing to
grant a change of venue in this case. The eleventh section
of the law providing for changes of venue declares, that a
change shall not be granted after the first term of the court
at which the party applying might have been heard, unless
he show that the cause has arisen or come to his knowledge
subsequent to the term at which the application could have
been made, and shall also give to the opposite party ten days'
notice, except where the causes have arisen or come to his
knowledge within less than ten days of making the application.
The notice in this case states, that information of the cause
came to his knowledge on Friday, the 12th of September,
1873, but the affidavit fails to state that the knowledge of the
prejudice was received for the first time less than ten days
before the term ; and the affidavit states, the agent fears that
the defendant can not have a fair trial, on account of the
prejudice of the judge, by reason of his election, and prays a
change of the venue to another county than Vermilion or
Ford.
This affidavit is insufficient, as it fails to state necessary
facts : it fails to state against whom the judge is prejudiced.
It seems to assign the election x>f the judge as the cause of
the prejudice. It also fails to state that the knowledge of
the prejudice had been received within ten days of the com-
mencement of the term, or the time of giving the notice. If
the election of the judge was for any reason connected with
the prejudice, the affidavit fails to state what it was, or that
affiant did not know of such election ten days prior to the
time of making the application. There was no error in refu-
sing to change the venue of the case.
It is insisted, that the court below erred in giving instruc-
tions for appellee. The third of his instructions states, that
it is an implied contract t>y the company, with their servants,
that they will keep their road and apparatus in safe repair,
140 T., W. & W. Ry. Co. * Eddy. [Jan. T.
Opinion of the Court.
and in such condition that all of their machinery, in operating
the road, can be used with safety to their employees. This
instruction, under the evidence in the case, was not accurate.
The evidence shows that appellee was in constant use of the
ladder, and that no one else, for some time previously, had
used it. This being so, it was the duty of appellee to see and
know that the ladder was in repair, and if not, to have re-
ported it to the proper person for repair. He had no right to
act with recklessness in using machinery out of repair, and if
he received injury thereby, to hold the company responsible
for the injury resulting from his carelessness or neglect of
duty in not reporting it out of repair. Illinois Central Rail-
road Co. v. Jewell, 46 111. 99. In that case it was held to be
the duty of a servant to see that the machinery which he uses
is in repair, and when not, to report it to the company, and
that it is negligence in him to fail to do so, and the company
would not be liable. See, also, The Toledo, Peoria and War-
saw Railway Co. v. Conroy, 68 111. 560. This instruction
should have been modified before it was given. The company
are bound to provide good, safe and proper machinery, so far
as- reasonable skill and diligence can construct it. But, when
so provided, it is a duty devolving on the servants to see that
it is in repair, or report it to the company.
The eighth of appellee's instructions does not state the law
correctly. It informs the jury, that, although he might have
placed himself in a better bodily condition by the employ-
ment of medical aid, he could not be chargeable with negli-
gence unless he knew, or had reason to believe, in the exercise
of a sound judgment, he needed medical aid, and then it could
only be considered in mitigation of damages. It was his
duty to have acted as a prudent man would, under similar
circumstances, and to have used due diligence to know whether
medical aid was°required. He had no right toact recklessly,
aud then charge the company for the effects of such conduct.
It should have been left to the jury to say whether he acted
1874.] C. & A. K. R. Co. v. Mock, Admx. 141
Syllabus.
as a prudent man should, and whether he used due diligence
to have himself cured.
The ninth of appellee's instructions informs the jury, that,
although he-had been previously ruptured, if he was the em-
ployee of the company when he received the injury, if it was
occasioned by the negligence of the company, and whilst he
was using proper care, such former injury would make no
difference. This instruction, like the eighth, wholly ignores
all care and diligence in seeing that the ladder was safe, and
if not, then to report its condition to the company. Without
such a modification they were calculated to, and we think did,
mislead the jury.
The judgment of the court below is reversed and the cause
remanded.
Judgment reversed, '
The Chicago and Alton Kaileoad Company
Maegaeet M. Mock, Admx.
1. Negligence — contributory. In a suit against a railroad company
for causing the death of a person through negligence, where there is a
question as to whether the deceased was guilty of negligence or not, an
instruction which directs the jury, if they believe certain facts, to find
absolutely for the plaintiff, without containing the requirement of any
degree of care whatever on the part of the deceased, is erroneous.
2. In cases of mutual negligence, the general rule is, that a plaintiff
who has been guilty of contributory negligence can not recover, but where
the negligence of the plaintiff is slight and that of the defendant gross,
the former may recover; but this court has never adopted any such rule
as that the plaintiff would be entitled to recover on account of the negli-
gence of defendant being greater than his.
3. Pleading and evidence — recovery should be confined to the negligence
as charged in the declaration. An instruction which allows a recovery
for negligence in general respects, without limitation to the particulars
of negligence specified in the declaration, is too broad.
142 C. & A. E. E. Co. v. Mock, Admx. [Jan. T.
Opinion of the Court.
Appeal from the Circuit Court of Morgan county ; the
Hon. Cyrus Epler, Judge, presiding.
Messrs. Dummer & Brown, for the appellant.
Mr. "William H. Barnes, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action brought by Margaret M. Mock, as the
administratrix of the estate of Anthony Mock, deceased, her
late husband, against the Chicago and Alton Eailroad Com-
pany, for the alleged negligent killing of said Anthony Mock.
The plaintiff below recovered, and defendant appealed.
The leading facts of the case are as follows: Manchester,
in Scott county, was a regular station on appellant's road.
Three trains passed there daily each way. The train which
caused the injury in question was a through train, for the
accommodation of Peoria through passenger travel, and did
not stop at Manchester unless signaled to do so. Its time
of arrival there was 3:30 A. M. About 3 o'clock on the
morning of April 1, it being very dark and rainy, the de-
ceased started from his home, at Manchester, to take passage
thence to St. Louis, on this 3:30 A. M. train, taking with
him a lantern to signal the train. In answer to his signal
with the lantern, on the platform of the station, the engineer
sounded the whistle to stop the train, but the rails being wet
and slippery, the train passed the station about two hundred
feet before it stopped. The conductor, with a lantern, took
his position on the rear platform of the hind car, and the
train was backed up until the back car was alongside the sta-
tion platform. This car was lighted. The conductor got
out on the station platform with a light, but could see or
hear no one there. The train was composed of two cars.
During the time the train was backing up, the brakeman was
on the platform between the two cars, with a lighted lantern.
The deceased was not seen or heard by any one, after his sig-
1874.] C. & A. R. K. Co. v. Mock, Admx. 143
Opinion of the Court.
naling the train on the station platform, until he was found
killed on the track the next morning. The station agent was
not at the station on arrival of the train.
On its own cars the appellant uses the Blackstone coupling,
which brings the platforms of the cars, when coupled, within
six inches of each other. One of the coaches of this train
was a Peoria, Pekin and Jacksonville railway coach, which
was attached at Jacksonville, and it, like all cars on the latter
road, was coupled by a different sort of coupling, which left
the cars at a greater distance apart — a distance of two to three
and a half feet, the witnesses varying in their statements. It
was in evidence that the plaintiff had stated that she had
advised the deceased not to go on the night train, as he was
near-sighted, and it was not prudent for him to go at night.
The jury, in addition to a general verdict for the plaintiff,
found the following special verdict, among others: "Both
parties were guilty of carelessness, but defendant guilty to
greater degree."
It will thus be seen, that the negligence of the deceased
was a material question in the case, rendering it important
that the law governing the liability of the defendant, in view
of such negligence, should have been laid down to the jury
with accuracy. Three of the instructions given for the plain-
tiff direct the jury, if they believe certain facts, to find abso-
lutely for the plaintiff, without containing the requirement
of any degree of care whatever on the part of the deceased.
This was error. Chicago, Burlington and Quincy Railroad Co,
v. Payne, 49 111. 499.
In no one of the instructions given for plaintiff is there
any reference whatever to any care as being required on the
part of the intestate, except in the fourth one, which was on
the hypothesis that, after the deceased had got upon the train,
he fell between the cars, by reason of their improper coupling,
and there was no evidence that he did get upon the train, but
much that he did not.
144 C. & N. W. Ry. Co. v. Miller. [Jan. T.
Syllabus.
The special verdict of the jury evinces how they may have
erred, through the want of being properly instructed. From
that verdict, it would seem to have been their notion that, in
a case of mutual negligence, the defendant would be liable
if guilty of a greater degree of negligence.
The general rule is, that a plaintiff who has been guilty
of contributory negligence can not recover. This court has
held that, where the negligence of the plaintiff is slight and
that of the defendant gross in comparison, the former may
recover; but it has never adopted any such rule of liability >
in cases of mutual negligence, as that of a greater degree of
negligence on the part of the defendant.
The second and fifth instructions were, further, too broad
in allowing a recovery for negligence in general respects*
without limitation to the particulars of negligence specified
in the declaration.
Without adverting to the question of the sufficiency of the
evidence to sustain the verdict, the judgment will be reversed
for the giving of erroneous instructions, and the cause re-
manded.
Judgment reversed.
The Chicago and Northwestern Railway Co.
v.
Henry B. Miller.
1. Taxation of railroad property— assessment of right of way. Town
lots used by a railroad company as right of way and assessed under the
denomination of "railroad track," are only liable for taxes as right of
way, and can not be taxed both as right of way and as town or city lots;
and where a tax is levied on such property both as railroad track and
as town and city lots, the collection of the tax levied as upon town and
city lots should be enjoined.
2. Where town or city lots are used by a railroad company as right of
way they fall under the denomination of "railroad track," under the 42d
1874.] C. & % W. Ey. Co. v. Miller. 145
ODiniou of the Court.
section of the Revenue Act of 1872, aDd there is no authority to assess
them otherwise.
3. The exception in the 41st section of the act does not authorize town
and city lots to be excluded from the estimate of right of way. Its only
purpose is to release the company from giving the description by the
United States surveys of the property occupied as right of way, when the
right of way is located over town and city lots.
Appeal from the Circuit Court of Cook county ; the Hon.
W. W. Farwell, Judge, presiding.
Mr. B. C. Cook, for the appellant.
Mr. James K. Edsall, Attorney General, for the appellee.
Mr. Justice Scholfield delivered the opinion of the
Court :
There is but a single question in this case which is not
disposed of by the decisions made at the present term in
Ramsey v. Hoeger, 76 111. 432, and Porter et al v. The Hock-
ford, Rock Island and St. Louis Railroad Co. ib. 561.
The bill alleges that a list of town and city lots owned
and used by appellant as right of way, in Cook county, was
included in its schedule filed with the county clerk ; that
these lots were assessed by the board of equalization, under
the denomination of " railroad track;" that they were also
assessed by the several town assessors of Cook county, as
town and city lots; that the board of equalization increased
the assessed valuation of town and city lots in Cook county,
and that appellant is sought to be compelled to pay taxes on
such lots, both as right of way and on the increased assess-
ment as town and city lots.
It is obvious that both assessments are not authorized, and
it only remains to determine on which should the collection
of the tax be enjoined.
By the 41st section of the Revenue Act of 1872 (2 Gross'
Statutes, 342), railroads are required in the month of May
of the year 1873, and at the same time in each year there-
10— 72d III.
146 C. & N. W. By. Co. v. Miller. [Jan. T.
Opinion of the Court.
after, when required, to make out, and file with the county
clerks of the respective counties in which the railroad may
be located, a statement, or schedule, showing the property
held for right of way. and the length of the main and all side
and second tracks and turnouts in such county, and in each
city, town and village in the county through or into which
the road may run, and describing each tract of land other
than a city, town or village lot through which the road may
run, in accordance with the United States surveys, giving the
width and length of the strip of land held- in each tract, and
the number of acres thereof. They shall also state the value
of improvements and stations located on the right of way.
Section 42 provides that such right of way, including the
superstructures of main, side or second tracks and turnouts,
and the stations and improvements of the railroad company
on such right of way, shall be held to be real estate, for the
purpose of taxation, and denominated "railroad track," and
shall be so listed and valued, and shall be described in the
assessment thereof as a strip of land extending on each side
of such railroad track, and embracing the same, together with
all the stations and improvements thereon, commencing at a
point where such railroad track crosses the boundary line in
entering the county, city, town or village, and extending to
the point where such track crosses the boundary line leaving
such county, city, town or village, or to the point of termina-
tion in the same, as the case may be, containing acres,
more or less (inserting name of county, township, city, town
or village boundary line of the same, and number of acres
and length in feet), and when advertised or sold for taxes, no
other description shall be necessary.
Section 43 provides that the value of the " railroad track,"
shall be listed and taxed in the several counties, towns, vil-
lages, districts and cities, in the proportion that the length
of the main track in such county, town, village, district or
city bears to the whole length of the road in this State, except
the value of the side or second track and all turnouts, and
1874.] C. & N. W. Ry. Co. v. Miller. 147
Opinion of the Court.
all station houses, depots, machine shops or other buildings
belonging to the road, which shall be taxed in the county,
town, village, district or city in which the same are located.
And the latter part of section 46 is, "All real estate, includ-
ing the stations and other buildings and structures thereon,
other than that denominated 'railroad track/ belonging to any
railroad, shall be listed as lands or lots, as the case may be,
in the county, town, village, district or city woere the same
are located."
We must take the averment in the bill, that these lots are
used by appellant as right of way, confessed as it is by the
demurrer, to be true. It, then, follows that, under the 42d
section, they fall under the denomination of " railroad track,"
and we perceive no authority to assess them otherwise. The
exception in the 41st section does not authorize town and city-
lots to be excluded from the estimate of right of way, as is
clearly evident from the description of the right of way
required to be given by the 42d section. Its only purpose is
to relieve the company from giving the description of the
property occupied as right of way by the United States sur-
veys, when the right of way is located over town and city
lots. It is, nevertheless, the duty of the company to desig-
nate the town and city lots used for this purpose, in its schedule
to be filed with the county clerk, and where parts of lots only
are used for right of way, this should be stated, and the resi-
due should be assessed for taxation as provided in section 46.
We are of opinion that so much of the tax levied by the
Auditor as State tax on the property of appellant as is in excess
of the proportional amount necessary to raise the $3,500,000
levied by the act in force July 1, 1873, for "revenue fund"
and "State school fund," is, for the reasons given in Ramsey v.
Hoeger, supra, unauthorized by law, and its collection should
therefore be enjoined, and that so much of the tax as is levied
upon town and city lots which are, in fact, used as a part of
appellant's right of way, is also unauthorized by law, and its
collection should be enjoined.
148
I. C. R. E. Co. v. Cobb, Blaisdell & Co. [Jan. T.
Svllabus.
The other objections urged are overruled, for the reasons
given in Porter et al. v. The Rockford, fiock Island and St. Louis
Railroad Co. supra.
The decree of the court below is reversed, and the cause
remanded for further proceedings not inconsistent with this
opinion.
Decree reversed.
The Illinois Central Railroad Company
v.
Cobb, Blaisdell &> Co.
1. Measure ov damages — liability of common carrier for delay in trans-
portation of grain. If a railroad company fails to transport grain deliv-
ered to it for that purpose to its point of destination within a reasonable
time, and the price of grain declines in the market at the point to which
it is consigned, the owner of the grain is entitled to recover the difference
between the market price at that point when it should have arrived and
the time it actually does arrive.
2. If, in consequence of unreasonable delay on the part of a railroad
company in the transportation of grain, there ceases to be a market for
the grain at the point to which it is consigned, the owner may, without
unreasonable delay, ship the grain to some point where it can be sold for
the most advantageous price, dispose of it to the best advantage, and hold
the railroad company for the loss.
3. Same — extent of proof required of plaintiff in suit for loss on grain
by reason of delay in its transportation. In a suit against a railroad com-
p'any for unreasonable delay in the transportation of grain, it is not suffi-
cient for the plaintiff' to prove that, when the grain arrived after the time
it should have arrived, he realized a specific sum for the grain, and then
stop; but he should prove, clearly, what disposition was made of it, how
long, if at all, it was stored, and at what expense, and, if sold, the price
it brought, and the expense of sale.
4. Evidence — what competent as tending to prove a market price. In a
suit against a railroad company for unreasonable delay in the transporta-
tion of grain, where the plaintiff has proved the market price of grain at
the point to which it was consigned at the time when, if there had been
no unreasonable delay, it would have arrived, it is competent for the de-
fendant to prove that the plaintiff sold grain at that point, during the
1874.] I. C. E. E. Co. v. Cobb, Blaisdell & Co. 149
Opinion of the Court.
time the grain was actually arriving there, at a certain price, as a fact
tendiug to establish the market price at that place at that time.
5. Same — correspondence of a party not competent on his behalf. The
correspondence between the plaintiffs in a suit, and their correspondents
with whom the defendants are in no way connected, is not competent
evidence as against the defendants.
6. Bills of lading — prima facie evidence that goods were in good con-
dition] if so described therein. Where a common carrier receives goods
for shipment, and gives the consignor a bill of lading, in which the goods
are described to be in apparent good order, the bill of lading is prima
facie evidence, in a suit against the carrier, that the goods were in good
condition.
7. Interest — can only be recovered when provided for by statute. The
recovery of interest depends entirely upon the statute, and unless author-
ized by the statute it can not be recovered.
8. Same — recoverable in trespass and trover. Where property has been
wrongfully taken, or converted into money, and an action of trespass or
trover may be maintained, interest may properly be recovered.
Appeal from the Circuit Court of Alexander county ; the
Hon. David J. Baker, Judge, presiding.
Messrs. Williams, Burr & Capen, for the appellant.
Mr. D. T. Linegar, Mr. Wm. J. Allen, and Mr. John
M. Lansden, for the appellees.
Mr. Justice Craig delivered the opinion of the Court:
This was an action of assumpsit, brought by appellees
against appellant to recover damages for unreasonable delay
in the transportation of corn and oats, shipped at various sta-
tions on appellant's road, in the spring of 1865, consigned to
Cairo.
A trial of the cause was had before a jury, which resulted
in a verdict against appellant for $43,560.25. A motion for
a new trial was entered, which the court overruled, and ren-
dered judgment upon the verdict. The appellant brings the
record here by appeal, and assigns various errors for a rever-
sal of the judgment, which, so far as may be material to a
150 I. C. E. E. Co. v. Cobb, Blaisdell & Co. [Jan. T.
Opinion of the Court.
correct decision of the points involved in the case, will be
considered.
The question raised by appellant in regard to impaneling
the jury it is not necessary to consider, as the judgment will
have to be reversed upon points arising upon the merits of
the case, and upon another trial there will probably be no
difficulty in the parties selecting a jury according to the plain
provisions of the statute, which will be acceptable to each.
Appellees, upon the trial, introduced evidence tending to
prove that the corn and oats involved in this action, after
they had been delivered to the railroad company for shipment,
should have arrived at Cairo by the 10th day of April, 1865,
if no unreasonable delay had occurred in the transportation.
The evidence shows the grain did not arrive at that time,
but, on the contrary, the first car arrived on the 17th day of
April, and from that time the grain continued to arrive until
the 20th day of May.
It is clear that if appellant failed to transport the grain to
its point of destination within a reasonable time, and the
price of the grain declined in the market at Cairo, the point
to which it was consigned, then appellees would be entitled
to recover the difference between the market price at Cairo
when it should have arrived and the time it actually arrived ;
or if, in consequence of the delay, there ceased to be a market
for the grain at Cairo, then it would have been the privilege
and right of appellees, without unreasonable delay, to ship
the grain to some point where it could have been sold for the
most advantageous price, dispose of it to the best advantage,
and hold the appellant for the loss.
It follows, then, that one of the vital facts in the case for
the jury to determine, was the market price of the grain at
Cairo when, in due course of transportation, it should have
arrived, and the market value at the time it actually arrived.
Upon this point in the case, the plaintiffs introduced evidence
tending to prove the market price of oats to the 10th day of
April was from ninety to ninety-five cents per bushel. They
1874.] I. C. R. R. Co. v. Cobb, Blaisdell & Co. 151
Opinion of the Court.
then introduced evidence tending to show that they realized
less than thirty-five cents per bushel for the oats after its
arrival.
For the purpose of rebutting the p?ima facie case made by
appellees, appellant offered to prove that, on the 9th day of
May, 1865, a day upon which the grain was arriving, appel-
lees sold between five and six car loads of oats at seventy-five
cents per bushel. This evidence was objected to, and the
court would not permit it to go to the jury.
There can be no doubt but, in this ruling of the court, there
was error, and that, too, upon a point very material in the
case. If appellees sold oats in Cairo at that time for seventy-
five cents per bushel, that was a fact proper for the consider-
ation of the jury, tending to establish the market price of the
grain at that date, and we are unable to conjecture upon
what principle appellant was denied the right to establish the
market value of oats at that time.
The fact that appellees had proven they realized only
thirty-five cents per bushel for the oats, renders the error of
the court still more apparent, and clearly establishes the ne-
cessity for the admission of the rejected evidence.
For the purpose of establishing the market price of corn,
appellees introduced in evidence a correspondence between
themselves and a firm of Bacon & Co. The defendant was,
in no manner whatever, connected with these letters, and we
are aware of no rule of law under which they were admissible.
Had appellees desired the evidence of Bacon & Co. upon this
branch of the case, they should have called them as witnesses,
when their testimony could have been subjected to a cross-
examination. Neither the letters of Bacon & Co., nor those
of appellees written to them, were competent evidence to go
to the jury, and it was error for the court to permit them to
be read as evidence.
The next question presented arises upon the 23d instruc-
tion given for appellees, which is as follows :
152 I. C. E. R. Co. «. Cobb, Blaisdell & Co. [Jan. T.
Opinion of the Court.
"The court instructs the jury,. that, in this case, they may
allow interest, if they believe, from the evidence, that the
circumstances of the case are such as amount to a conversion
of the property by the defendant, or that there was fraud on
the part of the defendant or its agents, or that there was a
gross neglect of duty by the defendant. As to whether inter-
est should be allowed or not, you are to be governed by all
the facts and circumstances in evidence before you, touching
the character, degree and extent of defendant's neglect or
breach of contract or duty."
Under this instruction it is evident, from the amount of
the verdict, the jury allowed interest.
At the common law, interest was not allowed in any case.
Its recovery depends entirely upon our statute, and unless
authorized by the statute it can not be recovered. City of
Pekm v. Reynolds, 31 111. 530.
While our statute has received a liberal construction, yet
we are aware of no case similar to the one under consideration
in which interest has been allowed.
In Bradley v. Geiselman, 22 111. 494, the recovery of inter-
est was sustained. The action was, however, trespass, where
property had been wrongfully taken and sold, and converted
into money.
In the case of Chicago and Northwestern Railway Co. v. Ames,
40 111. 249, interest had been recovered and the judgment was
sustained. The facts in that case, however, would have au-
thorized an action of trover, for a wrongful conversion of the
property. The same may also be said of the case of Northern
Trans. Co. v. Sellick, 52 111. 249, where a recovery of interest
was sustained.
In Chicago and Northwestern Railway Co. v. Schultz, 55 111.
421, the recovery of interest was sustained on the authority
of Bradley v. Geiselman, supra, the action having been trespass
to personal property.
These are the authorities, in our own State, cited and relied
1874.] I. C. E. E,. Co. v. Cobb, Blaisdell & Co. 153
Opinion of the Court.
upon by appellees to justify the recovery of interest in this
case ; but they do not sustain the position assumed. The doc-
trine established by these authorities is, where property has
been wrongfully taken, or converted into money, and an action
of trespass or trover may be maintained, interest may properly
be recovered. And this is based upon the statute, which
authorizes interest when there has been an unreasonable and
vexatious delay of payment.
There can be no difference between the delay of payment
of a moneyed demand and one where property has been wrong-
fully taken, or taken and converted into money or its equiv-
alent—-the two rest upon the same principle.
But in this case there is no pretense of a trespass or con-
version of property, or of any fraud practiced. The action is
based solely on the alleged fact that appellant failed to ship
and deliver grain within a reasonable time, and that the grain
was damaged in transitu.
If interest could be recovered upon the facts disclosed by
this record, we can scarcely conceive of any action brought to
recover damages in which it might not be allowed.
The instruction was not authorized by the facts in the case,
and should not have been given.
It is insisted by appellant that the court erred in giving
appellees' second instruction, which was as follows :
"If you believe, from the evidence, that plaintiffs are enti-
tled to recover upon the counts in their declaration upon corn
and oats, then the measure of damages in relation thereto is
the difference between what they were actually able to realize
for said grain and what they would have realized for the same
had it arrived at its destination without unreasonable delay,
and this amount you are to determine from the evidence."
This instruction does not correctly state the law. Appel-
lees, upon the arrival of the grain, if there was then no mar-
ket for it in Cairo, were bound to find a speedy market, and
dispose of it on the most advantageous terms ; yet, under this
154 I. C. K. R. Co. v. Cobb; Blaisdell & Co. [Jan. T.
ODiuion of the Court.
instruction, they could hold the grain in store at a heavy
expense, until the entire value of it would be consumed by
storage, and then recover the full market price of appellant
at the time it should have arrived. Such would not be just,
and we can not give it our sanction.
It is but equitable to require appellees to prove, clearly,
the disposition made of the corn and oats after its arrival.
If it was stored, they should show how long and at what ex-
pense. If sold, the price the grain brought should be given,
and the expense of sale. It is not enough for them to show
they realized a specified sum for the grain, and then stop.
It is also insisted by appellant, that the court erred in giv-
ing appellees' nineteenth instruction, which read as follows :
"If the jury believe, from the evidence, that the defendant
received the corn and oats claimed to be in a damaged con-
dition when it arrived, and gave bills of lading acknowledging
the receipt of such grain in apparent good order, then such
bills of lading are prima facie evidence that the grain men-
tioned in such bills of lading was, at the time it was shipped,
in good order and condition, and is binding on the defendant
unless rebutted ; and to overcome such prima facie evidence,
it is incumbent on the defendant to introduce such evidence
as will show, to the satisfaction of the jury, that such grain
was not, in fact, in good order and condition."
The exception taken to this instruction we do not regard
as tenable. When a common carrier receives goods for ship-
ment, and gives the consignor a bill of lading, in which the
goods are described to be in apparent good order, we see no
reason why the bill of lading should not be held prima facie
evidence that the goods were in good condition. This was
held to be the law in Bissel v. Price, 16 111. 408 ; and the
same doctrine was reaffirmed in the case of Great Western
Railroad Co. v. McDonald, 18 111. 172.
For the errors indicated, the judgment will be reversed and
the cause remanded.
Judgment reversed.
1874.] T., W. & W. Ry. Co. v. Morgan. 155
Opinion of the Court.
The Toledo, Wabash and Western Railway Co.
v.
Orson Morgan.
1. Pleading and evidence — the evidence must establish the case made
by the pleadings to warrant a recovery. If a party recovers in an action,
it must be on the case made by the pleadings, and when a declaration, in
a suit against a railroad company for damages caused by burning wheat
stacks, alleges that the stacks were set on fire by sparks from a locomo-
tive belonging to the company, evidence that the stacks were destroyed
by a fire which originated in another field, even though such fire was
occasioned by sparks from the defendant's engine, will not sustain the
averment in the declaration, and the plaintiff will not be entitled to re-
cover.
2. Purchaser — whether entitled to recover for prior damage. A railroad
company is not liable to a party who purchases land after the road is
constructed across it, for any damage done to the land in the construction
of the road. If the owner of the land, at the time of the construction of
the road, does not complain of the damage done to the land, his grantee
certainly can not.
3. Verdict — not decisive of any fact when directly conflicting instruc-
tions are given. When the jury are told, in an instruction given on be-
half of the plaintiff, that he is entitled to recover, and, in one given for the
defendant, that the plaintiff is not entitled to recover, their verdict can
not be regarded as settling any fact in the case, and no verdict they could
render, under such circumstances, would be entitled to weight in the de-
cision of the case.
Appeal from the Circuit Court of Champaign county ; the
Hon. Thomas F. Tipton, Judge, presiding.
Mr. A. E. Harmon, for the appellant.
Mr. T. J. Smith, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
The verdict in this case is so manifestly against the weight
of the evidence that the court ought to have' set it aside and
awarded a new trial.
156 Tv W. & W. Ry. Co. v. Morgan. [Jan. T.
Opinion of the Court.
Three distinct causes of action are alleged in the declara-
tion, neither of which is supported by the evidence :
First — The alleged destruction of a quantity of wheat in
the stack, by fire said to have been caused by fire sparks emit-
ted from a locomotive engine on appellant's road.
Second — The destruction, by a like cause, of a quantity of
board and hedge fence on the farm of appellee.
Third — Damages sustained by reason of the alleged over-
flow of appellee's land, in consequence of the construction of
the railroad across it.
It is averred in the first count, the wheat stacks were situ-
ated 30 rods, and, in the second count, 40 rods, distant from
the track of appellant's road. The evidence shows the dis-
tance to have been between 40 and 50 rods. The averment
in the declaration is, the stacks were set on fire by sparks
from the engine. The testimony of witnesses of large ex-
perience in such matters shows it is utterly impossible to com-
municate fire at that distance. The engine that passed
immediately before the fire was discovered is proven to be a
coal-burner. It had lately been repaired, and was equipped
with the best known appliances to prevent the escape of fire
sparks. The wire netting was so fine it was difficult to get
draft enough to create the requisite quantity of steam.
All the witnesses concur in the statement the extreme dis-
tance fire sparks from a coal-burning engine can be carried,
even with the wind blowing a gale, and yet have life enough
to ignite anything, would not exceed 125 feet. Many of them
place it at a much shorter distance.
The proof shows, the fire that consumed the wheat origi-
nated in the adjoining field, and was thence communicated to
the stacks. There is no satisfactory evidence of the fact, but
it is possible the fire on the adjoining lands was occasioned
by fire sparks from an engine on appellant's road. But that
is not the case made in the declaration, and if appellee is to
recover, it must be on the case made by the pleadings.
1874.] T., W/& W. Ky. Co. v. Morgan. 157
Opinion of the Court.
The fire that is said to have destroyed the fences occurred
previous to the one that consumed the wheat. The declara-
tion contains two counts for the destruction of the fences.
No averment of negligence on the part of the company is
found in the third count, which is the first one on this subject.
In the fourth count, it is averred the company, by its servants,
so negligently handled and conducted its engines as to cause
fire sparks therefrom to set on fire the fences of appellee sit-
uated 60 rods from its right of way. It would be absurd to
insist the evidence in the record sustains this averment in the
declaration. It is not possible, in the nature of things, that
mere fire sparks from an engine could ignite anything at a
distance of 60 rods. The evidence is conclusive on this point.
The record contains no evidence of the escape of fire sparks
from the engine, as alleged in this count. There is the tes-
timony of one witness, that he saw the servants of the com-
pany throw fire upon the grass on the right of way, from
which a fire originated. It is not proven the fire thus started
destroyed appellee's fences. No witness examined traced the
course of the fire.
But conceding it was this fire that caused the injury, it is
an unanswerable objection to the right claimed to recover,
that the declaration counts upon no such state of facts, hence
the judgment can not be maintained.
The fifth and sixth counts are, in substance, the same, and
were framed with a view to recover damages for the alleged
overflow of appellee's lands. It is charged the company
wrongfully constructed its railroad on the lands of appellee
across the natural drains and outlets, so as to obstruct the
same, whereby large bodies of water accumulated and ren-
dered the lands unfit for cultivation.
There is a total want of evidence to support a recovery on
either of these counts. The appellee did not own the lands
when the company graded and constructed its road at that
point. Whatever damage was done by reason of grading the
road bed, was to his grantor. In the absence of all evidence
158 Sherfy v. Graham. [Jan. T.
Syllabus.
on that subject, it may be presumed the company adjusted
the damages with him. If the former owner did not com-
plain ] certainly his grantee can not. He purchased the land
with the incumbrance of the railroad upon it. It was open
and visible. He could see exactly how the farm was affected
by the construction of the railroad. It is not averred or
proven the company has since made any change. This case
is clearly within the principle of the cases of the Illinois Cen-
tral Railroad Co. v. Allen, 39 111.205, and The Toledo, Wabash
and Western Railway Co. v. Hunter, 50 111. 325.
The verdict of the jury can not be regarded as settling any
fact in the case. The court adopted the very objectionable
policy of giving instructions directly in conflict with each
other. On the state of facts made by the evidence, the jury
were told, in one instruction given for appellee, under the
declaration, he could recover, and, in one given for the com-
pany, that he could not. A jury thus instructed could render
no verdict that would be entitled to weight in the decision
of the case. It left them free to adopt the law as stated in
either charge, as their whims or caprices might suggest, or,
what is still worse, as their prejudices might influence them.
In case another trial shall be had with the declaration in
its present form, it will be the duty of the court to make the
instructions conform to the views expressed in this opinion.
The judgment is reversed and the cause remanded.
Judgment reversed.
Chaeles M. Sherfy
James M. Graham.
1. Arbitrators — must be governed by the submission. Where arbitra-
tors consider and pass upon matters not embraced in the submission, and
of which they have no jurisdiction, their award can have no binding force.
1874.] Sherfy v. Graham. 159
Opinion of the Court.
Arbitrators must be governed by the submission, and all things which
they may do outside of and beyond the authority thus conferred are void.
2. Same — are judges of law and fact. Arbitrators, by the submission,
become the judges, by the choice of the parties, both of the law and the
fact, and there is no appeal or review from or of any decision made by
them within the scope of their powers, except for fraud, partiality or mis-
conduct.
3. Mistake — not ground for setting aside award of arbitrators. A mis-
take, either of law or of fact, by arbitrators, is not ground for setting
aside their award, but a mistake in the draft of the award may be re-
formed so as to conform to the award actually made by the arbitrators.
4. Award — when it may be set aside. When the arbitrators refuse to
hear, act upon and decide such matters as are embraced in the submis-
sion, or go beyond it and exceed their jurisdiction, the award may be set
aside.
5. But where the arbitrators have not gone beyond their jurisdiction,
and there is no evidence tending to prove fraud, misconduct or partiality
on their part, even if they have taken a mistaken view as to the legal lia-
bility of the parties upon the facts before them, the award can not be dis-
turbed.
Appeal from the Circuit Court of Vermilion county; the
Hon. Thomas F. Tipton, Judge, presiding.
Mr. E. S. Terry, for the appellant.
Mr. J. B. Mann, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
This was a bill in equity, to set aside an award. It is
alleged that the arbitrators considered and passed upon mat-
ters not embraced in the submission, and of which they had
no jurisdiction. If this be true, then the award can have no
binding force, inasmuch as the arbitrators must be governed
by the submission, and all things which they may do outside
of and beyond the authority thus conferred, are void. They,
by the submission, become judges, by the choice of the par-
ties, both of the law and the fact, and from their decision
there is no appeal or review, of any decision made by them
within the scope of their powers, unless it be for fraud, par-
160 Sheefy v. Graham. [Jan. T.
Opinion of the Court.
tiality or misconduct. Merritt v. Merritt, 11 111. 565; Ross v.
Watt, 16' 111. 99; Root v. Renwick, 15 111. 461; Wiley v.
Platter, 17 111. 538. Nor will a mistake of law or fact by
the arbitrators be ground for setting aside an award, but a
mistake in the draft of the award maybe reformed so as to
conform to the award actually made by the arbitrators. Pul-
liam v. Pensoneau, 33 111. 375. Thus it will be seen that there
are but few grounds upon which such a finding may be set
aside or reviewed.
But when the arbitrators refuse to hear, act upon and de-
cide such matters as are embraced in the submission, or go
beyond it and exceed their jurisdiction, the award may beset
aside. Then, did the arbitrators go beyond the powers con-
ferred by the submission in this case, and consider matters
not embraced in the submission?
It appears, from the evidence, that defendant deposited
with complainant, individually or with the bank of which he
was cashier, $2900 ; that there was entered to his credit on
the books of the bank, the sum of $2512.50, which seems to
have been checked out by defendant, but the remainder is
not shown to have been paid or accounted for by complainant
to defendant, and the evidence shows that this latter sum was
awarded by the arbitrators against appellant, with interest.
He claims that the deposit was made with the bank, and that
it alone owed appellee the money, and, in allowing it against
him, the arbitrators exceeded their jurisdiction, by allowing
against him a claim for which the bank was liable, and which
he did not owe, and for which appellee had no claim on him.
On the other hand, the evidence shows that appellee
claimed before the arbitrators that the deposit was made with
appellant individually, and not with the bank. Then, here
was a matter in dispute between the parties, appellee claim-
ing that appellant owed him this money, and the latter claim-
ing that it was the bank that owed it to appellee. This, then,
seems to fall clearly within the submission. It was a matter
in controversy within the submission, and even if the arbi-
1874.] Snell et al. v. Cottingham et al 161
Syllabus.
trators took a mistaken view of the legal liability of appel-
lant to pay the money not credited, that would, as we have
seen, constitute no ground for impeaching the award. But
we are not prepared to hold that the arbitrators were mis-
taken in their views. If appellee delivered to appellant the
$2900, whether to hold individually or as a deposit in the
bank, and he has only accounted for $2512.50 by placing that
amount to his credit, why is he not liable to account to ap-
pellee for the balance, as so much money had and received to
his use? But even if he could not have been held liable in
an action at law for money had and received, because he
received it as an officer of the bank, still he chose his judges,
and submitted to them the law and facts in relation to all
matters in dispute, of which this was a part, and they having
decided against him, he must be bound by the result. We
have no doubt the arbitrators, under the terms of the sub-
mission, had jurisdiction over this question, it being embraced
in the reference, and that we have no power to review the
finding of the arbitrators.
There is no evidence tending to prove fraud, misconduct or
partiality on the part of the arbitrators, and the decree of the
court below is affirmed.
Decree affirmed.
Thomas Snell et al.
V.
"William Cottingham et al.
1. Practice — when right to assign error for sustaining a demurrer is
loaived. When a demurrer, is sustained to a special plea, and the defend-
ant afterwards asks and obtains leave of the court to file a notice, under
the statute, of special defenses, which notice, in substance, contains the
same matter and things as were contained in the plea, it seems this would
be a waiver of the right to assign as error the decision of the court sus-
taining the demurrer.
11— 72d III.
162 Snell et al % Cottingham et ah [Jan. T.
Syllabus.
2. Contract — construction — in respect to a contract to construct a rail-
road. A contract for grading and laying the track of a railroad, provided
that the track was to be laid with a good even surface; that the con-
tractor should fill in after the track was laid with earth from the nearest
point on the side of the track, arid to do all necessary grading to finish
the road, to be measured in the earth work aforesaid, and that the con-
tractor should receive twenty cents per cubic yard for earth work done
under the contract: Held, that the work of filling in between the ties with
earth, after the track was laid, should be taken and measured as earth
work, to be paid for at the rate of twenty cents per cubic yard, and was
not embraced in the work of laying the track.
3. A contract was entered into between a contractor and a railroad
company, by which the contractor undertook to grade the road at a cer-
tain price per cubic yard for the earth work, and a certain price per mile
for laying the track, the track to be laid with a good even surface. A
portion of the track had previously been graded, and, at the solicitation
of the company, the contractor laid the track on the old graded work in
the winter time, when it was impossible to do the grading that should
have been done, but afterwards graded it properly, filling in and raising
the track two and a half feet: Held, that it was immaterial whether this
grading was done before or after the track was laid; it was none the
less grading, and should, be paid for, as such, at the agreed price per
cubic yard.
4. Evidence — must be received even if unsatisfactory, and acted upon,
when there is no other. When grading is done for a railroad company
upon a road that has already been partially graded, and the only evidence
before the jury as to the amount of the new grading is the estimates
made by the engineer of the contractor, and the company refuses to have
any estimate made by its engineer, and offers no evidence on the subject,
the jury must be guided by the evidence before them, and the fact that it
may be difficult for the engineer to distinguish between the old work and
the new, can not be ground for disregarding his testimony. If the com-
pany fails to produce any testimony on the subject, and the jury are com-
pelled to act on that offered by the contractor alone, although unreliable,
it is the result of its own neglect, against which no relief can be had.
5. Measure op damages—; for failure to complete a railroad by the time
■fixed in the contract. The measure of damages upon the failure of a con-
tractor to finish a railroad within the time fixed by the contract, is the
value of the use of the road from the time it should have been completed,
under the contract, to the time when it is in fact completed.
6. Same — not affected by contracts between other parties. A contractor
who fails to finish a railroad by the time limited in his contract, can not
be held for the loss occasioned to the owner of the road by reason of
another contract between him and a third party, for the use of the road
1874.] Snell et al v. Cottingham et ah 163
Opinion of the Court.
after the time it should have been completed, even though he may have
known of the existence and the terms of such other contract at the time
of entering into his own, unless he expressly agrees to such a rule of
damages.
7. The private agreement between a railroad company and a third
party, for the use of the company's road, provided it is finished by a given
time, is not competent evidence as to the value of the use of the road, as
against a contractor, in a suit for damages occasioned by his failure to
finish the road by the time fixed in his contract.
8. Damages— for failure to perform contract, may be recouped, although
the performance at a fixed time has been waived. Where a contractor fails to
perform his contract within the time fixed for its performance, the other
party may permit him to go on after the time limited, and finish the
work, and then accept it, without waiving anything, except the perform-
ance on the day fixed. In such case, the contractor could recover for his
work on the quantum meruit, and the other party would have the right to
insist upon and recoup such damages as he may have sustained by rea-
son of the non-compliance with the contract.
9. Variance — whether ground for arrest of judgment, or only for new
trial. A variance between the allegations in the declaration and the
proofs, may constitute cause for a new trial, but it seems it can not be
considered on a motion in arrest of judgment.
Appeal from the Circuit Court of DeWitt county ; the
Hon. Thomas F. Tipton, Judge, presiding.
Messrs. Lawrence, Winston, Campbell & Lawrence,
and Mr. Leonard Swett, for the appellants.
Messrs. Moore & Warner, Messrs. Eowell & Hamilton,
and Messrs. Stevenson & Ewing, for the appellees.
Mr. Justice Scott delivered the opinion of the Court:
Appellees, by a written contract, obligated themselves to
build the Lafayette, Bloomington and Mississippi Railroad
from the Illinois Central Railroad, at Bloomington, east to
the Indiana State line. The work was to be commenced in
10 days after notice, and to be completed in 130 days there-
after.
Appellants, for whom the road was to be constructed,
agreed to furnish engines and cars sufficient for the transpor-
164 Snell et al v. (Nottingham et al. [Jan. T.
Opinion of the Court.
tation and hauling of material in the performance of the
work ; to furnish material sufficient to lay twenty miles of
track per month ; to furnish a sufficient number of water
tanks, and water to supply the engines. They were to pay
appellees $475 per mile for laying the track, and twenty cents
per cubic yard for earth work, done under the contract.
The track was to be laid in a good and substantial manner,
with a good even surface, acceptable to the engineer of the
Toledo, Wabash and Western Railway Company. Appellees
agreed to fill in, after the track was laid, with earth, from the
nearest point on the side of the track, so as not to injure the
road bed, the filling to cover the ties in the center of the road,
and slope each way to the bottom of the ties at each end.
They were to put upon the work a force sufficient to lay
twenty miles of track per month. All expenses for civil en-
gineering were to be paid by appellants, and appellees to do all
necessary grading to finish the road, to be measured in the
earth work.
Previous to making this contract, the road bed had been
graded, and the necessary bridges erected. The work, how-
ever, had been imperfectly done, and it required a great deal
of additional grading to render it suitable to receive the
track.
Within ten days after notice given, the work was com-
menced at the Illinois Central Railroad. The road was
graded, and the track laid from that point to Paxton, a dis-
tance of about fifty miles, when winter came on, and no grad-
ing could be done.
The time had then elapsed for completing the entire work,
but at the earnest solicitation of appellants, for the purpose
of insuring the early completion of the work, appellees were
induced to lay the track on the old road bed, without further
grading, from Paxton to the State line. As soon as it was
practicable in the spring, they finished the grading by filling
in, and raising the track to a level surface. It was necessary,
1874.] Snell et ah v. (Nottingham et ah 165
Opinion of the Court
in some places, to raise the track after the iron had been laid,
as much as two and a half feet.
The engineer made no estimates for grading done east of
Paxton, nor allowed anything for filling in, nor for raising
or widening grade, nor for anything else except ditching.
Having completed the entire work, as they allege, and the
same having been accepted by the engineer of the Toledo,
Wabash and Western Railway Company, appellees brought
this suit to recover the balance due under the contract for
constructing the road. The declaration contains several spe-
cial counts, in which a full compliance with the contract is
averred, except in so far as appellees were prevented by the
default and wrongful conduct of appellants, and also the
common counts, in the usual form, for work and labor done
and performed. The general issue was filed, and notice given,
under the statute, of special defenses. On the trial in the
court below, the issues were found for appellees, and they
recovered, as a part of the verdict, $5292 for "filling in," and
$8000 for grading done east of Paxton.
The first point made upon which a reversal of the judg-
ment is claimed is, that the proof does not fit the declaration,
and hence it is said the court erred in overruling the motion
in arrest of judgment.
Counsel have not pointed out the variance, and we are una-
ble to perceive in what it consists. Such an objection may
constitute good cause for a new trial, but we are not aware
it can be considered on a motion in arrest of judgment.
It is insisted, in order to make out the case declared on,
either under the common or special counts, appellees must
prove a performance by them of the contract, subject to the
exceptions noted. This is, no doubt, true, aud it is the exact
question made by the pleadings and the proof. Whether the
testimony offered by appellees was sufficient for that purpose,
it was the province of the jury to decide.
There is no question the work was not finished within the
time agreed on, but in all other respects, a full compliance
166 Snell et al. v. Cottingham et aL [Jan. T.
Opinion of the Court.
with the contract is insisted upon. As a reason for the non-
performance of the contract in that particular, it is averred
the execution of the work was delayed, mainly by the failure
of appellants to furnish a supply of water, and suitable and
necessary machinery to enable appellees to work advantage-
ously, as, by the terms of the contract, they had agreed to
do. It is also averred, appellees were hindered in the prose-
cution of the work in other minor matters by the default and
neglect of appellants.
On these questions of fact, the evidence is flatly contra-
dictory, and it was most appropriately a case for the consid-
eration of a jury. The testimony offered by appellees tends
to show they had sufficient force on the work to lay twenty
miles of track a month. The foreman of the track layers,
and others, are positive in their statements, they could have
laid a mile of track a day had they been furnished with
water convenient, the proper number of cars and engines,
and other things necessary to the vigorous prosecution of the
work.
On the other hand, the evidence tends to show appellants
furnished, in apt time, everything they agreed to by the terms
of the contract, and that the delay was caused by the unskill-
fnlness and improvident management on the part of appel-
lees. In factj there is some evidence the road was never
completed as required by the contract. But when the evi-
dence is so contradictory, it is the settled rule of law, we
must rely on the verdict as determining the controverted
facts. Any other rule would dispense with the services of
the jury altogether. This we have neither the right nor in-
clination to do.
It is claimed the judgment should be reversed because
appellees recovered $5292 for "back filling," which work, it
is insisted, is embraced in the $475 per mile for track laying.
The contract provides, appellees are to "fill in, after the
track is laid, with earth f9 that the track shall be laid on an
"even surface," and that they shall "do all necessary grading
1874.] Snell et al. v. Cottingham et al. 167
Opinion of the Court.
to finish the road, to be measured in the earth work afore-
said."
The question raised is, whether the filling is included in
what is called "surfacing," or whether it is to be measured as
"earth work," for which appellees were to receive twenty cents
per cubic yard.
The word "surfacing" seems to be a technical term among
civil engineers, and the definitions given of its meaning are
as contradictory as any other part of the evidence. A wit-
ness for appellees says, "surfacing, in railroad parlance, is lift-
ing up the ties and tamping dirt under them, so as to give
an evenness to the entire track." The definition given by a
witness for appellants is, "Surfacing a railroad is filling in
between the ties, and tamping under."
We do not think the theory of appellants^ that "filling in"
is included in "surfacing," if that word means what their
witnesses say it does, and is to be compensated by the consid-
eration to be paid for laying the track, can be maintained,
certainly not in view of the provisions of the contract. The
track was to be laid with a "good even surface." This is all
that is said on that subject. This, we understand from the
evidence, can be done without filling in between the ties, and
indeed has no necessary connection with it. We think this
must have been the understanding of the parties, for in the
third paragraph it is provided appellees shall "fill in, after
the track is laid, with earth, from the nearest point on the
side of the track," and in the last paragraph, appellees agreed
"to do all necessary grading to finish the road, to be measured
in the earth work aforesaid." The earth work previously
provided for, in part at least, was, filling in between the ties.
These several provisions must be read and construed together
in order to arrive at a clear understanding of the contract.
When that is done, it seems to us, the only construction that
can consistently be given to it is, that all earth work, whether
it consists of grading, ditching, or filling in between the ties,
is to be taken and measured as "earth work," to be paid for
168 Snell et ah v. Cottingham et al. [Jan. T.
Opinion of the Court.
at the rate of twenty cents per cubic yard. The act of tamp-
ing dirt under the ties, so as to produce an entire even sur-
face, is included, no doubt, in track laying, and no other
compensation could be recovered for it. But filling in
between the ties is a very different thing. It was for this
latter class of work the recovery was had, and we can not
say it was not warranted by the evidence.
There ought to be no controversy, that appellees are enti-
tled to compensation, under the contract, for all grading done
east of Paxton. Whether it was done before or after the
track was laid, is wholly immaterial. It is none the less
grading for that reason. It would be absurd to call raising
the track two and a half feet "surfacing," within any defini-
tion of that word given by civil engineers. The proof shows
the track on that portion of the road was laid in the winter,
when it was impracticable to do the grading that ought to
have been done before it was laid. It was so done at the
urgent request of appellants, and at greatly increased expense
to appellees.
It is said, the estimates made by appellees' engineer of the
amount of this grading is unreliable, owing to the difficulty
in distinguishing the old from the new work. In a measure,
this is so, but it was all the evidence the jury had on the
subject. Appellants' engineer declined to make any estimate
for that particular work and no evidence was offered by them
on that question. Having failed to do so, it is their own
neglect if the jury were compelled to consider the case on
unreliable testimony, against which no relief can be had.
The court sustained a demurrer to appellants' several spe-
cial pleas, and that decision is assigned for error.
The pleas were all essentially the same. The substance is,
the Lafayette, Bloomington and Mississippi Railroad Com-
pany leased its road to the Toledo, Wabash and Western Rail-
way Company, by the terms of which the former company
was to complete the road from Bloomington to the State line,
was to pay the interest on $1,300,000 of bonds to be issued
1874.] Snell et al. v. Cottingham et al. 169
Opinion of the Court.
and secured by mortgage on the road and its franchises, until
three months after the 1st day of July, 1872, at which time
the road was to be completed and turned over to the latter
company. The money realized from the sale of the mort-
gage bonds was to be appropriated to the construction of the
road. Appellants assumed the obligations of the Lafayette,
Bloomington and Mississippi Railroad Company, and made a
subsequent agreement with the Toledo, Wabash and Western
Railway Company, by which it was agreed that if the road
could be completed prior to the time named, the interest on
the whole of the construction bonds should be saved for all
the time they would thus hasten the completion of the road.
After the demurrer was sustained, appellants obtained leave
to file a notice, under the statute, of special defenses, which
notice, in substance, contained the same matters and things
as were contained in the pleas. This might, under the settled
practice, be deemed a waiver of any right to assign as error
the decision of the court sustaining the demurrer ; but as the
court rejected certain evidence offered under the notice, which
raises the same questions, we must consider the objection.
It is claimed, from the facts set forth in the pleas, the actual
damages sustained by appellants in consequence of the failure
to complete the road within the agreed time, is a sum equal
to the interest on $1,300,000, from January 1, 1872, to the
time the road was accepted and turned over, on the 25th day
of June. The evidence shows appellants did receive a rebate
of the interest on that sum, under their agreement with the
lessee of the company for which they were building the road,
from the date of the acceptance of the road until the 1st day
of July, 1872.
We do not understand upon what principle the rule of
damages contended for can be maintained. How can it be
said, the damages resulting from the non-performance of a
contract between parties can be measured by a mere private
agreement between others, to which they are strangers ? It
is, no doubt, true, if the road had been completed by the 1st
170 Snell et al. v. Cottingham et al. [Jan. T.
Opinion of the Court.
day of January, 1872, appellants would have obtained a re-
bate of the interest on the total amount of the construction
bonds; but if it was intended to hold appellees responsible
in case of non-performance of their contract, according to the
terms of their private agreement with the lessee of the road,
they should have made it a part of the contract the damages
should be so measured. Although appellees may have known
there was such an agreement between appellants and the les-
see, they will not be presumed to have contracted with refer-
ence to any such mode of ascertaining the damages, and in
the absence of any special contract they are bound by no such
rule. Had it been known it was expected appellees would
be held responsible for such extraordinary damages, it is
hardly probable they would have entered into the contract,
for the consequences of a failure for only a few days would
be most disastrous. The damages insisted upon, under this
rule, exceed $44,000 — a sum enormously out of all proportion
to the amount to be paid for the entire work.
The rebate of the interest upon the construction bonds,
which was to be allowed to the appellants by the lessee, was
really for the use of the road during that period it should be
completed, prior to the 1st day of July, 1872. It was a mat-
ter of contract between the parties, and we can not know
what motives induced them to make it, nor can we know
whether it was a profitable or unprofitable contract for the
lessee. It would be unjust, however, to hold appellees re-
sponsible as for damages for that amount of interest, without
regard to the question whether it was a reasonable or unrea-
sonable compensation for the use of the road. The private
contract between these parties was not evidence of the reason-
able value of the use of the road, which would constitute the
true measure of damages. When this contract was made with
the lessee, it was, in all probability, contemplated the Indiana
division of the road would be completed by the 1st day of
January, 1872. This was not done, and it is manifest the
1874.] Snell et ah v. Cottingham et al. 171
Opinion of the Court.
road, for profitable use, was worth vastly less with that east-
ern counection wanting.
The demurrer was properly sustained to the pleas, and, for
the same reasons, the evidence offered under the notice was
rightfully excluded.
The only question in the case about which we have had any
serious doubt, arises on the third instruction given for the
appellees. The jury were told, if appellants permitted appel-
lees to proceed with the work after the expiration of the time
limited for its completion, and afterwards accepted the road,
"then the defendants have waived the performance on a day
fixed, and can not set off damages growing out of the failure
to complete the road within one hundred and thirty days after
the commencement of the work, against any claim which the
jury may believe, from the evidence, the plaintiffs have against
the defendants, under the contract offered in evidence in this
case."
This instruction, if it was understood to charge the jury,
because appellants simply permitted appellees to complete the
road under their agreement and afterwards accepted the work,
though not done in time, they thereby waived their right to
claim damages for the non-fulfillment of the contract, does
not state a correct proposition of law. An instruction stating
that principle would be inconsistent with the other charges
given, and with the theory on which the case was tried.
Appellants, with great propriety and consistency, could
urge the contractors to finish the work under the contract,
and afterwards accept it. All they would waive in such case
would be the performance on a fixed day, but nothing else.
The contractors might recover for the work done on a quan-
tum meruit, but appellants would have the clear right to insist
upon and recoup such damages as they may have sustained
by reason of the non-compliance with the contract, if the de-
lay was not caused by their default. This is the doctrine, as
declared in Nihbe v. Brauhn, 24 111. 268.
The court distinctly instructed the jury, in view of the
172 Noeth v. Kizek et al. [Jan. T.
Syllabus.
evidence, not only in the charges given for appellants but in
those given for appellees, that if appellees failed to perform
the work on their part to be performed, within the time named
in the contract, and such failure was not attributable to the
default of appellants to furnish things agreed to be furnished
for the use of appellees in the work, then they will allow as
damages the value of the use of the road during the time of
such delay, unless the time of its completion was waived.
Upon this point the court gave, at the instance of appellants,
three or four charges, stating the law as counsel now insist it
is, and the instruction claimed to be faulty was so qualified
by the others given for appellants and appellees, it could
not have misled the jury. The error, therefore, if any, was
not prejudicial. Evidence of the value of the use of the road
was given and considered. We must conclude, therefore, the
jury found the delay was occasioned by the default of appel-
lants. The evidence would justify such a conclusion, and we
are not warranted in saying they have found incorrectly.
All that was material to the elucidation of the case in the
refused instructions was contained in those given, and there
was no error in refusing them.
The cause was fairly presented to the jury, and with the
conclusion, so far as we can see, neither party has any just
reason to be dissatisfied.
The judgment is accordingly affirmed
Judgment affirmed.
Benjamin H. North
v.
Pierson H. Kizer et al.
1. Contract — time of performance may be extended without any new con-
sideration. The time of performance of a contract may be extended by
a subsequent parol agreement, and no new consideration is necessary.
1874.] North v. Kizer et al. 173
Opinion of the Court.
2. Pleading — use of the word "agreed," in declaration in assumpsit,
does not make the count one in debt. In an action of assumpsit upon a con-
tract, which is set out in ha&c verba in the declaration, the use of the word
"agreed," in an averment as to an extension of the time of performance
of the contract, does not make the count one in debt.
3. A declaration in assumpsit which does not contain the word "prom-
ised," may nevertheless be good, provided it sufficiently appears, from the
whole declaration, that what is equivalent to a promise has taken place,
and where a promise and a consideration are substantially set forth, the
count in this respect is sufficient on general demurrer.
4. Same — when instrument is set out in hcec verba, its legal effect need not be
averred. In declaring upon a written contract, the pleader may do so
either by setting it out in haze verba, or according to its legal effect. When
the former mode is adopted, the court will construe the contract for the
pleader, and recognize what is its legal effect, and for the pleader, after
having set out the contract in its very words, to declare further what is
its legal effect, is superfluous.
5. Practice where defendant abides by his demurrer — faulty counts —
assessment of damages. Where a general demurrer several to each count
in a declaration is overruled, and the defendant abides by his demurrer,
and plaintiff's damages are assessed, and judgment therefor rendered, the
judgment will not be reversed, if one of the counts is good, and the evi.
dence heard on the assessment of damages is applicable to such good
count, notwithstanding the other counts may be faulty.
6. Where a defendant abides by his demurrer to the plaintiff's decla-
ration, he is at liberty to cross-examine the plaintiff's witnesses, and in-
troduce evidence in reduction of damages.
Appeal from the Circuit Court of Sangamon county; the
Hon. John A. McClernand, Judge, presiding.
Messrs. Stuart, Edwards & Brown, and Mr. N. M.
Broadwell, for the appellant.
Messrs. Hay, Greene & Littler, and Messrs. Cullom &
Zane, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action of assumpsit, brought by Kizer & Ful-
lenwider, as partners, against North, to recover damages for
the alleged breach of the following contract in writing, by not
accepting and paying for the hogs therein mentioned, to-wit :
174 North v, Kizek et at. [Jan, T,
Opinion of the Court
"March 21, 1871.
I have {his day sold B. H. North three hundred fat, mer-
chantable hogs, to average two hundred and fifty pounds gross
and upwards, to be delivered at Buffalo Station, Illinois, be*
tween the 15th of July and the 15th of August next, at the
option of the buyer, buyer to give seller eight days' notice
when to deliver. The buyer agrees to pay seven dollars per
hundred pounds gross. Said hogs are the hogs I bought of
Dunnick.
P. H. KlZER,
B. H. North."
The declaration averred that the plaintiffs were partners in
the contract; that they were always ready, between the 15th
of July and the 15th of August, to deliver the hogs; that the
defendant failed to give any notice when to deliver the hogs^
and that on the 15th day of August, 1871, the plaintiffs, at
the place designated, did tender and offer to deliver to the
defendant the hogs, which the latter failed to accept and pay
for.
The declaration contained seven counts, all upon the above
contract. A demurrer to the declaration, which was made
several to each count, was overruled, and, the defendant stand-
ing by his demurrer, a jury was thereupon called, and the
plaintiffs' damages were assessed before the court, by a jury,
at $2858.51, for which judgment was rendered.
The defendant appeals.
The chief point made for the reversal of the judgment is
upon ;the day of the tender of the delivery of the hogs, the
15th of August, it being contended that that was one day too
late ; that, under the contract, the 14th day of August was
the last day for the delivery.
Whatever may be the force of this objection, as applied to
some of the counts, — see Richardson v. Ford, 14 111. 332,
Cook v. Gray, 6 Ind. 335, Willerming v. McGaughey, 30 Iowa,
205, — it is obviated, so far at least as respects the fifth count,
by the special averments contained in that count. It is
1874.] North v. Kizeh et ah 175
Opinion of the Court.
therein expressly averred that, after the making of the con-
tract, on the 20th day of July, 1871, it was agreed between
the plaintiffs and the defendant that the time for the delivery
of the hogs under the contract should extend to and include
the 15th day of August, 1871, as the last, day of the time for
delivery.
The time of performance of a contract in writing may be
extended by a subsequent parol agreement, and no new con-
sideration is necessary, especially where there are mutual acts
to be performed by the parties. Baker v. Whiteside, Breese,
174; Wadsworth et al. v. Thompson, 3 Gilm. 423.
This is not denied by counsel for appellant, but then they
claim this count to be defective in other respects. They say
it is a count in debt, because the word "agreed" is used in it.
But that term is used only in reference to the subsequent ex-
tension of the time of performance of the contract sued on.
Such use of the word "agreed" by no means marks the count
as one in debt. The count may, notwithstanding, show that
the defendant "undertook and promised" to accept and pay
for the hogs.
This count sets out the contract in hcec verba, and then
alleges the subsequent agreement to extend the time of per-
formance so as to include the loth day of August, the tender
of delivery on that day, and the breach in not accepting and
paying for the hogs, without setting forth, in express words, a
promise to accept and pay for the hogs, or a consideration for
the promise, and it is insisted that the count is defective in
this last particular.
There are two well recognized modes of declaring upon a
written contract: either by setting it out in hcec verba, or
according to its legal effect. When the former mode is
adopted, as in this case, the court will construe the contract
for the pleader, and recognize what is its legal effect. This
written contract, upon its face, imports a promise by the
defendant, upon a sufficient consideration, to accept and pay
176 North v. Kizer et dl. [Jan. T.
Omnion of the Court.
for the hogs upon performance on his part by the seller — such
is its legal effect.
After setting out the contract in its very words, to declare
further what is its legal effect, would seem to be superfluous —
it would be averring what already appears.
Authority may be found to the effect that a declaration in
assumpsit, which does not contain the word "promised," may,
nevertheless, be good, provided it sufficiently appears, from
the whole declaration, that what is equivalent to a promise
has taken place. 1 Chit. PI. 301.
A promise and consideration have been at least substan-
tively set forth, and we must regard the count as sufficient in
this respect, on general demurrer.
It is further objected, that the count does not show that
the hogs tendered were the particular lot of hogs which were
purchased, as it does not aver that they were the hogs bought
of Dunnick, the contract describing them as "said hogs are
the hogs I bought of Dunnick."
The averment in this respect, as to the hogs tendered, is,
that "they did tender to said defendant the said hogs men-
tioned in said contract, to-wit : three hundred fat, merchant-
able hogs, averaging upwards of two hundred and fifty pounds
gross."
We regard the hogs averred to be tendered, as substantially
answering the description of the hogs mentioned in the contract.
The demurrer was a general one, and we must hold this
fifth count, at least, to be good on general demurrer.
The statute provides that, whenever an entire verdict shall
be given on several counts, the same shall not be set aside or
reversed on the ground of any defective counts, if one or
more of the counts in the declaration be sufficient to sustain
the verdict. But if one or more counts be faulty, the defend-
ant may apply to the court to instruct the jury to disregard
such faulty counts. Rev. Stat. ch. 82, sec. 25.
This rule applies, as has been held, as well to verdicts upon
1874.] North v. Kizer et al. 177
Mr. Justice McAllister, dissenting.
an inquisition of damages merely, as to those upon issue
formed. Anderson et al. v. Semple et al. 2 Gilm. 455.
The demurrer admitted every material allegation well
pleaded in the fifth count. This count, at least, we regard as
sufficient to sustain the verdict and judgment. Under that
count, evidence was properly admitted of the market value of
hogs on the loth day of August, 1871.
The evidence introduced upon the assessment of damages
is incorporated in the bill of exceptions.
Upon inspection of the same, we find that all the evidence
introduced upon the assessment of damages was under the
fifth count, and that it was confined to the market value of
the hogs on the 15th day of August, 1871, and showed that
on that day the plaintiff's had the hogs at the place designated,
ready for delivery, and that they were the hogs bought of
Dunnick, and of the description named.
Under the rulings of this court, the defendant was at lib-
erty to cross-examine plaintiff's' witnesses, and introduce evi-
dence in reduction of damages. We can perceive no injury
which has resulted to the defendant from the erroneous over-
ruling of the demurrer to the faulty counts, save, perhaps,
the mere cost of the demurrer. An error of such trivial con-
sequence should not cause the reversal of the judgment.
We perceive no error in the giving or refusing of instruc-
tions.
The judgment will be affirmed.
Judgment affirmed.
Mr. Justice McAllister, dissenting :
I dissent in toto. Here was a declaration of seven counts ;
a demurrer by defendant to all and each count separately.
The demurrer was overruled as to all the counts, and defend-
ant elected to abide by the demurrer. Not entering a nolle
prosequi to any of the counts, plaintiffs assessed damages upon
all generally, and so judgment was given. The ruling of the
court on the several demurrers is, amongst other things,
12— 72d III.
178 North v. Kizer et ah [Jan. T.
Mr. Justice McAllister, dissenting.
assigned for error. In my judgment, neither of the counts
was good, but several of them are unquestionably bad in sub-
stance, and are conceded to be so. The opinion of the ma-
jority of the court goes upon the ground that there was one
good count, and because that is so, appellant can not have
the decision of the court below upon the demurrer to the bad
counts reviewed here ; or, in other words, because there was
one good count, the judgment will not be reversed for the
court below erroneously overruling the demurrer to the bad
ones. The statute referred to in the opinion, it seems to me,
clearly has no application, and the rights of defendant are as
at common law. The defendant, having demurred, and elected
to abide by his demurrer, had no right to ask the court, upon
assessment of damages, to direct the jury to disregard the
bad counts. This has been expressly decided. American Ex.
Co. v. Pinckney, 29 111. 405.
By all the authorities I know anything about, the appellant
has the right to have this court pass upon the decision of the
demurrers in the court below, and if erroneous, to have the
judgment reversed. The contract sued on was set out differ-
ently in the different counts, according to the various con-
structions which the pleader thought it would bear. The
court below held that each construction, though materially
different in some of the counts, was the correct one. The
demurrer was a usual and proper mode of raising the question
as to the true construction, which was a question of law, and
if the decision was wrong, it presents the neat question of
law, which the defendant should have reviewed on error, and
the judgment reversed for such ruling. Such has been the
universal practice, and to hold otherwise now, is to expose
counsel to the reproaches of their clients for pursuing what
they had the right to believe was a safe course.
1874.] Latham et al. v. Eoach. 179
Opinion of the Court.
Eobert B. Latham et ah
v.
Mary Roach.
1. Negligence — in construction of structures on fair grounds. Indi-
viduals who hold a fair, and erect structures for the use of their patrons,
are liable for any injury such patrons may receive by the breaking down
or falling of such structures, if caused by the negligent or unskillful
manner of their construction, and their liability can not, in any manner,
be affected by their giving to such fair the name of an old society.
2. Fairs — whether held by society or individuals, a question of fact.
Whether a fair held in the name of a society is held by such society or
by individuals, is a question of fact to be determined by the jury.
3. Instructions — objections to one may be obviated by others. Even if
there be doubt as to the proper construction of an instruction given on be-
half of one party, yet, if the instruction given on behalf of the other
party entirely remove such doubt, there is no error.
Appeal from the Circuit Court of Macon county; the
Hon. Arthur J. Gallagher, Judge, presiding.
Messrs. Beason & Blinn, for the appellants.
Mr. Wm. B. Jones, and Mr. L. Weldon, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action on the case, brought by appellee against
appellants, to recover damages for injuries sustained by her
inconsequence of the falling of an amphitheatre during the
holding of a fair in Logan county, in the fall of 1868. The
cause was tried in the circuit court of Macon county, before
a jury, and a verdict found in favor of appellee for $5000. A
motion for a new trial was made and overruled, and judg-
ment entered upon the verdict.
It is urged by appellants, that the evidence shows the fair
was held by the Logan County Agricultural Society, and not
by appellants as individuals, and a reversal of the judgment
180 Latham et al. v. Eoach. [Jan. T.
Opinion of the Court.
is asked on the ground that the verdict is contrary to the
testimony.
This was a question of fact purely for the consideration of
the jury. The issue was fairly presented both by the evidence
submitted and the instructions of the court, and it has been
repeatedly held by this court, that the judgment will not be
disturbed unless it is clearly in conflict with the weight of
the evidence.
After a careful examination of the record upon this ques-
tion, which was a vital one in the case, we can not say the ver-
dict of the jury was clearly against the weight of the evidence.
It was in proof before the jury, that the Logan County
Agricultural Society was incorporated in 1857 ; that fairs
were held on grounds owned by the society for several years,
the last being in 1861. In 1862, the grounds were used by
the government, and occupied by soldiers. While thus occu-
pied, the improvements were, to a great extent, destroyed.
In 1867, the grounds were sold upon an execution on a judg-
ment rendered against the society. The last election held by the
society to elect officers was in 1861, at which time Evans was
elected president. After this, it does not appear that any steps
were taken by the society to keep up the organization. While
it may be conceded that the corporation was in existence in
1868, yet the fact that, for seven years, it had done nothing
to advance the objects for which it was organized, and per-
mitted its grounds to be sold upon execution, would justly
have great weight with the jury in arriving at the conclusion
that the fair, in 1868, was not held by the- old organization.
The evidence entirely fails to show that the Logan County
Agricultural Society, as such, held the fair in 1868; on the
contrary, it is very apparent that the defendants, without con-
sulting the officers of the old society, purchased grounds and
improved them at their own expense, with the bare exception
of $150 worth of old material, that was taken from the old
fair grounds and used on the new. The title to the land was
taken in the name of one them. They employed mechanics
1874.] Latham et al. v. Roach. 181
Opinion of the Court.
to construct the buildings, at their own expense, and, practi-
cally, the defendants held the fair. True, they gave it the
name of the old society, but the name under which the de-
fendants chose to hold the fair could not, in any manner,
change their liability or render any other person or corpora-
tion responsible for their acts.
It is insisted by appellants, that the court erred in giving
one instruction for appellee, which reads as follows :
"If the jury believe, from the evidence, that the defendants
were the proprietors of the said fair ground, and selected or
adopted a plan for the building of said amphitheatre, inclu-
ding the quantity, size, quality and strength of the materials
to be used, and that the amphitheatre was constructed upon
such plan, and shall further believe, from the evidence, that
the said structure was, in fact, weak, insufficient and danger-
ous to the lives or limbs of those who might go upon it, and
that, before it was used by the visitors and patrons of said
fair, the defendants, or any of them, were informed that it
was weak, insufficient or dangerous, and did nothing to render
it more secure, and, further, that said amphitheatre, or any
part of it, did give away, break and fall in consequence of
such weakness and insufficiency, and plaintiff, as a visitor and
patron of said fair, without fault on her part, was injured in
consequence thereof, such defendants should be held respon-
sible to the plaintiff in damages.'"
The objection taken to this instruction, as we understand
the position assumed, is, the declaration charges that the
fair was held by appellants as individuals, and for their use
and benefit, and the instruction does not fit the case made by
the declaration.
A proprietor is defined to be, "An owner: the person who
has the legal right or exclusive title to anything, whether in,
possession or not." If, then, appellants were the owners, and
constructed the amphitheatre, we do not think the instruction
182 Latham et al. v. Roach. [Jan. T.
Opinion of the Court.
could possibly mislead the jury, or otherwise do injustice to
appellants.
But, even were there a doubt in regard to the proper con-
struction to be placed on the instruction, the instructions
given on behalf of appellants entirely remove it, one of which
reads as follows :
"The jury are further instructed, that if they believe, from
the evidence, that the fair in question was, in fact, held by
the Logan County Agricultural Society, then the defendants
are not rendered liable by the fact that they furnished money
to buy land, to fit up the grounds, or to pay any expense what-
ever, if the jury believe, from the evidence, that defendants
did furnish such money."
We do not think the giving of the instruction was error,
or that it was calculated in the least to divert the attention
of the jury from the issue involved in the case.
It is, however, claimed, that the damages are excessive.
There was evidence submitted to the jury that tended to prove
the injuries received are of a permanent character; that the
plaintiff, since the injury, has not been free from pain; that
the injury received would probably end in paralysis. These
facts were all before the jury, and were, no doubt, weighed
by them before they arrived at the result reached. Although
the damages are large, yet, under the circumstances of this
case, as shown by the evidence, we do not regard the amount
of the verdict so excessive as to justify an appellate court, for
that reason alone, to reverse the judgment.
Under section 139 of the Practice Act of 1872, the court,
at the request of appellants, instructed the jury to return a
special verdict, in answer to two propositions. It is claimed,
the jury did not regard these instructions. The record shows
a special finding in answer to the two questions, and, although
not signed by the jury, in the absence of proof we will pre-
sume the answers were prepared and returned by the jury.
1874.] R, E. I. & St. L. E. E. Co. v. Eose. 183
Syllabus.
It is not claimed, in this case, that the appellee, in any
manner, by any negligent act or want of care on her part,
contributed to the injury sustained, neither is it urged that
the amphitheatre was constructed of such material and in
such a manner as to be entirely safe.
In view of all the evidence, we are satisfied that substantial
justice has been done, and the judgment will, therefore, be
affirmed. ..
Judgment affirmed.
EOCKFORD, EOCK ISLAND AND St. LOUIS KaILROAD Co.
V.
John Rose.
1. Settlement — what constitutes. Where tlie parties to a contract met,
at night, and one of them handed the other, through a car window, a receipt,
and requested him to sign it, which he did, and thereupon the one taking
the receipt handed the one signing it a package of money containing a
certain amount, and told him that was all he could pay, to which the one
receiving the money replied that he was not satisfied with the amount
and would bring suit the next day, it was held, that there was no such
final settlement made' as would bar all further investigation into the state
of the accounts between the parties.
2. New trial — on ground of surprise. Where a party has within his
own power evidence to contradict testimony which is claimed to have
been a surprise, and fails to produce that evidence, or show some suffi-
cient reason for not doing so, the failure must be attributed to his own
neglect, and a new trial will not be granted on the ground of surprise.
3. Where a bill of particulars is filed by the plaintiff, the defendant
can not be heard to say that he is surprised that evidence was offered to
sustain anything embraced in such bill, even though on a former trial of
the cause no such evidence was offered.
Appeal from the Circuit Court of McDonough county ;
the Hon. Chauncey L. Higbee, Judge, presiding.
184 R., R. I. & St. L. R. R. Co. v. Rose. [Jan. T.
Statement of the case.
The Rockford, Rock Island and St. Louis Railroad Com-
pany made a contract with one L. E. Saulpaugh to do the
grading of its road from Monmouth to Bushnell. Saulpaugh
sub-let a portion of the grading to Hawes & Brewster, and
Hawes & Brewster sub-let a portion of their work to John
Rose, who commenced work under his contract. When pay-
day came, Hawes & Brewster ran away without paying their
hands. Rose went to the chief engineer of the company, and
told him that he would have to quit work, as he was owing
his hands for work done under his contract with Hawes &
Brewster, and could not pay them, and that Hawes & Brewster
were owing him about $500. The engineer then said to him
that, if he would go on and finish the job he had contracted
with Hawes & Brewster to do, the company would pay him
21 cents per cubic yard for what remained unfinished, that
being the amount the company was to pay L. E. Saulpaugh,
and that they would let him have' money to pay his hands, to
keep them at work, and thereupon paid him $500. Rose
then went on and finished the work that remained unfinished
under the Hawes & Brewster contract. Afterwards, the en-
gineer agreed with Rose to pay him 21 cents per cubic yard
for finishing certain other grading commenced by Hawes &
Brewster under their contract with Saulpaugh, but which
was not included in the contract between Hawes & Brewster
and Rose. Rose agreed to, and did do this work, and also
removed some hay from the line, and dug a foundation
for a bridge, under the direction of the engineer, and upon
his promise that the company would pay him.
This suit was brought by Rose to recover a balance claimed
to be due from the company to him under these contracts
with the engineer. The plaintiff recovered below, and the
defendant appealed.
Mr. J. S. Bailey, and Mr. C. W. Osborn, for the appellant.
Mr. C. F. Wheat, and Mr. D. G. Tunnicliff, for the
appellee.
1874.] E., E. I. & St. L. E. E. Co. v. Eose. 185
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court :
This action was brought to recover the balance due for
grading done in the construction of appellant's road. Whether
anything was due appellee, depends upon what the contract
between him and the company was, and the construction
that shall be given to it. The testimony is flatly contradic-
tory, but we are of opinion the weight of the evidence is
with appellee. The jury were warranted in finding the work
done was not to be measured under the " Saulpaugh contract/*
and when that fact was found, little else remained but to
make the assessment of appellee's damages.
Appellee claimed for finishing work, originally included
in his, contract with Hawes & Brewster, mainly on the
McKindly farm; for excavating the cuts on the north and
south ends, and for some other work of no very great import-
ance.
If the jury allowed for all this work, and there was evi-
dence that would justify them in doing it, then, after deduct-
ing all payments, the verdict, as found, was authorized by the
testimony. Had the $500 in dispute been deducted, even
then the judgment, as rendered, after the remittitur, would not
be excessive.
The engineers that measured the work for the company
allowed but a small portion of the work done on the cuts,
for the reason that, under the " Saulpaugh contract/' if the
"haul/' as they designate it, was less than 1400 feet to a
"fill/* nothing was to be estimated. Whatever may have
been the true rule for estimating the grading, if it had been
done by Saulpaugh, under his contract with the company, it
certainly can not be maintained the same rule is to be adopted
in measuring the work done by appellee on these cuts. There
is no satisfactory evidence appellee knew how the grading
under the " Saulpaugh contract" was to be measured; but
there is a still stronger reason why this could not have been
the understanding between the parties. ^ The contract to do
186 E., E. I. & St. L. E. E. Co. v. Eose. [Jan. T.
Opinion of the Court.
the grading on the cuts was not made until the work appellee
was to do under the original contract with Hawes & Brewster,
which had been assumed by the company, was nearly finished.
There were then no fills in which the dirt could be used, and
the largest portion, necessarily, had to be wasted.
The construction contended for would involve the absurdity
of appellee agreeing to do this very considerable work for the
trifling sum the company's engineers might be willing to
allow upon the estimates for waste. We are unwilling to
adopt an interpretation of the agreement between the parties
that will do such rank injustice.
There is no warrant in the evidence for saying there had
been a full and final settlement of the matters in controversy.
What is claimed as a final settlement took place at Biishnell.
The chief engineer, Sweet, telegraphed appellee to meet him
there. It was at night when the parties met. The engineer
handed appellee a receipt through the car window, and told
him he wanted him to sign it, which he did. He then gave ap-
pellee a package of money, containing $1232.09, and told him
that was all he could pay. Appellee replied he was not sat-
isfied with the amount, but would sue the company the next
day. It would be absurd to call this a final settlement, un-
derstandingly made, in that sense that would bar all further
investigation into the state of the accounts between the par-
ties.
The affidavit filed does not aid appellant's motion for a new
trial.
The principal ground of surprise is, that appellee testified
the credit of $500 was in payment for the 4200 cubic yards
grading done, under the contract with Hawes & Brewster,
before they abandoned the work. It is alleged, in the affida-
vit, that, on a trial previously had before a justice of the
peace, appellee made no claim that the $500 paid him was to
be applied upon the grading done as a sub-contractor under
Hawes & Brewster. It is a complete answer to the position
assumed, that the affidavit itself shows the company had in
1874.] E., R. I. & St. L. R. R. Co. v. Rose. 187
Opinion of the Court.
its possession a receipt which, it is alleged, proves the pay-
ment was made as an advance, and not for past services, and
no reason whatever is given why it was not produced. The
company had within its power, by its own showing, the evi-
dence to contradict the testimony of appellee which it is now
urged was a surprise. If it failed to produce that evidence,
or show some sufficient reason for not doing it, the failure
must be attributed to its own neglect, against which no relief
can be had; but, aside from this view, appellant was not
injured by the production of the testimony, for, had the $500
been allowed as an advance for future work, the judgment
could still be maintained, if the jury gave credence to the
other testimony offered by appellee.
Again, it is charged, on the previous trial, appellee claimed
for only 1500 cubic yards of excavation, for removing hay,
and for a bridge foundation. A bill of particulars was on
file, which afforded notice appellee, in addition to those items,
claimed for 2500 yards of excavation on the McKindly farm,
at the other cut, and the company can not be heard to say it
was surprised that evidence was offered to sustain the demand.
Ample opportunity was thus given to procure the evidence
that, on a previous trial, appellee had not insisted upon so
large a demand as now claimed, but no effort was made to do
so. The evidence, if produced, was not of a high grade, nor
of a conclusive character. At most, it would only tend to
impeach the testimony of appellee, and it is seldom, if ever,
a case is opened to let in that kind of testimony.
It is not necessary we should remark upon the evidence or
state any account between the parties. The testimony, in our
opinion, fully sustains the verdict. It was contradictory in
the extreme, but it was the province of the jury to weigh
and consider all the evidence, and give it, and each part of
it, such weight as they may believe it entitled to receive.
This they have done, and we can see no reason to be dissatis-
fied with the conclusion reached. Upon the principal points
relied on for a reversal of the judgment, the case of The
188 St. L., V. & T. H. R. R. Co. v. Capps. [Jan. T.
Syllabus.
Chicago and Great Eastern Raihvay Co. v. Vosburgh, 45 111.
311, is an authority exactly in point, and is conclusive of the
case.
Perceiving no material error in the record, the judgment
must be affirmed.
Judgment affirmed.
St. Louis, Vandalia and Terre Haute Railroad Go.
Ebenezer Capps.
1. Measure op damages — by construction of a railroad along a public
street, under an ordinance of the town providing for damages. Where a rail-
road company built its road along the street of a town, under an ordinance
granting the right of way upon condition that the company should pay all
damages that might accrue to the property owners on such street, by reason
of the construction of the road, it was held, that the company was liable to
a property owner for whatever deterioration in value his real estate may
have undergone in consequence of laying the railroad track, and for
damages for interruption to his business during such time as it would
necessarily require to provide another equally eligible place, and remove
thereto, and that the damage to his business during such time should be
ascertained by proof of the probable reasonable profits which might have
been made had there been no interruption to the business.
2. In a case where a railroad company was liable to a property owner,
by reason of interruption to his business, for the expense of finding and
removing to another place of business, and for reasonable probable profits
during the time occupied in finding and removing to such other place
which he could have made had there been no interruption, it was held,
that the property owner, if he chose to remain and submit to the inter-
ruption and loss of profits, was, nevertheless, entitled to recover from the
company, as damages, the necessary cost of avoiding such loss by a
removal.
3. Where the ordinance of a town granted the right of way to a rail-
road over a street of the town, on condition that the company should pay
all damages which might accrue to property owners by reason of the
construction of the road, the company was held liable for all damage
done to property owners during the time the construction of the road was
progressing, as well as for such as were caused by the construction thereof
when completed.
1874.] St. L., V. & T. H. K. R. Co. v. Capps. 189
Opinion of the Court.
4. In such case the railroad company is liable to the property owner
for damage done to the premises of the latter, by turning waste and sur-
face water and mud upon them, in the construction of the railway.
5. Evidence — what competent, as tending to show nature and extent of
damage to property owner by reason of construction of railroad. In a case
where a railroad company, by accepting the terms of a town ordinance
granting the right of way over one of its streets, became liable to pay to
the property owners all damages they might sustain by the construction
of the railroad, it was held, in a suit by a property owner, that it was,
under the ordinance, competent for him to prove that his store was situ-
ated on the corner of the street along which the road ran and another
street; that dirt was thrown up at the corner, so that for a time travel was
entirely interrupted; that, by reason of the occupation of the street by
the road, there was but a narrow passage left for travel, and there was not
room enough for teams to turn into the street ; that teams could not ap-
proach the store, on account of the running of cars; that there was no
place to hitch teams or unload conveniently, and, on account of the fre-
quent passage of trains, it was dangerous for teams to be left standing or
to pass along the street in front of the store — as tending to show in what
manner the property was injuriously affected and damaged by the con-
struction of the road.
Appeal from the Circuit Court of Shelby county; the Hon.
H. M. Vandeveer, Judge, presiding.
Mr. R. W. Thompson, and Messrs. Thornton & Wend-
ling, for the appellant.
Messrs. Moulton & Chaffee, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action on the case, brought by the appellee, an
owuer of real property situated on Main street, in the town
of Vandalia, against the defendant, to recover for damages
sustained by reason of the construction of its railroad over
and along said street.
The plaintiif recovered a verdict and judgment for $10,820,
and the defendant appealed to this court.
The claim for recovery is founded upon an ordinance
of the town of Vandalia granting the right of way to the
defendant for its railroad through the town, over and along
190 St. L., V. & T. H. E. R. Co. v. Capps. LJan. T.
Opinion of the Court.
its streets, upon the following condition, among others : "That
the said railroad company are to be held bound to pay all
damages that may accrue to the property owners on said Main
street" (the one in question) "by reason of the construction
of said railroad."
Errors are assigned in regard to the admission of testi-
mony, the giving and refusing of instructions, and that the
damages are excessive.
The questions upon the admission of evidence and the
instructions respect the kind of damages "which are recover-
able, and turn chiefly upon the ordinance of the town of
Vandalia.
This case has once been before this court, where this ordi-
nance, in respect to the damages recoverable, received a con-
struction in a decision rendered at the June term, 1872. (67 111.
607.) It was there laid down that the appellee was entitled to
damages for whatever deterioration in value his real estate may
have undergone in consequence of laying the railway track,
and to damages for interruption to his business during such
time as would have been necessarily employed in accommo-
dating himself to another place equally eligible, and his
removal thereto; that, during such time, the damages to his
business should be ascertained by proof of the probable rea-
sonable profits which might have been made upon sales, had
there been no interruption to the business of appellee by
appellant ; that the necessary reasonable expenses attending
the removal would be an element of damages. So far as that
decision goes, it must be taken as the law of this case.
All the evidence in respect to appellee's business, which
was objected to, was within the rule there laid down ; but it
is claimed that, as there never has been any removal by appel-
lee, nothing is allowable for interruption of business. The
same state of facts, substantially, was presented before us
on the former occasion, as now. There was no pretense that
there had been, or was to be, any actual removal j but it was
considered that, if appellee remained upon the premises, and
1874.] St. L., V. & T. H. R. R. Co. v. Capps. 191
Opinion of the Court.
submitted to the loss in respect to his business which he would
suffer by reason of the railroad, he should, nevertheless, be
allowed, as damages, for the necessary cost of avoiding such
loss by a removal from that place of business.
It is insisted that appellee's third refused instruction should
have been given, to-wit : that the defendant is not liable for
any damages the plaintiff may have sustained while the work
of construction of the road was in progress, and is only liable,
under the ordinance, for such damages as would ensue from
the work after its completion.
The liability, under the ordinance, is, to pay all damages
that may accrue by reason of the construction of the railroad.
"We do not see why this should not embrace all damages caused
by the building of the railroad — as well those accruing during
the progress of the building of the road as those sustained
after the time of its completion. If, during the time of the
building of the road, by the work of its construction, the
rental value of appellee's premises was diminished, it may be
fairly said to be damage accruing by reason of the construction
of the railroad.
The opposite construction which the instruction adopts ap-
pears to be a too narrow one, and unwarranted. It was said
in the former opinion, that the provision was very broad and
comprehensive in respect to the damages to which the com-
pany might be liable, and must control as the contract of the
parties.
Objection is taken to the giving of an instruction for the
plaintiff, to the effect that defendant was liable for the dam-
age done to plaintiff's premises, by turning waste and surface
water and mud upon them, the ground of objection being
that there is no liability on the part of the defendant for
damages of that character ; but this court has repeatedly
held that municipal corporations, in the improvement of pub-
lic streets, and railway corporations, in the construction of
their railroads, are responsible for damages caused to adjacent
land owners, by turning surface water upon their premises.
192 St. L., V. & T. H. E. E. Co. v. Capps. [Jan. T.
Opinion of the Court.
Nevins v. City of Peoria, 41 111. 502; City of Aurora v. Reed
et al. 57 id. 29; Giiham v. Madison County Railroad Co. 49 id.
485; Toledo, Wabash and Western Railway Co. v. Morrison,
71 id. 616, and see Gormley v. Sanford, 52 id. 158.
It is objected that testimony was admitted as to obstruc-
tions and embankments on Fourth street, and as to danger
from the approach and passage of trains of cars. The testi-
mony in this respect was, that appellee's store was situated
on the corner of Main and Fourth streets; that dirt was
thrown up at the corner, so that an embankment extended on
Fourth street, and that for a time travel was entirely inter-
rupted on that street; that, by reason of the occupation of
Main street by the railroad, there was but a narrow passage
left for travel ; that there was not room enough for teams to
turn in the street; that teams could not approach the store, in
consequence of the running of cars; that there was no place
to hitch teams or unload conveniently, and on account of
the frequent passage of trains, it was dangerous for teams to
be left standing or to pass on Main street, in front of the
store. We think, under the ordinance, this was legitimate
testimony, as tending to show in what manner the property
was injuriously affected and damaged by reason of the con-
struction of the railroad.
With regard to the amount of the damages, the witnesses, as
is not unusual, disagreed widely in their estimate of the value
of appellee's property before it was affected by the construc-
tion of the railroad, varying from $10,325 to $26,855. The
decrease in its value, caused by the construction of the road,
only one witness placed as low as forty per cent, the rest of
the witnesses estimating it at one-half, two-thirds and three-
fourths.
Upon consideration of the whole testimony in regard to the
value and depreciation of value of the property, and that in
regard to damage to appellee's business, under the rule and
during the time as prescribed in the former decision of this
court, we can not view this as a case where we are called upon
1874.] Martin v. Gilmore et al 193
Syllabus.
to set aside a judgment because of the excessiveness of the
damages.
The judgment will be affirmed.
Judgment affirmed.
Mr. Justice Scott and Mr. Justice McAllister: We
do not concur in the opinion, or decision, in this case.
Mr. Justice Scholfield, having been of counsel in this
case in the court below, took no part in its decision.
James W. Martin
V.
Henry H. Gilmore et ah
1. United States Marshal's deed — successor of may make without
special order of court. A deed executed by a United States Marshal in
1858, in pursuance of a certificate of purchase, executed by his predeces-
sor in office, upon a sale on execution made in 1856, is sufficient to pass
the title of the execution debtor, without any order of the court from
which the execution issued for the marshal to make such deed as was
required by the act of Congress of May 7, 1800.
2. Federal courts— process and proceedings of State courts adopted.
The act of Congress of 1828 adopted the mesne process and modes of
proceedings in suits at common law, then existing under the State laws
of the State where the court was held, including writs of execution and
final process, and the proceedings thereunder, and the act of 1842 ex-
tended the provisions of the act of 1828 to all State laws on the subject in
force at the time of the enactment of 1842. Hence a sale on execution,
and all proceedings thereunder, by a United States Marshal, after that
time, would be governed by the State law in force at the time of such
sale and proceedings.
3. Constructive service — when decree becomes final. Under the
Chancery Act of 1845, a decree rendered against a defendant not person-
ally served is merely interlocutory, and does not become final until the
expiration of three years from the date of its rendition, and all rights
acquired under such decree are subject to the action of the court in re-
lation to such decree during the three years allowed' to such defendant
within which to open the same, and make his defense.
13— 72d III.
194 Martin v. Gilmore et dl. [Jan. T.
Opinion of the Court.
4. Same — effect of vacating a decree against paj'ty not served, upon rights
acquired under it. A deed made by the master in chancery in pursuance
of, and which recites a decree rendered against a party not personally
served, is notice to all persons claiming under it that such decree is- not
final, but is liable to be vacated and set aside within three years from the
time it was rendered, and if such decree is so vacated and set aside within
the time limited, all rights obtained under it, and all acts performed in
executing it, are also annulled.
Writ of Error to the Circuit Court of Fulton county; the
Hon. Chatocey L. Higbee, Judge, presiding.
Mr. J. S. Winter, and Mr. D. McCullough, for the
plaintiff in error.
Mr. W. C Goudy, for the defendants in error.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of ejectment, brought by James W.
Martin against Henry H. Gilmore, to recover a certain quar-
ter section of land in Fulton county. By an order of the
court, S. Corning Judd, lessor of the defendant, upon his
motion, was made a party defendant.
The parties waived a jury, a trial was had before the court,
and judgment rendered in favor of the defendants.
The plaintiff brings the case here, and urges that the judg-
ment of the court is contrary to the evidence and the law.
There are but two questions presented by this record for
consideration. The first is as to the validity of the deed
made by the United States Marshal to Andrew Hoagland,
Second, if the deed is valid, then defendants insist the title
shown in evidence by them is paramount to that of plaintiff.
Both parties claim title from Joshua J. Moore, who origi-
nally owned the land.
The plaintiff introduced in evidence a judgment rendered
in the Circuit Court of the United States for the District of
Illinois, on the 14th day of July, 1854, in favor of Joseph C.
Hoagland, against Joshua J. Moore; also an execution issued
on said judgment on the 1st day of September, 1854. The
1874.] Martin v. Gilmore et ah 195
Opinion of the Court.
execution shows a levy on the land in controversy September
10th, 1854, and a sale to Joseph C. Hoagland on September
1st, 1856, for $800. The sale was made by H. Wilton,
United States Marshal, by A. C. Dixon, special deputy. A
certificate of purchase was delivered to Joseph C. Hoagland,
in the usual form, providing for a deed at the expiration of
fifteen months, in case the land should not be redeemed.
On the 8th day of August, 1857, the certificate of purchase
was assigned by Joseph C. Hoagland to Andrew Hoagland.
The plaintiff also introduced in evidence a deed from James
W. Davidson, Marshal of Illinois, to Andrew Hoagland,
upon the certificate of purchase, bearing date June 28th, 1858.
The plaintiff, admitted that the term of office of the marshal
who made the sale had expired before the deed was made ;
that, before the execution of the deed, Joseph C. Hoagland
had presented a petition to the Circuit Court of the United
States for the Northern District of Illinois, for a deed of the
premises to be made to him, and the court had ordered a
deed to be made, which was the only petition presented, and
the only order for a deed ever made.
The plaintiff then read in evidence a deed dated July 14th,
1870, from Andrew Hoagland to the plaintiff.
It is insisted by the defendants that the deed made by the
marshal, Davidson, to Andrew Hoagland, is void, under the
3d section of an act of Congress passed May 7th, 1800, which
is as follows :
"Be it further enacted, That, whenever a marshal shall sell
any lands, tenements or hereditaments, by virtue of process
from a court of the United States, and shall die, or be re-
moved from office, or the term of his commission expire,
before a deed shall be executed for the same by him to the
purchaser, in every such case the purchaser or plaintiff at
whose suit the sale was made may apply to the court from
which the process issued, and set forth the case, assigning the
reason why the title was not perfected by the marshal who
sold the same, and thereupon the court may order the mar-
196 Martin v. Gilmore et al. [Jan. T.
Opinion of the Court.
shal for the time being to perfect the title and execute a
deed to the purchaser, he paying the purchase money and
costs remaining unpaid."
The position taken by the defendants would, no doubt, be
correct, if the deed was to be governed by the act of 1800,
but the validity of the deed does not depend upon the provi-
sions of that act, but it is directly within and must be gov-
erned by the Process Act of the 19th of May, 1828, and the
subsequent act of August 23, 1842.
The first section of the act of 1828 declares that the forms
of mesne process, and the forms and modes of proceeding in
suits at common law, in the courts of the United States, held
in States admitted into the Union since 1789, .shall be the
same in each of said States, respectively, as were then used
in the highest court of original and general jurisdiction in
the same, subject to such alterations and additions as the
courts of the United States respectively shall, in their dis-
cretion, deem expedient, or to such regulations as the Supreme
Court shall think proper, from time to time, by rules, to pre-
scribe to any circuit or district court, concerning the same.
The third section declares that writs of execution and
other final process issued on judgments and decrees rendered
in any courts of the United States, and the proceedings there-
upon, shall be the same in each State, respectively, as are now
used in the courts of such State.
This act as effectually adopts the State laws in force at the
time of its enactment, as if the State laws had been incorpo-
rated in full in the act itself.
The act of 1842 extends the provisions of the act of 1828
to all State laws in force on the subject at the time of the
enactment of the act of 1842.
In the case of Boss v. Duval, 13 Peters, 63, the court, in
speaking of the act of 1828, say : "This act adopts, in specific
terms, the execution laws of the State." Again the court say,
in the same case ; "It must be recollected that this act of
1874.] Martin v. Gilmore et ah 197
Opinion of the Court.
1828 is a national law, and was intended to operate in the
national courts 111 every State."
In Beers v. Haughton, 9 Peters, 361, the court, in discussing
the effect of the act of 1828, use this language: "But the
material consideration now to be taken notice of, is, that the
act of 1828 expressly adopts the mesne processes and modes
of proceedings in suits at common law then existing in the
highest State courts, under the State laws, which of course
included all the regulations of the State law as to bail ; in
regard, also, to writs of execution and final process, and the
proceedings thereunder, it adopts in equally comprehensive
language, and declares that they shall be the same as were
then used in the courts of the State." See, also, MeCracken
v. Haywood, 2 Howard, 616.
It then remains to be seen what execution laws were in
force iii this State at the time the acts of 1828 and 1842 were
adopted by Congress.
The act of the legislature of the 17th day of January, 1825,
was in force and adopted by the act of Congress of 1828.
The 10th section of this act provides, that, upon a sale of
lands by a sheriff under an execution, instead of executing a
deed to the purchaser he shall give a certificate of purchase.
The 13th section provides, if the lands shall not be redeemed
within fifteen months, it shall be the duty of the sheriff, or
his successor in office, or his executors or administrators, to
complete such sale by executing a deed to the purchaser. See
Purple's Real Estate Statutes, page 328.
On the 19th of February, 1841, the legislature passed an
act amending the act of 1825, the 5th section of which de-
clares, that a certificate of purchase given on sale of lands
shall be assignable by indorsement thereon ; and every person
to whom the same shall be assigned, in case the lands are not
redeemed, shall be entitled to a deed. See Purple's Real Es-
tate Statutes, 339.
By the act of Congress of 1842, this provision of our statute,
which authorized the officer who made the sale, or his sue-
198 Martin v. Gilmore et at. [Jan. T.
Opinion of the Court.
cessor in office, to execute a deed to the purchaser or his
assignees, became the law of the land, and was obligatory
upon the marshal of the Federal Court of this State. From
these views it follows, that the deed made by the marshal,
James W. Davidson, to Andrew Hoagland, was valid.
On the trial of the cause in the circuit court, the defend-
ants, in order to show title in themselves from Joshua J.
Moore, proved, that at the February term, 1858, of the cir-
cuit court of Fulton county, one Butz recovered a judgment
against Moore ; that in January, 1859, John Elting, admin-
istrator of Joseph I. Moore, filed a bill in chancery in the
circuit court of Peoria county, against Joseph C. Hoagland,
Andrew Hoagland, and Joshua J. Moore, and after personal
service on Moore and publication as to the Hoaglands, on the
15th of March, 1859, a decree was rendered, by which the
sale of the land in controversy by the marshal to Joseph C.
Hoagland was set aside; that Moore pay the sum due on the
judgment to Elting, administrator, and that both of the
Hoaglands convey the land to Joshua J. Moore, and in default
the master in chancery convey for them. It further appeared,
that Moore paid the money according to the decree, demanded
a deed, which the Hoaglands refused to make, and on the
16th of July, 1859, the master in chancery executed the deed,
which was recorded in Fulton county, on the 21st of July,
1859.
On the 10th day of May, 1859, an execution was issued
upon the Butz judgment, and levied on the land in contro-
versy, and on the 7th day of November, 1860, the premises
were sold. Subsequently, other judgments were obtained in
Fulton county against Moore, and after the expiration of
twelve months, no redemption having been made, judgment
creditors redeemed, the land was sold, and Judd became the
purchaser, and on the 14th of October, 1862, obtained a
sheriff's deed.
The plaintiff, as rebutting testimony, proved, that, at the
June term, 1859, of the Peoria circuit court, Andrew Hoag-
1874.] Maetin v. Gilmoee et al. 199
Opinion of the Court.
land applied to the court, under the provisions of sec. 15 of
the Chancery Act of 1845, to set aside the decree of March
15, 1859, in the case of Elting, Admr. v. Hoagland et al. and
for leave to answer. In January, 1869, the court granted the
motion, and an answer was filed by Andrew Hoagland. Proof
Was taken, and in February, 1866, a decree was rendered.
The cause came to this court, and the decree was reversed at
the January term, 1868. See Mansfield, Admr. v. Hoagland,
46 "I'll. 359.
The cause was again heard in the Peoria circuit court on
the 17th of July, 1869, and a decree was rendered, by which
the decree of March 15, 1859, was set aside, and a conveyance
of the land in question was awarded to Andrew Hoagland.
From this decree an appeal was taken to this court, and at
the September term, 1869, it was affirmed. Mansfield, Admr.
v. Hoagland, 52 111.320.
It does not appear, from the evidence, that Judd had any
actual notice of the application of Andrew Hoagland to set
aside the decree of March 15, 1859, or the subsequent litiga-
tion in regard thereto ; and it is urged by him, that, he hav-
ing acquired the title which Moore obtained under the decree
of March 15, 1859, without notice, the subsequent decree of
the Peoria circuit court, vacating the decree from which he
derives title, can not affect him — in other words, that he is
an innocent purchaser.
This question mainly depends upon the construction to be
given to sec. 15 of the Chancery Act of 1845, K,. S. 95. By
the terms of this section of the statute, a decree rendered
against a defendant who was served by publication of notice,
is not final and conclusive. Such decree is merely interlocu-
tory. The act gives such a defendant three years in which
he has the right to come in and obtain leave to answer the
bill, and, upon filing an answer, the act declares "such pro-
ceedings shall be had as if the defendant had appeared in due
season, and no decree had been made."
200 Martin v. Gilmore ei al. [Jan. T.
Opinion of the Court.
It can not be pretended, from this language, by any fair or
reasonable construction, that it was the intent of the legisla-
ture that a decree of this character would be final or conclu-
sive, until after the expiration of three years. When the act
declares the decree shall not be final and conclusive, we are
at a loss to understand how rights acquired under such a
decree, before the three years expire, are entitled to protec-
tion.
The deed made by the master in chancery to Moore, which
was recorded in Fulton county, contained a copy of the decree.
This deed was upon record at the time the land was levied
upon and sold under an execution issued upon the Butz judg-
ment. He, and any person who might purchase, are presumed
to know the law. The decree under which it is claimed Moore
obtained title, was notice to the world that it was not final —
that for three years it was liable to be vacated and set aside.
All rights acquired under such a decree must be held subject
to the action of the court during the three years specified in
the statute. A different construction would defeat, entirely,
the benefits intended by the act to be secured to non-resident
defendants*
This, however, is not an open question in this court. In
Southern Bank of St. Louis v. Humphreys, 47 111. 231, it was
held, in a similar decree, that all proceedings under the decree
should be subject to the vacation of it — that not only the de-
cree, but all acts performed in executing it, should stand or
fall with the decree. We are, therefore, of opinion, that Judd
did not, under the evidence, acquire title by the sale of the
land on the Butz judgment, and the subsequent redemption
and sales.
The judgment will be reversed and the cause remanded.
Judgment reversed.
1874.] Allin et al. v. Millison. 201
Syllabus.
Thomas H. Allin et ah
v.
James B. Millison.
1. Fraud and deceit— -false representations by vendor of a patent right.
Where the vendor of a new invention and patent right represents to one
about to purchase territory that other parties who have purchased terri-
tory are selling the same, and doing well with it, and have made thous-
ands of dollars, and that he had just received a letter to that effect, from
one of such parties, such representations are material, and likely to in-
fluence the purchaser, and he has a right to rely upon them, and if he
does so, and is thereby induced to purchase, and such representations
prove to be false, the purchaser has an action against the vendor for fraud
and deceit.
2. Agent — representations of regarded as those of principal Where an
agent is employed by the owner of a patent right, to induce parties to
make purchases, and he, by representations to a party as to the quality
and value of the patent, gets him to the negotiating point, and then turns
him over to his principal, who closes the trade with him, the representa-
tions made by such agent are to be taken as those of the principal.
3. Evidence — when proper as to transactions between one party to the
suit and strangers. In an action against the vendor of a patent right, for
fraud and deceit in the contract of sale, where it appears that the vendor
had represented that other parties had purchased territory, and were do-
ing well with it, evidence in regard to the transactions between the
defendant and such other parties, and that they had made complaints of
the worthlessness of the patent, to the defendant, is proper for the pur-
pose of showing that the defendant knew the patent was without value,
and that his representations to the plaintiff, in relation thereto, were made
with knowledge of their falsity.
4. Tender — of article purchased not necessary before suit for fraud and
deceit in the sale of it. A purchaser has a right to maintain a suit against
his vendor for fraud and deceit in a contract of sale without tendering
back the thing purchased.
5. Payment — as between original parties. The plaintiff in an action for
fraud and deceit in a contract of sale, had given his notes for the article
purchased, some of which he had paid, and one of which had been
assigned, and was in judgment: Held, that the note assigned and in
judgment should be regarded as paid, and that the plaintiff was entitled
to recover as to it as well as to those actually paid.
202 Allin et al. v. Millison. [Jan. T.
Opinion of the Court.
Writ of Error to the Circuit Court of DeWitt county;
the Hon. Thomas F. Tipton, Judge, presiding.
Mr. S. G. Malone, for the plaintiffs in error.
Mr. L. Weldon, Mr. A. B. Bunn, and Mr. John W.
Smith, for the defendant in error.
Mr. Justice Sheldon delivered the opinion of the Court :
On the 27th day of July, 1867, Allin & Poston sold to
Millison an undivided one-third interest in the exclusive
right to manufacture, use and sell, within a certain territory,
a certain match-safe, denominated the " Magic Match-Safe
and Self-Lighter," for which letters patent had been recently
issued, for the sum of $3333, for which Millison gave his
three promissory notes, each of equal amount, payable in six,
nine and twelve months, and secured by a mortgage on 160
acres of land. This was an action on the case, brought by
Millison against Allin & Poston and Leforgee, to recover for
fraud and deceit in the sale. The plaintiff recovered a ver-
dict and judgment for $4447.77, the amount of the notes
wTith interest. The defendants prosecute this writ of error.
It is insisted that the verdict is not supported by the evi-
dence.
The fraud and deceit relied on consist in certain fraudu-
lent representations alleged to have been made by Leforgee,
as the agent of Allin & Poston. The representations are tes-
tified to by Millison, and denied by Leforgee. It is claimed
this made no preponderance of testimony for the plaintiff; but
it was for the jury to weigh this testimony and judge of the
credibility of the witnesses, and we think there were circum-
stances disclosed in the testimony which would justify the
jury in giving credence to the statements of Millison, rather
than to those of Leforgee. The latter admits that he repre-
sented to Millison that ''the thing was very valuable." Now,
the testimony shows that, in repeated instances, within the
1874.] Allin etal v. Millison. 203
Opinion of the Court.
knowledge of Leforgee, persons to whom territory had been
sold, after having gone on and canvassed their territory, and
used endeavors to make sales, returned without having been
able to effect sales, and made their complaints of the worthless-
ness of the invention, and that they were promised to have
their money paid back, if they would keep still upon the sub-
ject. The jury might have concluded, from the evidence,
that it was not the honest opinion of the witness that the
invention was valuable, as he had represented, and that, in
so representing, he knowingly falsified, and thereby cast dis-
credit upon his whole testimony.
As between Leforgee and Millison, on the question whether
Leforgee made the representations, the finding of the jury
was upon a conflict of testimony, and we see no sufficient
ground for disturbing it because it was in favor of Millison.
The alleged representations were not mere matters of opin-
ion, or in commendation, but they were statements of facts,
which were material, and, if true, would tend to give the
match-safe a value such as would operate on the mind of
Millison in making the contract. Millison made inquiry of
Leforgee, in regard to three certain persons who he had
heard had bought territory, as to how they were doing.
Leforgee represented to him that they were selling their
territory, doing well with it, and had made thousands of dol-
lars, and that he had just received a letter from one of them,
so stating, in regard to himself.
It was in evidence that no such letter was written ; that all
these persons, after actual trial in their respective territories,
were unable to effect any sales of any account of the match
safes, or of territory; that they could make nothing out of the
right, and they pronounced the match-safe and the patent
right worthless.
This was a new article — a new invention. Millison could
not, by mere examination of it, determine how it might be
received by the public, and the statements that Leforgee
made as to the success of parties engaged in the trade and
204 Allin et al. v. Millison. [Jan. T.
Opinion of the Court.
business of selling the machine and territory were material,
and likely to influence Millison, and he had a right to rely
upon them. His inquiry upon the subject evinces that he
regarded the statements as material and important.
There can be, under the evidence, no separation of Leforgee
from Allin & Poston in the transaction, so as not to affect
the latter with the representations of the former, as it is
claimed there should be. Whatever representations were made
by Leforgee must be regarded as within the scope of his
agency m procuring the making of contracts for the sale of
this territory. The inducing part, in the effecting of these
contracts, seems to have been assigned to Leforgee. He was
in -the employ of Allin & Poston, working out of doors, and,
by his previous statements, representations and inducements,
prepared the party proposing to buy to enter into the contract.
His own statement is as follows: After a course of laboring
with Millison, Leforgee says : " He (Millison) was ready to
negotiate. I told the doctor (Millison) I had no power upon
earth to make a transaction — would have to turn him over to
Mr. Allin; came in and told Mr. Allin Dr. Millison wished
to purchase an interest in the unsold territory. Mr. Allin
and him negotiated then." This, the testimony shows to have
been the course of business.
The representations, or statements, of Leforgee were the
foundation of, or the inducement to, the agreement, and are
to be taken as those of Allin & Poston.
It is insisted that the court erred 'in admitting evidence in
regard to other transactions with other persons who had made
similar purchases of territory from Allin & Poston, and com-
plaints by them to the defendants of the worthlessness of their
purchases; but this was proper for the purpose of affecting
the defendants with the knowledge that the invention was
without value, and Leforgee with knowledge of the falsity of
the representations alleged to have been made by him.
It is insisted that there was something which was equiva-
lent to a compromise of the subject matter of the suit, which
1874.] Allin et al v. Millison. 205
Opinion of the Court.
took place in January, 1868, by the extension of the time of
the payment of the first note about to fall due, and the giving a
mortgage by Millison on an additional 20 acres of land. Mil-
lison's statement in regard to this is, that 80 acres of the land
he had mortgaged was railroad land, on which he had not
made the last payment, and had no deed for it; that Allin
got uneasy about the title, and proposed to release that 80,
and extend the time of payment of the note 30 days, if Milli-
son would give a mortgage on the 20 acres of land, to which
the latter assented.
In view of all the evidence on the subject, we do not per-
ceive that there was any such compromise or affirmance of the
contract as should affect this suit. Millison was complaining
that he feared he had been defrauded, but he was encouraged
with the hope, by Leforgee, and by Allin & Poston, who were
jointly interested with Millison in the patent right, that some-
thing might yet be made out of it, and was induced to con-
tinue, together with them, some effort to that end.
It is objected that there was no re-assignment of the interest
purchased tendered back until in October, 1869. That was
before the suit was commenced, and, besides, Millison had a
right to sue the defendants for the fraud, without tendering
back anything. We view the objection as without force.
It is objected that there could be no recovery in respect
of the last note, as it had not been paid. It appears to have
been assigned, and in judgment, and it might be regarded as
if paid. The two other notes were proved to have been paid.
There was very much testimony in the case that this match-
safe was of no value as an invention, and that the subject of
the purchase was worthless. Upon the whole, we perceive
no sufficient reason for a court's interference with the verdict
of the jury, as being unsupported by the evidence.
Objection is taken to the giving and refusing of instruc-
tions. Some of the questions raised upon them are suffi-
ciently disposed of by what has already been said. The criti-
cisms upon the instructions in other respects, we do not
206 Allin et al, u. Millison. [Jan. T.
Opinion of the Court.
consider as of sufficient force to affect them with error, and,
without reviewing the instructions in detail, we will say that,
on a careful consideration of them, we do not find in them
any material error.
The judgment will be affirmed.
Judgment affirmed.
CASES
nr the
SUPREME COURT OF ILLINOIS.
SOUTHERN GRAND DIVISION.
JUNE TBKM, 1874.
F. M. Maxcy et ah
The County Court of Williamson County et ah
1. Municipal bonds — irregularities in the issue do not affect the validity,
unless they go to the power to issue. Where county bonds upon subscrip-
tion to a railroad have been issued and got into circulation, all reasonable
presumptions will be indulged in favor of their regularity, until overcome
and rebutted; and even if irregularities are shown, they will not invali-
date the bonds, unless they go to the power of the county court to issue
them.
2. It will be presumed, when such bonds are found in circulation, that
the legal steps have been taken to authorize their issue.
3. Where the county court was empowered, by law, to issue the bonds
of the county, upon a vote to be taken upon the subject in the manner
prescribed by the law authorizing such vote and the issue of bonds, and
such bonds were issued, the fact that the evidence of the compliance with
the law in calling and conducting the election, giving notice thereof, etc.,
may be lost or destroyed, does not affect the validity of the bonds, if, in
fact, the law was complied with.
4. Parol evidence — to establish lost record of election. Where the
record or written evidence of the fact that a notice of an election to vote
on the question of the county subscribing to a railroad and issuing bonds
208 Maxcy et al. v. Williamson County et al. [June T,
Opinion of the Court.
thereto, and of the result of such election, is lost, it is competent to prove
such facts by parol.
5. Fraud — as against bona fide holders. Where there is fraud in ob-
taining the issuing of bonds before the completion of a railroad to a
given point, when, by the terms of the agreement, they were not to be
issued until the completion to that point, such fraud does not afiect the
consideration of the bonds or their validity in the hands of bona fide
holders.
Appeal from the Circuit Court of Williamson county; the
Hon. Monroe C. Crawford, Judge, presiding.
Mr. Edward V. Pierce, and Mr. Wm. W. Clemens, for
the appellants.
Mr. Wm. J. Allen, and Mr. John H. Mulkey, for the
appellees.
Mr. Chief Justice Walker delivered the opinion of the
Court :
Appellants, on behalf of themselves and other tax-payers
of Williamson county, filed this bill in chancery. It alleges
that they are property owners, and that the Auditor and Treas-
urer of this State had levied $1.30 on each $100 worth of
property liable to and assessed for taxation in the county, as
a tax, for the year 1872, to pay the interest on railroad bonds
issued by the county court of the county. The validity of
this railroad tax is denied, and an injunction is prayed to stay
its collection.
An act of the General Assembly was adopted on the 7th of
March, 1867, incorporating the Murphysboro and Shawnee-
town Railroad Company, by the provisions of which, upon
the petition of one hundred legal voters of the county to the
county clerk, he was authorized to give notice for a vote on
the question of the county of Williamson subscribing $100,000
to the capital stock of the company. The notice of the sub-
mission was to be made at a regular election of county officers.
A poll was opened at the November election, 1868, which
1874.] Maxcy et al v. Williamson County et ah 209
Opinion of the Court.
resulted in favor of a subscription of $100,000 to the stock of
the company, and on the 12th day of December, 1868, the
county court subscribed that sum, and the bonds were issued.
It is also charged, that the county court entered into an
agreement to sell the $100,000 of stock received for the bonds
to the company for $5000. It is further charged, "that there
is no record, evidence or papers on file in said court, estab-
lishing or showing, from any original source or record, proofs
that the county clerk of said county ever posted any notices
of the submission of the question of such subscription, etc.,
to the voters of said county, at a regular election," etc. ; that
there is no such evidence as to what number of legal votes
were cast, or what number constituted a majority of the voters
of the county, and it is charged, for that reason the bonds
were illegally issued; that on the 10th day of March, 1869,
an act was adopted by the General Assembly to change the
name of the railroad, and to make valid the subscription and
agreement of the county, and to amend the charter of the
company. There was a number of orders of the county court
extending the time for the completion of the road, so as to
receive the bonds.
An answer was filed, and a hearing was had on the bill,
answer, replication and proofs, when the relief sought was
denied, the injunction dissolved, and the bill dismissed, and
complainants appeal to this court.
The bonds having been issued and got into circulation, all
reasonable presumptions must be indulged in favor of their
regularity, until overcome and rebutted ; and even if irregu-
larities are shown, they will not invalidate the bonds, unless
they go to the power of the county court to issue them.
It is urged, that there is no evidence that the requisite no-
tice was given calling the election, or that it resulted in favor
of subscription. It must be presumed, when such bonds are
found in circulation, that the legal steps have been taken to
authorize their issue. It may, no doubt, be shown, that there
was a want of compliance with the essential requirements of
14:~72d III.
210 Maxcy et al. v. Williamson County et ah [June T.
Opinion of the Court.
the law, but, until shown, we must presume that the officers
have performed their duty, and the bonds were regularly
issued and are valid.
Nor is the mere allegation and proof that evidence of the
notice or result of the election can not be found, material to
the validity of the bonds. If the notice was given, and the
election resulted in the required majority, then there was
power conferred on the county court to issue the bonds, and,
being issued under competent authority, they could not be
affected by the subsequent loss or destruction of the evidence
that they were legally issued. It was the legal issue of the
bonds that conferred the right, and not the preservation of the
evidence of the fact; and if the evidence was required, it has
been adduced in this case — not record or written evidence, it
is true, but the best evidence attainable. The written evi-
dence being lost or destroyed, it was competent to prove the
fact by parol ; and it appears, in evidence, that the notice
was given, and that the election resulted in a very decided
majority in favor of subscription.
It is also urged, that the bonds were issued contrary to the
provisions of the act of the 10th of March, 1869, vol. 3, Priv.
Laws, p. 321, amending the charter of the company. That
act provided, that the subscription and agreement to the com-
pany should be valid and binding, and that the county court,
in consideration that the company would build their road
to the town of Marion, should assign the certificate of stock
received from the company back to the corporation without
consideration, and gave to the company until the first of Janu-
ary, 1871, to complete the road to the town of Marion.
We discover nothing in this act which, in anywise, limits
the time for issuing these bonds. The scope of this curative
act was to render the election and subscription valid, and to
legalize the agreement to assign the certificate of stock to the
company, provided the road should be completed to the town
of Marion by the date named ; but it left the county court to
exercise the power, as it was before to issue the bonds, which
1874.] Maxcy et ah v. Williamson County et al. 211
Opinion of the Court.
the court did on the completion of the road to that point, as
they had resolved they would. Hence, it is a matter of no
consequence, as far as this question is concerned, whether that
law is or is not constitutional". When a question as to the
transfer of the stock held by the county shall arise, then the
inquiry may become important.
It is also urged, that the bonds were issued bearing date
January 1, 1872, aud after the adoption of the constitution
of 1870, and their issue was not under a vote of the
people had, under authority of law, prior to the adoption of
the constitution, and is contrary to the 12th sec. of art. 9 of
that instrument. The question thus sought to be presented
does not arise on this record. As we have seen, there is a
presumption from the fact that the bonds were issued, and
proof adduced on the trial, there was such a vote taken as is
required by that section, and hence the bonds might legally
issue after the new constitution went into operation. The same
is true of the separate section of art. 14, prohibiting municipali-
ties from subscribing to railroad stock, or to make any dona-
tion to such a company. These provisions contemplate and
fully provide for just such a subscription as was made in this
case.
It is urged, the issue of the bonds was procured by fraud,
and they are, therefore, void. Even if fraud is shown, there
is no pretense that the present holders of the bonds are charge-
able with it, or of notice that there was any fraud. If there
was fraud it was not in obtaining the bonds, but simply in
procuring them to be issued, perhaps, before the road was
fairly completed. The fraud in nowise affected the consider-
ation of the bonds. It might, perhaps, be effectual against
all but bona fide holders of the bonds.
In the case of Dunnovan v. Gfreen, 57 111. 63, it was held,
that the Auditor has power, under the 4th section of the act
of 1869, to levy a tax to pay the interest on registered bonds.
(Sess. Laws, p. 316.) These bonds having been registered,
the State Auditor was authorized to make this levy. Although
212 The People v. Ketchum et al. [June T
Syllabus.
the county court is one of limited powers, it nevertheless had,
when the people so voted and authorized it, power to make
the subscription and issue the bonds ; and the people, in vot-
ing for subscription, so far aS this record discloses, imposed
no conditions or limitation as to the time when the subscrip-
tion should be made, and it was in the sound discretion of the
court to fix the terms and conditions upon which they would
issue the bonds.
We fail to perceive how the sale of the certificate of stock
to the company for $5000 can, in any manner, affect the rights
of the holders of the bonds of the county. It surely is not
intended to be insisted, that, because the county has, by
any means, lost the consideration it received for the bonds,
innocent holders, who had nothing whatever to do with the
sale of the certificate, must lose their bonds. As well con-
tend that a person who purchases property, for which he
gives his note, which has been negotiated, shall avoid its
payment because the property has been stolen, the maker has
been cheated or swindled out of it, or it has been lost or de-
stroyed. There would be as much reason in the one case as
in the other.
Perceiving no error in the record, the decree of the court
below is affirmed.
Decree affirmed.
The People of the State of Illinois
v.
Morris Ketchum et al. Trustees, etc.
1. Mandamus — not a writ of right. The writ of mandamus is not a
writ of right demandable by the State acting through the law officers, but
its issue is discretionary with the courts, acting upon existing facts, and
viewing the whole case with due regard to the consequences of its action.
2. Illinois Central Railroad lands — compelling their sale. By the
act of the General Assembly in force February 27, 1854, the charter of the
1874.] The People v. Ketchum et ah 213
Opinion of the Court.
Illinois Central Railroad Company was so altered and amended as to
authorize a sale of its lands upon a credit, and a new contract was thereby
entered into between it and the State, which the State has no authority to
change without the consent of the company.
3. The act of February 27, 1854, conferred upon the Illinois Central
Railroad Company the option of selling their lands for cash, or on such
credit as they might deem expedient, and the State has no authority to
compel them to sell their lands at a price fixed by law, thus interfering
with the right of the company to sell for a larger price upon credit.
4. Same — duty of State not to endanger or lessen value of the bonds. The
State having vested the companj'- with power to issue bonds, and with
authority to pledge its lands as security for their final redemption, and
the company having so pledged them, the State is bound in justice to
take no steps which shall in any way endanger the validity of the bonds,
or lessen their value.
5. Same — court of chancery can prevent collusion between company and
purchasers of its lands, to continue exemption from taxation. If the Illi-
nois Central Railroad Company has, by collusion with purchasers of its
lands, permitted a small portion of the purchase money to be withheld,
and no conveyance made, so as to continue the exemption from taxation,
it has acted in bad faith toward the State, and a bill in chancery, properly
framed, on behalf of the State, would bring all such transactions to light,
and full power would be exercised by a court of chancery to prevent them
in the future.
This was an application to this court, at the suit of The
People, for a writ of mandamus against the trustees of the
lands granted to the Illinois Central Railroad Company.
Mr. James K. Edsall, Attorney General, for the People.
Messrs. Hay, Greene & Littler, for the respondents.
Mr. Justice Breese delivered the opinion of the Court :
This is a petition filed by the Attorney General, on behalf
of the people of the State, praying for a peremptory writ of
mandamus against Morris Ketchum, Samuel D. Lock wood and
John M. Palmer, trustees appointed under section 15 of the
act to incorporate the Illinois Central Railroad Company,
approved February 10, 1851.
214 The People v. Ketchum et aL [June T.
Opinion of the Court.
The object of the application is to compel these trustees to
dispose of the unsold lands of that company, to effect which
the General Assembly passed an act, approved March 28,
1873, entitled "An act to compel the trustees of the lands
granted to the Illinois Central Railroad Company to execute
their trust." Sess. Laws 1873, p. 115.
The petition was filed to the last January term, and, by
agreement, the venue was changed to the Southern Division.
The questions arise on demurrer to the return.
A similar petition was presented to this court at the Janu-
ary term, 1872, which, for reasons given in the opinion of the
court then filed, was refused. 62 111. 510.
To obviate the objections raised by this court to granting
the writ, the General Assembly passed the act above cited,
and we are again requested to grant the writ, and compel the
sale of the unsold lands of this company.
The application is based upon the wording of section 17
of the charter of the Illinois Central Railroad Company.
That section is as follows :
"The trustees shall not, at any time during the construc-
tion of said road and branches, sell or dispose of lands to an
amount exceeding the sum which shall then have actually
been expended upon the said work, but may, at the request
of the company, sell as the work progresses, so as to meet
expenditures actually made on the sections of road completed,
as far as the receipts from said sales may go towards their
liquidation. And all lands remaining unsold at the expiration
of ten years after the completion of said road and branches,
shall be offered at public sale, annually, until the whole is
disposed of, and the avails applied to the payment of the out-
standing bonds of the company as aforesaid, or, if no such
bonds be outstanding, said avails shall be paid to the com-
pany." Sess. Laws (pr.) 1851, p. 70.
It is admitted the road has been completed more than ten
years; that a large quantity of these lands remain unsold,
and therefore the writ should be awarded. ,
1874.] The People v. Ketchum et al. 215
Opinion of the Court.
It must be remembered that the writ of mandamus is not a
writ of right, demandable by the State acting through their
law officer, but its issue is discretionary with the court, acting
upon existing facts, and viewing the whole case with due
regard to the consequences of its action.
There are very important considerations involved in this
application, and which we are not at liberty to disregard.
The entire legislation of the State must be looked to, and the
interests of parties other than the people of the State be
kept in view.
By the sixteenth section of the same charter, it was pro-
vided that, "these lands should be sold for cash in hand, or the
bonds of said company at par," and "conveyances were to be
executed vesting an absolute title in fee simple to the pur-
chasers."
Was this the law now, was this section in full force, we
should have no hesitation in awarding the writ on the show-
ing of the law officer of the State. But, by an act of the
General Assembly, in force February 28, 1854, this provision
of the charter was so amended and altered as to authorize a
sale of these lands upon a credit. By it, a new contract was
entered into between the State and the railroad company, con-
taining many stipulations besides the one in the first section.
Section six of the act provides, it shall take effect when
accepted by a resolution of the board of directors of the com-
pany, which, it is not controverted, was duly adopted by the
board, thus giving to the transaction all the elements of a
contract.
It was held by this court, in The People v. The Illinois Cen-
tral Railroad Company, 62 111. 510, that this act repeals so
much of the charter as required the lands to be sold for cash,
or the bonds of the company at par.
This act of 1854, by its first section, provides that these
lands may be disposed of upon such credit as maybe deemed
expedient, by contracts for sale and conveyance. It would
then be optional with the company, in view of this legisla-
216 The People v. Ketchum et al. [June T.
Opinion of the Court.
tion, to sell for cash or on credit, "by contracts for sale and
conveyance."
If the act of 1854 has the force and effect of a contract
between the State and the railroad company, we can not per-
ceive wherein consists the authority of the State to change
that contract, without the consent of the company. Fixing
the price at two dollars per acre, is interfering with the right
of the company to sell the lands upon credit, for a larger
price per acre. It is made the imperative duty of the com-
pany, by the act of 1873, to sell at two dollars per acre, and
if that sum is offered, they must be sold, wholly disregarding
the right of the company, or the trustees, to sell the lands
on credit, "as may be deemed expedient." The question of
expediency would involve many and various considerations,
among which would be and should be the interests of the
holders of the bonds, these lands being a portion of the fund
out of which the principal and interest thereof are to be paid.
The State having vested the company with power to issue
these bonds, and with authority to pledge these lands as secu-
rity for their final redemption, and the company having so
pledged them, having made such contracts with the holders
of their bonds, the State is bound, in justice, to take no step
which shall in any way endanger the validity of these bonds,
or lessen their value, which would be the result, should the
trustees sell these lands for two dollars per acre. These
bonds, amounting, it is understood, to about three millions of
dollars, mature in 1875, and the lands remaining unsold do
not much exceed three hundred thousand acres, and with the
railroad property also pledged, are the sole security. Is it
just or fair, or in conformity with the contract between the
State and the company, in which the bondholders have so
large an interest, to depreciate a large part of the securities
so greatly as a forced sale at public auction at two dollars per
acre would do ? Before this is done, it would seem but fair
that the bondholders should be heard.
1874.] The People v. Ketchum et al 217
Opinion of the Court.
The only possible interest the State can have in these lands,
and their speedy sale and conveyance, is, to bring them under
the taxing power, from which they are exempt "until sold
and conveyed by the corporation or trustees."
It has been a very general belief that, since the act of
1854, permitting the lands to be sold on a credit, the com-
pany, by collusion with purchasers, have consented a small
portion of the purchase money shall be withheld, and no con-
veyance made, so as to continue the exemption, for that act
expressly provides, that no conveyance of the title of any
such lands shall be made until the whole purchase money
agreed to be paid therefor shall be made, either in cash or the
bonds of the company at par.
If such a practice has obtained, the corporation have acted
toward the State in bad faith. A bill in chancery, properly
framed, on behalf of the people, would bring all such trans-
actions to light, and full power would be exercised by a court
of chancery to prevent them in future, and to compel the
corporation to call in the deferred payments, to execute con-
veyances, and close the transactions, and in this way the lands
become subject to taxation. Compelling a sale at public
auction for two dollars per acre, can not have this effect on
past transactions, and will result in but trifling benefit to the
people, whilst it jeopards very materially the security pledged
to the bondholders, and violates the contract made with the
State, as manifested by the act of February 28, 1854, with
the railroad company.
These being our views, we are of opinion a peremptory
mandamus ought not to issue.
Mandamus denied.
Mr. Justice Walker dissents.
Mr. Justice Craig: I do not concur in the decision of
this cause.
218 Hewitt v. Jones. [June T.
Opinion of the Court.
Miles Hewitt
V.
Samuel W. Jones.
1. Fraud and circumvention — defense as against assignee. In a suit
by the assignee against the maker of a promissory note, the fact that the
execution of the note was procured by fraud or circumvention, is a good
defense, and it is immaterial whether the assignee took the note with or
without notice of such defense.
2. Error will not always reterse — improper instructions. Notwith-
standing the statute authorizes the assignment of error upon the refusal
of a new trial, the circuit courts are clothed with a discretion, as at com-
mon law, to be exercised in such manner as will best answer the ends of
justice; hence, when it clearly appears that on another trial the verdict
must inevitably be the same, or that substantial justice has been done, a
new trial will not be granted, although the court erred in some of its in-
structions.
Appeal from the Circuit Court of Marion county ; the Hon.
Amos Watts, Judge, presiding.
Mr. W. Stoker, for the appellant.
Messrs. Casey & Wilson, and Mr. C. H. Patton, for the
appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
This action was brought by appellant, in the Jefferson cir-
cuit court, as assignee of a promissory note, against appellee,
as maker. The defendants set up, by special plea, the de-
fense, that the execution of the note was obtained by a patent
right vender and his agent, by means of fraud and circum-
vention, setting out the circumstances, and the fraudulent
substitution of a note for another paper purporting only to be
an appointment of appellee as agent to sell a patent hay fork.
There was a change of venue to Marion county, where the
cause was tried, resulting in a verdict and judgment for
1874.] Hewitt v. Jones. 219
Opinion of the Court.
defendant. The plaintiff brings the case to this court by
appeal.
The testimony for defendant below tended strongly to show
that the execution of the note sued on was obtained by fraud
and circumvention. It is true, there was some conflicting
evidence, but 'it was for the jury to determine all questions of
the credibility of witnesses.
The defense set up was not an unconscionable, but a merito-
rious defense, recognized by the common law as well as by
statute. It was the only defense relied upon. There was
evidence tending to support it. The instructions for defend-
ant below, claimed by appellant's counsel to be erroneous, all
relate to the question of notice to the plaintiff at the time he
purchased the note. If the execution was obtained by fraud
or circumvention, it is wholly immaterial whether the appel-
lant took the note with or without notice of that defense, be-
cause, if the execution of it was so procured, it would be void
in his hands, even if he were a bona fide holder without
notice.
The propositions embraced in the instructions complained
of principally relate to the question of notice, and are, there-
fore, not material to any point of the defense.
We have no doubt, from reading the testimony in the
record, that the appellee had no idea of signing or giving a
promissory note, and that his signature was obtained by the
artful device, frequently put into use by patent-right vendors
and their agents, by which they procure the signature of a
party to a promissory note when that party has no intention
of signing one, and supposes he is executing an instrument
of a wholly different nature. If the case should go before
another jury, it would, without doubt, result in the same ver-
dict as before. The question arises, should this court reverse
for the misdirection of the jury, under these circumstances?
If the law required the court below to grant a new trial for
that reason, then, clearly, this court should reverse for the
denial of the motion. Was the plaintiff below entitled to a
220 Hewitt v. Jones. [June T.
Opinion of the Court.
new trial as a matter of right? It was the settled rule of
the common law, as administered by the King's Bench, that
the court, in this respect, was clothed with a discretion,
which was exercised with a view to the promotion of justice
and repression of litigation.
In Deerby v. The Duchess of Mazarine, 2 Salk: 640, the de-
fendant was sued for debts contracted by her, while living in
England as a feme sole. She set up coverture, and gave good
evidence to support it. The jury found for the plaintiff, and
the court would not grant a new trial, because there was no
reason why the duchess, who lived there as a feme sole, should
set up coverture to avoid the payment of her just debts.
In Macrow v. Hull, 1 Burrows, 11, the action was for tres-
pass of a trifling nature, entitling the plaintiff to only nom-
inal damages. The trespass was shown by the evidence, but
the jury found for the defendant. The court held, that, not-
withstanding the verdict being against evidence, which, in
general, is a good reason for setting it aside and granting a
new trial, yet, the action appearing to be frivolous, trifling
and vexatious, and the real damages little or none, they ought
to refuse, and accordingly did refuse to set the verdict aside.
In Farewell v. Chaffey, 1 Burr. 54, Lord Mansfield said
a new trial ought to be granted to attain real justice, but not
to gratify litigious passions upon every point of summumjus,
and it was there held, the court would not give a second
chance of success to a hard action or unconscionable defense.
In Edmonson v. Machell, 2 Term R. 4, a new trial was
moved for on the ground of a misdirection in point of law.
The court having looked into the evidence, and become sat-
isfied that justice had been done, denied the motion, without
giving any positive opinion upon the question of law.
Ashhurst, J., in giving the opinion of the court, said: "An
application for a new trial is an application to the discretion
of the court, who ought to exercise that discretion in such a
manner as will best answer the ends of justice."
1874.] Hewitt v. Jones. 221
Opinion of the Court.
So, in Edwards v. Evans, 3 East, 451, where a witness was
excluded upon a supposed ground of incompetency, the court
denied a motion for a new trial, because another witness was
called and established the same fact offered to be proved by
the rejected witness, which was not disputed by the other
side, and the defense proceeded upon a collateral point, on
which the verdict turned.
In Seare v. Prentice, 8 East, 348, the court refused a new
trial for misdirection upon a point which did not arise in the
case.
The statute of this State authorizes the assignment of error
upon the refusal of a motion for new trial, but the circuit
courts are nevertheless regarded by this court as clothed with
a discretion, as at common law, to be exercised in such man-
ner as will best answer the ends of justice. Upon this ground
it has been held, in numerous cases, that when it clearly ap-
pears that on another trial a verdict must inevitably be the
same, or that substantial justice has been done, a new trial
will not be granted, although the court erred in some of its
instructions. McConnel v. Kibbe, 33 111. 175; Curtis v. Sage,
35 id. 22; Coursen v. Ely, 37 id. 338; Boot v. Curtis, 38 id.
192; Boynton v. Holmes, id. 59; Potter v. Potter, 41 id. 80;
Watson v. Woherton, id. 241 ; Clark v. Pageter, 45 id. 185 ;
Pahlman v. King, 49 id. 266 ; Rankin v. Taylor id. 451 ; Booth
v. Hynes, 54 id. 363; Steudle v. Bentchler, 64 id. 161.
Being satisfied that justice has been done in this case, it
would be a departure from principle to reverse for the mis-
direction complained of. The judgment will therefore be
affirmed.
Judgment affirmed.
222 I. C. R. E. Co. t>. Hall. [June T.
Opinion of the Court.
Illinois Central Railroad Company
Anthony Hall,
1. Negligence — rule as to comparative, where both parties are guilty.
In a suit against a railroad company for damages occasioned by the neg-
ligence of its servants, where it appears the plaintiff's own negligence
was the cause of the injury complained of, or where the negligence of
the parties is equal, or nearly so, there can be no recovery. It is only
where the negligence of the plaintiff is slight, in comparison, and that
of the party causing the injury is gross, that a recovery is warranted,
except in cases where the injury is wilfully inflicted.
2. Same — what constitutes. It is negligence for a person to walk upon
the track of a railroad, whether laid in a street or upon an open field,
and he who deliberately does so will be presumed to assume the risk of
the peril he may encounter.
Appeal from the Circuit Court of Alexander county; the
Hon. David J. Baker, Judge, presiding.
Messrs. Green & Gilbert, for the appellant.
Mr. Samuel P. Wheeler, and Messrs. Linegar & Lans-
den, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
Appellee was struck by a moving engine on appellant's
road, and this action is to recover damages for the injuries
sustained. It is shown that, on Levee street, between its
intersection with 22d and 26th streets, in the city of Cairo,
the company had two tracks, which were almost constantly
in use. By an ordinance of the city, it was made unlawful
to run trains, within the limits of the corporation, at a rate
of speed greater than six miles per hour. The city has never
assumed to grade this street at the point in question, and
prepare it for the use of the public. It could not be used by
carriages, nor conveniently by persons on horseback. There
was a path between the tracks and on one side for persons
1874.] I. C. K. R. Co. v. Hall. 223
Opinion of the Court.
traveling on foot, that could be and was considerably used
with entire safety.
Appellee had been to the city, and was returning to his
home, beyond the limits of the corporation, in company with
three of his neighbors. He was walking on the river track,
and, hearing the approach of a train, stepped over to the
other, or inside track, where he was almost instantly struck
by an engine moving in the same direction with the one he
was endeavoring to avoid. The evidence shows conclusively
that, had appellee stopped on the path between the tracks, as
Allcock did, who was walking with him, he would have been
out of danger.
There is no dispute that signals of warning were given by
the ringing of the bells on both engines, and it seems most
singular they were not heard by any of the four persons on
the tracks until the trains were within a few yards of them.
It can only be accounted for by the fact the wind was blow-
ing strong from the opposite direction, which prevented them
from hearing readily.
When the attention of appellee was attracted, there was
absolutely nothing to prevent his seeing both advancing
trains, had he looked. He says, in his testimony, that he
"did not take the precaution to look and see if there was a
train coming on the inside track. "
The only disputed facts which tend to establish negligence
on the part of the company, is as to the speed at which the
trains were being run. On this point, the testimony is con-
tradictory. Appellee's witnesses fix the rate at from twelve
to twenty miles per hour, while appellant's witnesses state
neither train was being run faster than six miles per hour.
The train on the inside track, drawn by engine No. 19, had
just started — had hardly got underway — and it seems almost
incredible it could have acquired so high a rate of speed in
so short a time as that insisted upon by appellee. There is
no way the speed of a train can be accurately ascertained. It
can only be arrived at approximately, by the judgment of the
224 I. C. R. R. Co. v. Hall. [June T.
Opinion of the Court.
several witnesses. Their statements in this case are so con-
flicting that we are left more to conjecture than anything else,
as to the speed of the trains. There are facts, however, that
assist our understanding and enable us to form a more accu-
rate judgment as to the rapidity with which the engines were
moving. The testimony is, appellee was struck by the engine
on his legs, and knocked down, and yet there were no con-
siderable bruises or wounds on that part of his person. It is
inconceivable that an engine, moving at the rate of sixteen
miles an hour, should strike a man on the legs and produce
no physical injuries. This fact strengthens the theory of
appellant, that the trains were not running with any great
rapidity.
We may, therefore, fairly conclude the testimony leaves it
doubtful whether the engines were being driven at an unlaw-
ful rate of speed. The vital question, then, is as to the com-
parative negligence of the parties.
There can be no pretense the injury was wantonly inflicted.
The engine-driver on engine No. 27, when he saw appellee
on the track ahead of him, had a right to expect when he
heard the sound of the bell he would get out of the way.
This he did do; but the engine-driver on No. 19 could not
anticipate he would get upon the inside track, in front of his
train, when there was safe standing room on either side. As
soon, however, as he saw the danger to which appellee had
exposed himself, he reversed the engine, and used every pos-
sible means in his power to stop the train, to avoid the acci-
dent.
But did appellee exercise that care and caution, for his
personal safety, that an ordinarily prudent man would do
under like circumstances? If he did not, it must be admit-
ted the law is, his negligence would bar a recovery.
It may be conceded both parties had an equal right to the
use of the street — the company for the purpose of transacting
its ordinary business, and appellee the right to travel upon
it. The law makes it the duty of the company to exercise
1874.] I. C. R. R. Co. v. Hall. 225
Opinion of the Court.
the highest degree of care, for the safety of persons using the
street, consistent with the exercise of its franchises. The
citizen must also employ a reasonable precaution for his per-
sonal security. It is negligence for a person to walk upon
the track of a railroad, whether laid in the street or upon the
open field, and he who deliberately does so will be presumed
to assume the risk of the perils he may encounter. The
crossing of a track of a railroad is a different thing. The
one is unavoidable, but in the other case he voluntarily
assumes to walk amid dangers constantly imminent. It is
sought, in this case, to justify the conduct of appellee, in
traveling upon the track of the railroad, by the fact there
were no good walks elsewhere on that street for persons on
foot, nor had the street, outside the road-bed, been graded to
accommodate the travel. This was no fault of the company.
It was not its duty to grade the street. The street is eighty
feet wide, and, if graded, might be used with safety, as ordi-
nary streets, notwithstanding the railroad is laid in it; but
there was a path between the tracks and one at the side,
which appellee could have used without the least danger.
The side path was not so easy to walk upon as that between
the rails, but that fact did not justify appellee in taking the
dangerous path. He was familiar with the dangers to which
he was exposed, and we must conclude he voluntarily assumed
the hazard. He could have avoided all danger by a little
inconvenience, but he did not choose to do it. The injury
received must, therefore, be attributed to his want of ordinary
care. The evidence shows the trains passed over that por-
tion of the road with such frequency that there was a con-
stant exposure to danger. No prudent man would expose
himself on that part of the road without keeping a constant
and vigilant watch for the approach of trains. This, appel-
lee did not do. Neither appellee nor his companions discov-
ered the trains until they were within a few yards of them,
notwithstanding the fact the bells on both engines were being
constantly rung. This fact itself is evidence of want of
15— 72d III.
226 Keiser v. Topping et al. [June T.
Syllabus.
proper precaution. The conclusion is unavoidable. Appellee
was not in the exercise of that degree of caution that a pru-
dent person always adopts for his personal security. His
negligence in this respect was greater than any that can be
attributed to the company, by any fair construction of the
evidence. The law, as announced by this court in a uniform
course of decisions, from the time of Jacobs9 ease, 20 111.
478, to the present, is, that, where it appears the plaintiff's
own negligence was the cause of the injury, or where the
negligence of the parties was equal, or nearly so, there can be
no recovery. It is only where the negligence of the plaintiff
is slight, in comparison, and that of the party causing the
injury is gross, that a recovery is warranted, except in cases
where the injury is wilfully inflicted. There has been no
marked departure from this doctrine. A sound public policy
forbids there should be. There is no justifiable reason for
relaxing the rule. If a party will not exercise ordinary care
for his personal safety, he ought to bear the consequences that
may ensue.
We are satisfied, from a careful consideration, the verdict
in this case is warranted neither by the law nor the evidence.
The judgment will therefore be reversed.
Judgment reversed.
Chakles W. Keisee
V.
Marcus H. Topping et al.
1. Pleading and evidence — proof and allegations must correspond.
If any part of the contract proved varies materially from that which is
stated in the pleading, it will be fatal, a contract being an entire thing,
and indivisible; and where a plaintiff declares upon a special contract,
the proof and the allegations must correspond, not precisely, but sub-
stantially.
1874.] Keiser 0. Topping ei al. 227
Statement of the case.
2. A variance is a substantial departure from the issue, in the evidence
adduced, and must be in some matter which, in point of law, is essential
to the charge or claim.
3. Pledge — delivery of possession is not necessary as between the parties.
Where property is pledged to a creditor to secure his claim, there is, as
between the parties, no necessity for an actual manual delivery of the
property. The possession is, constructively, where the contract places it.
Appeal from the Alton City Court; the Hon. Henry S.
Baker, Judge, presiding.
This was an action of assumpsit, brought by the appellees
against the appellant, in the Alton City Court. In the first
count of the declaration it is alleged that the Hughes and
"Whyte Roof Tile Company was indebted to the plaintiffs, and
in order to secure such indebtedness, pledged and delivered
to the plaintiffs seventy squares of tile, which were of greater
value than the amount of such indebtedness; that afterwards,
the defendant, being president of the company, in considera-
tion of the release by the plaintiffs of their claim upon seventy
squares of tile, and the delivery of the same to him, prom-
ised to pay them the indebtedness owing by the company to
them; that, in consideration of such promise, the plaintiffs
did release their claim, and deliver the same to the defend-
ant. The written instrument referred to in the opinion as
executed by the superintendent of the company, was as fol-
lows :
" Alton, III., September 4, 1873
I have this day sold to Topping Bros, two car loads of tile,
70 squares, or sufficient quantity to fill the order I now have
from Messrs. E. Harrison & Co., of Irondale, Mo., the tile
being now in our yard, and to be shipped to Messrs. E. Har-
rison & Co., Irondale, Mo., as soon as cars arrive to take it
away ; price" of same to be $7 per square, less amount of
freight on same to St. Louis.
Hughes & Whyte Roof Tile Co.
By H. IS. Brown, Supt."
228 Keiser v. Topping et aL [June T.
Opinion of the Court.
Brown, the superintendent, testified that the reason he exe-
cuted this paper, was, to enable the plaintiffs to get their pay
oat of the proceeds of the sale thereof, and to return the bal-
ance to him for the company ; that the tile remained in the
company's yard, at the factory, and never was, in fact, deliv-
ered to the plaintiffs. The plaintiffs recovered a judgment
for the amount of the indebtedness of the company to them,
and the defendant appealed.
Mr. Charles P. Wise, for the appellant.
Mr. Levi Davis, Jr., for the appellees.
Mr. Justice Scholfield delivered the opinion of the
Court :
We are of opinion, from the evidence in the record before
us, that the contract between the Hughes & Whyte Roof Tile
Company and appellees did not constitute a sale of the seventy
squares of tile. It was, in fact, a contract giving appellees
the right of possession and control of the sale of this tile, for
the purpose of enabling them to appropriate so much of its
proceeds to the payment of their debts as should be necessary
for that purpose, and nothing more. The written instrument
executed by the superintendent of the company, spoken of as a
bill of sale, shows that the subject of the contract was, "two car
loads of tile, seventy squares, or sufficient quantity to fill the
order" (which the superintendent then had,) "from Messrs. E.
Harrison & Co., of Irondale, Mo. ;" and it is therein further
expressly said : "The tile now being in our yard, and to be
shipped to Messrs. E. Harrison & Co., Irondale, Mo., as soon
as cars arrive to take it away." Appellees did not surrender
the note which they held against the company, or give any
credit thereon, or on the account which they held against the
company, nor were they to do so until they received the pro-
ceeds of the sale of tile. It is evident that, if the tile had
been destroyed, or no sale of it effected, without the fault of
. 1874.] Keiser v. Topping et al 229
Opinion of the Court.
appellees, the loss must have been borne by the company.
As between the parties themselves, we see no objection to
carrying the contract out according to their intentions, and
no question of the rights of creditors or purchasers in good
faith, is before us.
Do, then, the proofs sustain the allegations in the first count
of the declaration ?
It was said, in Wheeler v. Reed el al. 36 111. 85, "if any
part of the contract proved varies materially from that which
is stated in the pleadings, it will be fatal, a contract being an
entire thing, and indivisible ; and where a plaintiff declares
upon a special contract, the proof and the allegations must
correspond, not precisely, but substantially. A variance is
understood to be a substantial departure from the issue in the
evidence adduced, and must be in some matter which, in
point of law, is essential to the charge or claim. Stephen
on Pi. 107, 108 ; 1 Greenlf. on Ev. 79. And the reason is,
that the defendant may not be subject to another action and
recovery for the same cause, set out with more certainty and
particularity in another suit"
The issue here was, whether the defendant promised to pay
the debts, in consideration that plaintiffs promised to release
their claim to the property. As between the parties, no actual
manual delivery of the property was necessary. Possession,
constructively, was where the contract placed it.
We think the evidence on behalf of plaintiffs sustains the
issue substantially, and that there was, therefore, no material
variance between the allegations and proofs.
We do not feel called upon to review the evidence. It was
conflicting, and we are unable to say that there was a decided
preponderance against the verdict.
The judgment is affirmed.
Judgment affirmed.
230 Hicks v. Kussell. [June T.
Syllabus.
Jeanette H. Hicks
v.
Charles R. Russell, impleaded, etc.
1. Partnership — dissolution revokes all power of partners to contract
in name of firm. A dissolution of partnership operates as a revocation
of all power in each partner to enter into contracts on behalf of the firm ;
and none of the partners afterwards can create any new contract or obli-
gation binding upon the partnership.
2. Same — notice of dissolution — when necessary. The power of each
partner to contract in the name of the firm, within the legitimate scope
of their business, and with persons accustomed to dealing with the part-
nership, continues until such persons have actual notice of a dissolution;
but as to persons not in the habit of dealing with such partnership, a
newspaper notice of dissolution is sufficient.
3. Two firms were in the habit of dealing with each other, and one
becoming indebted to the other, the debtor firm executed its note to the
creditor firm, and one of the partners of the debtor firm executed a deed
of trust to one of the partners of the creditor firm, on his individual prop-
erty, to secure the debt. Both firms were dissolved, the partner upon
wiiose property the deed of trust was executed assuming to pay the in-
debtedness of his firm. No further dealings occurred between the firms
for three years, at the end of which time the partner of the debtor firm
who had assumed the payment of its debts executed, in the name of the
firm, a new note, payable to one of the partners of the creditor firm, and
took a discharge from him, in the name of his firm, of the original secured
indebtedness: Held, that the execution and taking of the new note in
lieu of the secured indebtedness were not within the legitimate scope of
the business of either firm, nor according to the ordinary course of trade,
and were not binding on either of the firms, even though neither the
party taking the note nor the firm he represented had ever received actual
notice of the dissolution of the firm in whose name the note was executed.
4. Same— notice of dissolution a% to assignee before maturity. Notice
of the dissolution of a partnership, by publication in a newspaper, is
notice to an assignee before maturity of a promissory note executed by
one of the partners after the dissolution, in the name of the firm, to a
person who was chargeable with notice, such assignee having had no
dealing with the firm prior to its dissolution.
Whit of Error to the Circuit Court of Wabash couuty ;
the Hon. Tazewell B. Tanner, Judge, presiding.
1874.] Hicks v. Eussell. 231
ODiuion of the Court.
Mr. S. Z. Landes, for the plaintiff in error.
Messrs. Bell & Green, for the defendant in error.
Mr. Justice Sheldon delivered the opinion of the Court :
The firm of Russell Brothers, of Mount Carmel, Illinois,
was composed of Edwin S. Russell and the defendant in error,
Charles R. Russell, and was dissolved January 1, 1867, Ed-
win S. Russell assuming, in writing, the payment of the debts
of the firm. Newspaper notice, only, was given of the disso-
lution of the firm, at its place of business.
The firm of E. H. Sargent & Co., of Cincinnati, Ohio, was
composed of L. H. Sargent and Thomas J. Biggs, and was
dissolved June 30, 1866.
Russell Brothers, before they dissolved, became indebted to
L. H. Sargent & Co., and executed to them their promissory
notes for the amount of the indebtedness. To secure the pay-
ment of these notes, Edwin S. Russell had executed to L. H.
Sargent, as trustee, a deed of trust on his (Russell's) real estate.
Thomas J. Biggs, of the firm of L. H. Sargent & Co., claimed
that L. H. Sargent was indebted to him in the sum of $6000,
and on the first day of May, 1870, more than three years after
the dissolution of both firms, he, Biggs, by an arrangement with
Edwin S. Russell, procured the execution of the two notes
sued on in this case, to be made by Edwin S. Russell in the
firm name of Russell Brothers, and payable to Thomas J.
Biggs, individually, the notes being for the sum of $676.61
each, and payable, respectively, two and three years after date.
The notes were executed in payment of the firm notes of Rus-
sell Brothers, in the hands of L. H. Sargent &Co., and Biggs
executed a release of the latter notes. But the notes were not
surrendered, and they were afterwards satisfied, except about
$28, by the sale of the real estate conveyed to L. H. Sargent
by the said deed of trust of Edwin S. Russell. Biggs assumed
to apply the notes he so received from Edwin S. Russell to-
ward payment of the balance of $6000, which he claimed to
232 Hicks v. Russell. [June T.
Opinion of the Court.
be due to him from Sargent, and so notified the latter; but
Sargent withheld his assent thereto, and denied the right of
Biggs to act in the matter.
The notes sued on were transferred to the plaintiff in error,
before maturity, for value. This suit was brought upon the
notes by plaintiff in error against Charles R. Russell and Ed-
win S. Russell. \
On the foregoing facts, the court below, on trial without a
jury, held, that the plaintiff in error could not recover on the
notes in suit against Charles R. Russell, who had interposed
a sworn plea denying his joint liability with Edwin S. Rus-
sell, and denying the existence of the firm of Russell Brothers
at the time of the execution of the notes.
In this, the plaintiff claims there was error. It is the well
settled principle of the law of partnership, that a dissolution
operates as a revocation of all power in each partner to enter
into contracts on behalf of the firm, and none of the partners
afterward can create any new contract or obligation binding
upon the partnership. But it is insisted that Biggs came
within the exception that, as to a person accustomed to deal
with the partnership, it continues until he has actual notice
of the dissolution. Page et at. v. Brant, 18 111. 37 ; Ellis9
Admrs. v. Bronson, 40 id. 455.
Defendant contends that, under the circumstances here,
actual notice was not necessary. And that is the question in
the case.
There is no explanation attempted of the purpose of taking
these additional notes from Russell Brothers, further than as
furnished by the facts themselves, as above stated. They
were given, for other notes, to L. H. Sargent & Co., but the
latter notes were not surrendered, and why were the former
ones so given? Upon the face of the transaction, it would
rather appear to have been one between Biggs and Edwin S.
Russell for their own mere private advantage, in fraud of the
rights of their respective firms.
As respects the firm of L. H. Sargent & Co., it was an
1874.] Hicks v. Eussell. 233
Opinion of the Court.
attempted substitution of unsecured notes for those that were
secured, and an attempted application of the assets of that firm
to the payment of the individual debt of Biggs, and it not
appearing, even, that there was such a debt, Biggs merely stat-
ing that he claimed a balance due him from L. H. Sargent,
in settlement of their partnership affairs, of about $6000.
As respects the firm of Russell Brothers, it was the giving
of additional notes for notes already outstanding, and impos-
ing upon the firm a liability, or hazard of liability, upon two
sets of notes for the same debt ; and the rights of Charles R.
Russell were calculated to be injured in the release, if valid, by
Biggs of the notes to L. H. Sargent & Co., to secure the payment
of which Edwin S. Russell had before conveyed his own real
estate by a deed of trust, and who had also agreed, by the
terms of their dissolution, to pay all the debts of the firm.
Bigo-s, in taking- from Edwin S. Russell these additional
notes and releasing the secured notes, may not improperly be
chargeable with knowledge or notice that Edwin S. Russell
was acting in violation of his obligations or duties to the firm
of Russell Brothers, or for purposes disapproved of by the
firm or in fraud of the firm.
Every such contract with a firm, made with such knowledge
or notice, will be void as to the firm. Story on Part., § 128.
As remarked, both these firms had been dissolved more than
three years before. the making of these notes. No new debt
was created, and no new credit was given to the firm of Rus-
sell Brothers. Merely new notes were given to Biggs, indi-
vidually, for notes to the firm of L. H. Sargent & Co., but
the old notes were not surrendered up, and only a release of
them given by Biggs.
Notice of the dissolution of a firm is required to guard
against imposition in the regular course of business of the
firm — to protect a person who is giving credit to the firm.
The cases in which notice has been held necessary, it is be-
lieved, were all founded upon transactions in the regular
course of business. The present case does not seem to come
234 Hicks v. Russell. [June T.
Opinion of the Court.
within the reason of the rule. A somewhat analogous case
is that of Whitman v. Leonard, 3 Pick, 177. There being in
that case a promissory note, signed by Boyce & Luther, not
due, and Boyce having absconded, Luther went to the prom-
isee and told him that they, Boyce & Luther, were in diffi-
culty, and renewed the note, making it payable on demand,
in the name of Boyce & Luther. The court there say : "But
here was an absconding of one partner, which dissolved the
partnership. It is said, however, that as to a person accus-
tomed to deal with the partnership, it continued until he had
notice of the dissolution. But that must apply to their usual
dealings. Here, after an absconding of one partner, the other
makes a note to charge the partnership, in order to give a
creditor an opportunity of favoring himself, which was not
according to the ordinary course of trade. Either no notice
was necessary in such a case, or it is to be implied from the
transaction."
We are inclined to hold, that the acts of Biggs and those
of Edwin S. Russell, in taking and giving the notes sued on,
in the manner and under the circumstances as here disclosed,
were not within the legitimate scope of the business of either
firm, nor according to the ordinary course of trade, and were
not binding on the firms represented by Biggs and by Edwin
S. Russell, even though L. H. Sargent & Co., or Biggs, had
never received any actual notice of the dissolution of the firm
of Russell Brothers. It can make no difference that the notes
were assigned to the plaintiff in error before maturity.
If they were not the promissory notes of Charles R. Russell in
the hands of Biggs, his indorsement of them to the plaintiff
in error did not make them any more so, she never having
had any dealing with the firm of Russell Brothers previous
to its dissolution, and the notice of the dissolution by publi-
cation in the newspaper being sufficient as to all such persons.
The judgment of the court below will be affirmed.
Judgment affirmed.
1874.] R., E. I. & St. L. E. E. Co. v. Hillmer. 235
Opinion of the Court.
Kockford, Rock Island and St. Louis Railroad Co.
v.
William Hillmer.
1. Evidence — whether testimony is negative. Where witnesses who, at
the time of an accident at a railroad crossing, were within thirty yards of
it, testify that they were in a situation to have heard a bell ring or whistle
sound, if there had been any rung or sounded, and that they did not hear
any, such testimony can not be regarded as negative testimony.
2. Negligence — comparative, where both parties are guilty. In a suit for
damages occasioned by the negligence of the defendant, where the plaintiff
has been guilty of some degree of negligence, yet, if it was slight in com-
parison with that of the defendant, which was gross, it will be no bar to a
recovery.
3. Same — duty in running cars at public crossings. Railroad companies,
in operating their cars in crossing public highways, must so regulate the
speed of their trains, and give such signals to persons passing, that all may
be apprised of the danger of crossing the railroad track, and a failure in any
of these duties on their part will render them liable for injuries inflicted,
and for wrongs resulting from such omissions.
4. A railroad company should not permit obstructions upon its right of
way, near a crossing, which will prevent the public from observing the ap-
proach of trains on the track.
5. A railroad company is chargeable with notice of all the perilous cir-
cumstances of a crossing constructed by itself.
Appeal from the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
Mr. Levi Davis, Jr., for the appellant.
Mr. A. W. Metcalf, for the appellee.
Mr. Justice Craig delivered the opinion of the Court:
This was an action on the case, brought by William Hillmer
against the Rockford, Rock Island and St. Louis Railroad
Company.
A trial was had before a jury, which resulted in a verdict in
fu\or of the plaintiff for $1681. The court overruled a motion
for a new trial, and rendered judgment upon the verdict.
236 E., K. I. & St. L. E. E. Co. v. Hillmek. [June T.
Opinion of the Court.
The defendant brings the record here, and relies, for a
reversal of the judgment, upon the ground, alone, that the ver-
dict is against the weight of the evidence.
The controversy in this case grew out of an accident that
occurred on the 27th day of December, 1872, about six o'clock
in the evening, at a place known as Yenice crossing, where the
highway from Yenice to Edwardsville crosses the track of the
defendant. The plaintiff, in attempting to cross the track of the
defendant with a pair of horses and wagon, was struck by a loco-
motive attached to a train of passenger cars. His two horses
were killed, wagon and harness destroyed, and he seriously and
permanently injured.
The plaintiff based his right of recovery upon the ground,
the he, in attempting to cross the track, exercised due and
proper care, and the defendant neglected and failed to give
notice of the approach of the train by ringing a bell or sound-
ing a whistle; that the train was running at a high rate of
speed, and defendant, in approaching the crossing, which was
a known dangerous one, failed to slacken the speed of the
train.
On the other hand, the positions assumed by defendant are:
1st. That the whistle was sounded and the bell rung, as re-
quired by law. 2d. That the train was not running at a high
rate of speed. 3d. Under the circumstances of the case, it was
not the duty of defendant to slacken speed, even if the train
had been running at a high rate of speed.
It is insisted, by the defendant, that on the question of ring-
ing a bell or blowing a whistle, the evidence of the plaintiff is
negative, while that of the defendant is positive, and that this
case, in its facts, is so similar to that of Chicago and Rock
Island Railroad Go. v. Still, 19 111. 499, that the decision in
that case is conclusive of this.
By reference to the Still case, it will be found, that the wit-
nesses in that case who testified they did not hear the sound of
the bell or whistle, were, most of them, in a position that they
could neither see nor hear what was transpiring, and the others
state they did not hear the bell or whistle^ while in the case
1874.] E., E. I. & St. L. E. E. Co. v. Hillmee. 237
Opinion of the Court.
under consideration, the witnesses were near by, and in a posi-
tion to have heard, if the bell had been rung or whistle
sounded.
The plaintiff in this case testified, that, in returning home
from St. Louis, he stopped at Yenice, and hitched his team in
front of Selb's saloon, which is about thirty yards distant from
the railroad crossing. In about ten minutes^ he and his hired
man, who also had a team, unloosed their horses and started.
They listened, but did not hear the cars, a bell or whistle. In his
evidence, he said he cautioned his hired man, who drove ahead,
to drive slowly, and be careful about the train; that they did
drive slowly. The hired man drove over the track; he fol-
lowed. On approaching the crossing he looked up and down
the road, saw no train; crossed the first track, and as he ap-
proached the second track, he discovered the head-light. He
then attempted to stop his team, but failed, and was struck by
the locomotive.
Deitrich Smith, plaintiff's hired man, testified: "I had
good hearing; listened, but heard no train, bell or whistle; if
there had been a bell ringing, or whistle blowing, I would have
heard it; it was a dark night; I looked out for the cars; just
as I got on the track I saw the light, and the cars were about
ten yards from me; at that time it was not possible for Mr.
Hillmer to get off the track; I had just passed over the track
when the train passed over; I looked up and down the track,
or both ways, before I drove on to the track, and did not see
anything there on these tracks at the crossing; this is the mid-
dle one."
In corroboration of this evidence, the plaintiff introduced
five other witnesses, who were, at the time of the accident,
within thirty yards of the crossing, and they testified in sub-
stance, that they were in a position to have heard the bell or
whistle, that they heard the sound of neither, and they are
satisfied the bell was not rung and the whistle was not sounded.
If either had occurred, they could and would have heard the
sound. This evidence can not be regarded as negative testi-
mony, as was said of that in the Still case, but it is more like
238 B., K. I. & St. L. E. E. Co. v. Hillmer. [June T.
Opinion of the Court.
that in the case of Chicago, Burlington and Qumcy R. i?. Go.
v. Cauffmem, 38 111. 426, in which case it was urged, as in this,
that the rule announced in the Still case should govern, but the
court, in disposing of that point, said: "By reference to that
case, it will be seen, that the witnesses who testified that they
did not hear the sound of the bell or whistle, were, most of
them, in a position that they could not see what was transpi-
ring, and the others simply state that they heard neither sound,
whilst in this case the witnesses were near at hand and saw,
and were in a position to hear either the bell or the whistle if
they had been sounded."
But, independent of this fact, the controlling point in the
Still case, and the one upon which the decision turned, was,
that the plaintiff himself was guilty of gross negligence, and
was thus responsible for his own misfortune.
It is, however, insisted by the counsel for the defendant, that
the weight of the evidence is with the defendant, on the ques-
tion of ringing the bell and blowing the whistle.
We have given the evidence a critical examination, as this is
the vital point in the case, and we have not been able to arrive
at the conclusion contended for. On the other hand, we think
it is apparent the clear preponderance of the testimony is with
the plaintiff.
The defendant called, upon this point, S.ve colored witnesses,
who testified that the bell was rung. Their opportunity, how-
ever, for knowing the fact was no better than the witnesses for
plaintiff. In addition to this, three of them were fairly im-
peached by proof that their general reputation for truth and ve-
racity was bad. The evidence of the fifth one was shaken, if not
entirely destroyed, by proof that he had made a statement
upon a material point, out of court, in conflict with his evidence
in court.
The only other witness upon this point was the engineer
upon the train. He testifies the bell was rung. His reason
for thinking such was the fact may not have been satisfactory
to the jury. He said, when the fireman jumped off from the
engine, he still had the bell-rope in his hand.
1874.] E., E. I. & St. L. E. E. Co. v. Hillmer. 239
Opinion of the Court.
This evidence on the part of the defendant proved to be not
sufficient, in the minds of the jury, to overbalance that of the
plaintiff, and we can not say the jury disregarded the prepon-
derance of the evidence, or failed to arrive at a Correct conclu-
sion.
It was a question of fact, purely, for their determination,
upon which there was a conflict in the evidence, and under the
uniform decisions of this court, we could not disturb the find-
ing of the jury, even if we were inclined to the belief the
Weight of evidence was with the defendant.
The rule of law on a state of facts disclosed by this record,
has been frequently announced by this court, and ought to be
well understood.
While the plaintiff may have been guilty of some degree of
negligence, yet, if it was slight in comparison with that of the
defendant, which was gross, it would be no bar to a recovery.
Chicago, Burlington and Quiney Railroad Co, v. Triplett,
38 111. 484.
It is not seriously contended in this case, that the plaintiff
failed to exercise that degree of care and caution that a pru-
dent man would. He approached the crossing slowly, listened
and looked, in order to avoid danger if a train was coming.
His hired hand did the same. Neither saw or heard the train
until it was too late to avoid the collision.
There is another fact disclosed by this record, that no doubt
had, and justly too, great weight with the jury in arriving at
the conclusion that the negligence of the defendant caused the
injury. The evidence tends to show that the view of the train
was obstructed by corn cribs, standing near the track, so that
it was difficult to see the train from the direction from which
it came.
It was said in the case of Chicago, Burlmgton and Quiney
Railroad Co. v. Payne, 59 111. 541, a railroad company is
chargeable with notice of all the perilous circumstances of a
crossing constructed by itself.
A railroad company should not permit obstructions upon its
240 E., E. I. & St. L. E. E. Co. v. Hillmee. [June T.
Opinion of the Court.
right of way near a crossing, which will prevent the public
from observing the approach of trains upon the track.
It was said by this court, in the case of Chicago and Rock
Island Railroad Go. v. Still, 19 111. 508, and the same doc-
trine has been reaffirmed in subsequent cases, that railroad
companies, in operating their cars, must be held, in crossing
public highways, to so regulate the speed of their trains, and
to give such signals to persons passing, that all may be ap-
prised of the danger of crossing the railroad track. A failure
in any of these duties, on their part, should render them liable
for injuries inflicted, and for wrongs resulting from its omis-
sions.
Aside from the fact that the jury have found the bell was
not rung or whistle sounded, there was evidence tending to
prove that the train was running at a high rate of speed over
a known dangerous crossing. While the engine-driver fixes
the speed at which the train was running at twelve miles per
hour, other evidence was introduced that the train was running
at a high rate of speed, and this seems to have been corrobo-
rated by the fact that one of the horses struck by the engine
was carried a distance of 500 or 600 yards before the train
stopped.
The jury in this case, by the verdict, have found the plain-
tiff exercised due care ; that the train of defendant was running
at a high rate of speed, over a known dangerous crossing, with-
out giving notice of the approach of the train by ringing the
bell or sounding the whistle. If these facts be true, and the
evidence seems to be sufficient to justify them, we can not dis-
turb the judgment. It will therefore be affirmed.
Judgment affirmed.
1874.] Mix v. The People ex rel. 241
Syllabus.
James Mix
v.
The People ex rel. Leonard Pierpont.
1. Taxes — what sufficient levy of, by board of supervisors. An order of
the board of supervisors which shows that the committee on county taxes
reported that they had examined the accounts of the county, and they recom-
mended that a tax of $25,000, for all purposes, be levied for the year, upon
all taxable property of the county, and that, on motion, the report was
adopted, is, in effect, an order that the tax be levied.
2. Same — levy in excess of per cent allowed, does not vitiate whole tax. A
levy of taxes in excess of the per cent allowed by the constitution, does not
render the whole tax void, but only so much of it as is in excess of the con-
stitutional limit, if the tax within the constitutional limit can be separated
from the portion that is in excess of that limit.
3. Same — exercise of power to levy, always carefully guarded. The levy
of a tax is, in its nature, despotic, and is liable to serious abuse, and hence
its exercise is always guarded with care. The power in the officers making
such levies being delegated by law, they must exercise it within the limits
of the law, and all their acts beyond the scope of the power delegated are
void.
4. So, where the authorities of towns, townships, districts, etc., are by
law required annually, on or before a day specified, to certify to the county
clerk the several amounts which they require to be raised by taxation, such
certificates must be filed within the time limited to authorize the extension
of the tax required, on the collector's books, by the county clerk.
5. Same — equalization of by board of supervisors. An equalization by
the board of supervisors, made by arbitrarily fixing the value of improved
.ands in each town, at a uniform specified valuation, is illegal, and hence,
if the clerk disregards such equalization, and extends the tax on the asses-
sor's return, the tax is not thereby vitiated or rendered illegal.
6. County clerk — only a ministerial officer, in extending taxes under
order of board of supervisors. The county clerk is a ministerial officer,
and has no discretion, in acting under the orders of the board of supervisors,
in extending taxes upon their equalization; and if he refuses to extend the
tax on their equalization, he does so at his peril, and can only justify such
refusal on the ground that to do so would violate the constitution of the
State.
Appeal from the Circuit Court of Ford county; the Hon.
Thomas F. Tipton, Judge, presiding.
16— 72d III.
242 Mix v. The People ex rel. [June T.
Opinion of the Court.
Mr. Stephen R. Moore, and Mr. Alex. McElroy, for the
appellant.
Mr. A. Sample, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
It is first objected that there was not a levy of a county tax
— that the action of the board of supervisors did not amount
to a levy. The order adopted was this: "The committee on
county taxes reported that they have examined the accounts
of the county, and they recommend that a tax of $25,000, for
all purposes, be levied for the year 1872, upon all the taxable
property of the county, and, on motion, the report was adopted."
Does the order, by a fair and reasonable construction, levy the
$25,000 for county taxes? The committee recommend the levy,
and the board adopt the recommendation. This is, we think,
a fair and reasonable construction of the order. It is not
formal, but such is its substance, and the law regards sub-
stance, not form.
The frequent changes in such offices leave the people, a
portion of the time, without trained and experienced persons
to perform duties in which the public have a deep interest, and
hence to apply rigid rules, requiring accurate and precise form
to their orders, would be to obstruct public aifairs to a ruinous
extent. "Whilst it is essential that it appear that the tax was
levied, still it does not matter in what form it does appear;
and when the board say that they adopt the report recom-
mending the levy, they make the report their own, and it is
the same as resolving, in terms, that the tax be levied. * It, in
effect, is the same as had the words been added, " and that said
tax be and the same is hereby levied," which would be admit-
ted by all to be sufficient in such an order.
It is also insisted that, even if the levy was made, it being
in excess of the per cent allowed by the constitution, the entire
levy is void. The 8th section of article 9 provides that the
" county authorities shall never assess taxes the aggregate of
1874.] Mix v. The People ex rel. 243
Opinion of the Court.
which shall exceed 75 cents per $100 valuation, except for the
payment of indebtedness existing at the adoption of this con-
stitution, unless authorized by a vote of the people of the
county." This provision renders all of this tax void which is
in excess of the constitutional limit; but the books abound in
cases which hold that, in the exercise of a power, any excessive
action beyond the power will not vitiate acts within the power,
where the acts well performed can be separated from those that
are unauthorized. Here, there can be no question that 75 cents
on the $100 valuation was fully warranted, and that sum can
be readily separated from the illegal and unauthorized sum
levied in excess of that amount. It requires but a simple cal-
culation to make the separation with precision. In such cases,
this court has uniformly held that the tax levied within the
limit of the power will be sustained when it can be separated
from the portion that is illegal. (JKane v. Treat, 25 111. 557;
Briscoe v. Allison, 43 ib. 291 ; State of Illinois v. Allen, ib.
456; Allen v. Peoria and Bureau Valley Railroad Co. 44 ib.
85; The People v. Nichols, 49 ib. 517.
It has been so repeatedly held that an illegal levy of a tax
does not vitiate or aifect the portion legally levied, when the
two can be separated, that the question must be regarded as
settled, and we must decline its further discussion. The court
below did not, therefore, err in separating the legal portion of
the levy for county purposes from the illegal, and in rendering
judgment for the portion authorized by law.
It is next urged that the local tax for town, school, road and
bridge purposes, and the tax for the payment of interest on
registered bonds, were not levied in the manner and within
the time prescribed by law, and are, therefore, void. Section
122, Laws of 1872, p. 31, provides " that the proper authorities
of towns, townships, districts and incorporated cities, towns
and villages, shall annually, on or before the second Tuesday
in August, certify to the county clerk the several amounts
which they require to be raised by taxation." In this case,
the certificates were not filed until after the time specified in
the act had expired. The language of the statute is plain and
244 Mix v. The People ex rel. [June T.
Opinion of the Court.
entirely unambiguous. It will bear no construction. But it
is urged that the law is merely directory. Had the General
Assembly intended to permit the filing of the certificate at
any time before the collector's books were delivered to him by
the clerk, why not say so, and not have specified that the act
should be done on or before a specified day? They must be
presumed to have known that, from carelessness or want of
information, cases would occur in which the certificate would
not be filed, and yet they have made no provision for such a
contingency.
It is said no reason exists why the levy should be made and
returned by the second Tuesday in August. There may be the
most cogent reasons. If any illegality should exist in the rate
of the tax, or the manner of its levy, or want of power to levy
the tax, either because the law has not authorized it or because
it is not for an authorized purpose, or if, for any other reason,
the tax is illegally levied, the tax payers should have a reason-
able time within which to take steps to prevent its extension
on the collector's books. Again, to enable the books to be
properly prepared, the clerk must have a reasonable time for
their preparation, and the extension of the various taxes after
the levy is made. If the officers have until the time the
books are delivered to the collector to make and return their
levy, there would, to render the act effective, be a duty devolv-
ing on the clerk to extend the tax on the collector's books.
The General Assembly has required the assessor's books to be
returned by a specified day, and all taxes to be levied by a
designated period, that the clerk may, after that time, and
before the day he is required to deliver the books, have time
to prepare them and extend all the taxes.
If, then, these local officers may legally, at any time, make
their levy, and the clerk is bound to regard and act upon it,
then they have it in their power to hinder, delay and obstruct
the collection of the entire revenue, by their negligence or
incompetency. Such a power to obstruct the collection of all
taxes, in the municipality making such a levy, can not exist,
nor was it intended that it should. The only remedy, as the
1874.] Mix v. The People ex rel. 245
Opinion of the Court.
law now exists, is, for the people to select competent officers,
who are faithful in the discharge of their duties, and when
they are not, hold them responsible for the neglect of such a
plain and obvious duty, of the existence of which we can not
suppose any such officers could be ignorant.
Again, this power to levy a tax, and thus summarily deprive
the citizen of his property, is one of the greatest and most
important acts of sovereignty. It is, to a considerable extent,
discretionary as to amount and the purposes to which it shall
be applied — whether it shall be liberally or economically ex-
pended. The levy is made, and the amount of property which
shall be taken from the citizen is ex-parte, and without notice
to, or opportunity of, the tax payer to be heard before he is
deprived of his property ; and it is a power in the exercise of
which there is a great tendency to abuse, as those exercising
the power are dealing principally with the property of others,
in the levy and expenditure of the tax. It is a power that has
been delegated by the law to such officers, and in the exercise
of which the officers must be required to conform to the law
conferring the power. It can not be held to be an unlimited
authority, leaving the property of the citizen to the mercy of
such bodies and officers.
The levy of a tax is in its very nature despotic, and is liable,
from a variety of causes, to serious abuse, and hence its exer-
cise is always guarded with care. The power in such officers
being delegated by the law, they must be held to exercise it
within the limits of the law. Where the amount is limited,
they are powerless to exceed that amount, and all their acts
beyond the scope of the power delegated are void. This is a
question of power, and the limits to that power ; and, in grant-
ing the power,' the General Assembly has limited, in the clearest
manner, the time in which it must be exercised. "Were a per-
son to duly empower another to sell real estate on or before a
specified day, no one would contend that he could make a valid
sale after that day; and for the reason, as all would say, the
time had expired, the power had ceased, and he had acted with-
246 Mix v. The People ex rel. [June T.
Opinion of the Court.
out authority. All acts performed without authority are held
to be void.
In Cowgill v. Long, 15 111. 202, this court held that, where
the levy and return of a school tax to the clerk, under a law
similar in its provisions, was not made in the prescribed time,
it was void; and it was there said that the law was per-
emptory, and must be obeyed. It is true, what was there said
was unnecessary to the decision of the case, as it turned on
another point, still the question seems to have been maturely
considered and the point deliberately decided, and hence is not
without force.
The clerk received the certificate of the levy by the Auditor,
in the latter part of September, for interest on the registered
bonds of the county, and extended the tax, and in this we per-
ceive no irregularity. The 4th section of the act of 1869, p. 316,
under which this levy by the Auditor was made, prescribes no
time in which the certificate shall be made and filed with the
clerk, and hence he is not governed by the 122d section of the
Eevenue Law of 1872. He may make and file the certificate
at any time in which the tax will be extended on the collector's
books, and it will be legal. Exceptions have been taken to this
certificate, but we have looked into the record and examined it,
and fail to perceive that it in any manner fails to conform to
the law. The Auditor says that he and the Treasurer have
estimated and ascertained the amount necessary to raise the
requisite sum of money to pay the interest on the registered
bonds of the county, and notified the clerk to extend the same.
This is in strict conformity to the law.
As was held in the case of The State v. Allen, supra, this
equalization was illegal, and the clerk, by extending the tax on
the assessor's return, did not vitiate the tax or render it illegal.
As we held in that case, there should have been an equaliza-
tion, by adding or deducting a given per cent from the valua-
tion by the assessor. There was no warrant for arbitrarily
fixing the value of improved lands in each town at a uniform
specified valuation, and so of unimproved lands. This entirely
ignores all difference in the quality and value of lands. A
1874.] Baptist Education Society v. Carter. 247
Syllabus.
person owning a piece of poor land, with improvements of
but little value, would, under the rule adopted, be taxed as
much per acre as would the owner of land worth five-fold
value, with fine and valuable improvements ; and the same is
true of unimproved land, and of articles of personal property.
Such a valuation is arbitrary, unequal and unjust, and is viola-
tive of the provisions of the constitution, and can not be sus-
tained.
The clerk, in taking the responsibility of disobeying the
order of the board to extend the tax on their equalization,
acted at his peril. Had he been mistaken, he and his sureties
would have been liable for all damages resulting from his diso-
bedience. He, being a ministerial officer, has no discretion in
acting under the orders of the board, and can only justify his
refusal to do so on the ground that the act required violates
the constitution of the State. In all other cases he must obey
without discretion.
For the error in rendering judgment for the town and other
local taxes levied after the second Tuesday in August, the judg-
ment of the court below is reversed and the cause remanded.
Judgment reversed.
Teustees of Kentucky Baptist Education Society
v.
Geokge W. Caetee.
Consideration — stibscription as a donation to educational institutions.
Where a subscription to an educational society is made upon condition that
a certain amount shall he obtained in cash, or promissory notes given, for
the same purpose, the labor and expense necessary to obtain such amount, if
it is obtained, is a good consideration for the subscription.
"Writ op Error to the Circuit Court of Pulaski county; the
Hon. David J. Baker, Judge, presiding.
248 Baptist Education Society v. Carter. [June T.
Opinion of the Court.
Mr. Samuel P. Wheeler, for the plaintiffs in error.
Messrs. Green & -Gilbert, for the defendant in error.
Mr. Justice Breese delivered the opinion of the Court :
This was assumpsit, in the Pulaski circuit court, on an in-
strument in writing, as follows :
" $250. Versailles, February 16, 1857.
I promise to pay to the trustees of the Kentucky Baptist
Education Society, or order, two hundred and fifty dollars, for
value received. This is a donation, which shall be binding and
due when the sum of seventy-five thousand dollars shall be
obtained in cash, or promissory notes, given for like purpose.
One-fifth of this donation shall be paid when the above sum is
obtained, and the balance with interest in four equal annual
payments thereafter. The fact that such sum has been ob-
tained, and the time when completed, shall . be determined by
the executive committee of said trustees, and entered upon
their record. The certificate of the chairman of said commit-
tee shall be evidence of the fact.
George W. Carter."
The amended declaration contained all necessary averments,
and a trial was had on the general issue, and a special plea to
the first count, that the instrument declared on was executed
and delivered as a donation, and without any consideration.
There were other issues of law not necessary to be considered
in the view we have taken of the case.
The jury found for the defendant, and, on overruling a mo-
tion for a new trial, judgment was rendered against the plain-
tiffs for costs, to reverse which they bring the record here by
writ of error.
The principal defense in the court below was placed on the
ground of a total want of consideration to uphold the instru-
ment declared upon, and this is the only important question.
In support of the theory of the defense, some cases are cited
and relied upon, which have been heretofore considered by this
1874.] Baptist Education Society v. Carter. 249
Opinion of the Court.
court. Among them is, Limerick Academy v. Davis, 11
Mass. 113.
An examination of that case will show that the subscription
was made by the defendant before the institution was incorpo-
rated, and much stress is laid on that fact. The court say,
whatever may be the import or effect of this promise, the plain-
tiffs are not the promisees, the parties recognized by the de-
fendant in his undertaking; for, at the time of the promise, the
corporation had no existence.
This was decisive of the case, but the court said the promise
was not binding by reason of a want of mutuality, and there
being no valuable consideration. Such a subscription to an
academy is not a contract to be enforced in an action at law.
This court held, in Cross v. The Pvnckneyville Mill Co. VI
111. 54, that a subscription to stock, made before the organiza-
tion of the company, would be enforced if the organization is
afterwards perfected.
McKmley v. Watkins, 13 111. 140, cited by defendant in
error, holds that a promise is void for want of mutuality, unless
the person to whom it is made agrees on his part not to do the
act which formed the consideration of it. This case grew out
of a horse trade, one party threatening to sue the other, when
the other party promised the complaining party, if he would
not sue, he would give him fifty dollars, or a horse worth that
sum.
The real question underlying cases of this kind has been
discussed by this court in several cases, (Robertson v. March
et al. 3 Scam. 198, Cross v. Pinckneyville Mill Co. supra,
Tonica and Petersburg Railroad Co. v. McNeely, Admr.
21 111. 71, Prior v. Cam, 25 ib. 292, Griswold v. Trustees
of Peoria University, 26 ib. 41, Thompson v. The Board of
Supervisors of Mercer County, 40 ib. 379, McClure v. Wil-
son, 43 ib. 356,) which held the doctrine that such a subscrip-
tion may be enforced, if the party to whom it is made incurs
any liabilities, or performs any work or labor on account thereof.
The undertaking of the defendant in this case was on the
condition that the plaintiffs should raise seventy-five thousand
250 Dewey v. Willoughby. [June T.
Syllabus.
dollars in cash, or promissory notes, to be given by other par-
ties, for the same purpose. To avail of this act of the defend-
ant, the plaintiffs were required to expend time, labor, and
perhaps money, in raising the additional seventy-five thousand
dollars, and if they did so, and that is averred, we do not see
why there is not, in morals and in law, a good consideration
for defendant's promise.
There are other points made in the case, which we do not
deem it necessary to notice, being satisfied the amended decla-
ration contains a good cause of action, and the verdict and
judgment should have been for the plaintiffs.
The judgment is reversed and the cause remanded, that a
new trial may be had.
Judgment reversed.
John Dewey
John H. B. Willoughby.
1. Judicial sale — liability of bidders. "Where a constable, having a
junior execution issued upon a senior judgment, acting by authority of the
plaintiff in his execution, bids on property of the defendant at a sale by
another constable under a senior execution, the party for whom the bid is
made will have to pay it, notwithstanding both he and the constable making
the bid for him understood, at the time, that the proceeds of the sale would
have to be first applied to the payment of his execution.
2. Where one bids on property at a constable's sale, for and in the name
of another, the question as to his authority to make the bid, where the evi-
dence on the question is conflicting, is one eminently for the jury, and if
they find the authority existed, then the party for whom the bid was made
will be liable for the amount of the bid.
3. Same — conditional bids. A constable is not authorized to accept a
conditional bid at a sale made by him under execution.
Appeal from the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
1874.] Dewey v. Willoughby. 251
Opinion of the Court.
Messrs. Gillespie & Happy, for the appellant.
Mr. A. W. Metcalf, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
Appellee was a constable, and as such levied on a lot of wheat
standing in the field, by virtue of two executions. At the sale,
it is claimed, appellant became the purchaser, and having
failed to pay for it, this suit was brought to recover the amount
of the alleged bid.
The defense is, appellant's bid was upon condition it should
be credited on a junior execution in his favor, then in the hands
of constable Caswell, which had been issued on a judgment
that was older than either of the judgments on which the exe-
cutions had been issued, that were then in the hands of appellee,
under which he was selling the property. It is claimed, appel-
lant and Caswell were both of opinion the oldest judgment
should be first satisfied out of the proceeds of the sale of the
wheat, without reference to the date of the executions, and, it is
said, it was under that belief the bid was made.
The jury having been most favorably instructed for appel-
lant, as his counsel now insist the law is, the only point made
is, the verdict is contrary to the weight of the evidence and the
instructions of the court.
The bid that was made on the property was made by Caswell,
acting on behalf of appellant, who, though present a short time
before, was not present when the sale actually took place.
There is no controversy as to the fact, Caswell was authorized
to bid off the wheat for appellant, and, in pursuance of his in-
structions, he bid $60. The dispute is as to whether the bid
was absolute or conditional.
The weight of the evidence seems to be, the bid made by
Caswell, when announced in the presence of other bidders, was
without conditions. Armstrong, who was interested in one of
the executions in the hands of appellee, bid $59.90, and Cas-
well raised it to $60, when the property was struck off to ap-
pellant. All the witnesses present, except Caswell, testify the
252 Dewey v. Willottghby. [June T.
Opinion of the Court.
bid was unconditional. The officer had no right to receive a
conditional bid, and it seems singular he would receive such a
bid, when there were ~bona fide bidders present.
It is claimed, however, .that Caswell, if he made an uncondi-
tional bid, exceeded his instructions. This is the principal
point in the case.
The evidence as to the nature of the instructions given to
Caswell is conflicting — so much so as to make it eminently a
case for the consideration of a jury. There was evidence from
which they could find Caswell was authorized to purchase the
wheat for appellant, without annexing any conditions to his
bid. Appellant and Caswell both seem to have been under
the impression the proceeds of the sale should be first applied
to the payment of the oldest judgment, notwithstanding his
was the junior execution. The jury may have found, and it
would not be an unreasonable conclusion, the bid made was
absolute, the parties resting in the belief the law would appro-
priate the proceeds of the sale to the discharge of the oldest
judgment.
This theory of the case is most consistent with all the testi-
mony and the acts of the parties. When it was discovered the
law would not appropriate the proceeds of the sale to the old-
est judgment, but it was the duty of the officer to apply the
amount realized out of the sale of the wheat on the oldest exe-
cution, appellant declined to pay for it, notwithstanding it had
been struck off to him on the bid made for him by Caswell.
On the whole evidence we are satisfied justice has been done,
and the judgment must be affirmed.
Judgment affirmed.
1874.] Caieo & Yin. E. K. Co. v. Dodge et al. . 253
Opinion of the Court.
Cairo and Vincennes Eailroad Company
v.
Frederick Dodge et al.
1. Pleading — a plea which sets up something to be done under a contract
should set out the contract. A plea setting up a partial failure of the consid-
eration of a note, by reason of the non-performance of an agreement by the
plaintiff to pay all persons who had done work, furnished materials or ren-
dered services, etc., under a certain contract in the agreement mentioned,
without setting out the contract referred to in the plea as mentioned in the
agreement, is defective.
2. Same — should state facts, and not conclusions. A plea, that the de-
fendant assumed and became liable for the payment of certain claims
against the plaintiff, whereby the plaintiff was released from their payment,
without stating in what manner the defendant became liable, or how the
plaintiff became released from their payment, is defective.
3. Same — set-off— money assumed to be paid, npt the subject of plea. There
is no sanction for a plea of set-off, or an indebitatus count for money assumed
to be paid, or for money paid and assumed to b# paid.
4. A plea of set-off for money paid and assumed to be paid, in pursuance
of a certain agreement, should set out what the agreement was, in the re-
spect referred to, and if it fails to do so, it is defective in that respect.
Appeal from the Circuit Court of Alexander county; the
Hon. David J. Baker, Judge, presiding.
Messrs. Green & Gilbert, and Mr. Green B. Katjm, for the
appellant.
Mr. Samuel P. "Wheeler, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action upon a promissory note, wherein, upon
trial under the plea of the general issue, judgment was recov-
ered against the defendant for $16,880, from which defendant
took an appeal.
The error assigned is the sustaining of demurrers to the 2d,
3d, 4th, 5th and 6th pleas.
254: Cairo & Yin. E. K. Co. v. Dodge et al. [June T.
Opinion of the Court.
The pleas, with the exception of the 4th, so far as respects
the question of their sufficiency, are substantially alike, and
the 6th one, which is the most concise, will show their nature,
and is as follows:
" 6th plea. And for further plea in this behalf, the said de-
fendant says actio non, because, he says, the consideration
for which said promissory note was given has partially failed,
and that said promissory note is the sole cause of action of
each of said counts; that the only consideration for which said
promissory note was given was the execution and delivery by
plaintiffs to defendant of a certain agreement in writing. And
by the said agreement in writing, the said plaintiffs agreed
with the defendant, among other things, to pay all persons
who had, before that time, done work, furnished materials, or
rendered services of any kind connected with the Cairo and
Yincennes railroad, under a certain contract in said agreement
mentioned, or by any arrangement with said plaintiffs; and
the defendant avers that certain persons did work under said
contract amounting to a large sum of money, to-wit: $10,000;
and furnished materials under said contract amounting to a
large sum of money, to-wit : $5000 ; which said sums of money
said plaintiffs were legally bound to pay by the agreement
aforesaid, but which sums of money defendant, in fact, says the
said plaintiffs wholly refused to pay, though often requested so
to do, whereby said defendant was greatly annoyed, harrassed
and inconvenienced, and thereupon the said defendant assumed
the payment of the said several sums of money so alleged to
be due for work done under said contract, and materials fur-
nished under said contract, and thereby, then and there, re-
leased the said plaintiffs from the payment of the said several
sums of money, and became, and was, at and before the com-
mencement of this suit, liable and legally bound for the pay-
ment of said large sums of money, to-wit: $15,000. Where-
fore, defendant says, the consideration of the said promissory
note in said declaration mentioned, to the extent of the sum
of $15,000, has failed."
1874.] Cairo & Yin. E. E. Co. v. Dodge et al. 255
Opinion of the Court.
This plea is specially defective, in not setting out the con-
tract named in the plea as mentioned in the written agreement
therein described, so that it might appear what manner of con-
tract it was, who the parties to it were, and who, under its
terms, was liable for the work and materials done and furnished
under it. Other pleas do set out that contract, whereby it
appears to have been one made by the plaintiffs, as contractors,
with the defendant, for the construction of the Cairo and Yin-
cennes railroad by the plaintiffs for the defendant; and the
pleas further aver that, by the written agreement described,
said contract for the construction of the road was to be can-
celed, and that all obligations of either party thereunder
should cease and determine from the 17th of January, 1872,
the date of the written agreement.
All the pleas seek, evidently, to set up the same matter of
defense, but in varying forms. Had the 6th plea set out the
contract therein named, as it should have done, it would have
appeared, doubtless, to be the one described in the other pleas.
This agreement set up in the pleas is one of indemnity to
the railroad company, against claims for work and materials
done and furnished for the construction of the railroad, which
claims had been incurred by the plaintiffs as railroad contract-
ors, under their contract for the construction of the road. It
was an agreement by the plaintiffs to pay their own liabilities,
as contractors, for work done on the road.
In order to a cause of action under such an agreement, the
defendant must have suffered injury by reason of the plaintiffs'
non-payment of the claims; it must have paid the claims, in
whole or in part; it is not sufficient that it assumes and becomes
liable for their payment, at least unless it was by the giving of
negotiable paper, which, by some authorities, has been held
equivalent to payment.
But the averment here is general, that the defendant assumed
and became liable for the payment of the claims, whereby the
plaintiffs were released from their payment, without stating in
what manner the defendant became liable for, or how the plain-
tiffs became released from their payment. The mode and
256 St, Louis & S. E. By. Co. v. Bkitz. [June T.
Syllabus.
manner of the alleged assumption, and liability and release,
should have been shown, so that the court might see whether
the defendant had made a valid assumption of, and became
liable for, the claims, and that plaintiffs had become released.
The pleas are defective in this respect; in stating conclu-
sions, and not averring facts.
There is a want of requisite certainty in the specification of
these claims, as to their character, amount, and to whom due.
The 4th plea is one of set-off, of an indebtedness of $20,000,
"for so much money paid and assumed to be paid by the de-
fendant, for and at the request of the plaintiffs, under and in
pursuance of a certain agreement between plaintiffs and defend-
ant, before that time entered into, by which payment and
assumption of payment by defendant the plaintiffs were re-
leased and discharged from the payment of the said $20,000
before that time due and owing by the plaintiffs."
Had the subject of the plea been simply for money paid by
defendant for the plaintiffs, at their request, the plea would
have conformed to precedent. But we know of no sanction for
a plea of set-off, or an indebitatus count, for money assumed
to be paid, or for money paid and assumed to be paid. In its
reference to a certain agreement, the plea is defective in not
setting out what it was in the respect referred to.
"We find no error in sustaining the demurrers to the pleas.
Judgment affirmed.
The St. Louis and Southeastern Eailway Co.
v.
Henry Britz.
1. Master and servants — who cure co-servants. The engineer, brakemen
and sliovelers employed on a construction train are all co-servants, engaged in
the same branch of service, and a shoveler who is injured through the neg-
ligence of the engineer or brakemen can not recover from their common
employer for such injury, if the employer has used due diligence in their
selection.
1874.] St. Louis & S. E. Ey. Co. v. Bkitz. 257
Opinion of the Court.
2. Same — servant can not recover against master for injuries sustained
through defective machinery. Where an employee, after having the oppor-
tunity of becoming acquainted with the risks of his situation, accepts them,
he can not complain if he is subsequently injured by such exposures ; hence,
an employee on a construction train, who is aware that the brakes on the
cars are defective, or who has had an opportunity to know it, and still con-
tinues in such employment, can not recover, in a suit against his employer,
for injuries sustained by reason of such defective brakes.
3. Negligence — -plaintiff guilty can not recover, unless his is slight and
defendant's gross. Although the defendant's negligence may have been the
prime cause of the injury to the plaintiff, yet, if the plaintiff, by the exercise
of due care, might have avoided receiving the injury, and his negligence is
slight and that of defendant gross, when compared with each other, the
plaintiff can not recover.
4. Verdict — when general and special are not reconcilable. When the
general verdict of the jury is inconsistent, and not reconcilable with the facts
specially found in reply to questions propounded to them by the court for
special finding, the general verdict should be set aside.
5. Instruction — must state all facts necessary to be proved. An instruc-
tion which assumes to be, in itself, a complete statement of a case which,
under the law, entitles a party to recover, must state fully all that need be
proved, so that, if there were no other evidence, there could be no question
as to the rights of the parties.
Appeal from the Circuit Court of St. Clair county; the
Hon. William H. Snyder, Judge, presiding.
Mr. J. M. Hamill, for the appellant.
Mr. "William Winkelman, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court:
This was an action on the case, by appellee against appel-
lant, for injuries received while employed as a laborer on one
of appellant's construction trains. The train on which appellee
was employed was used in hauling gravel, and appellee's prin-
cipal work was that of a shoveler, in loading and unloading the
cars. In the performance of this work it was necessary that
he should ride on the train from the places of loading to those
of unloading; and while thus engaged, on the evening of the
3d of April, 1873, the train on which he was ran into a passen-
17— 72d III.
258 St. Louis & S. E. Ry. Co. v. Beitz. [June T.
Opinion of the Court.
ger train standing on the track at French Village, and appellee
was either thrown from the car by the effect of the collision, or
he jumped from it to avoid anticipated harm, and thus received
the injuries complained of.
The jury found, by their general verdict, that the defendant
was guilty, and assessed appellee's damages at $250. They
also found specially, in response to interrogatories propounded
to them, as follows:
1st. Was the plaintiff injured by the negligence of any of
his fellow servants on the construction train, including the
engine-driver or engineer?
Answer — 'No.
2d. If the construction train had been running at a proper
rate of speed, and under full control, as it approached the sta-
tion, would the injury to the plaintiff have occurred?
Answer — ~No.
3d. Does it appear, from the evidence, that the engine-driver
or engineer was competent for that business?
Answer — Yes.
The only questions necessary to be noticed arise upon these
special findings, and the giving of an instruction at the request
of appellee.
If, as the special finding shows, the injury to appellee would
not have occurred if the train had been running at a proper
rate of speed and under full control as it approached the sta-
tion, the converse must be true, that he received his injury in
consequence of the train not being run at a proper rate of speed
and under full control as it approached the station. How this
could be, and yet the fellow servants of appellee be without
fault, is, to us, incomprehensible. The engineer had charge of
the engine, and there is no evidence that it was so defective in
its construction, or so badly out of repair, that he could not
control it, nor is there any pretense that it was controlled by
any one else. It was the duty of the laborers on the train to
assist in braking, when required, and although appellee denies
that he was employed for that purpose, and it does not appear
that he was ever specially called on to assist in braking, still the
1874.] St. Louis & S. E. Ey. Co. v. Britz. 259
Opinion of the Court.
evidence shows that he was employed generally as a laborer on
the train; that the running of the train, and the control and
direction of its employees, were under one boss or conductor;
and that it was the habit of the shovelers to assist in braking,
when required.
The engineer, brakemen and shovelers were co-servants of
appellant, engaged in the same branch of service, and bound
by the commands of the same superior. This was settled in
Chicago and Alton Railroad Go. v. Keefe, 47 111. 108. The
only difference, in this respect, between that and the present
case is, there, the principal employment of the laborers was
handling railroad iron, while here, it was shoveling gravel. In
that case the laborer was injured through the negligence of the
engineer in giving the proper signal before backing the train,
and it was held, that was one of the perils contemplated in his
employment by the company. The court said: "If his (the
plaintiff's) duties attach him to the train as a part of its per-
sonal equipment, then his branch of service is not independent,
in any such sense as to exempt him from the general rule in
regard to co-employees, in case he should be injured through
the carelessness of the engineer."
It was also said, in the same case: "In Honner v. Illinois
Central Railroad Co. 15 111. 550, Illinois Central Railroad
Co. v. Cox, 21 ib. 20, and Moss v. Johnson, 22 ib. 633, this
court, upon a full examination of the subject, and in conformity
with the great current of authorities, held that one servant can
not recover against the common master for injuries resulting
from the carelessness of a fellow servant, if the master had used
due diligence in their selection." See, also, Chicago and Alton
Railroad Co. v. Murphy, 53 111. 336.
For negligence, then, in managing the engine or the brakes,
appellee is not entitled to recover, there being no claim made
or proved that appellant was guilty of negligence in selecting
its employees to whom these duties belonged.
But, it is claimed that appellant was negligent in not pro-
viding proper brakes for each of the cars, and the court, at the
260 St. Louis & S. E. By. Co. v. Bkitz. [June T.
Opinion of the Court.
instance of appellee, instructed the jury upon this point as
follows :
"The court instructs the jury, that it is the duty of the rail-
road company, the defendant in this suit, when persons are
carried on its road, to provide good and safe machinery, and
keep the same in good order while used in operating their road.
And if, from the evidence, the jury believe that, before and at
the time of the accident complained of in the declaration, the
defendant knew, or by reasonable diligence could have known,
that its cars were not in proper order, that is the brakes on the
train of cars on which plaintiff was riding at the time of the
accident, and that the injury to the plaintiff would not have
occurred had said brakes been in proper order, then the jury
must find for the plaintiff."
This instruction is entirely too broad, and excludes from the
jury the consideration of important evidence, essential to the
correct determination of the rights of the parties. There was
evidence tending to show (but as to the weight of which we
express no opinion) that plaintiff received his injuries solely in
consequence of his carelessness in jumping from the train, con-
trary to the remonstrances of the conductor.
It is familiar law in this court, that although the negli-
gence of the defendant may have been the prime cause of the
plaintiff's injury, yet if, by the exercise of due care, he might
have avoided receiving the injury, and his negligence is not
slight and that of the defendant gross, when compared with
each other, he can not recover. Yet this hypothesis, fairly
presented to the jury by the evidence, is entirely excluded by
this instruction, and it is made their duty to find for the plain-
tiff, however grossly negligent he may have been, upon the
single hypothesis that the injury would not have occurred if
the brakes had been in proper condition. This was a circum-
stance to be considered in determining the comparative negli-
gence of the parties, but not necessarily a controlling one, for
many other hypotheses can be conceived without which plain-
tiff could not have received his injury, but which have nothing
1874.] St. Louis & S. E. Br. Co. v. Britz. 261
Opinion of the Court.
at all to do with the question of relative negligence, as, for in-
stance, if the appellant had not had a railroad, or had not had
a construction train, or had not had it employed at the time
and place it was, or had not employed appellee to work on it,
he certainly could not have received that particular injury.
There was, also, evidence tending to show that appellee had
been familiar with the defective condition of the brakes for
some time ; that he made no complaint to the officers of appel-
lant on that account, and freely continued to work and ride on
the train, with full knowledge of whatever peril was thereby
occasioned. If this was true, then he can not recover for any
injury he may have received on account of such defective con-
dition of the brakes, for the rule, as stated by an eminent text-
writer, is: "When an employee, after having the opportunity
of becoming acquainted with the risks of his situation, accepts
them, he can not complain if he is subsequently injured by such
exposure." "Wharton on Negligence, § 214. See, also, Moss
v. Johnson, stipra; Illinois Central Railroad Co. v. Jewell,
46 111. 99; Wright v. New York Central Railroad Co. 25
1ST. Y. 564; Hayes v. The Western Trans. Co. 3 dishing, 270.
An instruction which assumes, as this does, to be, in itself,
a complete statement of a case which, under the law, entitles
a party to recover, must state fully all that need be proved, so
that, if there were no other evidence, there could be no question
as to the rights of the parties. The language of the instruction
warranted the jury in laying aside all other instructions, and
considering the case upon it alone, and this they doubtless did.
For error in giving this instruction, as well as because the
general verdict is inconsistent and not reconcilable with the
facts specially found by the jury, the judgment is reversed and
the cause remanded.
Judgment reversed.
262 Davie v. Wisher. [June T.
Opinion of the Court.
Daniel S. Davie
v.
Thomas N. Wishee.
1. Malicious pkosecution — burden of proof. In an action for malicious
prosecution, the burden of proof is on the plaintiff to show clearly that the
defendant did not have probable cause to institute the prosecution com-
plained of.
2. Same— probable cause. Probable cause is denned to be a reasonable
ground of suspicion, supported by circumstances sufficiently strong in them-
selves to warrant a cautious man in the belief that the person accused is
guilty of the offense charged.
3. In an action for malicious prosecution, the question is not whether the
plaintiff was guilty of the offense for which he was prosecuted ; he may
have been entirely innocent, and yet have no ground upon which to sustain
his action.
4. Same — advice of counsel. In an action for malicious prosecution, in
order to enable the defendant to base a defense upon the advice of counsel
given, he should, in perfect good faith, obtain the advice of a competent and
reliable attorney, upon a full and accurate statement of all the facts.
5. Same — motive of plaintiff. On the trial of a suit for malicious pros-
ecution of the plaintiff upon a charge of forgery in making a copy of a
canceled contract, and placing it on record as an original, whilst the motive
that actuated him in making the copy is not a fact directly in issue, yet it is
a circumstance which is proper, in connection with the other facts in the
case, to go to the jury.
Appeal from the Circuit Court of Marion county; the Hon.
Silas L. Bryan, Judge, presiding.
Mr. D. 0. Jones, and Mr. W. "W. Willard, for the appel-
lant.
Mr. B. B. Smith, for the appellee.
Mr. Justice Craig delivered the opinion of the Court:
This was an action on the case, brought by Thomas "Wisher
against Daniel S. Davie. The ground of the action was, that
Davie had maliciously, and without probable cause, prosecuted
"Wisher before a justice of the peace, for forgery.
1874.] Davie v. Wisher. 263
Opinion of the Court.
The cause was tried before a jury in the circuit court of
Marion county, and a verdict rendered in favor of appellee, for
$500. A motion for a new trial was overruled by the court,
and judgment rendered upon the verdict.
Davie brings the cause here by appeal, and assigns for error:
First — The court erred in overruling a motion for a new
trial, and rendering judgment upon the verdict.
Second — Improper evidence was admitted, on the trial, for
appellee.
Third — The court erred in giving instructions for appellee,
and in modifying appellant's 1st and 4th instructions.
As to the instructions given for appellee, we have given
them a careful consideration, and fail to find any substantial
objection to them, and as none has been pointed out in the
argument made by appellant's counsel, we conclude that part
of the error assigned has been abandoned.
The first instruction of appellant read as follows:
" If the jury believe, from the evidence, that the defendant
had given to plaintiff a bond for the conveyance of land, which
was to be void upon the failure of plaintiff to comply with cer-
tain conditions therein named, and those conditions were not
complied with by plaintiff, and that therefore the bond had
become forfeited and void, and had been delivered up to defend-
ant by plaintiff or his agent, and that, previous to such deliv-
ery, plaintiff had copied said bond, or written one of similar
import, signing the defendant's name thereto, or caused the
same to be done, with intent to assert rights under said bond,
to the damage or prejudice of the rights of defendant — such
conduct on the part of plaintiff was sufficient to give the de-
fendant reasonable and probable cause to procure the arrest of
the plaintiff on a charge of forgery, and you should find for
defendant."
This the court modified by striking out all after the word
"defendant,," in the eleventh line, and, in lieu thereof, inserting
the following: " Such conduct on the part of the plaintiff may
264 Davie v. Wisher. [June T.
Opinion of the Court.
be considered by you in passing on tlie question whether de-
fendant had reasonable and probable cause to procure the arrest
of the plaintiff on the charge of forgery."
The modification of the instruction by the court was correct.
We are not prepared to say the facts stated in the instruc-
tion, as drawn, would constitute forgery, or would be a justifi-
cation for a man, reasonably cautious, to institute a criminal
prosecution for that crime. They were, however, competent to
go to the jury as declared by the court in the modification of
the instruction.
The 4th instruction which appellant requested the court to
give to the jury, read as follows:
" If the jury believe, from the evidence, that, previous to
making said charge, defendant, being doubtful of his legal
rights, had consulted legal counsel in relation thereto, (with-
holding no material facts from his counsel,) and made the charge
pursuant to the advice of his attorney, and without malice,
then such advice is sufficient probable cause for making the
charge, and he is not liable to this action, although his coun-
sel may have mistaken the law, and if such facts be proven,
you must find for the defendant."
This the court modified by striking out the words in the
sixth line, "then such advice is sufficient probable cause," and
inserting, " then such advice may be considered by you as suf-
ficient probable cause."
The modification of the instruction did not materially change
its original meaning, but, conceding that it did, appellant could
not justly complain, as the instruction, as modified and given,
was more favorable to him than he had a right to ask or ex-
pect.
In order to enable a party to base a defense upon the advice
of counsel given, he should, in perfect good faith, obtain the
counsel and advice of a competent and reliable attorney.
Neither of these facts was required by the instruction, as the
law required. Boss v. Innis, 26 111. 259; Ames v. Snider,
69 111. 376.
1874.] Davie v. Wisher. 265
Opinion of the Court.
The second point relied upon by appellant, that improper
evidence was admitted, is not well taken. The evidence
admitted, to which exception was taken, was, appellee was
asked to state his motive or intention in taking a copy of the
land contract. This evidence conld do no possible injury to
appellant, and while the motive that actuated appellee was not
a fact directly in issue on the trial, yet it was a circumstance
in connection with the other facts in the case that was proper
to go to the jury.
This brings us to the consideration of the other question
relied upon, that the court erred in overruling the motion for
a new trial.
This point involves the sufficiency of the evidence to sustain
the verdict.
The facts, as shown by the record before us, are briefly
these : Appellant had sold appellee a tract of land in Marion
county, and gave him a bond for a deed. Time was of the
essence of the contract, and a right of forfeiture reserved, in
case payments were not promptly made according to the terms
of the contract.
Appellee failed to make payments according to the terms of
the contract. Some time after there had been a default in
payment, appellee sent an agent to appellant to procure a con-
veyance of a part of the land to a third party. An arrange-
ment was effected by which the contract was surrendered to
appellant, and a conveyance made as desired, for a part of the
land. It was further agreed, that appellee was to have the
remaining portion of the land on the payment of a certain
sum of money, and a new bond was to be given, which, for
some reason, appellant did not execute and deliver. Prior to
this, appellee had taken a copy of the land contract, which he
held in his possession, and, after the surrender of the original,
he placed the copy upon record.
Some time subsequent to the surrender of the bond, appel-
lant was notified that appellee was claiming the land under a
contract executed by appellant. He then went to the record,
and found the contract, examined the signatures, saw it was
266 Davie v. Wisher. [June T.
Opinion of the Court.
not his handwriting, obtained the advice of counsel, and com-
menced a prosecution against appellee for forgery.
The question is not whether appellee was guilty of forgery.
He may have been entirely innocent, and yet have no ground
upon which to sustain this action.
The law casts the burden of proof upon appellee to show
clearly that appellant did not have probable cause to institute
the criminal prosecution. This court has defined probable
cause to be a reasonable ground of suspicion, supported by cir-
cumstances sufficiently strong in themselves to warrant a cau-
tious man in the belief that the person accused is guilty of the
offense charged. Rickey v. McBean, 17 111. 65 ; Ross v. Innis,
35 111. 505; Collms v. Mayte, 50 111. 353; Palmer v. Bieh-
ardson, 70 111. 544.
Did appellee prove, by a clear preponderance of evidence,
that the prosecutor had no sufficient reason to Relieve the
accused guilty, or a want of that element known as probable
cause?
Upon a careful examination of the evidence, we have failed
to arrive at the conclusion that he did. Appellant found a con-
tract, which he had not executed, in the hands of appellee.
He, in company with one Musson, called upon appellee, to
obtain an explanation in regard to the contract. Appellee, as
sworn to by both of these witnesses, claimed to hold a land
contract executed by appellant. The only evidence to contra-
dict the testimony of these two witnesses on this point, is that
of appellee, who testified that he notified them he had a copy
of a contract, so that, upon this point, which is a vital one in
the case, the preponderance was with appellant.
Musson, in his evidence, testifies to two interviews with
appellee, in both of which, as he says, appellee claimed to hold
a contract executed by appellant.
In addition to this, it appears that appellee recorded the
copy of the contract as an original — no mark or character upon
it to notify the public that it was but a copy.
These were the facts that presented themselves to appellant,
and upon which he acted when he instituted the criminal pros-
1874.] K., E. I. & St. L. E. E. Co. v: Beckemeiek. 267
Syllabus.
ecution; and while it is apparent that appellee was not guilty
of forgery, yet if the existence of all these facts afforded prob-
able cause for the arrest, the jury were not warranted in find-
ing a verdict in favor of appellee.
There is another fact that tends to prove the prosecution did
not have its origin in malice. Before the criminal prosecution
was commenced, appellant called npon W. W. Willard, an
attorney at law, for advice, and, upon giving a statement of
facts, he was advised to institute the prosecution.
If this counsel was obtained in perfect good faith, npon a
full and accurate statement of all the facts, from an attorney
reliable and competent, then, under the former decisions of
this court, no recovery could be had. Boss v. Innis, 26 111.
259; Ames v. Snider, supra.
In view of all the facts disclosed by the record, we are satis-
fied the jury have misapprehended the weight of the evidence.
It is apparent the jury lost sight of the fact that appellee
might be innocent, and at the same time have no cause of
action against appellant.
Under these circumstances, justice demands that the cause
be submitted to another jury. The judgment will therefore be
reversed and the cause remanded.
Judgment reversed.
Rockfoed, Rock Island and St. Louis R. R. Co,
Gottlieb Beokemeiee.
1. Covenant— only lies against one who executes a deed. An action of
covenant will not lie against the grantee in a deed executed by the plaintiff,
for a failure by the grantee, after accepting the deed and taking possession
under it, to perform the conditions upon which the deed, as therein expressed,
was executed.
2. Practice — time to object to form of action. When a defendant fails to
raise the question in the court below as to the sufficiency of the form of
action,^either by demurrer or by motion in arrest of judgment, he will be
268 K., K. I. & St. L. K. R. Co. v. Beckemeier. [JuneT.
Opinion of the Court.
regarded as having waived the objection, and will not he permitted to raise
it for the first time in the Supreme Court.
3. Measure of damages — for failure to fence railroad track and erect
depot in consideration of right of way. In a suit against a railroad company
for a failure to erect a depot building upon the plaintiff's land, and also to
erect a sufficient fence on each side of a strip of land conveyed by plaintiff,
which it had undertaken to do in consideration of such conveyance to it, the
value of such strip of land, and the damage occasioned to the balance of the
farm by the failure to fence it, would be the natural and proximate damage
which the plaintiff would be entitled to recover.
4. But any supposed damage to the farm on account of the failure to
build the depot, growing out of anticipated increased value, is too remote
to be considered a necessary consequence of the failure to build the depot,
and for such damages no recovery can be had.
Appeal from the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
Mr. Levi Davis, Jr., for the appellant.
Mr. Charles P. Wise, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
The declaration in this case consists of three counts in cove-
nant. It counts on a deed poll, executed by plaintiff to de-
fendant, for a strip of land through his farm. The consideration
named in the deed was $325, and upon condition that defendant
should erect a depot building upon the section of land upon
which plaintiff's farm was situated, and near the north line of
the farm, and also erect a sufficient fence on each side of the
strip. The deed was delivered to and accepted by the defend-
ant. It is averred that the company took possession and im-
mediately built their railroad over the same, and has since used
and possessed the same. It is then averred, that defendant, by
accepting the deed and taking and holding the land, covenanted
to perform the conditions in the deed. The breach negatives
the performance of the conditions, and avers that defendant
had failed and refused to build the depot, fences and cattle
guards according to the terms of the covenants in the deed.
1874.] B., E. I. & St. L. K. B. Co. v. Beckemeier. 269
Opinion of the Court
A trial was had, resulting in a verdict in favor of plaintiff,
for $1975. After overruling a motion for a new trial, the court
rendered a judgment for the amount of the verdict, and defend-
ant appeals.
It is insisted that the action is misconceived; that whilst
case or assumpsit might lie, covenant can not, inasmuch as this
is but a deed poll, not executed by appellant ; that a party can
not become bound so as to be sued in covenant, unless he shall
have executed the deed containing the covenants. On the
other hand, it is claimed that by accepting the deed and avail-
ing of its benefits the grantee impliedly covenants to perform
the terms and conditions upon which the grant is made; that
an implied covenant may as readily arise as may an implied
assumpsit.
In the case of ^Burnett v. Zynch, 5 Barn. & Cress. 589, it
was held by the four judges of the King's Bench, that where
a lessee, by deed poll, assigned his interest in the demised pre-
mises, subject to the payment of rent and the performance of
the covenants in the lease, and the grantee of the lessee took
and held possession of the premises and occupied them, and
before the end of the term assigned to a third person, and the
lessor having sued the lessee and recovered for a breach of the
covenants, the lessee might maintain case against his grantee
who held under the deed poll. It was there said, that the action
of covenant could not be maintained, except against a person
who,, by himself or some other person acting on his behalf, has
executed a deed, under seal, or who, under very peculiar cir-
cumstances, has agreed, by deed, to do a certain thing. It was
also said: "Here, the defendant has not engaged, by deed, to
perform the covenants, and, consequently, covenant will not
lie."
The rule, as there stated, seems to be strictly in accordance
with the general and well settled practice. It is true, that
where the covenant is inherent, or runs with the land, the
heirs, executors, administrators and assigns may be bound by
such covenants. Shep. Touchstone, 177. But that is an ex-
ception to the general rule, and the case at bar does not faLl
270 E., E. I. & St. L. E. E. Co. v. Beckemeiek. [JuneT.
Opinion of the Court.
within the exception. We are, therefore, clearly of the opin-
ion that this action was misconceived, and will not lie on the
facts averred in the declaration or shown in proof on the trial.
In this case, however, the record fails to show that any de-
mnrrer was filed to the declaration, or a motion in arrest of
judgment entered. Appellants having failed to question the
sufficiency of the form of action, either by demurrer or by mo-
tion in arrest, they must be regarded as having waived the
objection. A party, to avail of such an objection, must raise
the question in the court below. He can not lie by in the court
below, and raise it for the first time in this court. Had
the objection been raised in that court, we will presume it
would have been allowed, and appellee could have amended
under the 23d sec. of the Practice Act, (Laws 1872, p. 342,)
and thus have saved expense and delay.
It is objected that appellee was permitted to prove and re-
cover damages not proximate or necessarily growing out of the
breach, and which were not claimed in the declaration as spe-
cial damages. If the land was conveyed, in whole or in part,
on the consideration that the depot buildings would be erected,
there would seem to be no doubt that the value of such portion
of the land would be the natural and proximate injury growing
out of a failure to comply with the agreement ; and the failure
to fence would necessarily, in a farm like this, produce incon-
venience and loss in the use of the farm. Such would be the
natural result of the omission, and appellee would be entitled
to recover a fair and reasonable compensation for the injury
thus sustained.
But the loss or injury claimed to have been sustained to the
value of the farm, is manifestly not a natural result of the fail-
ure to build a depot. Any loss in the way of shipping his
grain might be, but not the loss of anticipated increased value
to the farm. Whether it would be a benefit to the farm,
and increase its value, would, no doubt, depend on a great
variety of circumstances, certainly too remote to say that it was
a necessary consequence of the failure to build the depot. ]STo
one can know whether a town would be built at such a depot
1874.] K., E. I. & St. L. E. E. Co. v. Beckemeiee. 271
Opinion of the Court.
or not, and even if such would have been the result, no one
could predict its extent, or the increase, if any, it would impart
to appellee's farm.
Again, unless the property was for sale we fail to see how
damages have resulted in this respect. There is no evidence
that the land is intended to be sold, and if not, we fail to com-
prehend how such damages can be ascertained or even can be
sustained. "Were the company to make the fences, crossings
and cattle guards, the presumption is, the farm could be as
profitably used, deducting the amount of land conveyed to the
company, and it would be as productive, rent for as much, and
be quite as useful without as with the depot erected. This is
not, we think, an element of damage in the case. If it has
produced injury, it is remote, uncertain, and altogether shadowy.
The evidence to this point was improperly admitted, and, no
doubt, prejudiced the rights of appellant.
As a means of proving the damage sustained by not fencing,
appellee could show what would be a fair rental with the
fences and what it would be worth without them; or it
could be shown how much less, for use to the owner, the land
would be worth for pasturage or cultivation without the fence,
by reason of the danger of destroying stock; or the damage
might be shown by a variety of modes, leaving the jury to de-
termine the true loss sustained, but in doing so not being
bound to follow any particular mode, the true question being,
what amount of damage appellee has sustained, and the sum
of money that will compensate him for his actual loss.
But for the error indicated, the judgment of the court below
must be reversed and the cause remanded.
Judgment reversed.
272 Warren v. Daniels. [June T.
Opinion of the Court.
Darius C. Warren
Andrew Daniels.
1. Addition to town — when plat is recorded, becomes part of the town.
When a plat of an addition to a town has been duly acknowledged and re-
corded, the addition becomes an integral part of the town, and lots in such
addition are included in a description of property as situated in the town.
2. Specific performance — when should be enforced. A written con-
tract described certain town lots in a town, encumbered by a deed of trust
for a certain amount, and no more ; that the property was rented at a certain
monthly rent, etc., and then provided that, if the lots were as represented,
the parties were to exchange property, the owner of the lots to convey to the
other party the lots described, and the latter to convey to him certain
other property ; the owner of the lots took possession of the property to be
conveyed to him, and the other party, after seeing the lots, refused to com-
ply with the contract: Held, that the owner of the lots, it appearing that
they were as represented, was entitled to a specific performance of the con-
tract, and that, there being nothing in the contract as to the value of the
lots, the question as to their value was not involved in the case.
Appeal from the Circuit Court of Jefferson county; the
Hon. Tazewell B. Tanner, Judge, presiding.
Messrs. Crews & Haynes, and Mr. W. Stoker, for the ap-
pellant.
Messrs. Casey & Dwight, for the appellee.
Mr. Justice Breese delivered the opinion of the Court:
On the 23d of March, 1872, appellant, Darius C. Warren,
entered into a written contract, drawn up by himself, with
Andrew Daniels, the appellee, to exchange certain property,
namely, a tract of land containing forty acres, then owned by
Warren, for two certain town lots, one with a house and well
thereon, situate in the town of Greenville, in Bond county.
The agreement recites that said house and lots are incum-
bered by a deed of trust due August 25, 1872, for two hundred
and twenty-seven dollars, and no more; that the property was
1874.] Warren v. Daniels. 273
Opinion of the Court.
rented for six dollars per month from and after December 25,
1871, and that the rent and proceeds of said house and lots
were to go to settle, first, sixteen dollars repairs done on the
honse, and the balance on the deed of trust for Warren's ben-
efit. The agreement contains this further clause: "In the
event the property is what it is represented, then, in that case, I,
D. C. Warren, obligate myself to make said Daniels a good
deed to said forty acres of land, and said Andrew Daniels is to
make said Warren a good deed to said lots in the town of
Greenville, and change property; and, in this event, I, D. C.
Warren, am to pay off the said two hundred and twenty-seven
dollars deed of trust, and all this completes the trade and con-
tract."
The tract of land is described in the bill as the south-east
quarter of the north-west quarter of section fourteen (14),
township one (1) south, range one (1) east of the third princi-
pal meridian, and the Greenville lots are described therein as
lots twenty-five (25) and twenty-six (26), in Hutchinson's
addition to the town of Greenville.
It seems, Daniels, after making this contract, was put in
possession of this tract of land by Warren, and made some
necessary improvements thereon. Warren went to Greenville
to examine the lots, and, returning, gave Daniels notice he
would not comply with the contract.
Daniels then tendered a good and sufficient deed to Warren
for the Greenville lots, and demanded a deed from him of the
land, which Warren refused to make. Whereupon, Daniels
filed his bill in chancery, to enforce a specific performance of
the contract.
The cause coming on to be heard on bill, answer, replication
and depositions, the court decreed as prayed.
To reverse this decree Warren appeals, making the point
that the decree is contrary to law and evidence, and against
justice and equity.
The evidence is spread out in the record, and we have atten-
tively read and considered it, and can see nothing in it which
should bar complainant of the relief sought.
18— 72d III.
274 Wakren v. Daniels. [June T.
Opinion of the Court.
The main complaint on the part of appellant is, that the
Greenville lots were not in the town of Greenville, and that
the deed of trust exceeded two hundred and twenty-seven dol-
lars. ',',-•
There is no controversy that the plat of Hutchinson's addi-
tion to Greenville has not been duly acknowledged and recorded.
We consider that fact as admitted, and being so, the addition
became an integral part of the town of Greenville, (Rev. Stat.
1845, ch. 25,) and there was no misrepresentation in this
regard.
It seems, when the lots were sold under the deed of trust,
they were struck off for two hundred and fifty-seven dollars,
but the proof is quite satisfactory the debt it was made to
secure was only two hundred and twenty-seven dollars, as Dan-
iels truly represented.
It is urged by appellant that appellee, before the contract
was reduced to writing, represented the lots to be worth eight
hundred dollars, and that he had been offered six hundred dol-
lars for them. By reference to the written contract, which
must control, it is nowhere stated in it what was the estimated
value of the land or of the lots, and the record fails to show
the value of the land, and, for all that appears, the lots are
worth quite as much as the land.
The clause in the agreement, if the Greenville property was
as represented, then appellant was to make a deed for the land,
is fully met and sustained by the proofs in the cause. The
lots were in the town of Greenville, and the debt to secure
which the deed of trust was executed, was for the sum of two
hundred and twenty-seven dollars only. The value of the
property is not a matter in question.
Seeing no error in the record, the decree must be affirmed.
Decree affirmed.
1874.] Chambers et al. v. Jones. 275
Syllabus.
Maey M. Chambees et al.
v.
John R. Jones.
1. Judicial sale — by whom to be made. Where a sale under a decree of
court is conducted by an agent of the commissioner authorized by the de-
cree to make the sale, and in his absence, and a deed is made by the com-
missioner, this is an irregularity that would vitiate the sale, and authorize
the parties interested to have it set aside, if the rights of no innocent pur-
chaser intervened, but it does not go to the jurisdiction of the court.
2. Jurisdiction of infant defendants can not be acquired by entry of
appearance by guardian ad litem. Where the defendant in a partition
suit was a minor at the time of rendering a decree of sale, and there
was no service of process, and the record shows that the appearance of the
minor was entered by a guardian ad litem, appointed by the court to de-
fend for her, it was held, that the court had no jurisdiction, and the whole
proceedings were coram nonjudice, and the decree and sale thereunder were
absolutely null and void, and could be attacked by the owner of the fee,
either directly or collaterally..
3. Setting aside sale — refunding purchase money. Where infant defen-
dants to a partition suit seek to set aside a sale of their land, made under a
decree rendered in such suit by a court having no jurisdiction of their per-
sons, and for an account of rents and profits against the purchaser at such
sale, they will be required, as a condition to granting them the relief sought,
to refund to such purchaser whatever of the purchase money paid by him
may have come into their hands.
4. So, also, where the purchaser has paid taxes upon the land, in the be-
lief that he was the bona fide owner, the owners seeking to set aside the sale
will be required to refund such taxes, as a condition to the relief sought by
them.
5. Tenants in common — one who appropriates whole property to his use
accountable for rents and profits. Where one tenant in common appropriates
the entire property to his own use, the other tenants may, jointly or sever-
ally, have an account taken, not only of the rents and profits actually
received, but such as the wrong-doer could have realized by prudent man-
agement.
6. Same — improvements by one. One tenant in common can not make
improvements on the common property, and charge his co-tenants even
ratably with their value. If he makes such improvements, he does so at his
peril.
276 Chambers et al. v. Jones. [June T.
Opinion of the Court.
Writ of Error to the Circuit Court of White county; the
Hon. Tazewell B. Tanner, Judge, presiding.
Mr. James McCartney, and Mr. Seth F. Crews, for the
plaintiffs in error.
Mr. John M. Crebs, for the defendant in error.
Mr. Justice Scott delivered the opinion of the Court:
The land which is the subject of this litigation constituted
a part of the real estate of which Aaron West died seized.
The bill was filed by his heirs to set aside a sale made under
a decree of the circuit court of Wayne county, rendered in a
proceeding for partition of the lands belonging to the estate.
The petition filed asked for partition and assignment of dower.
It was exhibited by Jane E. West, the widow, and Mary M.,
one of the heirs, by her next friend, Jane E. West, and the
other heir, Sarah E. West, was made defendant. Embraced in
the petition were lands and lots situated in Wayne county,
and the tract in controversy, in White county. The commis-
sioners appointed to make partition reported it was not practi-
cable to do so without manifest injury to the rights of parties
interested. Thereupon the court decreed a sale of all the lands
described in the petition, and appointed Copeland McKelvy
a special commissioner to make the sale. The lands situated
in Wayne county were sold, and the commissioner reported the
making of the sale to the court, that it was made on condition
one-third of the purchase money should be paid to the widow,
in lieu of dower, in consideration she would release the same
to the purchaser, which terms she complied with, and that he
executed deeds to the several purchasers.
The land situated in White county, involved in this suit,
consists of a quarter section, and is described as the north-east
quarter of section 29. It was advertised to be sold the next
day after the lands in Wayne county were sold. The sale was
to take place on the premises. Copeland McKelvy, the com-
missioner, being unable to attend, sent his son, Frank McKelvy,
1874.] Chambers et al. v. Jones. 277
Opinion of the Court.
to make the sale. It is distinctly shown, Copeland McKelvy
was not in the comity of White on the day the sale took place.
It was made by Frank McKelvy, on the premises. At that
sale, defendant in error, Jones, became the purchaser of the
entire tract. The evidence shows it was sold subject to the
widow's dower, although the decree is silent as to how it should
be sold.
It seems to be conceded that Mrs. "West, the widow, in her
own right, owned an undivided one-fourth of the quarter sec-
tion at the time these proceedings were had. Plaintiffs in
error, as heirs of Aaron West, now only insist upon their
claim to the undivided three-fourths of the quarter section.
Subsequently Mrs. West filed her petition for partition and
dower in this land, making Jones a defendant. By the decree
of the court, the south-west quarter of the quarter section was
set off to her in her own right, and the south-east quarter as
her dower in the remainder of the quarter section. The heirs
of Aaron West were not made parties to these proceedings,
and are no way concluded by them. After these proceedings
were had, Jones purchased of Mrs. West her interest in the
south-west quarter, which was conveyed to him by warranty
deed, and also her life estate to the south-east quarter of the
quarter section.
The evidence shows that Jones, since his purchase, has erected
three small houses on the premises, and cleared and fenced
forty acres of the land, and has it in cultivation. The improve-
ments are all on the north half and the south-east quarter of the
tract. There does not seem to be any on the part he claims as
grantee of Mrs. West. The whole tract was originally timber
land.
The court, by its decree, set aside the sale, upon condition,
however, that the heirs should refund to Jones the purchase
money, $400, the value of the improvements, $610, the taxes
since 1865, and some other trifling amounts, with interest on
the several sums, less the amount of rents received, making the
sum, to be paid within four months, $1166.86. On the pay-
278 Chambers et al. v. Jones. [June T.
Opinion of the Court.
ment of that sum within the time limited, it was ordered that
Jones convey the premises to the heirs.
Defendant in error makes no objection to the decree, at
least he has assigned no errors, from which we must under-
stand he is satisfied with it. The heirs are dissatisfied, and
bring the cause to this court by writ of error.
The principal errors assigned are:
First. The court erred in rendering a decree against plain-
tiffs in error for any sum of money.
Second. The court erred in rendering a decree for as large
an amount as specified in the decree.
Numerous errors in the partition proceedings have been
pointed out, but as they do not affect the jurisdiction of the
court, it will not be necessary to notice all of them. Of this
class is the objection that the sale was made by Frank McKelvy,
in the name of Copeland McKelvy. The sale was conducted
by Frank, and the deed was made by the commissioner,
Copeland McKelvy. This was an irregularity that would
vitiate the sale, and authorize the parties interested to have it
set aside, if the rights of no innocent purchasers intervened,
but it does not go to the jurisdiction of the court. The bill is
not to redeem the land as from an irregular sale, but to have
the sale declared null and void, because the court had no juris-
diction to pronounce a decree to have an account taken of the
rents and damage to the inheritance.
The objection to the jurisdiction of the court seems to be
well founded. Both plaintiffs in error were, at the time these
proceedings were had, minors. There is no pretense there was
any service of process on the only defendant, Sarah E. West.
The summons issued in the cause is with the files, and has upon
it no indorsement of service. The record shows, and the de-
cree so finds, that the appearance of the minor defendant was
entered by a guardian ad litem appointed by the court to de-
fend for her. This did not give the court jurisdiction, and
hence the whole proceedings were coram non judice.
It is very clear, no title passed to Jones by his purchase under
the decree. The decree and sale were absolutely null and void,
1874.] Chambees et at. v. Jones. 279
Opinion of the Court.
and could be attacked directly or collaterally by the heirs own-
ing the fee. The court had no jurisdiction to pronounce a
decree that would affect their interests, having no jurisdiction
of their persons by service of process, or otherwise.
The heirs owning the fee are now asking the aid of a court
of equity to set aside the sale, because it is null and void, to
have an account taken of the rents and profits as against the
occupant under the sale, and for a writ of assistance to be put
into possession. The real inquiry in the case is, upon what
terms shall the relief be granted?
On this record it can not be controverted that plaintiffs in
error are the real owners of the undivided three-fourths of this
tract of land, and are entitled to some relief. Defendant,
Jones, claims title under a judicial sale, and it is insisted the
doctrine of caveat emptor applies. Hence it is contended, it
was error to decree that the heirs should refund the purchase
money, with interest, as a condition precedent to granting
relief. So far as the purchaser is concerned, that doctrine has
its application, as is the general rule at all judicial sales. The
buyer gets no better title than the officer of the law has to sell.
On the failure of the title, as in this case, he would have no
right to relief, as against the heirs, nor could he have a decree
against the land itself for the purchase money. This is set-
tled by Bishop et al. v. 0' "Conner et ah. 69 111. 431, and need
not now be discussed as a new question ; but defendant is ask-
ing no relief by cross-bill or otherwise.
It is only upon the principle that he who asks equity must
do equity, that the heirs can be decreed to refund any portion
of the purchase money. They are seeking relief against de-
fendant, and if they have his money in their possession, arising
out of the same transaction, it is but just they should restore
it to him. The court will not assist them to recover the pos-
session of their land, and give them an account of the rents
and profits, while they still retain in their hands the purchase
money. The case of Kinney v. Knoebel, 51 111. 112, is an
authority for this view of the law, and the principle of that
case would authorize the imposition of conditions upon which
280 Chambees et al. v. Jones. [June T.
Opinion of the Court.
relief will be granted. A court of equity is a court of con-
science, and no one will be permitted to invoke its aid, unless
he is himself willing and offers to do justice.
The record does not disclose what portion, if any, of the
purchase money was received by either of the heirs. The sug-
gestion of counsel, that a stipulation was signed by counsel, to
the effect that it was all received by them, is not supported by
the record ; and it being denied by counsel that any portion of
the proceeds of the sale was ever paid to either of the heirs,
we are unable to determine the truth of the matter. The fact,
however, can be determined by a reference of the cause to the
master. If it shall appear that either of the heirs has received
any portion of the proceeds of the sale, the court, with great
justness, may decree a restoration of the amount before adjust-
ing the equities between the parties.
The same may be said of the taxes. They were paid in the
belief the purchaser was the bona fide owner. They consti-
tuted a valid lien upon the property, and the effect was to
preserve it to whom it rightfully belonged. The taxes paid,
however, were upon the entire tract. Of course the heirs will
only be decreed to restore a ratable proportion equal to their
interest in the estate.
The question of the most difficulty that arises in the case is,
whether the court erred in decreeing that the heirs should
make compensation to the purchaser for the value of the im-
provements put upon the land. A recurrence to the facts will
enlighten our inquiry on this branch of the case.
Defendant claims, as grantee of Mrs. "West, to be the owner
of the south-west quarter of the quarter section, and to have
purchased her life estate in the south-east quarter. The heirs,
as we have said, were not made parties to the proceedings
under which partition was made and the dower assigned, and
are not affected by them. If we shall regard the deed of Mrs.
"West, conveying the south-west quarter, as a release unto her
grantee of her undivided one-fourth interest in the entire tract,
then the parties would be tenants in common. It will be per-
ceived there was no legal assignment of the dower, and defend-
1874.] Chambees et al. v. Jones. 281
Opinion of the Court.
ant not being the owner of the fee, the release unto him was
inoperative.
The authorities all hold that a purchaser at a judicial sale
will be chargeable with notice whether the court had jurisdiction
to pronounce the judgment or decree under which it was made.
If the court had jurisdiction, he need not concern himself
about the mere irregularities, unless he is a party to the record,
and, for that reason, presumed to have notice. In the case at
bar, the presumption is, defendant inspected the record, and
must have known the court had acquired no jurisdiction, and
he could take nothing under a sale made by virtue of a decree
thus rendered.
The most favorable view, therefore, for defendant is, that he
will be regarded as the owner of the undivided one-fourth, and
the heirs as the owners of the other undivided three-fourths
of the quarter section. Hence he had, in common with the
heirs, the right to the possession of the property. The im-
provements made by him may be referred to his interest in the
common property, and if a division shall be made, the equities
between the parties may be adjusted in that proceeding. We
are not aware that one tenant in common can make improve-
ments on the common property and charge his co-tenants even
ratably with their value. If he makes improvements on the
common estate, he does so at his peril. In many instances, it
would be equitable that he should have the right to remove
the same, if it could be done without permanent injury to the
realty.
Where one tenant in common appropriates the entire prop-
erty to his own use, no reason is perceived why, under our
statute, the other tenants may not, jointly or severally, have
an account taken of the rents and profits — not only the rents
actually received, but such as the wrong-doer could have real-
ized by prudent management.
The decree of the circuit court will be reversed, and the
mse remanded for further proceedings in accordance with the
views suggested in this opinion.
Decree reversed.
282 Sebastian v. Johnson, Admx. [June T.
Opinion of the Court.
Charles Sebastian
v.
Sarah C. Johnson, Admx.
1. Administrator's sale — by whom to be made. The authority given to
an administrator to sell real estate for the payment of debts, is a personal
trust, which he can not delegate to another ; and whilst a sale by an auction-
eer employed by the administrator for that purpose, made whilst the admin,
istrator is present, is the sale of the administrator, such a sale made, without
the administrator being present, will not meet judicial sanction. See Cham-
bers et al. v. Jones, ante, p. 275.
2. Same — of real estate, must be subject to incumbrances. An adminis-
trator has no interest in the real estate of his intestate ; he has but a power,
and must take the estate as he finds it, and if incumbered, his plain duty is
to sell it subject to the incumbrance.
3. Where a deed is tendered to a purchaser of real estate at an administra-
tor's sale, upon which there is an incumbrance, and he refuses to take it and
comply with the terms of sale, he will not be entitled to a deed upon a
tender of the amount of his bid, after the incumbrance has been removed
without aid from him.
4. Administrator — has no control or power ■ over possession of land sold
by him. An administrator has no right to deal with the possession of land
sold by him, and a party taking possession of such land by the consent of
the administrator, can not be considered as put in possession by any one
authorized to do so. Such an act by the administrator is a violation of
trust, from which no one privy thereto can take any benefit.
Appeal from the Circuit Court of Madison county; the Hon.
"William H. Snyder, Judge, presiding.
Messrs. Randle, Gillespie & Happy, for the appellant.
Messrs. Dale & Burnett, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was a bill in chancery, against an administratrix, to
compel the conveyance of land purchased at an administratrix's
sale.
The court below, on hearing, dismissed the bill, and the
complainant appealed.
1874.] Sebastian v. Johnson, Admx. 283
Opinion of the Court.
The sale was not made in accordance with law. It was made
under an order of the county court, directing the sale of the
land by the administratrix for the payment of the debts of
the intestate.
The sale was not made by the administratrix herself, but it
was made by one Bonner, whom the administratrix had en-
gaged for that purpose, she not being present at the sale, being
sick at the time. The authority given to the administratrix to
make the sale was a personal trust, which she could not dele-
gate to another. If she had been present, and had employed
an auctioneer or crier to assist in the making of the sale, it
would have been her sale, and the parties in interest would
have had the benefit of her superintendence and judgment.
But such a sale made by another person, without the adminis-
tratrix being present at all, to exercise control over it, can not
meet judicial sanction. Taylor v. Hopkins, 40 111. 442; 2
Williams on Executors, 944; Berger v. Duff, 4 Johns. Ch. 367;
Heyer v. Deavis, 2 id. 154. In the last case, which was that
of a sale of mortgaged premises under a decree, the master,
being sick, did not attend the sale, but deputed a competent
agent, who attended and sold the land ; the sale was set aside
for that reason solely, there being no other objection to the
fairness and regularity of the sale.
The premises here were incumbered by mortgage, and Bon-
ner, unauthorizedly, sold them free of incumbrance. There is
no evidence that the administratrix directed the land to be so
sold; on the contrary, her explicit testimony is, that she did
not authorize the sale of the land free of incumbrance, the
order of sale did not so require, nor does the law recognize such
a condition as proper in the making of such sales.
The administrator has no interest in the real estate ; he has
but a power, and must take the estate as he finds it, and
if incumbered, his plain duty is to sell it subject to the incum-
brance. Phelps, Admr. v. Funhhouser, 39 111. 405 ; Cutter,
Admr. v. Thompson, 51 id. 390 ; Smith v. MeConnell, 17 id.
135 ; Shoemate v. Lockridge, 53 id. 504.
Appellant did not comply with the published terms of the sale.
284 Sebastian v. Johnson, Admx. [June T.
Opinion of the Court.
The terms were, one-third down, one-third in six months,
and one-third in twelve months. Appellant bid off the land
at the sale abont the 8th of January, 1870, at $16.50 per acre.
Within a reasonable time thereafter the administratrix offered
him a deed of the land subject to the incumbrance, but appel-
lant refused to receive the deed and make the first payment,
because of the incumbrance of the mortgage upon it, claiming
that he was entitled to a deed of the land discharged from the
incumbrance.
Subsequently, about August 25, 1871, the mortgage became
satisfied out of other land embraced in it than the land in
question, and not till then, after the land had become free
from any incumbrance, did appellant make a tender of any
payment, and demand a deed. He was not lawfully enti-
tled to any other deed than such an one as was seasonably ten-
dered to him by the administratrix ; and in not making the first
payment then, but delaying it for the length of time he did,
and until the land, without aid from him, had become freed from
incumbrance, he was in clear default, too great to entitle him
to demand a specific performance.
The farm, of which the land in question composed a part,
had been purchased by the intestate at $46.50 per acre. On a
resale of the land in question at public sale by the administra-
trix, about August, 1871, it brought $30 per acre, and although
this last sale has never been consummated, in consequence of
the present suit, we do not see why the price which was offered
for the land, and at which it was bid off, might not be taken
as a fair index of the value of the land.
It would then seem that $16.50, at which the land was struck
off to appellant, was a largely inadequate price for the land
free from incumbrance, however it might have been subject to
the incumbrance.
Stress is laid by appellant upon the circumstance, that, by
the permission of Mr. Springer, the attorney of appellee, and
by her consent, as attempted to be shown, the appellant was
allowed to go into the possession of the premises, and remain
until the incumbrance could be removed, and the administra-
1874.] I. C. K. E. Co. v. Houck, Admr. 285
Syllabus.
trix could convey the land unincumbered, and that improve-
ments were made by appellant.
But we can give no weight to this, as aiding the case of the
plaintiff. The appellant was not put into possession by any
one authorized to do so. The administratrix, nor her attorney,
had any right to deal with the possession of the land. The
case is not to be viewed as if it were one in which only the
appellee's own individual property and interests were con-
cerned. The parties in interest are heirs and creditors, the
administratrix but a mere trustee; her path is clearly marked
out by law, and any deviation from it is but a violation of trust,
from which no one privy thereto should take any benefit.
Upon the whole, we must regard this as a contract which a
court of equity may well refuse specifically to enforce.
The decree will be affirmed.
Decree affirmed.
Illinois Centeal Raileoad Company
Simon Houck, Admr.
1. Negligence — presumptions and burden of proof to rebut. Although
the prima facie presumption from an explosion of the boiler of a locomo-
tive is, that there was negligence, either in testing or putting the materials
together, when constructed into a boiler, or that it has been negligently used
by subjecting it to too high a degree of pressure of steam, yet, when suit is
brought by the engine-driver who had charge of the engine, or his represen-
tatives, against the person owning the engine, there is no presumption in
his favor that the explosion was caused by defects in the boiler rather than
from its negligent use, and the burden is on the plaintiff to show that the
engine-driver was not himself guilty of negligence which caused the explo-
sion, or, if guilty, that his negligence was slight and that of the defendant
gross.
2. Same — engine-driver carrying more steam than rules of company allow
can not recover damages caused by explosion. In a suit by the representative
of an engine-driver against the owner of the engine, to recover for the killing
of the driver by the explosion of an engine in his charge, the plaintiff can
286 I. 0. K. E. Co. v. Houck, Admr. [June T.
Opinion of the Court.
not recover if it appears that the explosion was the result of the carelessness
of the engine-driver in not keeping sufficient water in the boiler, and in
carrying more steam than, by the rules prescribed by the owner, he was
allowed to carry.
Appeal from the Circuit Court of Marion county; the
Hon. Amos Watts, Judge, presiding.
Mr. George W. Wall, for the appellant.
Mr. W. W. O'Brien, and Messrs. Casey & D wight, for the
appellee.
Mr. Justice Scholfield delivered the opinion of the Court:
The only question presented by this record is one of fact.
The plaintiff's intestate was an engine-driver on one of defend-
ant's engines, engaged in hauling a water train between Big
Muddy and Centralia. On the 11th of December, 1871, as the
train was going from Centralia to Big Muddy, the boiler of the
engine on which the intestate was employed exploded, killing
the intestate and one Keen, a brakeman. It is alleged that the
explosion was in consequence of the defective condition of the
engine, and that the defendant was guilty of negligence in per-
mitting, knowingly, a defective engine to be so employed.
The finding of the jury sustained this claim.
We are of opinion that the jury totally misapprehended the
evidence, as applied to the only legitimate subject of inquiry
before them, and their verdict must, consequently, be set
aside.
Although, as was held in Illinois Central Railroad Go. v.
Phillips ) 49 111. 234, the prima facie presumption from an ex-
plosion is, that there was negligence either in testing or putting
the material together when constructed into a boiler, or that it
has been negligently used, by subjecting it to too high a degree
of pressure by steam, yet, when the suit is brought by the en-
gine-driver who had charge of the engine, or his representatives,
against the person or corporation owning the engine, there is
no presumption in his favor that the explosion was caused by
1874.] I. C. E. E. Co. v. Houck, Adme. 287
Opinion, of the Court.
defects in the boiler rather than from its negligent use, and the
burden is npon the plaintiff to show that the engine-driver was
not himself guilty of negligence which caused the explosion,
or, if guilty, that his negligence was slight and that of the
defendant gross in that respect, when compared with each
other. The burden is upon him to prove the negligence which
he charges, and this is not sufficiently done by merely proving
an explosion, which may as well have resulted from the negli-
gence of the engine-driver as from that of the defendant.
The evidence before us fails to show that the explosion re-
sulted from the defendant's negligence. The substance of that,
on behalf of appellee, was this : Simon Houck, the father of
the deceased, says, at one time he heard the deceased ask Yan-
antwerp (who was the proper person to whom application for
having engines repaired should be made) when he was going
to repair or overhaul that engine, as it leaked so that he could
not run it. Yanantwerp replied, that he would get at it some
time or other. When this was does not appear.
Monkhouse, in November, 1871, heard deceased and Oxley,
who had charge of the machine shops, in conversation. Oxley
said to deceased, ""What do you know?" Deceased replied:
"It's gol darned hard getting down and disconnecting, this cold
weather." Oxley said: "That's nothing," and turned away.
Deceased observed : "It will be something after she blows some-
body's head off." The witness understood this conversation to
refer to the engine, and that the term "disconnecting," referred
to the fact that the engine had given out, and had to be "towed
in." He says, also, that he put a cylinder head in the engine
once, and that it is very common for engines to give out and
have to be "towed in" — common on all roads. He examined a
fragment of the boiler after the explosion, and gives it as his
opinion that the boiler would have stood the ordinary pressure,
and would have carried all the steam defendant's rules allow.
Poland says, he is train-master between Centralia and Wa-
pella. He had this engine on his station, drawing freight and
sometimes passenger trains. She did not do the work he
wanted, and he told Oxley to take her off and give him another,
288 I. C. E. E. Co. v. Hotick, Admr. [June T.
' Opinion of the Court.
which he did. This was in the summer of 1871. The trouble
with the engine then was, she was leaking in steam chest and
fire box, and some of her stay-bolts were loose. This tended
to put the fire out, and she did not make steam properly. He
says, however, he considered her safe from explosion; that it
is quite common for engines to get leaky as this was — even new
engines just out of the shop sometimes do so. He thinks the
leak in the steam chest or fire box would only let off steam and
give relief, and that an engine in this condition would be safer
from explosion than a tight one, as the leak would let off the
pressure.
Yanantwerp, machinist, and foreman in the round-house at
Centralia, says, deceased called for repairs on this engine sev-
eral times — the last was the day before the explosion. One of
the pumps was repaired in the afternoon before the explosion.
Witness was on the engine and examined her, about an hour
before she exploded. She was in perfect order at that time.
The witness considered her perfectly safe, and still thinks she
was. Thinks a leak or a rotten place in the boiler would re-
lieve the pressure, and tend to prevent explosion.
Walraven is a boiler-maker, not in the employ of the defend-
ant. He examined the remains of the engine, after the explo-
sion, to see if he could ascertain its cause. The iron and copper
seemed to be in good condition. Some of the stay-bolts looked
as though they might not have been good, but they were pulled
out of the copper, and he can't say how they were. He is un-
able to give any opinion as to what caused the explosion. He
saw no part that was burned or worn out. From the appear-
ance of the wreck, broken axles, bent frames and torn fragments
of the boiler, he is of opinion that the force which produced the
wreck was a very great and unusual one.
Samuel Spencer, a machinist, engaged in repairing reapers
and mowers, examined the wreck after the explosion; couldn't
tell cause of explosion ; supposes it must have been from defect
of iron or excessive pressure. Under the fire box it looked as
though iron had been burned ; part of the lower fire box had
been torn loose; couldn't tell when the burnt appearance of
1874.] I. C. E. E. Co. v. Hotjck, Admk. 289
Opinion of the Court.
the iron was produced ; it may have been done at the time of
the explosion. The fragments indicated a terrible explosion.
Edward Clark, a conductor on defendant's railroad, says, he
knew the engine to give out once, and towed her in from Van-
dalia to Centralia. It is not uncommon for engines to give
out on the road.
John A. Campbell was conductor of the train when the en-
gine exploded. Were running the train at 20 miles per hour,
which was not unusual. He supposes low water was the cause
of the explosion.
Hall, a blacksmith at Centralia, says, he saw fragments of
the wreck after the explosion; noticed one piece, five or six
inches long, that was very thin — not more than one-eighth of
an inch thick, while the other pieces were three-eighths ; it was
torn through; did not come to any conclusion as to the cause
of the explosion; thinks, perhaps, the thin piece was worn out.
So far as he could see, the thick pieces were as badly torn and
twisted as the thin one.
Cover is a boiler-maker. He says he put some stay-bolts in
the fire box of the engine four or five days before the explosion,
and he thinks her condition, when he got through, was good,
so far as that part was concerned. Don't know the cause of
the explosion.
Yan Patten, locomotive engineer, in defendant's employ,
says, he run the engine from November, 1866, to April, 1867,
between Cairo and Centralia, on freight; she was then laid up
at Cairo; don't know her condition at time of explosion, and
has no opinion as to cause of explosion.
Simon Houck, being recalled, produced a piece of iron, which
he testified was a part of the boiler of the engine, and which
he was of opinion was unsound. Cover, being recalled, exam-
ined the piece of iron produced by Houck; said he could not
tell whether it was sound or not; a part of it looked as if it
might have been over-heated, but that might have been pro-
duced by heat at the time of the explosion.
Keeth, a blacksmith, having inspected the piece of iron pro-
duced by Houck, gives it as his opinion that it was not first-
19— 72d III.
290 I. C. K. K. Co. v. Hottck, Admr. [June T.
Opinion of the Court.
class boiler iron ; don't know what it might have been, or when
it was subjected to the heat of which it shows evidence.
Walraven, being recalled, also examined this piece of iron.
Said it had been very much burnt, and had, to a considerable
extent, lost its power, but it was difficult to say what might
have been its condition at the time of the explosion. The burnt
appearance might have been caused in the making, or by the
explosion. There is a flange turned over a part of the piece,
and he don't think that could have been done after it was over-
heated. From its appearance, he is of opinion that there was
no water on the piece at the time of the explosion, and that the
burnt appearance was produced by the heat then generated.
Mertz, a blacksmith, also examined this piece of iron, and
testified that, in his opinion, the iron was burnt and unsound
when it was made, and thinks the flange was turned after the
iron was burnt.
These are all the witnesses introduced on behalf of the plain-
tiff, whose evidence has any bearing on the question of what
may have caused the explosion; and it will be observed that,
although there is considerable proof that the engine had been
out of repair at different times, still, this is shown not to be
unusual, even with new engines, and the only witnesses who
profess to know anything about the condition of the engine
immediately or shortly before the explosion, are Poland, Yan-
antwerp and Cover, and they say it was good, and in this they
are also fully corroborated by Lape, a witness for defendant.
Even the defects shown to have previously existed, instead of
being such as would, in the estimation of the witnesses, cause
or contribute to the explosion, are said to have been such as
would have tended to prevent it, by permitting the escape of
steam and thus relieving the pressure.
On the other hand, it was proved, on behalf of the defendant,
that it had a rule, printed on a card and posted up in such con-
spicuous places, including one on the engine itself, as the engine-
driver could not have failed to have seen it and been familiar
with its requirements, which prohibited him from carrying
more than 110 pounds of steam, yet it is shown by one witness,
1874.] I. C. E. E. Co. v. Hottck. Admr. 291
Opinion of the Court.
Lape, who examined the engine something near an hour before
the explosion, and a short time before the train started from
Centralia, that she was carrying 125 pounds of steam, and
another witness, Campbell, the conductor of the train, noticed
the engine just before starting, and she then had from 130 to 135
pounds of steam. A number of witnesses of large experience,
some in manufacturing and others in handling engines, exam-
ined fragments from the wreck, after the explosion, and with-
out adverting to their evidence in detail, it is sufficient to say,
they all concur in saying that the line of the water mark, at
the time of the explosion, is plainly to be seen on the fragments,
and shows that the water in the boiler was then standing sev-
eral inches below the top of the crown sheet, whereas it ought
to have stood several inches above it; and they give it as their
opinion that the explosion was caused by a deficiency of water
in the boiler, and that it could not have resulted from the de-
fects claimed to exist in the engine. The train was supplied
with water, and the engine-driver had gauges to show him the
height of water in the boiler, and it was his duty to use them,
and keep the boiler properly filled.
The evidence, in our opinion, clearly shows that the explo-
sion was the result of the carelessness of the engine-driver in
not keeping sufficient water in the boiler, and in neglecting to
observe the rules limiting the quantity of steam which he was
allowed to carry.
In this view of the case, the plaintiff has no cause of action
against the defendant, and it will be unnecessary to remand
the case to another jury.
The judgment is reversed, and judgment will be given in
this court for the costs of appellant, as well in the court below
as in this court.
Judgment reversed.
292 Neely v. Weight. [June T.
Opinion of the Court.
Feancis M. Neelt
V.
John K. Weight.
Bill of exceptions — when necessary. Where there is no bill of excep-
tions, and it does not appear in the record that exceptions were taken to the
ruling of the court below in dismissing an appeal for want of a sufficient
amended appeal bond, such ruling will not be reviewed in this court.
Appeal from the Circuit Court of Washington county; the
Hon. Amos Watts, Judge, presiding.
Mr. George Yernor, for the appellant.
Messrs. Watts & Forman, for the appellee.
Mr. Justice Craig delivered the opinion of the Court:
This was an action of forcible detainer, commenced before a
justice of the peace. In the circuit court the defendant was
ruled to file an amended appeal bond by a specified time. An
amended bond was filed, which the court held insufficient,
and dismissed the appeal.
The defendant appeals to this court, and assigns for error
the decision of the circuit court in dismissing the appeal and
refusing to permit him to file another amended bond.
The record contains no bill of exceptions, nor does it appear
that defendant excepted to any decision of the court made in
the cause.
We can not consider the points made by appellant, for the
reason that no exception was taken in the court below. Had
the defendant desired to review the decision of the circuit court,
he should have excepted to the ruling of the court, and pre-
served the exceptions in the record. Parsons v. Evans, 17
111. 238; Daniels v. Shields, 38 111. 198.
The judgment of the circuit court will be affirmed.
Judgment affirmed.
1874.] U. S. Express Co. v. Meints. 293
Syllabus.
The United States Expeess Company
v.
Albeet M. Meints.
1. Appeal — when it lies. Where an appeal is taken from the county-
court to the circuit court, an appeal lies from the judgment of the circuit
court to the Supreme Court.
2. Practice — in circuit court, on appeal from the county court. In case
of reversal of a judgment of the county court, the circuit judge would, no
doubt, in the order reversing the judgment, or otherwise, indicate to the
county judge the grounds of reversal, but an opinion is not required to be
filed by the circuit judge in such case, and is wholly unnecessary in case
of affirmance.
3. Same — on appeal from judgment of circuit court affirming judgment
of county court. When a case is appealed from the county to the circuit
court, and removed thence to this court, only the errors assigned in the cir-
cuit court will be looked into, unless the assignment of errors in this court
questions the action of the circuit court. A party will not be permitted to
assign errors on the record of the county court in the circuit court, and then
assign other and different errors thereon in the Supreme Court.
4. Bill op exceptions — when necessary. A bill of exceptions is only
necessary to make some matter a part of the record, which otherwise would
be no part thereof, and, as the filing of the transcript of the county court
in the circuit court upon an appeal makes such transcript a part of the rec-
ord of the circuit court, and the judgment of the circuit court thereon is a
part of the record, no bill of exceptions in the circuit court is necessary to
enable the Supreme Court to look into the record sent up from the county
to the circuit court and the judgment of the circuit court thereon.
5. Pledged property — party unlawfully in possession of hound to sur-
render it to the pledgee on demand. Where property in possession of one as
collateral security for a debt due him from the owner is stolen from his
possession, and delivered to an express company, the possession by such
company is unlawful, and when a demand is made upon them for the prop-
erty by the lawfully authorized agent of the one from whose possession it
was stolen, they should surrender it up, and if they fail to do so, they be-
come liable for the value of the property.
Appeal from the Circuit Court of St. Clair county; the
Hon. William H. Snyder, Judge, presiding.
Mr. Luke H. Hite, for the appellant.
Mr. E. R. Davis, for the appellee.
294 U. S. Express Co. v. Meints. [June T.
Opinion of the Court.
Mr. Chief Justice Walker delivered the opinion of the
Court :
It appears, from the record in this case, that August Angour
delivered to appellee a chest of carpenter tools, as collateral
security for $30 he owed appellee; that the chest and tools
were stolen or taken from his possession, and removed to
St. Louis, without the knowledge of appellee. He thereupon
authorized Davis, by power of attorney, to reclaim the chest
and tools. Davis followed the wagon from East St. Louis, and
found the chest in the office of appellant, in St. Louis. Davis
testified that he showed the agent of the company his power
of attorney, and demanded the chest, which he then saw in its
office. The chest not being delivered to him, he procured a
writ from a justice of the peace, and took an officer to execute
it, but the chest had been sent away by the express. This all
occurred on the same day, and prior to 3 o'clock in the after-
noon.
McMasters testified that he was the agent of the company,
and in charge of the office; that Davis came to the office and
made a demand, but not in writing. He says he asked Davis
if he had authority to get the chest, and he said he had not,
nor did he show any power of attorney. The agent says he
told Davis he must proceed lawfully, and he would get it. He
says Davis first came to the office before dinner, and returned
with the constable after dinner. This suit was subsequently
brought against appellant before a justice of the peace, and
the case was taken by appeal to the county court, where, on a
trial before the court and a jury, appellee recovered a judg-
ment for $70 and costs, and the company appealed to the cir-
cuit court, and thence to this court.
It is insisted, in affirmance of the judgment of the circuit
court, that an appeal does not lie to this court, as it is not given
by the act conferring the increased jurisdiction upon the county
court, and giving an appeal therefrom to the circuit court. We
perceive no force in this position.
1874.] IT. S. Expeess Co. v. Meints. 295
Opinion of the Court.
The 47 tli section of the Practice Act of 1845 gives an appeal
or writ of error from the circuit to the Supreme Court in all
cases where the judgment or decree appealed from shall be
final, etc. The provisions of this section are broad enough to
embrace judgments of the county court, and such has been the
long and well settled practice as to appeals from the county
court.
It is first urged that the circuit court erred in failing to file
an opinion on rendering a judgment of affirmance. We find
nothing in the law which requires such an opinion. In case
of a reversal, the circuit judge would, no doubt, in the order
reversing the judgment, or otherwise, indicate to the county
judge the grounds of reversal, that the error might be avoided
on another trial, but an opinion is not required even in that
case, and is wholly unnecessary in case of an affirmance.
There was no error assigned on the record in the circuit
court, that the jury, in the county court, failed to answer the
special interrogatories propounded by the court, or rendered
any special finding as thus required. "When a case is appealed
from the county to the circuit court, and removed thence to
this court, we will only look into the errors assigned in the
circuit court, unless the assignment of errors in this court
questions the action of the circuit court. A party will not be
permitted to assign errors on that record in the circuit court,
then remove the case to this court and assign other and differ-
ent errors on the record of the county court. To permit such
a practice would be virtually allowing an appeal from the
county court to the Supreme Court, which is not sanctioned by
the act allowing the appeal to the circuit court. Failing to
assign such errors in the circuit court, they must be considered
as being waived both in that and this court.
It is urged that we should not look into this record, because
there is no bill of exceptions made by the circuit court. For
the purpose of looking into the record sent up from the county
court to the circuit court, and the judgment of that court, no
bill of exceptions is necessary, because those are matters of
record in the circuit court. On filing in the circuit court the
296 U. S. Express Co. v. Meints. [June T.
Opinion of the Court.
transcript of the recorol of the county court, it became a mat-
ter of record in the circuit court, and all know the judgment of
the circuit court is a part of the record, and need not be shown
by a bill of exceptions. A bill of exceptions in such a case,
like any other, is only required to make some matter a part of
the record, which otherwise would be no part thereof. If
motions are made, and affidavits and the like are filed in the
circuit court on such an appeal, to became a part of the record,
they should be made such by a bill of exceptions.
The evidence shows that appellee had a valid lien on the
chest of tools, and was rightfully in possession, and was enti-
tled to retain the possession until his debt should be paid.
This being so, the possession by the person of whom appellant
received the chest was wrongful, and it acquired no better
or superior right, and its possession was equally wrongful.
And when the demand was made upon it for the property
by the lawfully authorized agent, it should have surrendered
it up to him; and failing to do so, it became liable for the
value of the property. Had it delivered the property to
appellee's agent, it could have justified by showing that
appellee had the legal and superior right to the possession of
the property. And had its agent been disposed to act fairly,
he had only to delay sending the chest forward one train, and
the chest would have been legally taken from appellant, and it
relieved from all liability by simply giving notice to the person
of whom it received the chest, that suit had been brought, and
he must make defense.
The jury have found a demand, and that Davis was regu-
larly empowered to make the demand, and the evidence war-
rants the finding. Nor do we see that the instructions were
calculated to or could have misled the jury.
Perceiving no error in the record, the judgment of the cir-
cuit court must be affirmed.
Judgment affirmed.
1874.] Howard v. Bennett et al. 297
Opinion of the Court.
William Howard
v.
L. D. Bennett et at,
1. Burden op proof — as to payment of a judgment. It is a well estab-
lished principle that a party affirming a fact is bound to furnish proof of
the existence of that fact; hence a defendant in a judgment, who affirms
that it has been paid, is bound to show it by a preponderance of evidence.
2. Execution — not satisfied by levy on personal property which is after-
wards returned to the debtor and appropriated by him. If property is levied
upon, and afterwards comes back into the hands of the debtor in the execu-
tion under which the levy is made, and is by him sold, and the proceeds
appropriated to his own use, the execution is not thereby satisfied.
3. If a sheriff, having an execution, actually levies on personal property,
and takes possession thereof, and then, without authority, returns it to the
debtor, such action, though it might render the sheriff and his sureties on
his bond liable, can in no degree affect the rights of the plaintiff in the
execution, nor prohibit him from thereafter suing out another execution.
4. Costs — on dissolution of injunction. It is discretionary with the
court to decree all the costs against the complainant, on the dissolution of
an injunction in part, and making it perpetual as to part of the subject
matter, and where the complainant has attempted to enjoin the collection
of several judgments on the ground of payment, some of which he knew
he had never paid, the discretion will be properly exercised in decreeing all
the costs against him.
Appeal from the Circuit Court of Wayne county; the Hon.
Tazewell B. Tanner, Judge, presiding.
Mr. T. S. Casey, and Mr. C. H. Patton, for the appellant.
Messrs. Kobinson & Boggs, for the appellees.
Mr. Justice Breese delivered the opinion of the Court:
This was a bill in chancery, in the Wayne circuit court,
exhibited by William Howard, against L. D. Bennett, the
sheriff, and the administrators of James M. Crawford, deceased,
to enjoin proceedings under an execution in the hands of the
sheriff, issued on certain judgments obtained by the intestate,
in his lifetime, and against the complainant.
298 Howard v. Bennett et at, [June T.
Opinion of the Court.
It appears, by the pleadings, that James M. Crawford, in
his lifetime, obtained several judgments, in the Wayne circuit
court, against complainant Howard, one at May term, 1860,
for two hundred and ninety-eight dollars ninety-eight cents,
and costs, and at the September term, 1860, a judgment for
three hundred and eleven dollars twenty -nine cents, and costs,
and at the May term, 1861, of the same court, another judg-
ment, for the sum of three hundred and sixteen dollars forty-
four cents, and costs. Crawford died intestate in August,
1862, and C. M. Welch and M. C. Castlebury were appointed
his administrators, who caused executions to be issued on these
judgments, in their names as administrators, on the 31st day
of December, 1869, which were delivered to the defendant
Bennett, sheriff of Wayne county, to be executed.
The purpose of the bill was to enjoin proceedings on these
executions, on the allegation that the judgments were paid by
complainant, he alleging that, soon after the judgments were
obtained, executions were issued, which were placed in the
hands of one H. A. Organ, the sheriff of Wayne county; that
complainant paid the executions part in money, and previously
paid part of the amount due on the judgments, to Crawford,
in his lifetime, and, after his death, paid to the attorney of the
administrators the balance due.
The defendants fully answered all the allegations of the bill,
denying payment as alleged, and a general replication was
filed, and testimony taken and the cause heard on bill, an-
swers, replication and proofs.
The court found, by its decree, that the judgment recovered
at the May term, 1861, for three hundred and sixteen dollars
ninety-four cents, had been fully paid and satisfied, and that
the judgments recovered at the April and September terms,
1860, were still due and unpaid. The injunction was made
perpetual as to the first named judgment, and dissolved as to
the two last named, and damages awarded on the dissolution
of the injunction to the amount of fifty-four dollars.
To reverse this decree the complainant appeals, and assigns
several errors, the most important of which is, that the decree
1874.] Howard v. Bennett et at. 299
Opinion of the Court.
is contrary to the evidence and against equity, and in adjudg-
ing all the costs against complainant.
It is a well established principle that a party affirming a fact
is bound to furnish proof of the existence of the fact. In this
case, therefore, complainant, affirming the fact of payment of
these several judgments, is bound to show it by a preponder-
ance of evidence. In searching this record, we fail to find a
preponderance of evidence in favor of the fact affirmed, or,
indeed, any satisfactory evidence thereof.
The principal circumstance invoked by appellant in aid of
his allegation of payment is, the arrangement he made with
sheriff Organ when he had the executions in his hands, issued
on the judgments of May and September terms, 1860.
It is said by appellant that the sheriff had levied these exe-
cutions upon property of appellant sufficient to satisfy them,
at which time complainant paid off the executions, and the
property levied on was returned to him by the sheriff. We do
not find any evidence in the record going to this extent, save
the testimony of complainant himself, which is greatly weak-
ened, if not entirely destroyed, by the testimony of Childers,
a disinterested witness, who was present at the time and had
every opportunity of knowing what was said and done by and
between the complainant and the sheriff, and by subsequent
circumstances. The conclusion seems irresistible that, by some
management, complainant induced the sheriff to give up to
him the goods and property on which it is said a levy had
been made, on his promise to account to the sheriff for the
proceeds of their sale. This property, if levied upon by the
sheriff, of which there is no sufficient proof, came back into
the possession of the execution debtor, and was by him sold at
auction, he himself appropriating all the proceeds. It surely
can not be seriously contended that this transaction operated
as a satisfaction of these executions. Had the sheriff actually
levied, by taking such possession of the property, as, without
the writ, he would have been a trespasser, and, without au-
thority, released it to the debtor, though such conduct might
have rendered the sheriff and his sureties on his bond liable,
300 Howard v. Bennett et al. [June T.
Opinion of the Court.
it affected in no degree the rights of the plaintiff in the execu-
tion, nor prohibited him from suing out thereafter an execu-
tion, and obtaining satisfaction by its operation.
The statement of complainant that he paid these executions,
and saw the sheriff indorse satisfaction on them, is, as we have
said, much weakened, if not destroyed, by the testimony of
Childers, and by subsequent facts which transpired at Mr.
Casey's office, when the parties were present arranging for a
settlement. At this time, complainant did not pretend these
executions were paid, and made no question of the accuracy
of the statement made by Mr. Casey to him, and to Castlebury,
one of the administrators, that complainant would owe the
estate between eight hundred and eleven hundred dollars, the
discrepancy arising out of the notes left with Mr. Pollock and
the cost bills in the Allen case, for which complainant was to
have a credit, but to what amount was not then ascertained.
It is incredible, if complainant had actually paid these judg-
ments long anterior to this meeting, that he should not then
and there have insisted upon it, and disclaimed any indebted-
ness, the more especially as this meeting was for the purpose
of ascertaining the balance due on the three judgments.
If complainant had paid these executions, and satisfaction
indorsed thereon by the sheriff, how easy would it have been
for him to have substantiated it by producing the executions,
or duly authenticated copies, they. being files of the court, and
as much in the power of the complainant as of the opposite
party. As he held the affirmative, it was his duty to have
produced them, or certified copies. Appellant could have pro-
duced them; as he did not, the inference is, there are no snch
executions, or if such, their production would establish the
case against him. We are not satisfied such executions were
ever in the hands of the officer, or that any levy was made
under them, but we are well satisfied the evidence greatly pre-
ponderates in favor of appellees' claim that these judgments
have not been paid.
A point is made that the circuit court decreed all the costs
against the appellant. This was discretionary with the court,
1874.] Wittmer v. Ellison. 301
Opinion of the Court.
and exercised properly, as the record shows an attempt to
enjoin the collection of judgments, two of which complainant
well knew had never been paid.
We perceive no error in the decree of the circuit court, and
therefore affirm the same.
Decree affirmed.
Henky L. Wittmee
V.
John Ellison.
1. Surety — extension of time to principal — how availed of by surety.
Where an action at law is upon a specialty, a surety can not set up a parol
agreement to enlarge the time of payment without his assent, as a defense.
In such case, his remedy must be sought in a court of equity.
2. Consideration for an agreement to extend time of payment. Where
the holder of a specialty for the payment of money agrees to enlarge the
time of payment in consideration of money paid to him, he can not after-
wards set up the usury, and allege the invalidity of his agreement to enlarge
the time of payment.
Appeal from the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
Messrs. Dale & Burnett, for the appellant.
Mr. A. W. Metcalf, for the appellee.
Mr. Justice McAllister delivered the opinion of the Court :
This was debt, upon a specialty, for the payment of money
by a fixed time, to appellant, plaintiff below, and was executed
by one Blakeman and appellee, Ellison. The latter set up as
a defense, that he executed the instrument as a mere surety for
Blakeman, which was known to plaintiff; that the latter, for
the consideration of money paid him by Blakeman, the prin-
cipal, without the knowledge or assent of appellee, enlarged
the time of payment for one year
302 "Wittmer v. Ellison. [June T.
Opinion of the Court.
Evidence was given tending to establish that defense, and the
jury found for Ellison. The court, overruling appellant's mo-
tion for a new trial, gave judgment on the verdict.
The point is made here, that the agreement to extend time,
being based upon the consideration of money paid, was pre-
sumptively usurious, and therefore void.
Our statute, unlike that of New York, does not render every
contract tainted with usury wholly void. An executory con-
tract to pay usurious interest could not be enforced against the
debtor, and would not, therefore, constitute a legal considera-
tion. On that ground was placed the decision in Galbraith v.
Fullerton, 53 111. 126. To the same effect is Tudor v. Good-
loe, 1 B. Monroe, 322. But in the case at bar, the considera-
tion was paid. The lender, who received it, can not set up the
usury, and allege invalidity of his agreement. Henningham
et al. v. Bedford et al. 1 B. Monroe, 325. The reasoning and
decision in that case apply with particular force to this case,
arising under a statute which does not render usurious con-
tracts wholly void. But we are of opinion the remedy of
appellee, the surety, must be sought in a court of equity.
The action is brought upon a specialty, and the agreement
to extend the time of payment was by parol. By the rules of
the common law, when the action is upon a specialty, the
surety can not set up a parol agreement to enlarge time with-
out his assent, as a defense. It is peculiarly a matter for a
court of equity. Davy v. Prender grass, 5 Barn. & Aid. 187;
Parker v. Watson, 8 Exch. 404; Tate v. Wymand, 7 Blackf.
240 ; Lock v. United States, 3 Mason, 446.
On the ground that the action was upon a specialty, and the
agreement to extend time of payment was by parol, the judg-
ment of the court below must be reversed and the cause re-
manded.
Judgment reversed.
1874.] Coates v. The People. 303
Opinion of the Court.
Thomas Coates
v.
The People op the State of Illinois.
1. Criminal law — indictment for murder. It is not a physical impos-
sibility for three persons to have the same stick in their several right hands
at the time a blow is struck with it, and an indictment for murder which so
charges is good, and a plea of guilty to such an indictment admits the fact
to be as charged.
2. Same — indictment against accessories. Where an indictment charges
that three persons, named, with a stick of wood which each severally had
and held in their several right hands, inflicted a mortal wound, causing
death, proof that either one of them struck the fatal blow with the weapon
described, and that the others were accessory to the fact, will be sufficient to
sustain a conviction of all three as principals. There would be no variance
in such a case between the proof and the allegations in the indictment.
3. Same — -power of court on plea of guilty of manslaughter. Where a
defendant pleads guilty to the crime of manslaughter, the court has the
same power to fix the punishment that a jury have when they find the de-
fendant guilty on a trial.
Writ of Error to the Criminal Court of Cook county; the
Hon. Samuel M. Moore, Judge, presiding.
Mr. Tan Buren Denslow, for the plaintiff in error.
Mr. James K. Edsall, Attorney General, for The People.
Mr. Justice Scott delivered the opinion of the Court:
Plaintiff in error and two others were indicted for murder.
A motion to quash the indictment was overruled. Afterwards,
he entered a plea of guilty of manslaughter, and the court
sentenced him to the penitentiary for the period of ten years.
The first point made is, the indictment is void for ambiguity.
It charges that the three persons named, with a stick of wood
which each severally had and held in their several right hands,
inflicted the mortal wound, causing death. The ground of the
objection is, that the act is physically impossible. We can not
concur in this view. There is no physical impossibility in the
304 Coates v. The People. [June T.
Opinion of the Court.
act charged, however improbable it may be. What is there to
prevent all three of the persons accused having hold of the
same stick with their several right hands at the instant the
fatal blow was inflicted? The plea filed admits it was done in
the manner charged, and there is nothing in the nature of the
act that compels us to hold a mortal wound can not be struck
by three persons in that way.
But there is another view that is conclusive of the objection
urged. Our statute makes all accessories at or before the fact,
principals, and provides they shall be punished accordingly.
They must be indicted as principals, and not otherwise. It
might be advisable, as was said in Baxter v. The People, 3
Gilm. 368, to describe the circumstances of the offense as they
actually occurred, but this is not indispensable. As in the
case at bar, proof that either one struck the fatal blow with
the weapon described, and that the others were accessory at
the fact, would be sufficient to sustain a conviction of all of
them as principals. There would be no variance, in such a
case, between the proofs and the allegations in the indictment.
This is the construction given to the statute in Baxter v. The
People, supra, and we see no reason to depart from it.
The remaining point is as to the jurisdiction of the court
to pronounce sentence upon the accused for a longer period
than eight years' imprisonment on a plea of guilty of man-
slaughter.
In all cases where a person shall be convicted of manslaughter,
the statute expressly empowers the jury to fix the time the
party found guilty shall be confined in the penitentiary, which
may be for natural life or for any number of years, to be desig-
nated in the verdict. Laws 1859, sec. 1, p. 125.
It is denied the court, upon plea of guilty entered, possesses
a like power with the jury in such cases. We think it has.
In Mullen v. The People, 31 111. 444, it was declared that, so
far as the first section of the act of 1859 provided a different
punishment for a person found guilty of manslaughter, it was
repugnant to the 29th section of the act of 1845, and to that
extent the latter was repealed by the former act.
1874.] Craig v. McKinney. 305
Syllabus.
It is insisted, however, the authority given by the act of
1859, to fix the punishment for the crime of manslaughter for
a period greater than eight years' imprisonment, is to the jury,
and not to the court. If the position assumed was tenable,
the act of 1845 having been repealed, there would be no power
in the court, on a plea of guilty of manslaughter, to pronounce
any sentence upon the accused. Such is not the law. By the
183d section of the Criminal Code, the court, aon plea of
guilty," has the same power, in all cases, as the jury, and may
proceed "to render judgment and execution thereon," as if the
party "had been found guilty by a jury." It was so ruled in
Hamilton et at. v. The People, 71 111. 498, and that decision
must control this.
No error appearing in the record, the judgment must be
affirmed.
Judgment affirmed.
James P. Craig
v.
Sarah McKinney.
1. Chancery— -jurisdiction in matters of account. A court of chancery
has jurisdiction in matters of account ; but it is not every account which
will entitle a court of equity to interfere. It must be such an account as
can not be taken justly and fairly in a court of equity.
2. Same — accounting, how avoided. Where a bill for an account, filed
by a party against his attorney in fact, alleges that the property and money
of which an account is sought came into the hands of the defendant as the
attorney in fact of complainant, and there is no mention that the defendant
ever received anything under or by virtue of any other power or authority,
a plea which states an accounting and final settlement of all matters under
the power of attorney, and a new arrangement by deed, whereby the defend-
ant was created a trustee for the complainant, and held whatever was in his
hands as such trustee, presents a sufficient defense to the case made by the
bill.
3. Same — objection that plea is not sworn to, is one of form only. Where
a motion is made in the court below to strike out a plea to a bill for an
20— 72d III.
306 Craig v. McKinney. [June T.
Statement of the case.
account, on the ground that it presents no bar to the relief prayed for, and
that it does not fully answer the bill, but no objection is made on the ground
that it is not sworn to, that objection can not be taken advantage of at the
hearing as to the sufficiency of the plea, such defect being one of form
only.
4. Notice — taking an account before the master. The general rule, that
all persons having an interest in the result of the proceedings should have
notice of the attendance before the master, extends to cases in which a de-
fendant, after appearance, has allowed the bill to be taken against him pro
confesso, and a decree to be made for want of an answer.
5. Master's report — where an account is stated, the items should appear.
A master's report where a cause is referred to him to state an account,
should in some way show the items of the account as stated by him. He
should state facts, and not general results.
6. Where the master reports upon accounts, the usual way is, to state
results in the body of his report, and refer to schedules as to the particular
items, wherein sufficient of the details should appear to show the ground
of his decision as to the results stated.
Appeal from the Circuit Court of Randolph county.
This was a bill in chancery, brought by the appellee, against
the appellant, for an account and a delivery over of money,
property and papers.
The bill alleges that, on or about the 9th of October, 1866,
the complainant executed her power of attorney, making the
defendant her attorney in fact, with full power and authority
to collect and receive all moneys then due or to become due to
the complainant, in the United States ; also, to purchase, lease,
mortgage, sell and convey real estate in the county of Ran-
dolph, in this State, or elsewhere, and also, to do and perform
for the complainant, and in her name, whatever she might
lawfully do, if present.
The bill then alleges that, on the 27th of August, 1867, the
defendant had in his possession " a large amount of property
and effects belonging to the complainant, which he had received
previous to that date, as attorney in fact for complainant,
amounting, in the aggregate, to the sum of $31,500, consisting
of the following specified property, to-wit: House and lot in
the city of Chester, valued at $1500 ; one farm in the county
1874.] Craig v. McKinney. 307
Statement of the case.
of Randolph, valued at $1500; one promissory note on M.
Wise, for $500 ; one note on Charles Schrodi, for $2500 ; one
note on William Swan wick, for $5000 ; cash in the hands of
defendant, amounting to $5500, and United States bonds,
amounting to $13,000 ; " that the defendant has had the con-
trol and management of said property from the 9th of Octo-
ber, 1866, as attorney in fact for complainant, and has, as such
attorney, rented said real property, and collected rents, from
October 9, 1866, to February, 1871, and has collected moneys
on said notes, and the interest on moneys loaned, and has re-
loaned and reinvested the same, from time to time, since Octo-
ber 9, 1866, to the time of the filing of the bill, and that the
property, the increase and profit thereof is still in the custody
and under the control of defendant, excepting, only, the follow-
ing amounts which have been paid to complainant by defend-
ant, as follows: On the 27th of August, 1867, or thereabouts,
$13,000, in United States bonds; on or about November 27,
1868, $3300; October 7, 1870, $1000; March 2, 1870, $1000,
and since October 7, 1870, about $1500.
The bill then avers that complainant had revoked the power
of attorney; that defendant had refused to render an account,
and prays that an account may be taken, and defendant be
required to pay over and deliver to complainant all money,
property and papers belonging to her in his hands. The bill
was filed August 14, 1871.
Defendant first demurred to the bill, and the demurrer was
overruled. He then filed a plea, setting up that on the 27th
of May, 1870, he fully accounted with the complainant con-
cerning the property and estate committed to his care and
control, under and by virtue of the power of attorney, and
described in the bill, at which time complainant took posses-
sion and assumed control, by herself, in her own right, of all
the property and estate, at that time, upon such accounting,
found to belong to complainant, and that she then made and
entered into a new agreement with the defendant in regard
thereto, and that she then transferred and conveyed certain
portions of said property and estate to the defendant, in trust,
308 Ckaig v. McKinney. [June T.
Statement of the case.
by virtue of a deed of conveyance by her executed and ac-
knowledged, and which was duly recorded.
The plea averred that the defendant held the said property
in trust for the complainant, under and by virtue of said deed,
for the uses and purposes therein mentioned, and that he had
faithfully done and performed all things therein stipulated and
required of him, and that said deed had never been revoked or
annulled, but the same yet remained in full force and effect.
The deed, made part of the plea as an exhibit, is as follows :
" This deed and assignment, made and delivered this twenty-
seventh day of May, in the year one thousand eight hundred
and seventy, witnesseth: That, whereas, I, Sarah McKinney,
formerly Sarah Rae, now the wife of Arthur G. McKinney,
being the owner, in my own separate right, of the real estate
and personal property hereinafter described and mentioned,
and being desirous of having said real estate and personal
property, and the rents, issues, profits and interest arising and
accruing thereout and therefrom, so used and invested as that
the same shall be for my own exclusive use and benefit, and
for such purposes as I may or shall direct and appoint by my
last will and testament, to be by me hereafter made, free from
the use, control or interference of any person or persons other
than by my trustee hereinafter named, do, by these presents, in
consideration of the premises, hereby grant, bargain, sell, con-
vey and confirm, assign, make over unto and into the posses-
sion of James P. Craig, my cousin, now of Randolph county,
in the State of Illinois, all the following described real estate
and personal property, now in my possession and subject to
my control, to-wit: The east half of the north-east quarter of
section eight, and the north-west quarter of the north-west
quarter of section nine, all in township seven, range six, in
said county; also, part of lot numbered eleven, in Stratton's
addition, and the house and improvements on said lot, in the
city of Chester, in said county; also, all the promissory notes
and mortgages this day indorsed by me and delivered to him,
which notes and mortgages call for and secure to me, or to the
holder thereof, the sum of twelve thousand dollars, with the
1874.] Craig v. McKinney. 309
Statement of the case.
accrued and accruing interest which has and will accrue there-
from, to have and to hold the same, the said real estate and
personal property to the said James P. Craig, in trust, for me
and for my separate use, as is hereinafter stated, to-wit: My
said trustee is to control and manage said property, and to
keep the same improved and invested as in his judgment he
shall deem most proper and advantageous to my interest. He
is to use of the rents or other income arising therefrom so
much as may be needed and required to erect, and otherwise
finish and furnish, a dwelling house and other needed improve-
ments on one or more of the tracts of land hereinbefore de-
scribed, for me and for my use ; pay over to me semi-annually,
after deducting taxes and other necessary expenses incurred
for and on account of the same, and of this trust, the rents,
profits and interest which shall arise and accrue from said real
estate and personal property, and, at my death, dispose of,
divide or pay over the same as shall be requested and directed
by me in my last will and testament, to be by me made and
acknowledged subsequent to the date of this conveyance and
assignment. In testimony whereof, I have hereunto subscribed,
the day and year above written.
" Sarah McKinney. [seal.]
" I hereby accept of this conveyance, assignment and trust,
upon the terms and for the purposes mentioned and within
written.
"James P. Craig."
On a motion by the complainant to strike out the plea, the
court overruled the plea, and, the defendant refusing to make
any further answer, the bill was taken for confessed against
him, and the court decreed that the defendant deliver and trans-
fer to the complainant all promissory notes, money, property,
deeds of conveyance, etc., in his hands, belonging to complain-
ant or pertaining to the management of her business, and that
the power of attorney, and every other authority, instrument
or trust giving to defendant the right or power to manage or
control the business or property of the complainant, be an-
nulled, and an order of reference was made to the master to
310 Craig v. McKinney [June T.
Statement of the case.
take an account of all the dealings and transactions of the
defendant about the management and transaction of the prop-
erty and business of complainant. The master made his report
that there was a balance in the hands of defendant due the
complainant of $24,880.24. Exceptions were taken to the re-
port, and overruled. The report was accompanied by three
depositions, those of Poseborough, William J. Craig and the
complainant, as containing the testimony upon which the report
was based.
The bill of exceptions shows that, upon the final hearing of
the cause, September 23, 1874, the court heard the following
additional evidence:
James P. Craig, the defendant, being sworn, in . answer to
the question asked by the court as to " wherein the account of
the special master, showing defendant's indebtedness to the
complainant to be the sum of $24,880.24, is wrong," testified
that, on the 27th of May, 1870, he had a full and satisfactory
settlement with the complainant of the business transacted by
him, as attorney in fact for complainant, under the power of
attorney in question; that, at that time, he had in his posses-
sion, belonging to her, the sum of $1*2,000, in notes, which he
turned over to her; that she received the same, and expressed
herself satisfied; that the balance of property then in his hands
and under his control was valued at about $15,000, there
being $12,000 of it in notes; that the complainant expressed
herself satisfied with the settlement, and received said property
from him in full satisfaction of his doings as her attorney in
fact, and that she then executed to him a deed of conveyance
and assignment in trust of the property (being the same deed
above set out in the plea), and assigned the notes over to him,
by indorsement, in conformity with the deed of trust ; that, on
December 2, 1870, he paid complainant $2000, for which she
gave the following receipt:
" Received, Chester, December 2, 1870, of James P. Craig,
my agent and trustee, payment in full of all demands on ac-
count of his trust collections to October 1, 1870; also, pay-
ment in full of the note of Col. T. G. Allen, this day assigned
1874.] Craig v. McKinney. 311
Statement of the case.
to William J. Craig, the same being $2000 of the $12,000
assigned by me to James P. Craig, in trust, May 27, 1870, and
in full payment and discharge of all monetary obligations of
my trustee as aforesaid, to October 1, 1870.
" Sarah McKinney."
That he then had in his hands, as trustee of the complain-
ant, $10,000, the interest thereon having been paid by him to
complainant from the date of the deed of trust and assign-
ment to April 1, 1873, and that the improved real estate then
was and had been in the complainant's own enjoyment and
possession since about the period of the deed and assignment.
William J. Craig was sworn, and testified in corroboration
of the defendant as to complainant understanding the condi-
tion her property was in, and being satisfied with the account-
ing of the defendant up to the time of the execution of the
deed of trust and assignment, and that he was present at the
time of the receipt of December 2, 1870, and complainant
then admitted that defendant then had in his possession notes
secured to the amount of $10,000 only, and the real estate
above referred to, and that she expressed herself satisfied with
the accounting then.
Sarah McKinney, the complainant, then being sworn, testi-
fied, admitting the execution of the trust deed and receipt, but
that she never knew whether they were correct or not; that
defendant told her they were right, and she depended on his
word ; that there never was any settlement or accounting be-
tween them from the time defendant first took possession of
her effects to that time. She had relied on his statement alone
in the whole matter.
The bill of exceptions concludes with the statement that it
was upon the special master's report the foregoing depositions
and exhibits, and the testimony last mentioned, and no other,
the court rendered the final decree. On the 23d of Septem-
ber, 1873, the court entered a final decree against the defend-
ant for the sum of $24,880.24, to be satisfied, in part, by the
delivery by the defendant, within 90 days, to the complainant,
of William Swanwick's note for $5000, James P. Craig's note
312 Craig v. McKinney. [June T.
Opinion of the Court.
for $5000, Charles Schrodi's note for $2500, and the residue in
money.
The defendant brings the case here by appeal.
Mr. Thomas G. Allen, for the appellant.
Mr. J. Perry Johnson, and Mr. Thomas S. Casey, for the
appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
It is first assigned for error that there is nothing shown in
the bill to bring the case within the jurisdiction of a court of
equity.
That a court of chancery has jurisdiction in matters of ac-
count, can not be questioned ; and while it is not every account
which will entitle a court of equity to interfere, and that it
must be such an account as can not be taken justly and fairly
in a court of law, we can not doubt that, from the difficulty of
investigating the accounts here involved, this is a proper case
for chancery.
It is next assigned for error, that the court erred in overrul-
ing defendant's plea.
The bill was one for an account of defendant's doings as
attorney in fact of complainant, under and by virtue of the
power of attorney described in the bill, and for the payment
and delivery over of what was in his hands as such attorney.
Although, in the prayer for relief, it is asked that discovery
be made of what had been done by virtue of the power of
attorney, or under or by virtue of any other power or authority
whatsoever, and that an account be taken of all the doings of
defendant concerning the property of complainant, yet the
averments of the bill are, that all the property charged to have
come into defendant's hands came into his hands as such attor-
ney in fact, and there is no mention whatever that any other
power or authority was ever given to defendant, or that he ever
did or received anything under or by virtue of any other power
1874.] Craig v. McKinney. 313
Opinion of the Court.
or authority. So that the bill must be taken to be one only of
the character above mentioned. "Whatever, then, showed that
there had been an accounting and settlement by defendant with
complainant, in respect of the transactions of defendant, as her
attorney in fact, under the power of attorney, and that what
was then found to belong to complainant was then delivered
over and received by her, and that she subsequently entered
into a new arrangement, and assigned and conveyed her prop-
erty to the defendant in trust, by her deed of conveyance, would
seem to present an apparent defense to the case made by the
bill. This the plea did in substance show. We think it may
be considered as substantially a plea of a settled account.
It is urged, in support of the ruling of the court, that the
plea was not sworn to. But no such objection was made to
the plea. There was a motion to strike out the plea, but the
reasons assigned in support of the motion were,, that the plea
was no bar to the relief prayed for, and that it did not fully
answer the bill. The court seems to have treated the motion
as one to set down the plea for argument, and to have regarded
the plea as being so set down ; the order of the court reciting
that the plea coming on to be argued, it was held to be insuffi-
cient, and the same was therefore overruled. We think the
ord 3r of the court may be taken as one adjudging the plea to
be insufficient as a defense, on its being set down for argument.
The rule is, if a plea is not verified by the oath of the defend-
ant, the complainant may move to set it aside, or to have it
taken oif the files for irregularity.
The defect is regarded as one of form, and the objection
comes too late, and can not be taken advantage of at the hear-
ing as to the sufficiency of the plea. Heartt v. Coming, 3
Paige, 566; Bassett v. Company, 43 K H. 249. We are of
opinion there was error in overruling the plea.
It is further assigned for error, that the court overruled the
exceptions to the master's report.
. The taking of the account by the master was ex parte, with-
out any notice to the defendant. As an authority that such a
notice is not required in cases where a default has been taken
314 Craig v. McKinney. [June T.
Opinion of the Court.
and a reference is made, Moore et ux. v. Titman, 33 111. 358,
is cited. The rule there laid down was correct as applicable to
such a case as that, where a bill to foreclose a mortgage had
been taken as confessed, and reference to the master to ascer-
tain the amount due, and report to the court. The duty of
the master there was one of mere computation from written
evidence of indebtedness in the case, admitted by the bill hav-
ing been taken pro confesso.
No reference there was needed. The court might have made
the computation from evidence already in the case, and have
pronounced the decree.
But to extend the rule to all cases where a default has been
taken, is not warranted by authority. In 2 Daniels Ch. PI. and
Pr. 3d ed. 1152, the author, in treating on this subject, says:
"The general rule, that all persons having an interest in the
result of the proceedings should have notice of the attendance
before the master, extends to cases in which a defendant, after
appearance to the subpoena, has allowed the bill to be taken
against him pro confesso, and a decree to be made for want of
an answer." We are of opinion there should have been, here,
notice to the defendant of the taking of the account, so that
he might have had opportunity to appear before the master on
the reference.
The master's report, and the decree thereon, were manifestly
insufficient and erroneous. The master states the results
merely of the accounts, as follows: "That the said James P.
Craig has received into his hands, including interest, the
amount of $58,999.37; and that he is entitled to credits, in-
cluding interest, to the amount of $34,118.63; balance due,
$24,880.74; leaving a balance in his hands of twenty-four thou-
sand eight hundred and eighty £fc dollars due Mrs. Sarah
McKinney by said Craig," without giving any items whatever.
This is no proper stating of an account. The items of the
account should in some way appear. When the master
reports upon accounts, he generally states the results of the
accounts in the body of the report, and refers to schedules as
to the particular items. 2 Dan. Ch. PL and Pr. 1302. The
1874.] Craig vi McKinkey. 315
Opinion of the Court.
master should state the facts found by him, and not general
sweeping results; but sufficient of the details to show the
grounds of his decision should be stated. Herrich v. Belknap,
1 Williams (Yt.) 673. Where a chancery suit involves mat-
ters of account, the items admitted should be stated, so that
exception may be taken to the particular items or class of
items. Hansom v. Davis, 18 How. 295.
In support of the results of the master's report, appellee's
counsel, in their printed argument, present an itemized account,
of their own making, which corresponds in result with that of
the master, and rely upon it as affording a satisfactory expla-
nation of how the master's result might have been properly
reached.
In this itemized account they charge the defendant with
$33,000, as received in 1866. But the bill states this amount
then received as being the precise sum of $31,500, consisting
of seven specified items, stating the precise amount of each
item. On adding up those items, they are found to be only
$29,500, showing a mistake in the bill of $2000 in the statement
of the aggregate amount of these items. But the items them-
selves are to control as to what is their amount, rather than the
statement of what their aggregate amount is ; so that the aver-
ment of the bill must be taken to be, that $29,500 was the
original amount received. This allegation of the bill must
govern as to extent, even though the proof may show $33,000
was the amount received. The complainant must recover
within the limit of her allegations. She can not allege in her
bill that defendant received the sum of $29,500, and then make
proof that he received $33,000, and recover that amount.
She could only do so on amendment of her bill, so as to make
the allegations broad enough to admit the proof within their
limit. Here, then, as we understand, is an error in this item-
ized account, to start with, of $3500.
Other palpable errors in this itemized account might be
pointed out. But without further dwelling upon it, we may
say, that a master's report which has to depend upon such an
account for its support, fails of being sustained.
316 Matthews et al. #. Storms et al. [June T.
Statement of the case.
The exceptions to the masters report should have been
allowed.
The decree was for the whole amount found due by the
master, without regard to the credit of $2000, December 2,
1870, established by the testimony at the final hearing on the
master's report.
The prior interlocutory decree, by its sweeping terms, an-
nulled the deed of conveyance and assignment in trust of May
27, 1870, without any allegation in the bill to found it upon.
In these respects there was error.
The decree will be reversed, and the cause remanded for fur-
ther proceedings, in conformity with this opinion.
Decree reversed.
Thomas Matthews et al.
v.
Hail Storms et al.
1. Pleading — defect apparent on face of bond sued on, after oyer, reached
by demurrer. The tenor of the bond declared on, as it appears upon oyer,
is considered as forming part of the declaration, and it is competent for the
defendant to avail himself of any defect apparent upon the face of the bond,
or variance between its terms and the allegations in the declaration, after
oyer, by demurrer.
2. Replevin bond— name of defendant should appear therein. It is
essential to the validity of a replevin bond, that the name of the defendant in
the suit appear therein, and if it is defective in this respect it is a nullity,
and the omission can not be supplied by averment or otherwise.
Appeal from the Circuit Court of White county; the Hon.
Tazewell B. Tanner, Judge, presiding.
The declaration in this case, after the caption, is as follows:
"Hail Storms, sheriff, and John Diddle, deputy sheriff of White
county, Illinois, who sue for the use of Samuel B. Sacks and
Joseph Sacks, partners, trading by firm name of J. & S. B.
Sacks, complain of Thomas Matthews and Eobert Stanley, of a
1874.] Matthews et al. v. Storms et al. 317
Statement of the case.
plea that they render to the said plaintiffs, for the use afore-
said, the sum of $2400, which they owe to and unjustly detain
from the said plaintiffs for the use aforesaid ; for that whereas,
heretofore, to-wit: on the 23d day of April, 1873, at White
county, aforesaid, the said Thomas Matthews caused a writ of
replevin to issue from the circuit court of White county, afore-
said, against the said Hail Storms, sheriff, and John Diddle,
deputy sheriff of said White county, to recover the possession
of a lot of clothing and other goods, wares and merchandize,
then in the store-room of said Thomas Matthews, in Grayville,
White county, Illinois, of the value of $1200, they, the said
Hail Storms, sheriff, and John Diddle, deputy sheriff of White
county, Illinois, having previously, to-wit: on the 22d day of
April, 1873, to-wit, at the county of White, aforesaid, lawfully
seized and taken possession of said goods and chattels, by virtue
and authority of a writ of attachment issued out of the circuit
court of said White county, bearing date the 22d day of April,
1873, in favor of the said J. & S. B. Sacks, for the sum of $180,
and against James McCabe and Joseph Rothery, partners,
trading by firm name of McCabe & Rothery; and the said
Thomas Matthews, on the 23d day of April, 1873, to-wit: at
the county of White and State of Illinois, delivered the said
writ of replevin to one Wesley Hillyard, he being then and
there coroner of White county, Illinois, and the said Wesley
Hillyard, as coroner, as aforesaid, thereupon took a bond, as
provided by statute, from the said Thomas Matthews as prin-
cipal, and the said Robert Stanley as surety, in double the
value of the goods and chattels then about to be replevied, under
their hands and seals, which said bond was dated the 23d day
of April, 1873, by which said bond or writing obligatory, now
shown to the court here, the said defendants did, jointly and
severally, acknowledge themselves to be held and firmly bound
unto the plaintiffs, as sheriff and deputy sheriff of White
county, aforesaid, in the sum of $2400, with a condition there-
under written, setting forth, in substance, that, whereas, the
said Thomas Matthews had, upon the day of executing said
bond, replevied the goods and chattels above mentioned, which
318 Matthews et al. v. Storms et al. [June T.
Statement of the case.
had been previously taken by the said Hail Storms, as sheriff,
aforesaid, as the property of James McCabe and Joseph Eoth-
ery, by virtue of a writ of attachment, at the suit of said Joseph
and Samuel B. Sacks, partners, etc., for $180. Now, if the
said Thomas Matthews should prosecute his said suit against
the said Hail Storms, sheriff, and John Diddle, deputy sheriff of
White county, aforesaid, with effect and without delay, and make
return of the said property so about to be replevied, if return
thereof should be awarded, then the said writing obligatory was
to be void, otherwise to remain in full force and effect. And
that, on the 23d day of April, 1873, the said "Wesley Hillyard,
as coroner of said White county, replevied from the said plain-
tiffs, Hail Storms, sheriff, and John Diddle, deputy sheriff of
White county, and delivered to the said Thomas Matthews, the
said property, to-wit: a lot of clothing and other goods, wares
and merchandise, in the store-room of the said Thomas Mat-
thews, in Grayville, being the property above described. And
at the May term, 1873, of the circuit court of said White
county, to which term the said writ of replevin was made re-
turnable, the said Thomas Matthews, by his declaration, de-
clared against the said Hail Storms, sheriff, and John Diddle,
deputy sheriff of White county, Illinois, in a plea, wherefore
he took and unjustly detained the said goods and chattels, and,
by the said declaration of the said Thomas Matthews, com-
plained that the said Hail Storms, sheriff, and John Diddle,
deputy sheriff of White county, Illinois, at White county afore-
said, on the 22d day of April, 1873, unjustly detained the goods
and chattels of him, the said Thomas Matthews, above de-
scribed, to the damage of him, the said Thomas Matthews, of
$1200, and therefore he brings suit. And such proceedings
were had, thereupon, in the said plea in said circuit court of
said White county, aforesaid, at the term aforesaid, that on the
— day of May, 1873, being the third day of said term, the
cause aforesaid coming on for trial, the said Matthews dismissed
his said suit of replevin against said plaintiffs herein, and that,
at the same term of said court, the court awarded a return of
the said goods and chattels to the said Hail Storms, sheriff,
1874.] Matthews et al. v. Storms et al. 319
Statement of the case.
and John Diddle, deputy sheriff of White county, aforesaid,
and gave judgment against the said Thomas Matthews for costs
of suit, as by the record and proceedings thereof now remaining
in the said circuit court of said White county more fully ap-
pears. And the said plaintiffs in fact say, that the said Thomas
Matthews did not prosecute his said suit to effect against the
said Hail Storms, sheriff, and John Diddle, deputy sheriff of
White county, Illinois, and has not made return of said prop-
erty so replevied, as aforesaid, according to the form and effect
of the said condition in the said writing obligatory, but has
hitherto wholly neglected and refused, and, though requested,
still neglects and refuses so to do," etc.
The appellants demurred, craving oyer of the bond, and as-
signed as special causes of demurrer —
"First — Because there are improper parties plaintiff joined
in the suit.
"-Second — Because said plaintiffs show no cause of action in
their declaration.
"Third — Because said suit is not brought in the name of
the proper parties.
"Fourth — Because there is no bond alleged in and made
part of the declaration, as is authorized and required by stat-
ute."
The bond is as follows :
"Know all men by these presents, that we, Thomas Matthews
and Robert Stanley, of the county of White and State of Illi-
nois, are held and firmly bound unto Hail Storms, sheriff, and
John Diddle, deputy sheriff of the county of White and State
of Illinois, in the sum of $2400, good and lawful money of the
United States, to be paid to the said Hail Storms, sheriff, or to
John Diddle, deputy sheriff, or their executors, administrators
or assigns, for which payment, well and truly to be made, we
do bind ourselves, our heirs, executors and administrators,
jointly and severally, firmly by these presents. Sealed with
our seals, and dated this 23d day of April, A. D. 1873.
"The condition of this obligation is such, that, whereas, the
above bounden Thomas Matthews has this day replevied a lot
320 Matthews et al. v. Storms et at. [June T.
Opinion of the Court.
of clothing and other goods, wares and merchandise, now in
the store-room of the said Thomas Matthews, in Grayville,
White county, Illinois, taken by said sheriff as the property
of James McCabe and Joseph Rothery, by virtue of a writ of
attachment, at the suit of Joseph Sacks and Samuel B. Sacks,
partners, etc., for $180. Now, if the said Thomas Matthews
shall prosecute his said suit to effect and without delay, and
make return of said property, if return thereof be awarded, and
save and keep harmless the said Hail Storms, sheriff, as afore-
said, in replevying said property, then the above obligation to
be void: otherwise to remain in full force and effect.
"Thomas Matthews, [seal.]
"Robert Stanley, [seal.]"
The demurrer to the declaration was overruled, and appel-
lants electing to abide by their demurrer, judgment was ren-
dered in favor of appellees for their debt, $2400, and damages,
assessed at $195. Proper exceptions were taken, and the errors
assigned are:
First — The court erred in overruling the demurrer to plain-
tiffs' declaration.
Second — The court admitted improper testimony for the
plaintiffs.
Third — The court erred in rendering judgment for the
plaintiffs.
Messrs. McCartney & Graham, for the appellants.
Mr. John M. Crebs, and Mr. Thomas S. Casey, for the ap-
pellees.
Mr. Justice Scholfield delivered the opinion of the Court:
The tenor of the bond, as it appears upon oyer, is considered
as forming a part of the precedent pleading, and it was com-
petent for appellants to avail themselves of any defect apparent
upon the face of the bond, or variance between its terms and
the allegations in the declaration, after oyer, by demurrer. 1
Chit. Pleading, 466, 468 ; Taylor et al. v. Kennedy, Breese, 91.
1874.] Matthews et al. v. Storms et al. 321
Opinion of the Court.
It is alleged in the declaration, that the condition of the
bond is, "that, whereas, the said Thomas Matthews had, upon
the day of executing said bond, replevied the goods and chattels
above mentioned, which had been previously taken by the said
Hail Storms, as sheriff, as aforesaid, as the property of James
McCabe and Joseph Rothery, by virtue of a writ of attachment
at the suit of Joseph and Samuel B. Sacks, partners, etc., for
$180. Now, if the said Thomas Matthews should prosecute
his said suit against the said Hail Storms, sheriff, and John
Diddle, deputy sheriff," etc. In the condition of the bond, as
set out on oyer, nothing is said about prosecuting said suit
against Hail Storms and John Diddle, nor is it stated against
whom the suit is prosecuted. It is true, it is stated therein
that the property replevied was "taken by the said sheriff of
"White county," by virtue of a writ of attachment, etc., but it
could hardly be claimed that the necessary legal conclusion
from this statement is, that the suit in replevin was prosecuted
against Hail Storms and John Diddle.
In Arter et al. v. The People, use, etc. 54 111. 228, it was
held, it is essential to the validity of a replevin bond, that the
name of the defendant in the suit appear therein, and that,
being defective in this respect, it is a nullity, and the omission
can not be supplied by averment or otherwise.
Applying this principle to the case before us, the bond, as
it appears upon oyer, was a nullity ; and the variance between
its terms and that of the instrument described in the declara-
tion is, therefore, not only clear, but upon a point vital to ap-
pellees' right to recover in the present suit.
It is insisted, however, that the bond, although defective as
a statutory bond, may be held good as a common law obliga-
tion.
Even if this were conceded to be true, under a declaration,
with proper averments, it is not perceived how the principle
can be resorted to for the purpose of remedying the defects in
the present declaration. "Whether the instrument declared
upon shall be called a statutory or common law bond, the vari-
ance between its terms and the allegations in the declaration
21— 72d III.
322 Padfield v. Padfield et al. [June T.
Syllabus.
must still be the same; and there would also appear to be the
same necessity that its condition should clearly refer to and
specify the purpose for which it was given.
The court below erred in overruling the demurrer and ren-
dering judgment against the appellants. The judgment is,
therefore, reversed, and the cause remanded.
Judgment reversed.
Catharine Padfield
William E. Padfield et al.
1. Trust — executory, not enforced in equity. Although a court of chan-
cery will not lend its aid to complete a voluntary agreement establishing a
trust, nor hold it binding and obligatory while it is executory, yet, if it is
executed, although voluntary and without consideration, it will be sustained
and enforced in all its provisions.
2. Same — whether executed or executory. In determining whether a trust
is an executed or only an executory one, the intention of the parties at the
time of creating it, is an important and controlling element, and equity, dis-
carding unmeaning and useless forms, will look to the substance of the act
done, and the intention with which it was done, and carry out that intention.
3. Executed trust — can not be changed by will. Where a party places
property in the hands of a trustee for the use of his children, to be disposed
of as directed by a will executed by him at the same time, the trust will be
executed in accordance with such will, notwithstanding the will may be re-
voked and another one executed. The right of the party to make another
will is not affected by such trust, but the right to dispose of or change the
terms of an executed trust by will, does not exist.
4. A father transferred to his son a large amount of notes and other secu-
rities, and took from him an agreement to pay $2000 per annum for his
father's support during his life, and to pay to certain parties named two-
thirds of the proceeds of such notes and securities, upon the death of the
father, for the use of a brother and sister named, which amount, so paid to
such trustees, they were to dispose of as directed by the last will and testa-
ment of the father. At the same time, and as part of the same transaction,
the father executed his last will and testament, and it and the son's agree-
ment were all placed in the hands of one of the trustees named, for safe
keeping. It appeared, from oral testimony, that the intention of the father
1874.] Padfield v. Padfield et al. 323
Opinion of the Court.
at the time was, to divide the notes and securities equally between his three
children : Held, that the trust created by the agreement between the father
and son was an executed one, and that the two-thirds to be paid to the trus-
tees named was to be disposed of by them as directed by the will of the
father made at that time, and that he had no power to change or otherwise
dispose of the property by a subsequent will.
Appeal from the Circuit Court of St. Clair county; the
Hon. "William H. Snyder, Judge, presiding.
Mr. C. "W. & E. L. Thomas, for the appellant.
Mr. Jehu Baker, and Mr. James M. Dill, for the appellees.
Mr. Justice Craig delivered the opinion of the Court:
The circuit court, on hearing, dismissed the bill filed in this
cause. The complainant appealed.
There is no dispute between the complainant and defendants
in regard to facts. The points involved are questions of law.
It appears, from the record, that, on the 26th day of April,
1869, Thomas Padfield transferred, by indorsement, to his son,
W. R. Padfield, a large amount of notes, mortgages and other
securities, and received from him his promissory note and con-
tract as follows:
" For value received, I promise to pay to my father, Thomas
Padfield, for his support during his natural life, the sum of
two thousand dollars ($2000) annually, but at his death this
instrument shall be void.
April 26, 1869. W. E. Padfield."
"I have received the foregoing notes and certificates of purchase
from Thomas Padfield, which he has assigned and transferred
to me in consideration that I furnish him $2000 annually for a
support, should he require it, during his natural life, and after
his death I hereby obligate and bind myself to pay to Conrad
Eisenmayer and James M. Whi taker two-thirds of the amount
collected and realized on the foregoing notes, deducting first
the amount furnished said Thomas Padfield for his support,
with interest on the same, for the use of James M. Padfield
324 Padfield v. Padfield et al. [June T.
Opinion of the Court.
and Julia Ann Bland, which amount so paid the said Eisen-
mayer and Whitaker are to dispose of as directed by the last
will and testament of the said Thomas Padfield.
This April 26th, A. D. 1869. W. E. Padfield."
On the same date, and as a part of the same transaction,
Thomas Padfield executed his last will and testament, as fol-
lows :
" Summerfield, Illinois, April 26, 1869.
In the name of God, amen. I, Thomas Padfield, of the
town of Summerfield, county of St. Clair, and State of Illi-
nois, of the age of seventy-seven (77) years, and being of sound
mind and memory, do make this my last will and testament;
that is to say —
First — I give and bequeath to my wife, Catharine Padfield,
my house where we now reside, together with the following
lots upon which the said house stands : lots No. 5, 6, 7, 8, in
Jurney addition in the town of Summerfield. I also give to
my wife all my household and kitchen furniture.
Second — I give and bequeath to my three children all the
rest of my real estate and personal property of every descrip-
tion, including all my promissory notes and moneys; it is my
wish to have it divided equal to William P. Padfield, to James
M. Padfield, to Julia Ann Bland. I appoint said Conrad
Eisenmayer and James M. Whitaker as my executors of this
my last will and testament. Witness whereof I have hereunto
set my hand and seal this 26th day of April, A. D. 1869.
Thomas Padfield."
These three papers, after they were executed, were placed in
an envelop, and, by agreement of the parties, left with Mr.
Eisenmayer, for safe keeping.
At the date of this transaction, Thomas Padfield was 77
years old. He was then residing with complainant, who was
his third wife. He had but three children: Wm. Padfield,
James Padfield and Mrs. Bland, and they were issue of a
former marriage.
Mr. Horner, who drew these papers, testified : " I saw these
papers before, on the 26th day of April, 1869, on the day on
1874.] Padfield v. Padfield et al. 325
Opinion of the Court.
which they were drawn up ; have not seen them since, until
to-day. On that day, I went to Summerfield to transact some
business for Thomas Padfield. When I first got there, he
wanted me to draw up his will, which I did. He then said he
wanted to give his personal property to his three children:
Win. Padfield, James Padfield and Mrs. Bland, reserving a
support out of the same during his natural life."
Some time after the execution of these papers", Thomas Pad-
field made a second will, by which he revoked all former wills,
and gave to each of his three children the sum of $5, and all
the rest of his property of every kind he devised to the com-
plainant, his wife. On the 11th of November, 1873, he died,
and his will was duly probated.
The complainant, who is executrix and devisee under this
last will, seeks, by the bill, to recover two-thirds of all the notes
and securities, or the proceeds of the same, which were trans-
ferred by Thomas to Wm. P. Padfield. The one-third, it is
conceded by the bill, belongs to William, and can be held by
him under the contract made with his father.
The real controversy between appellant and appellees grows
out of the proper construction to be given to the contract exe-
cuted by Wm. P. Padfield on receiving these securities.
On the one hand, it is contended by appellant that, under
the agreement, William Padfield took one- third of the prop-
erty absolutely, and held the other two-thirds during the
life of his father, but the jus disjponendi remained with the
latter; while, on the other hand, it is insisted by appellees that
James Padfield and Julia Ann Bland took a vested interest in
the two-thirds, which could not be taken away by any power
or authority remaining in the father, Thomas Padfield.
In the case of Padfield v. Padfield, 68 111. 210, it was held,
that the transfer of these notes by assignment and delivery
vested in Wm. P. Padfield the legal title to the property, and
created a trust as to the two-thirds of it.
If the trust thus established can be regarded as an executed
trust, although voluntary, and without consideration, so far as
James Padfield and Julia Ann Bland are concerned, it is a
326 Padfield v. Padfield et al. [June T.
Opinion of the Court.
principle of equity well established and uniformly acted upon,
that it will be sustained and enforced in all its provisions. On
the other hand, a court of chancery will not lend its aid to
complete a voluntary agreement establishing a trust, nor hold
it binding and obligatory while it is executory. Padfield v.
Padfield, supra; Perry on Trusts, sec. 98.
The main point in this case, then, is, was this an executed or
executory trust. In arriving at a correct determination of this
question, it is all-important, and must be a controlling element,
to ascertain the true intent of the parties at the time the notes
were transferred and the contract executed. As was said in
Otis v. Peckwith, 49 111. 135, equity, discarding unmeaning
and useless forms, will look to the substance of the act done,
and the intention with which it was done, and carry out that
intention.
It is apparent, from the oral evidence as well as the papers
executed, that Thomas Padfield, at the time he consummated
the arrangement with his son, clearly intended to make an
equal division of the property between his three children, and
the only point upon which there can be any doubt, is, whether
the papers, as drafted and executed, were so drawn as to carry
out that intention.
The contract signed by Wm. P. Padfield provides that, upon
the death of his father, he is to pay Eisenmayer and "Whitaker
two-thirds of the amount of the property, for the use of James
M. Padfield and Julia Ann Bland, which amount so paid the
said Eisenmayer and Whitaker are to dispose of as directed by
the last will and testament of the said Thomas Padfield.
The will made on the same day divided the property between
the three children.
It is claimed by appellant that, as the law gave Thomas
Padfield the right to make a subsequent will, and revoke the
one formerly made, and as the contract establishing the trust
provided for the disposition of the two-thirds of the property
as directed by the will, this contemplated a future settlement
and a future act to be done by the author of the trust, and
1874.] Padfield v. Padfield et at. 327
Opinion of the Court.
thus rendered the trust executory. We do not so regard the
contract creating the trust.
By giving the arrangement made between Thomas Padfield
and his son a reasonable construction, keeping in view the
evident intent of the parties, we can come to no other conclu-
sion than that the trust was an executed one.
It is declared in the contract that the two-thirds of the
property is to be paid to Eisenmayer and Whi taker, for the
use of James M. Padfield and Julia Ann Bland. Had Thomas
Padfield intended to reserve to himself the right or power to
dispose of this property in the future, by will, to others, as he
saw proper, no such language would have been used in the
contract. If the property was placed in trust for the use of
these two parties, as is declared, it is absurd to say the jus
disponendi remained in the father. The two things are utterly
inconsistent.
What, then, is the meaning of the last clause in the contract,
"to dispose of as directed by the last will and testament of
Thomas Padfield?"
It will be observed that the words here used do not manifest
an intent on the part of Thomas Padfield to control this prop-
erty by any act on his part in the future. The language used
is not as he should thereafter direct by will to be made, but the
plain and obvious meaning of the words used is, he had already
directed by will the disposition of the property.
It does not affect the question in the least, that a party can
revoke or change a will made, at pleasure.
Thomas Padfield had executed a paper, and deposited it, for
safe-keeping, with another, which he termed a will. In this
contract, which created and established a trust, he refers to the
will which he had executed as containing evidence of the man-
ner in which a division of property should be made between
the children.
The fact that he had the right to make another will, and re-
voke the one made in the first instance, did not change the
character of the trust established or the rights acquired under
it.
328 City of Alton v. Hartford Fire Ins. Co. [June T.
Syllabus.
If Thomas Padfield, in lieu of making a will, had written a
letter and left it with Eisenmayer, in which he had directed a
division of this property between the two children, and then,
in the contract creating the trust, referred to the letter, the
question would not have been other or different from the one
presented by this record.
Upon the transfer of the legal title to the notes and securi-
ties by Thomas Padfield, ¥m. R. Padfield executed the con-
tract which created the trust, and the rights of James M.
Padfield and Julia Ann Bland became fixed, and were not sub-
ject to any act that might be done by Thomas Padfield in the
future.
We are, therefore, of opinion that the trust created was an
executed one, and the decree of the circuit court will be
affirmed.
Decree affirmed.
City of Alton
The Hartford Fire Insurance Company.
1. Evidence — should be excluded unless competency of is shown, when
objected to. Though it may be a party is not to be controlled in the order of
his testimony, yet if he offers evidence which is not competent without
other connecting evidence, and it is objected to on that ground, and he does
not state that he will show the connecting link in his chain of evidence, and
does not show it, the evidence offered should be excluded.
2. City ordinances — when objected to as evidence, authority to pass them
must be shown. In a suit brought by a city to recover a penalty for the vio-
lation of a city ordinance, it is proper to exclude the ordinance, when offered
in evidence, unless the plaintiff -shows or offers to show that the city had the
authority to pass the ordinance, and if such evidence is not offered, and
there is no evidence except the ordinance itself, it is proper for the court to
exclude it, and unless the plaintiff submits to a non-suit, to instruct the jury
to return a verdict for the defendant.
"Writ of Error to the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
1874.] City of Alton v. Hartford Fire Ins. Co. 329
Opinion of the Court.
Mr. J". "W". Coppinger, for the plaintiff in error.
Mr. C. P. Wise, for the defendant in error.
Mr. Justice Breese delivered the opinion of the Conrt :
This was an action of debt for a penalty, brought by the city
of Alton against the Hartford Fire Insurance Company, alleged
to have been incurred by that company for failing to report the
amount of premiums earned by it for the year 1872.
A judgment was rendered against the defendant company
for the sum of fifty dollars, and an appeal taken to the circuit
court, where a trial was had, resulting in a judgment for the
defendants. To reverse this judgment, the plaintiffs bring the
record here by writ of error.
The plaintiffs, to maintain their case, offered in evidence an
ordinance of the city of Alton, adopted on the 11th of July,
1870, entitled "An ordinance regulating the licensing of insu-
rance companies in the city of Alton." Objection was made
to the introduction, by defendants, which the court allowed,
and excluded it from the jury, and, plaintiffs offering no other
testimony, the court directed the jury to find for the defend-
ants, which they did. These are the errors assigned.
It is contended by plaintiffs, that they had a right to intro-
duce the ordinance in evidence, without showing authority to
pass such an ordinance. They insist they had a right to intro-
duce it without any preliminary evidence. It was claimed by
the defendants that the charter of the city conferred no power
upon the municipality to pass such an ordinance. ISTo attempt
being made by the plaintiffs to remove this objection by a pro-
duction of the charter, the ordinance had nothing on which to
rest, and was properly excluded. It may be admitted a party
is not to be controlled in the order of his testimony; what
portion of it shall be first introduced ; but if he fails to state
he will show the connecting link in his chain of evidence, and
does not show it, the court has no other course to take but to
direct a verdict for the defendant, unless the plaintiff volunta-
rily submits to a non-suit.
330 City of Alton v. Hartford Fire Ins. Co. [June T.
Opinion of the Court.
Clearly, without warrant in the city charter, the ordinance
had no validity, and was not evidence, for the city possessed no
powers except such as are expressly granted, or such as are
necessary to carry into effect a power expressly granted.
Plaintiffs say, the object of the ordinance was to enable the
city of Alton to fix the basis for imposing a tax of two per
cent upon insurance companies, to be applied to the support
of the fire department, in conformity with the requirements of
section 30 of an act entitled "Insurance," approved March 11,
1869.
That section is as follows: Every agent of any insurance
company incorporated by the authority of any other State or
government, shall return to the proper officer of the county,
town or municipality in which the agency is established, in the
month of May, annually, the amount of the net receipts of
such agency, which shall be entered on the tax lists of the
county, town, etc., and subject to the same rate of taxation for
all purposes, etc., that other personal property is subject to at
the place where located; said tax to be in lieu of all town
and municipal licenses; and all laws and parts of laws incon-
sistent herewith are hereby repealed : Provided, that the pro-
visions of this section shall not be construed to prohibit cities
having an organized fire department, from levying a tax or
license for not exceeding two per cent, in accordance with the
provisions of their respective charters, on said gross receipts,
to be applied exclusively to the support of the fire department
of such city. Sess. Laws 1869, p. 209, 228.
Clearly, it was incumbent on the plaintiffs to show the city
of Alton had a fire department, to justify this levy. This rec-
ord fails in this respect. Van Inwagen v. City of Chicago,
61 111. 31.
We think there is no error in this record. The constitu-
tional question sought to be brought before us by the defend-
ants in error will be considered and decided after full argument
on both sides.
The judgment is affirmed.
Judgment affirmed.
1874.] Allen v. Smith et al. 331
Opinion of the Court.
Joseph Allen
v.
James B. Smith et al.
Chancery— granting new trial at law. Courts of equity never decree a
new trial in a suit at law, when the complainant has been guilty of laches
in defending. He must use all reasonable efforts to make his defense at law,
and must be prevented by accident, mistake or fraud. If he is guilty of
negligence in making his defense at law, he has no claim to equitable relief.
Appeal from the Circuit Court of Marion county; the
Hon. Amos Watts, Judge, presiding.
Mr. William Hamill, for the appellant.
Mr. H. H. Chesly, and Mr. James McCartney, for the ap-
pellees.
Mr. Chief Justice "Walker delivered the opinion of the
Court:
At the April term, 1870, of the Clay circuit court, appellees
recovered a judgment, by default, against appellant, for the
sum of $1500. Afterwards, an execution was issued upon the
judgment, and was levied on some of appellant's property.
He, thereupon, filed this bill, and obtained a temporary injunc-
tion, and, after a change of veuue, a demurrer was interposed
to the bill, which was overruled by the court, and defendant
declining to answer, the bill was taken for confessed, and the
relief sought was granted, by decreeing a new trial at law.
Defendant thereupon brought the case to this court, at the
June term, 1872, (63 111. 474,) when the decree of the court
below was reversed, and the cause was remanded with leave to
complainant to amend his bill, which was done.
After the bill was amended defendant answered, and on a
hearing on the bill, answer, replication and proofs, the relief
was denied and the bill was dismissed, and a decree for $150
damages for wrongfully suing out the injunction was rendered,
and complainant appeals to this court, and asks a reversal.
332 Allen v. Smith et al. [June T.
Opinion of the Court.
The grounds relied upon for relief are, that complainant had
several suits pending in the Hamilton circuit court, the county
of his residence, in which he claims he was a material witness,
and that he was also a material witness in the case pending in
the Clay circuit court; that both courts sat at the same time,
and he could not be present at both courts at the same time;
that the two places of holding the courts were distant from each
other about sixty miles, and that there was no railroad commu-
nication between them ; that he procured an attorney to pre-
pare an affidavit for a continuance in the suit in the Clay circuit
court, and sent it by a person going to that place, with direc-
tions to employ an attorney to procure the continuance for
him. The person to whom it was handed, on arriving at the
Clay circuit court, handed the affidavit to an attorney, with a
request that he attend to the matter; but the affidavit lacked
the seal of the clerk before whom it was sworn to, and was,
therefore, defective. The continuance was not obtained, nor is
it by any means certain that the attorney undertook to appear
in the case, for the want of a fee, which was not sent or oifered
to him, nor does it appear that any motion was made for the
purpose; and we are inclined to the opinion that it was not
made, as it appears the affidavit was found lying under a table
in the court room, and was brought back by the person who
had been intrusted to deliver it to an attorney. We can not
suppose that, if the affidavit had been filed and the motion
made, it would have been treated as waste paper, as this seems
to have been. The attorney does not testify that he did appear,
or that he regarded himself as retained. And we infer that he
did not, or he would evidently have taken some steps, by mail,
messenger, or otherwise, to have returned the affidavit to ap-
pellant, that he might have corrected the omission of the clerk,
and iiad it returned in time to have been used as desired. At
such a distance, it could have required but little more than two
days for a messenger to have made the journey and returned.
But this was not done, and we presume it was because money
had not been furnished the attorney, and not regarding himself
as retained, he did not feel it his duty to advance it, or guar-
1874.] Allen v. Smith et al. 333
Opinion of the Court.
antee the payment of the expenses of a messenger for the
purpose.
But it appears the Clay circuit court commenced a week
earlier than the Hamilton circuit court. And this being so, no
reason is perceived why appellant did not attend court in per-
son the first week of the term, and employ counsel, and, if
necessary, have prepared for his defense. Court commenced
in Clay county on the 25th day of April, and on the following
Thursday, being the 28th, the case was placed at the foot of
the docket, and was afterwards called for trial on the Tuesday
of the second week of the term, when the default was entered.
The Hamilton circuit court commenced, as appears by the
statute, on the second day of May, or the day before the default
was entered. Had plaintiff been in attendance the first week
of the term in Clay county, we infer that a trial would have
been had during that week, or he could have obtained a con-
tinuance on the day the case was placed at the foot of the docket,
as the record recites the plaintiff was not ready for trial, and
we infer the case was then called for trial.
In cases of this character, courts of equity never grant relief
when the complainant has been guilty of laches in defending
the suit at law. He must use all reasonable efforts to prepare
and make his defense at law, and must be prevented by acci-
dent, mistake or fraud. See Ballance v. Loomis, 22 111. 82 ;
Owens v. Ranstead, ib. 161; Campy. Fincher, 27 ib. 346;
Buntain v. Blackburn, ib. 406; Albro v. Dayton, 28 ib. 329;
Ramsey v. Perley, 34 ib. 504; Staley v. Murjphy, 47 ib. 241;
Shaffer v. Sutton, 49 ib. 506; Smith v. Powell, 50 ib. 21;
Smith v. Allen, 63 ib. 474. If a party is guilty of negligence
in making his defense at law, he has no claim to equitable
relief.
In this case, as we have seen, appellant was guilty of gross
negligence in failing to attend the Clay circuit court, nor was
Le prevented by accident, mistake or fraud. It seems his non-
attendance grew out of a careless indifference to his own im-
portant interests. The facts disclosed on the hearing totally
tail to make out a case, nor can we look to the hardship, as
334 St. John v. Qtjitzow. [June T.
Opinion of the Court.
that is not ground of relief when it is the consequence of his
own negligence. We regret his misfortune, but, so far as we
can see, it is the result of his own negligence, and being such,
the law can afford him no relief.
The decree of the court below must be affirmed.
Decree affirmed.
Louisiana St. John
v,
"William Quitzow.
1. Landlord and tenant — when tenant may dispute landlord's title.
As a general proposition, a tenant can not dispute his landlord's title, but he
may show it has terminated either by its own limitation or by his own con-
veyance.
2. Conveyances — reservation of right to streets. Where the owner of
property which is platted in lots and streets sells a lot, and reserves the right
to vacate the streets, it is equivalent to a reservation of all his title thereto,
and the purchaser of the lot will not acquire title to any part of the street
on which it abuts, in case it is afterwards vacated.
3. Same — when the law vests fee in city, purchaser takes no title. Where
the law vests the fee of streets in the municipality, the purchaser of a lot
abutting on a street takes no interest in the street, other than what he has
in common with the public ; and if the street is afterwards vacated, the fee
will return to the original proprietor.
Appeal from the Circuit Court of St. Clair county; the
Hon. William H. Snyder, Judge, presiding.
Mr. G. Kcerner, for the appellant.
Mr. William H. Underwood, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
The premises sought to be recovered in this action, consti-
tuted a part of an old street in the town of St. Clair, except
three feet, included in lot 63. The street has long since been
vacated. In 1859, appellant, claiming to be the owner of the
1874.] St. John v. Quitzow. 335
I Opinion of the Court.
entire property covered by the town plat, leased a portion
of it to August Myer, which lease embraced that part in con-
troversy. Proof was made of the assignment of that lease to
appellee, and that he entered into possession as the tenant
of appellant. It is on the strength of that title that she seeks
to recover.
The defense appears to be rested on the ground that, in 1863,
appellant sold certain lots in the old town of St. Clair to Ran-
tenberg and Orbike, including lot 63, on the corner of Third or
Main street and Broadway. By virtue of this conveyance, the
parties claim to the centre of what was Main street. If this
right can be maintained, it would include the strip of land in
dispute between the parties.
The town of St. Clair was originally laid out by John L. St.
John. Perhaps as early as 1842, the proprietor and one Da-
vidson undertook to vacate the entire town plat. By virtue
of an act of the legislature, passed in 1867, appellant did vacate
some of the streets in the old town, and made a new plat of the
grounds. These grounds were contiguous to East St. Louis,
and now constitute a part of that city. The vacating of the
old streets and the making of the new plat, as done by appel-
lant, was by the consent and approval of the city authorities.
It is insisted that appellee, having entered into possession
of the premises as the tenant of appellant, can not now dispute
her title. As a general proposition, a tenant can not dispute
his landlord's title, but he may show it has terminated either
by its own limitation or by his own conveyance. This doctrine
is fully settled by the cases in this court. Tilghman v. Little,
13 111. 239; Franklin v. Palmer, 50 111. 202.
Appellee may, therefore, rightfully defend, notwithstanding
he was her tenant, as to all that portion of the leased premises
to which he can show appellant has parted with her title by
her voluntary act. The tenement occupied by appellee lapped
over three feet on to lot 63, as designated on the plat. He
purchased this strip of land from Rantenberg and Orbike, and
now claims in his own right to the centre of what was Third or
Main street, the same having been vacated. The only question
336 St. John v. Quitzow. [June T.
Opinion of the Court.
in the case is, whether he can maintain his title to the centre
of the vacated street. We are of opinion he can not.
Appellant never parted with her interest to the centre of the
street, and without an express grant it did not pass with the
conveyance of lot 63. She expressly reserved the right in the
deed to vacate the streets, which is equivalent to a reservation
of all her title thereto.
But there is another view that may be taken. The law, at
the date of these transactions, vested the fee of the streets in
the municipality. The lot owner took no interest under his
deed in the street, other than what he had in common with the
public. The limits of his lot were his boundary, beyond which
his title did not extend. Hence, if the street was vacated, the
fee returned to the original proprietor. There is nothing in
the facts of this case to change the general rule of law.
It is contended, that when the street was vacated, in 1869,
by consent of appellant, appellee, as her grantee, being the
owner of three feet off lot 63, bounded by Main street, was en-
titled, under the act of 1865, to hold to the centre of the street.
This proposition, in our view of the law, is untenable. What-
ever rights appellant may have had in the premises, could not
be divested by direct legislative action. But the law itself con-
tained a proviso : "unless otherwise specially provided in the
act vacating the same." The act of the General Assembly,
passed in 1869, under which the vacation was made, with the
subsequent approval of the authorities of the city of East St.
Louis, provided otherwise. The new streets were dedicated
upon condition the fee in the streets and alleys vacated should
vest in appellant.
Appellee has failed to show, that whatever title was in
appellant at the date of the lease to Myer, under which he
went into possession of the premises, has been extinguished
by operation of law, or by any conveyance on her part. He
has, therefore, shown no reason why he should not surrender
the premises to his landlord.
The judgment must be reversed and the cause remanded.
Judgment reversed.
1874.] Shephard v. Calhoun. 337
Opinion of the Court.
William Shephaed
v.
Adaeastus Calhoutt.
Payment — when indorsed on promissory note, presumed to be made by
maker, and not by assignor. When a general indorsement of a payment
appears upon a note, the payment will be presumed to have been made by
the maker, who is primarily liable, and not by the assignor upon the note,
especially when the indorsement is made by the assignor himself, who has
the note in his hands for collection against the maker.
Writ of Error to the Circuit Court of Jersey county; the
Hon. Charles D. Hodges, Judge, presiding.
Mr. George W. Herdman, and Mr. E. M. Knapp, for the
plaintiff in error.
Messrs. Warren & Pogtje, for the defendant in error.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action by Calhoun against Shephard, surviving
partner of the banking firm of William Shephard & Co., com-
posed of Shephard and Milton D. Kobbins, to recover the
amount of a promissory note for $1000 in favor of Calhoun,
which he had previously left with said banking firm for collec-
tion. The plaintiff below recovered, and Shephard appeals.
The question presented is one of fact.
The note was collected, and the point in dispute is, whether
Calhoun was given credit for the proceeds on another $4000
note, which Wm. Shephard & Co. held for collection against
Calhoun.
The proof shows that, on the 6th of February, 1871, Cal-
houn executed a promissory note for $4000, payable to the
order of Wm. Shephard & Co., three months after date, with
ten per cent interest, with thirty per cent per annum after ma-
turity, as liquidated damages. The note belonged to one Har-
ley E. Hayes, who had it taken payable to Shephard & Co.'s
22— 72d III.
338 Shephard v. Calhoun. [June T
Opinion of the Court.
order, that they might assign it to him, and so become liable
as assignors; they did assign the note to Hayes, and he then
left it at Shephard & Co.'s bank, for collection.
On the 7th of February, 1872, one Joseph G. Marston, as
principal, with Milton D. Robbins, one of the firm of "Wm.
Shephard & Co., as surety, executed to Calhoun a promissory
note for $1000, payable six months after date, without interest
until due. This note, which is the one involved in this suit,
Calhoun, on the same day it was given, placed in the bank of
Shephard & Co. for collection, the proceeds, when collected, to
be placed as a credit on the $4000 note. On the 14th of Feb-
ruary, 1872, Marston, the maker of the $1000 note, paid to
Wm. Shephard & Co. $958.35. in full of the note, and took it
up, they allowing him a discount of $41.65, as the note would
not be due for six months, and was drawing no interest.
Hayes, the owner of the $4000 note against Calhoun, testi-
fied that, on the 13th day of February, 1872, Wm. Shephard
& Co. placed a credit on the $4000 note of $1700, and that he
received the money from Wm. Shephard & Co. ; that he did
not know whose money it was, or where it came from ; that
Calhoun afterwards paid Wm. Shephard the balance of the
$4000 note, being $2850, and the note was given up to Calhoun
in January, 1873. On the back of the $4000 note are the follow-
ing indorsements of credits, all in the handwriting of Milton
D. Bobbins : "Aug. 6, '71, paid two hundred dollars;" "Feb.
6, '72, paid two hundred dollars;" "paid fifteen hundred dol-
lars Feb. 13th, 1872."
This comprises, substantially, all the testimony.
The theory of appellant is, that the $958.35 paid by Marston
to Shephard & Co. in full of the $1000 note, February 14,
1872, formed a part of the $1500 indorsed on the $4000 note
against Calhoun February 13, 1872, or that the $1500 so in-
dorsed, was the money of Wm. Shephard & Co., and was in fact
paid on the note by them, and not by Calhoun. There is nothing
in the evidence to support this theory further than that the
$1000 note was left in the hands of Shephard & Co. to collect
and apply the proceeds on the $4000 note; that Shephard & Co.
1874] Shephard v. Calhoun. 339
Opinion of the Court.
were assignors on the $4000 note, and that Hayes, the owner
of that note, testifies that, on the 13th of February, Shephard
& Co. paid him $1700, and credited it on the note. There is
a little discrepancy between Hayes' statement, that $1700
was paid to him February 13, and only $1500 appearing in-
dorsed of that date on the note, which is not exj3lained by the
evidence, but no point is made on that.
The evidence is clear, that Shephard & Co. collected the
$1000 note by the receipt of $958.35 in full of it, February 14,
1872. It devolves upon them to account for the money. They
do not do so by showing an indorsement the day before, Feb-
ruary 13, of $1500 on the $4000 note. The dates and sums
are different. Money paid on the 13th of February could not
have been composed in part of money which was received the
day afterward, February 14th, at least without some proof that
the former was paid in anticipation of the receipt of the latter.
It does not appear, from the evidence, that Shephard & Co.
had been fixed in their liability as assignors of the $4000 note,
or that they were looked to, as assignors, for its payment,
or that they apprehended, or had cause for apprehension, that
they would be called upon, as assignors, to pay the note.
Where a general indorsement of a payment appears upon a
promissory note, the payment may be presumed to have been
made by the maker, the party primarily liable, and not by the
assignor upon the note, especially where the indorsement of
the payment is made by the assignor himself, who has the note
;
n
in his hands for collection, against the maker.
Occupying the position they did, of bankers, Shephard &
!o. may be supposed to have been men of correct habits of
business, and had the $1500 which they indorsed as paid on
this note against Calhoun been their own money, and not that
of Calhoun, we must think that they would have taken some
written evidence of that fact from Hayes, to whom they paid
the money, or that they would have preserved evidence of it
in the indorsement of the payment which they made upon the
note in their own handwriting.
340 Heekick et al. v. Swartwout. [June T.
Syllabus.
Had the $1500 paid to Hayes been the money of Shephard &
Co., and not that of Calhoun, it would have been so much money
paid for the use of the latter, and have been a proper subject
of set-off. But defendant withdrew his plea of set-off, and, for
the support of the verdict, it is not necessary to inquire as to
whether this $1500 was the money of Shephard & Co., but
only whether or not the evidence shows an application by
them of the proceeds of the $1000 note collected, to the use
of Calhoun. We think the jury were warranted in finding
that there was a failure of the evidence to show any such ap-
plication of the money, and that their verdict should not be
disturbed.
Exception is taken to the giving of instructions for the
plaintiff, and modifying others asked by the defendant.
There is an inaccuracy in plaintiff's second instruction, in
the use, in one place, of the word "defendant," instead of
"plaintiff," and, in the third instruction, in the omission, in
one place, of the preposition "by," but we think the meaning
of the instructions could not have been misunderstood, and
that these inaccuracies, in the manner they occurred, could not
have misled the jury, or have worked injury to the defendant.
We perceive no substantial error in the instructions given or
modified.
The judgment will be affirmed.
Judgment affirmed.
Edward H. Herrick et al.
v.
Henry L. Swartwout
1. Practice — how to avail of defect in declaration. The objection that
the declaration in a suit on a bond given upon an appeal from the circuit
court to the Supreme Court, does not show that the bond sued on was taken
and approved as the appeal bond of the defendants in the circuit court, can
not be urged as error in the Supreme Court, if the defendant, instead of de-
murring to the declaration, pleads to the merits.
1874.] Herrick et al. v. Swartwout. 341
Opinion of the Court.
2. Nul tiel record — whether a proper plea. Although the bond upon
an appeal from the circuit to the Supreme Court is required to be filed in tLe
office of the clerk of the court from which the appeal was taken, the obligee
in the bond has the right to bring suit on the bond, and it is proper for him
to so bring his suit and not on the record, and a plea of nul tiel record is not
a proper plea to such action.
3. A plea of non est pactum, not sworn to, in a suit on an appeal bond,
does not put the execution of the bond in issue.
4. Estoppel — to deny recital in condition of bond sued on. In a suit upon
a bond given upon an appeal to the Supreme Court, it is unnecessary to in-
troduce a copy of the record of the judgment appealed from, when it is
recited in the condition of the bond, as the defendant is estopped from deny-
ing its existence.
5. Levy of execution — on real estate, is not a satisfaction such as to pre-
vent collection in some other manner. The levy of an execution upon real
estate of sufficient value to satisfy it, does not, like the levy of an execution
on personal property, while the levy is undisposed of, act as such a satisfac-
tion of the judgment as will bar an attempt to enforce its collection in any
other manner.
6. In a suit upon an appeal bond given on an appeal from a judgment
against the defendant and in favor of plaintiff, a plea that an execution issued
on such judgment was levied upon the lands, tenements, goods and chattels of
the defendant of sufficient value to satisfy the judgment, is bad on demur-
rer, as from such averment the value of the goods and chattels by themselves
must be presumed to be insufficient to satisfy the judgment.
Appeal from the Circuit Court of Marion county ; the Hon.
Amos Watts, Judge, presiding.
Mr. Henry C. Goodnow, for the appellants.
Mr. B. B. Smith, and Mr. W. R. Hubbard, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court:
The objection that the declaration does not show that the
bond in suit was taken and approved as the appeal bond of the
defendants, in the circuit court of Cook county, comes too late.
By failing to demur, and pleading to the merits of the decla-
ration, the defendants waived the objection, and it can not now
be urged as error. Evans v. Zohr, 2 Scam. 514; Wallace v.
Curtiss, 36 111. 158 ; Commercial Insurance Co. v. Treasury
Bank, 61 id. 48 3 ; Lush v. Cassell, 25 id. 20 9 3 Nelson et ux. v.
342 Heerick et al. v. Swartwottt. [June T
Opinion of the Court.
Borchenius, 52 id. 236. Although the bond was required by
statute to be filed in the office of the clerk of the court from
which the appeal was prayed, yet it is expressly provided by
the same section, that " the obligee in such bond may at any
time, on a breach of the condition thereof, have and maintain an
action at law as on other bonds." 2 Gross, 291, sec. 67. The
suit, therefore, is properly brought on the bond, and not on the
record; and nul tiel record is not a proper plea to the action.
Amott et al. v. Friel, 50 111. 175. The plea of non est factum
not being sworn to, the execution of the bond, as declared on,
was not put in issue. Frye v. Menkms, 15 111. 339; Home
Flax Co. v. Beebe, 48 id. 138. No error is, therefore, perceived
in admitting the bond in evidence.
The objection that the record of the judgment in this court,
read in evidence, should have been rejected, because it varied
from the judgment described in the declaration, even conceding
that the variance claimed actually existed, is fully answered by
Wowlm v. Bloom, Breese, 138: "The judgment was not the
foundation of the action, but was only brought in collaterally,
to prove another fact, and, for that purpose, was sufficiently
described in the declaration." See, also, 1 Greenleaf on Evi-
dence, sec. 70.
It was unnecessary to introduce a copy of the record of the
judgment appealed from, as it is recited in the condition of the
bond, and the defendants were estopped from denying its exis-
tence. Smith v. WMtaker, 11 111. 418 ; Amott et al v. Friel,
supra.
The only remaining objection insisted upon is, that the court
erred in overruling the demurrer to the 5th plea, in which it is
alleged that an execution, issued upon the judgment appealed
from, was "levied upon the lands, tenements, goods and chattels
of the said Edward Herrick, of sufficient value to satisfy said
judgment," etc. What was the reasonable value of the lands,
tenements, goods and chattels, separately, the plea does not
allege.
From the averment we must conclude that the goods and
chattels, of themselves, are not of sufficient value to satisfy the
1874.] The People, use, etc. v. Gray. 343
Syllabus.
execution. The levy of an execution upon real estate of suffi-
cient value to satisfy it, does not, like the levy of an execution
on personal property, operate, while the levy is undisposed of,
as such a satisfaction of the judgment as will bar an attempt
to enforce its collection in any other manner. Gregory et ah. v.
Stark et at. 3 Scam. 611; Gold v. Johnson, 59 111. 63. The
demurrer was properly sustained.
Perceiving no error in the record, the judgment must be
affirmed.
Judgment affirmed.
The People, for the use of Arthur Foster,
v.
John Gray.
1. Practice — time to object to evidence. The objection that the record of
a judgment of the county court, offered in evidence, does not show a con-
vening order of court, can not be made for the first time in this court.
2. Admissions — by failure to plead in full. All the material averments
in a declaration, not denied or controverted by plea, are admitted.
3. Hence, in a suit upon an administrator's bond, for the failure of the
administrator to pay a judgment rendered against the estate, in due course
of administration, a plea that the plaintiff's claim was not exhibited within
two years after the granting of administration, does not put in issue the exist-
ence of the judgment, and the plaintiff is not required to make proof of
such judgment.
4. Judgment of county court. When a judgment rendered by a county
court for the payment, in due course of administration, of a claim exhibited
against an estate, does not provide for its payment from assets of the estate
not then inventoried, the presumption is, the claim was exhibited within two
years from the time of granting letters of administration.
5. Same — presumption in favor of validity. When the county court
is adjudicating upon the administration of estates, over which it has a general
jurisdiction, as liberal intendments will be granted in its favor as would
be extended to the proceedings of the circuit court, and it is not necessary
that all the facts and circumstances which justify its action shall amrma-
tively appear upon the face of its proceedings.
344 The People, use, etc. v. Gray. [June T.
Opinion of the Court.
Writ of Error to the Circuit Court of Marion county; the
Hon. Amos Watts, Judge, presiding.
Mr. Henry C. Goodnow, for the plaintiff in error.
Mr. Silas L. Bryan, and Mr. John B. Kagy, for the defend-
ant in error.
Mr. Justice Craig delivered the opinion of the Court:
This was an action of debt, brought by appellant against
appellee and his sureties, upon the official bond of appellee, as
administrator of the estate of James H. Nichols, deceased.
It is averred in the declaration, that within two years from
the granting of letters of administration, appellant exhibited
a claim for the sum of $150 against the estate, to John H. Gray
as administrator, which claim was allowed by the county court
of Marion county, and judgment rendered in favor of appellant,
against the estate, on, to-wit: the 19th day of February, 1872,
for the amount of the claim, to be paid by the administrator as
a debt of the fourth class ; that John H. Gray, the administra-
tor, has not paid in due course of administration, or any part
thereof, though often requested so to do; that Gray has received
the assets of the estate, and has sold and disposed of the same,
and received and wasted the proceeds, and has failed and refused
to pay appellant.
To the declaration two pleas were filed, upon which issue was
taken : first, non est factum; second, that the said Arthur Fos-
ter did not exhibit his said claim against the estate of James
II. Nichols within two years next from the date of said letters
of administration.
Appellant, upon the trial of the cause, read in evidence the
bond of the administrator, also the record of the county court,
which read as follows:
"State of Illinois, ) County Court Record, February
Marion County. ) Term, 1872.
" In the matter of the estate of James A. Nichols, deceased.
John H. Gray, administrator. Adjustment.
1874.] The People, use, etc. v. Geat. 345
Opinion of the Court.
"And now, at this day, to-wit: Monday, February 19, 1872,
comes John H. Gray, administrator aforesaid; comes, also,
Arthur Foster, and presents a claim against said estate in the
sum of $150, and now, the allegations of the parties being
heard and considered by the court, it is ordered that said claim
be allowed, classed and paid, as follows: claim of Arthur Fos-
ter, 4th class, $150."
The defendant admitted he had received sufficient assets of
the estate of James A. Nichols to pay all claims allowed against
the estate, and that he still had assets enough in his hands, be-
longing to the estate, to pay the claim of Arthur Foster.
The court, on motion of appellee, excluded from the jury
the record showing the allowance in the county court of appel-
lant's claim, and the jury returned a verdict in favor of appel-
lee. A motion was entered for a new trial, which the court
overruled, and rendered judgment upon the verdict.
The only ground upon which appellee objected to the record
of the county court, as shown by the bill of exceptions, was on
account of a variance between the judgment as shown by the
record and the judgment set out in the declaration.
It is averred in the declaration that appellant exhibited a
claim of $150 against the estate, which was allowed by the
county court, and judgment rendered in favor of appellant,
against the estate, for the amount of the claim, to be paid by
the administrator, in due course of administration, as a debt
of the fourth class.
The county court record shows the appearance of the admin-
istrator and the claimant; that appellant presented a claim
against the estate of $150; that the allegations of the parties
were heard and considered, and the court ordered that the
claim be allowed, and classed and paid as follows: "Claim of
Arthur Foster, fourth class, $150." The pleader, by the decla-
ration, did not profess to set out the judgment in hcee verba,
but only according to its legal effect, and, upon a careful
examination, we fail to perceive any substantial variance be-
tween the judgment as averred in the declaration and the one
contained in the county court record ; nor are we able to
346 The People, use, etc. v. Gray. [June T.
Opinion of the Court.
appreciate the force of the criticism made by the counsel of
appellee upon the validity of this judgment.
While it is true the judgment is not as formal as it might
be, yet it appears upon the face of the record that the county
court had jurisdiction of the parties and subject matter; that,
upon hearing the proof, judgment was entered in favor of the
claimant for a definite sum of money, classed as required by
the statute, and ordered paid as classed. This, we must regard
as a substantial compliance with the statute, and it was error
for the court to exclude the record of the judgment from the
jury. It is, however, insisted by appellee, in his brief, that
the county court record introduced in evidence does not show
a convening order of court, and for that reason, if none other,
it was properly excluded. A sufficient answer to this position
is, no such objection was taken to the record when it was intro-
duced in evidence, or when it was excluded at the request of
appellee. Had that objection then been made, appellant could,
no doubt, have shown by the record a proper convening order;
but be that as it may, it is too late to raise the objection for
the first time in this court.
But, aside from the error of excluding the record of the
judgment from the jury, the judgment in the circuit court
can not be permitted to stand, for the reason that it is clearly
contrary to the evidence. Under the issue formed, it was not
incumbent upon appellant to show a judgment. All material
averments in the declaration not denied or controverted by
plea were admitted. Appellee did not deny by plea the rendi-
tion of a judgment in the county court in favor of appellant.
The issue he tendered was, that the claim was not exhibited
within two years next from the grant of letters of administra-
tion.
It was, then, a fact, uncontroverted before the jury, as averred
in the declaration, that, on the 19th day of February, 1872,
appellant obtained a judgment in the county court, against
the estate of James A. Nichols, deceased, for the sum of $150,
as a debt of the fourth class, to be paid in due course of ad-
ministration.
1874.] I. C. K. R Co. v. Hammer. 847
Syllabus.
Whether the claim was, in fact, exhibited within two years,
was, so far as the decision of this case was concerned, entirely
immaterial. As the judgment in the county court did not
provide for the payment of the claim from assets of the estate
not then inventoried, we must presume it was exhibited within
two years. Had it not been, a different judgment, under the
statute, would have been rendered.
Whether the decision of the county court was right or wrong,
can not be inquired into here. The county court is a court of
general jurisdiction, of unlimited extent, over a particular class
of subjects, and, when acting within that sphere, its jurisdic-
tion is as general as that of the circuit court. When, there-
fore, it is adjudicating upon the administration of estates, over
which it has a general jurisdiction, as liberal intendments will
be granted in its favor as would be extended to the proceed-
ings of the circuit court, and it is not necessary that all the
facts and circumstances which justify its action shall affirma-
tively appear upon the face of its proceedings. Projpst v.
Meadows, 13 111. 168; Mitchell v. Mayo, 16 ib. 83.
The judgment rendered in the county court was, therefore,
conclusive of the fact that the claim had been exhibited within
two years from the grant of letters of administration.
The judgment of the circuit court will be reversed and the
cause remanded.
Judgment reversed.
The Illinois Central Railroad Company
v.
Joseph Hammer.
1. Negligence — in respect to persons passing over depot grounds. Rail-
road depot grounds and passenger houses are quasi public, and a person
going to such houses and passing over such depot grounds in a proper man-
ner, is not a trespasser, but where persons go upon or pass over the grounds
connected with railroad depots, they are presumed to know that the place is
348 I. C. E. E. Co. v. Hammer. [June T.
Syllabus.
dangerous, and hence are required to use care and prudence commensurate
with the known danger of the place.
2. On the other hand, the servants of a railroad company, knowing the
enhanced danger at depot grounds on account of persons constantly passing
and repassing, are required to exercise a greater degree of caution and pru-
dence for the preservation of life and limb, than at other places where per.
sons have no right to be and the employees of the company have no right
to expect to find them.
3. It is negligence for a person to travel on the track of a railroad at its depot
grounds, where all must know that cars are constantly passing, and engines
switching cars, and it is also negligence on the part of the company to have
flying switches passing on a track without an engine attached, or a bell
ringing, or a whistle sounding ; and where both parties are at fault in these
respects, it is for the jury to determine, from all the circumstances, whether
the negligence of the plaintiff is slight, and that of the defendant gross, and
if it is not, the plaintiff can not recover.
4. Comparative negligence. A plaintiff, free from all negligence, may
recover from a defendant who has failed to use such care as ordinarily pru-
dent men generally employ ; or a plaintiff who is even guilty of slight neg-
ligence, may recover of a defendant who has been grossly negligent, or whose
conduct has been wanton or willful.,
5. Instructions — should be plain and explicit. In a case where there is
doubt in regard to an important question, instructions should be plain and
explicit, free from all doubt, and announce legal principles, so that there
shall be no question as to what the law is.
6. Punitive damages — private corporations not liable to, for mere negli-
gence of servants. A private corporation can not be liable to punitive dam-
ages merely for gross negligence of its servants. If a company employs
incompetent, drunken or reckless servants, knowing them to be such, or,
having employed them without such knowledge, retains them after learning
the fact, or after full opportunity to learn it, the company would be liable to
punitive damages ; or if the servants of a company, whilst engaged in its
business, should wilfully or wantonly produce injury to others, the company
would be liable to such damages.
Appeal from the Circuit Court of Effingham county; the
Hon. James C. Allen, Judge, presiding.
Mr. George "W. "Wall, for the appellant.
Messrs. Gilmore & White, for the appellee.
1874.] I. 0. E. E. Co. v. Hammer. 349
Opinion of the Court.
Mr. Chief Justice Walker delivered the opinion of the
Court:
It appears that the place where this accident occurred was at
the depot of appellant, in the city of Champaign; that the
depot and grounds of the company are near the center of the
city, and lie between Jefferson street on the north and Fayette
avenue on the south, and the side track extending still further
south. It is an open, uninclosed space, over which there seems
to be much travel in transacting business with the company,
and in passing from one part of the city to another. Situated
as it is, it could not be legally fenced or otherwise inclosed.
Eailroad companies are only required to fence their tracks at
such places as the public have no right to travel, or their stock
to run.
Depot grounds and passenger houses are not strictly private
property. They are places where persons may resort without
permission, for the purpose of transacting business with the
company, or with the employees of the company, or for the
purpose of meeting friends or others arriving on trains, or to
see others depart, and to pass over the same in going from one
part of the city to another. Such grounds are made quasi
public, by the general use to which they are appropriated. In
populous cities, such grounds, from necessity, must be kept
open to public use to a limited extent. Where railroad tracks
run in the center of streets, it would be a novel doctrine to
hold that the public had no right to their use, and that all per-
sons traveling along or across the track were trespassers.
When a railroad company acquires its right of way, or grounds
in a city, town or public thoroughfare, it is subject to the
right of the public to use the same in a reasonable and proper
manner. These companies can only acquire rights of any
kind on or over public thoroughfares on these terms. Their
rights are not paramount to those of the public. They are
equal within their scope, but not superior. When they per-
mit the people to pass over their grounds, and invite the pub-
lic to transact business with them on these grounds, they
350 I. 0. K. K. Co. v. Hammer. [June T.
Opinion of the Court.
thereby tacitly license persons to come npon and pass over
them, and persons do not become trespassers by doing so in a
proper manner. But it is otherwise with their right of way
and ground outside of and away from their depot grounds,
and beyond the limits of cities, towns, villages and their depot
grounds. In such places, the people or individuals have no
right to travel. The people are not invited to come there, nor
have they any right to go on their tracks or right of way at
such places. But where persons go upon or pass over the
grounds connected with their depots, they are presumed to
know that the place is dangerous, and hence are required to
use care and prudence commensurate with the known dangers
of the place. They have no right to be reckless, and to omit
the use of care. On the other hand, the servants of the company
knowing that it is a place where persons are constantly pass-
ing, their duty to exercise caution and prudence is also
enhanced. In such places, they must use more effort and pre-
caution for the preservation of life and limb than at places
where persons have no right to be, and the employees have no
right to expect to find them. Whilst the great commercial
and business interests of the country demand their protection,
still the lives and personal safety of persons are paramount.
All other considerations must yield to this, the first and great-
est and most important of all rights for which governments
are organized and laws enacted.
Appellee was not, therefore, a trespasser, by being in the
place where he was when he received the injury. But, not-
withstanding this, he was required, being, as he was, in a known
place of peril, to use a higher degree of care than if he had
been in a place of supposed safety. There would seem to be
no doubt that it is negligence for a person, in such a place, to
travel on a track of a railroad, where all must know that cars
are constantly passing, and engines switching cars, and where
a person is necessarily liable to be run over and killed, or
greatly injured.
On the other hand, all know that a flying switch, passing on
a track without an engine attached, or a bell ringing, or a
1874.] I. C. E. E. Co. v. Hammer. " 351
Opinion of the Court.
whistle sounding, is and must, from the very nature of things,
be more perilous to life than a switch with an engine attached,
with the usual signals being sounded. The object of having
a bell rung or a whistle sounded at road crossings and places
where there is danger of collisions, is wholly defeated by the
use of this mode of switching, and, when employed, it neces-
sarily implies negligence on the part of the company.
Where, as in this case, both parties are at fault, it is for the
jury, under proper instructions, to say, from all the circum-
stances appearing in evidence, whether the negligence of
plaintiff is slight, and that of defendant is gross. If not,
theii such a plaintiff can not recover.
The rule announced in the English decisions, and of the
courts of some of the States of the Union, is, that a plaintiff
must be free from all contributory negligence, but, even under
that rule, the courts frequently hold that a want of caution is not
contributory, especially where the conduct of a defendant is
grossly negligent. We may have slightly modified the rule,
but we have never intended to announce, as a rule, that the mere
preponderance of negligence entitles a plaintiff to recover.
The rule on this subject, it may be, has not at all times
been accurately stated by this court. By inadvertence, it has
been loosely and indefinitely stated in some of the cases, but
what the court has held, and still holds, is, that a plaintiff free
from all negligence may recover from a defendant who has
failed to use such care as ordinarily prudent men generally
employ; or, a plaintiff who is even guilty of slight negligence
may recover of a defendant who has been grossly negligent, or
whose conduct has been wanton or wilful. Hence the doctrine
of comparative negligence. It would therefore be error for
the court, in a case where it is claimed that the negligence of
the defendant is gross, to instruct that the plaintiff must have
been entirely free from negligence, as, in such a case, he may
recover, although he has been guilty of negligence, if it is
slight, and that of the defendant gross. It is equally inaccu-
rate for the court to instruct the jury that the plaintiff may
recover if the negligence of the defendant was greater than
352 I. C. E. E. Co. v. Hammer. [June T.
Opinion of the Court.
that of plaintiff. The rule, as here stated, is the doctrine of
this court, and to it we have been long committed, and to it
we shall adhere.
Was the rule violated by appellee's instructions? It mani-
festly was. In a number of his instructions, the jury are told
that he may recover if his negligence was slight, as compared
with that of appellant. As we have seen, they should have
required the jury to find, when compared, that appellee's was
slight, and appellant's gross. Both of these conditions must
exist, when a plaintiff is guilty of negligence, before he can
recover. His may have been slight, as compared with that of
appellant, and its not gross. Even if the language of the in-
structions can be, by ingenuity and the skill of scholarship,
construed to mean that his must be slight, and its gross, it is
not plain and obvious. On the contrary, it strikes us that such
is not its apparent meaning. In a case where there is doubt
in regard to an important question, instructions should be
plain and explicit, free from all doubt, and announce legal
principles so as there shall be no question as to what the law
is on the subject.
Appellee's ninth instruction is not fair, and was well calcu-
lated to mislead. It selects but a few of many facts, and pre-
sents them prominently to the jury, as though they controlled
the case. It leaves out the acts of appellee, and is one-sided,
and does not present the case fairly. It seems to assume that
the brakeman made no effort to prevent the train from running
over appellee. It impliedly assumes that his efforts would
have been availing, when it was for the jury to find whether
they would or not, as the parties were then situated. If it
was certain that the brakeman could not stop the train or
slacken its speed before it struck appellee, why attempt to
apply the brakes? Again, he did try to avoid the collision, if
the evidence can be credited, by shouting to appellee to get
off the track. This instruction should not have been given,
and we think it may have misled the jury. All of appellee's
instructions, on being read, seem to imply that the plaintiff
was entitled to recover.
1874.] I. C. K. E. Co. v. Hammer. 353
Opinion of the Court.
The facts they contain are only limited by the expression,
"if proved," so placed as to attract, at most, but slight atten-
tion from persons who are not in the habit of examining lan-
guage critically. They are skillfully drawn to make an
impression on the mind that a critical examination may not
warrant.
The eighth of appellee's instructions informs the jury that,
for gross negligence of appellant, they would be at liberty to
give punitive damages, as an example to others. This does
not announce the law correctly. A private corporation can
not be liable to punitive damages merely for gross negli-
gence of its servants. If the company employs incompetent,
drunken or reckless servants, knowing them to be such,
or, having employed them without such knowledge, retains
them after learning the fact, or after full opportunity to
learn it, the company would no doubt be liable. Or if its
servants, whilst in the employment of the company, and
engaged in carrying on the business of the company, should
wilfully or wantonly produce injury to others, then the company
would no doubt be liable to such damages. With its servants,
•a mere omission of duty, although grossly negligent, should
not be sufficient, but some intention to inflict the injury, or a
reckless, wanton disregard for the safety of others, should
appear, to warrant punitive damages. The instruction was
therefore wrong, and should have been refused.
The instructions given for appellant, as modified, wholly
ignored the rule of comparative negligence. As we under-
stand them, more than one informs the jury that, although
plaintiff may have been guilty of gross negligence, he might
still recover if the defendant was guilty of greater negligence.
We are unable to imagine a case in which a plaintiff, guilty of
gross negligence, could recover. The court should, if not
accurate, have refused appellant's instructions, or modified them
so as to have stated the law correctly. When modified, these
instructions were as well calculated to prevent the jury from
fairly considering the question of comparative negligence, as
23— 72d III.
354 Shannon et al. v. Hall et al. [June T.
Syllabus.
had the error been in appellee's instructions. These instruc-
tions were calculated to and may have misled the jury.
For the errors indicated, the judgment of the court below
must be reversed and the cause remanded.
Judgment reversed.
Albert R. Shannon et at.
v.
James Hall et al.
1. Recording act — effect of destruction of records. Where a mortgagee
places his mortgage upon record, his rights under it are fixed, and it is
notice for all time, and the destruction of the record books does not extin-
guish or destroy such notice, nor aflect the rights of the mortgagee inju-
riously.
2. Same — mortgagee not obliged to incur expense of restoring, under act
for restoring burnt records. The fact that the records have been destroyed
by fire, and an act of the General Assembly passed to restore them, imposes
no obligation upon a mortgagee, whose mortgage was duly recorded before
such destruction, to incur the trouble and expense of the restoration of his.
mortgage.
3. A mortgage was duly recorded, and afterwards the records were
destroyed by fire, and an act of the General Assembly passed providing for
the restoration of the lost records, but the mortgagee took no steps to have
the record of his mortgage restored. After the destruction of the records,
the mortgagor sold and conveyed the mortgaged premises to one who had
no knowledge or information of the existence of the mortgage, and who
took possession of the premises, claiming to have a perfect title thereto, of
which fact the mortgagee had notice six years before a bill was filed to fore-
close the mortgage, but such purchaser was not induced to make such pur-
chase by anything done or said by the mortgagee : Held, on a bill to fore-
close the mortgage, that although there were equities on the side of the
defendant, they were not superior to those of the mortgagee, and that he
was entitled to have his mortgage foreclosed to pay the mortgage indebted-
ness.
"Writ of Error to the Circuit Court of Wabash county; the
Hon. James M. Pollock, Judge, presiding.
1874.] Shannon et al. v. Hall et al. 355
Opinion of the Court.
Messrs. Bell & Gkeen, for the plaintiffs in error.
Mr. S. Z. Landes, for the defendants in error.
Mr. Justice Breese delivered the opinion of the Court:
This was a bill in equity, in the Wabash circuit court,
exhibited at the April term, 1871, by Albert B. Shannon and
James B. Webb, executors of the last will and testament of
Samuel D. Beady, deceased, to foreclose a mortgage on certain
lots in the town of Mt. Carmel, executed by one William T.
Page to Beady, in his lifetime.
Page was brought in by publication, and the other defend-
ants appeared and answered. At this stage of the proceedings,
it was agreed between the parties that the answers should be
considered as if sworn to by all the defendants; that, in addi-
tion to the bill, answer, exhibits and replications, the following
shall be taken as all the facts proved on the hearing and con-
sidered by the court: That the principal of the note and the
interest accrued since November 1, 1865, are unpaid, the in-
terest having been paid annually by Page to that time; that
the mortgage in question was executed, acknowledged and
recorded as alleged ; that all of the deed and mortgage records
were destroyed by fire when the court house was burned, April
7, 1857, and that the mortgage was not afterwards recorded;
that Hall purchased and paid for the premises without any
information or knowledge of the existence of the mortgage,
and that those claiming under him purchased without notice ;
that a commission was held under the act referred to for about
nineteen months, and chat Beady knew, in the summer of 1865,
that Hall was in possession of the mortgaged premises, claim-
ing to have perfect title to the same.
The court, on this state of facts, found the equities to be
with the defendants, and dismissed the bill of complaint, with
costs.
To reverse this decree, the complainants bring the record
here by writ of error, relying, for a reversal, upon the fact that
the mortgage was duly recorded, and was notice to all persons,
356 Shannon et al. v. Hall et al. [June T.
Opinion of the Court.
and though the record was subsequently destroyed by fire, still
Hall and all others were affected by it. They insist that, inas-
much as Ready, their testator, had, in due time, placed the
mortgage on record, he had done all the law required, and that
from that day all persons are presumed to have notice thereof;
and they further insist that the destruction of the record by
fire destroyed none of his rights, and that, although a law was
passed by the General Assembly to restore the records so burnt
and destroyed, he was under no obligation to incur the trouble
and expense of its restoration, and claim that the deed, when
filed for record and recorded, was notice to all the world from
the time of filing the same.
On the other side, it is insisted, as the note, to secure which
the mortgage was executed, matured eighteen years before
Hall purchased from Page, and twenty-two years before Hall
sold to the Fredericks and Webert, twenty-four years before
the defendants Ridgway and Kreider purchased from Fred-
ericks and Webert, and more than twenty-five years before the
commencement of this suit, and the public records showing
no incumbrance on the premises, and as they all purchased in
good faith, paying a valuable consideration, without any notice,
actual or constructive, of any incumbrance, although the deed
had been actually recorded in due time, the record of which
had been destroyed by fire, still, as they purchased fairly and
without notice, an equity arises in their favor, which a court
of equity is bound to protect, the more especially as the mort-
gagee, Ready, in his lifetime, had actual notice that Hall
claimed the premises by a perfect and unincumbered title
more than three years before Hall sold to his co-defendants,
Fredericks and Webert, and five years before suit brought.
There is nothing in the record to show these premises were
improved, or in the actual possession of any one, at the time
Hall purchased.
The sole question is, which of these parties should suffer —
complainants, whose testator discharged his whole duty by
placing his mortgage on record, or defendants, who purchased
for value, without notice of any incumbrance, the record of the
1874.] Shannon et al. v. Hall et al. 357
Opinion of the Court.
mortgage having been, long prior to their purchase, destroyed
by fire?
It may be asserted, as a correct general proposition, where a
person does an act which the law requires him to do, and in
the manner prescribed, he has performed his whole duty, and
is entitled to the full benefit of its performance. The rights
of Heady, the mortgagee, had become fixed by the record of
his mortgage, which was notice for all time. Accident, no
matter how disastrous, could not deprive him of these rights
or affect them injuriously. What is the object of recording a
deed of mortgage, or any other deed? One object certainly is,
the security of the grantee, for thereby he is protected against
a subsequent sale by his grantor, and we know of no principle
of law or rule of equity which can deprive, or should deprive,
him of this security. The mortgagee was prior in time, and
we are not aware of any principle of law or equity which shall
deprive him of the advantage of such priority.
It nowhere appears in this record, when Hall purchased of
Page, the mortgagor, he made any inquiry of him as to the
condition of the title. It was Hall's fault, or folly, that he did
not make this demand of Page. The fact that the records were
destroyed by fire, and an act of the General Assembly passed
to restore them, imposed no obligation upon Ready to incur
the trouble and expense of the restoration of his mortgage.
Unless it can be established that it was his duty to observe this
law, and, failing therein, he was guilty of a fraud upon the
community, or committed gross negligence, which is its equiva-
lent, he must be allowed to stand securely on his act of record-
ing.
It is true, the defendants' case has much equity in it, but
it can not be held to be superior to that of the complain-
ants, and priority of time must determine the right. The
accident of the fire, destroying the record, did not destroy the
notice; it was not extinguished or lost by the destruction of
the record book. In Alvis et al. v. Morrison et al. 63 111. 181,
a conclusion that the burning of records can have this effect,
the court say, is preposterous.
358 Mc Arthur v. Howett. [June T.
Syllabus.
The lapse of time since the execution of the note and mort-
gage (November 4, 1845) can not affect the right of complain-
ants, as the note has been kept alive by the payment of the
annual interest up to November, 1865, and has yet seven years
to run before it is barred by the Statute of Limitations.
The fact that Ready, in his lifetime, in 1865, knew that Hall
was in possession of the premises, claiming the same by a valid
and unincumbered title, can in no degree weaken the claim of
complainants. It is not shown Hall was induced to make the
purchase by reason of anything said or done by Ready, so as
to estop his executors from asserting their rights. Unless it
can be maintained, as we have before said, that the failure of
Ready to restore the record of his mortgage, under the act of
assembly, was a constructive fraud upon the community, no
estoppel arises of which Hall or his co-defendants can avail.
Entertaining these views, the decree of the circuit court
must be reversed, and the cause remanded for further proceed-
ings consistent with this opinion.
Decree reversed.
Jane McArthur
v.
Sarah E. Howett.
1. Replevin — when suit should not be dismissed on appeal from justice.
Where a defendant in a replevin suit appeared at the trial thereof before the
justice of the peace, and after being found guilty appealed to the county
court, it was his duty, as appellant, to file the papers, and he could Dot
properly move the court to dismiss plaintiff's suit, because of the omission
of the replevin bond from the papers filed with the transcript.
2. Same — evidence on assessment of damages on dismissal of suit. When
a replevin suit is dismissed, and the court proceeds to assess the defendant's
damages for the detention of the property, it is competent for the plaintiff to
prove that the defendant is the mere pledgee of the property to secure a debt
from the plaintiff, as in such case the defendant would not be entitled to
recover anything for the value of the use of the property.
1874.] Mc Arthur v. Howett. 359
Opinion of the Court.
Appeal from the Circuit Court of Clay county ; the Hon.
J. C. Allen, Judge, presiding.
Messrs. Cope & Byles, for the appellant.
Mr. Justice McAllister delivered the opinion of the Court :
This suit was originally brought in a justice's court, and was
replevin by appellant against appellee, for a sewing machine.
The property was taken by the writ and a trial had ; the defend-
ant appearing, she was found guilty. The defendant then ap-
pealed to the county court, and among the papers filed by her
on such appeal there was no replevin bond. She moved the
court, on that ground, that plaintiff's suit be dismissed. The
court dismissed the suit, assessed defendant's damages at $25.78,
gave judgment, and awarded a retomo habendo. On the as-
sessment of damages, the defendant claimed to be the owner,
and gave evidence of the- monthly value of the use of the ma-
chine. Plaintiff's counsel offered to show, by defendant, on
cross-examination, and who had testified to her ownership, that
she obtained the machine from plaintiff as a pledge to secure a
debt. To this, defendant's counsel objected. The court sus-
tained the objection, and plaintiff's counsel excepted. These
matters having been preserved by bill of exceptions, the plain-
tiff took and perfected her appeal to the circuit court, and
assigned for error the dismissal of plaintiff's suit and the ex-
clusion of the evidence offered, that defendant was a mere
pledgee of the machine. The circuit court affirmed the judg-
ment of the county court, and plaintiff appealed to this court.
We are of the opinion that the defendant, having appeared in
the justice's court, and, after being found guilty there, appealed
to the county court, she could not properly move the court to
dismiss plaintiff's suit because of the omission of the replevin
bond from the papers filed with the justice's transcript. She,
being the appellant, was subject to the duty of filing the papers,
and the court had jurisdiction of the cause by her appeal.
We are also of opinion, that the county court erred in ex-
cluding the evidence offered, that the defendant was a mere
360 Wiggins Ferry Co. v. O. & M. Ey. Co. [June T.
Syllabus.
pledgee. The ground of her damages was the loss of the use
of the machine. If she was a mere pledgee, she had no right
to use the machine, so that the evidence offered was material,
and should not have been excluded.
For these errors, the judgments of the circuit and county
courts will be reversed and the cause remanded.
Judgments reversed.
Wiggins Ferry Company
v.
Ohio and Mississippi Railway Company.
1. Contracts — in restraint of competition in trade to be strictly construed.
Contracts which are, to a greater or less degree, in restraint of competition
in trade, will be strictly interpreted as against the party complaining of
their infraction, and will not be enlarged beyond what is written.
2. Contract construed — as to exclusive right of ferry company to carry
freight and passengers for railway company. A contract between a railway
company and a ferry company, bound the railway company to employ the
ferry company to transport for it across the Mississippi river, at St. Louis,
all persons and property which should be taken across the river either way
by the railway company, to or from Bloody Island, either for the purpose of
being transported on the road eastward, or which had been brought to the
river over the road, destined to St. Louis or points beyond : Held, that the
operation of the contract was confined to the territorial limits of Bloody
Island, and that the railway company was not prohibited from extending
their track to another point on the river, and then employing another ferry
to transport passengers and freight across the river, from such point to St.
Louis and from St. Louis to such point.
Appeal from the Circuit Court of St. Clair county; the
Hon. William H. Snyder, Judge, presiding.
Mr. William H. Underwood, for the appellant.
Messrs. G-. & G. A. Kosrner, and Mr. H. P. Buxton, for
the appellee.
1874.] Wiggins Ferry Co. v. 0. & M. By. Co. 361
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court:
The contract upon which this action is based, was between
the Wiggins Ferry Company and the Ohio and Mississippi
Railway Company. Both companies were created corpora-
tions under the laws of this State.
It is averred the present defendant is the successor and as-
signee of the former company, and is now in possession, oper-
ating the road.
The obligation upon which breaches have been assigned is
supposed to arise out of the third paragraph of the written
contract, which binds the railway company to employ the ferry
company to transport for it across the Mississippi river, at St.
Louis, all persons and property which may be taken across the
river either way by the railway company, to or from Bloody
Island, either for the purpose of being transported on its road
eastward, or having been brought to the river over its road,
destined to St. Louis or points beyond.
Two principal breaches are assigned : First, that defendant,
in disregard of its duty, wrongfully, and without the consent
of plaintiff, brought freights in cars from St. Louis to its depot
at East St. Louis, by the way of Yenice, a village two miles
above East St. Louis, on a rival ferry; and, second, defendant
caused freights in cars, received over its road, to be transported
from East St. Louis to the city of St. Louis across the river at
Yenice, on a rival ferry, in violation of the terms of the agree-
ment. The questions made, all arise on demurrer.
Waiving any discussion of the authority of the respective
companies, under their charters, to make the contract, and the
liability thereunder of the defendant, as the successor and as-
signee of the former company, we deem it material only to
consider such questions as have relation to the construction of
the agreement.
Contracts of the character of the one we are considering, are,
to a greater or less degree, in restraint of competition in trade,
and where a recovery is permitted, the party complaining of
an infraction will be held to a strict interpretation of the agree-
362 Wiggins Fekky Co. v. 0. & M. Ky. Co. [June T
Opinion of the Court.
ment. Obviously, the obligation, from considerations affecting
the public welfare, will not be enlarged beyond what is written.
The policy of the law would be to confine within narrower
limits, rather than extend the restrictions imposed.
The right of recovery is based on the theory, it is obligatory
upon the railway company, under the contract, to employ the
ferry company to transport all passengers and freights which it
should receive for its road from St. Louis, to be sent eastward,
and to transport all passengers and freights which it should
bring over its road bound westward for St. Louis. Should this
construction prevail, it would be the duty of the railway com-
pany to employ the ferry company to transfer all freights on
its road, whether received from or beyond, or destined to or
beyond St. Louis.
The contract contains two limitations: First, the passengers
and freights to be carried were "to or from Bloody Island;"
and, second, "to or from St. Louis." We are unwilling, by
construction, to enlarge the agreement beyond what the parties
have fairly expressed by the language employed. There is
nothing in the contract, unless it arises by implication, that
prohibits the railway company from extending its track to
Venice, or any other point, however distant, and crossing freights
and passengers there for St. Louis or points beyond. ]STo limi-
tation in this regard has been created by express agreement of
the parties, and there is nothing that makes it imperative on
us to declare any arises by implication. The agreement, as to
passengers and freights to be carried over the ferry, is "to or
from Bloody Island," and "to or from St. Louis." Unless we
enlarge the undertaking of the railway company beyond what
is expressed by the terms employed, the breaches assigned are
not upon any duty imposed by the contract.
Reference is made to the words, "so that * * * the
owners of the said Wiggins Ferry shall have the profits of the
transportation of all passengers and property taken across the
said river either way, * * * to or from the city of St.
Louis," as enlarging the obligation of the railway company, as
first expressed. This whole clause of the agreement must be
1874.] Wiggins Ferry Co. v. 0. & M. Ey. Co. 363
Walker, Ch. J., and Breese and Scholfield, J.J., dissenting.
construed together. "When that is done, it is apparent reference
is had to only snch passengers and property as should be taken
across the river "to or from Bloody Island" and "to or from
St. Louis." This view is strengthened by the further provision,
that the rates of ferryage charged shall be as low as to any
other party between St. Louis and Bloody Island. Having
confined the operation of the contract to the territorial limits
of Bloody Island, we have neither the authority nor the incli-
nation to make it include points not named or not necessarily
included by the language employed, nor within the contempla-
tion of the parties.
The cases cited by counsel for appellant are not analogous,
and in no manner illustrate the meaning of the contract.
According to our understanding of the contract, we need not
discuss the graver questions suggested, viz: whether the con-
tract, so far as the public are concerned, is void, as being in
contravention of a sound public policy, or whether it is valid
as between the contracting parties, notwithstanding it may be
ultra vires. We rest our decision on the distinct ground the
facts averred show no infraction of the agreement.
The judgment must be affirmed.
Judgment affirmed,
Mr. Chief Justice Walker, Mr. Justice Breese, and Mr.
Justice Scholfield, do not concur in this opinion. They hold
that, by a fair construction of the third clause of the contract
of these parties, the ferry company, in consideration of the
valuable grant of land and privileges to the railway company,
became entitled to all the freights and passengers which might
be brought by this railway to or from St. Louis, and from which
the railway company had no power to divert them.
364 Jackson, ex rel. v. Korris et al. [June T.
Syllabus.
James S. Jackson, State's Attorney, ex rel.
William Norris et al.
1. Chancery — will relieve against fraudulent disposition of property by
municipal authorities. Courts of chancery will interfere to prevent munici-
pal councils from abusing powers relating to property and funds intrusted
to them, to be exercised in conformity with law, for the benefit of the incor-
porated place or its inhabitants, and will relieve against fraudulent disposi-
tions of property.
2. The powers conferred upon municipal corporation officers, in respect
to the corporation property, are public trusts, and the property owned by the
corporation is held by them in trust, and, hence, if these powers are abused,
as, if corporate property is collusively alienated, there is a breach of trust of
which equity will take cognizance.
3. A court of equity will entertain a bill, on behalf of tax-payers, for
relief against an act of misappropriation of public corporate funds, after it
has been committed, as well as to enjoin the commission of such act when
meditated.
4. Where the authorities of a municipal corporation misappropriated
funds of the corporation, by way of donation, to pay the debts of a private
corporation to a bank, and the bank collusively received the funds so mis-
appropriated, and the conduct of the officers of the municipal corporation
was such as to preclude the idea that they would voluntarily bring suit in
the name of the municipal corporation for the recovery of the money, it was
held, that equity would grant relief on a bill filed by the State's Attorney on
the relation of a tax-payer of the municipality, against the bank, the muni
cipal corporation and the officers thereof, to compel the refunding of the
money and to enjoin the payment of it to the bank, on the order for the do-
nation thereof.
Appeal from the Circuit Court of Marion county; the
Hon. Amos Watts, Judge, presiding.
Mr. Henry C. Goodnow, for the appellant.
Mr. M. Sch^effek, and Mr. W. W. Willard, for the ap-
pellees.
1874.] Jackson, ex rel. v. Norris et al. 365
Opinion of the Court.
Mr. Justice Sheldon delivered the opinion of the Court:
This was a bill in chancery, filed by James S. Jackson, State's
Attorney in and for the county of Marion, in this State, on
the relation of Levi Fellenbaum, on behalf of himself and all
others, inhabitants of Salem, in said county, having taxable
property within the corporate limits of said city of Salem.
The substance of the case made by the bill is, that on the
third day of February, 1873, at a meeting of the city council,
the mayor and aldermen of the city of Salem appropriated and
donated to the Salem Manufacturing Company the sum of
$1000, and ordered the same to be paid to the said company
on the first day of June, 1873, to enable the company to pay
off and discharge its debts, and ordered the mayor and clerk
of the city to draw an order on its treasurer for such sum, so
payable; that the order was accordingly issued and delivered
to the company for such purpose, and afterward the manufac-
turing company transferred and delivered the order to the
Salem National Bank, to which the company was largely in-
debted; that at the time the bank received the order, it well
knew that the said appropriation and donation so made by the
mayor and aldermen were made to the Salem Manufacturing
Company for the purpose of enabling it to pay its indebtedness
to the bank; that the mayor and aldermen, learning steps were
about to be taken to enjoin the payment of the order, instructed
the treasurer of the city to pay it before the first day of June,
1873, to-wit: about the first day of May, 1873, to prevent such
injunction; and that before legal proceedings could be com-
menced to enjoin the payment, the treasurer paid the said sum
of $1000 to the bank, out of moneys in the treasury of the city
which had been raised by taxation and from licenses.
The bill was filed against the bank, the manufacturing com-
pany, the mayor and aldermen, the city of Salem and its treas-
urer, asking to have the money restored to the city treasury,
and that the treasurer be enjoined from paying the money,
when paid into the treasury, out again on such appropriation.
366 Jackson, ex rel. v. Norris et al. [June T
Opinion of the Court.
Demurrers were filed to the bill and sustained, and the bill
dismissed. The complainants bring the case here by appeal.
The only objections taken to the bill are, that equity has no
jurisdiction in such a case, and that if there is any right to
relief growing out of the facts, it is in the city of Salem against
the Salem National Bank, and not in the State's Attorney or
the relator.
There is no pretense that there was any legal authority to
make this donation of $1000 to the Salem Manufacturing Com-
pany. It was an evident misappropriation of corporate funds.
The court of chancery will interfere to prevent municipal
councils from abusing powers relating to property and funds
intrusted to them, to be exercised in conformity with law, for
the benefit of the incorporated place or its inhabitants, and will
relieve against fraudulent dispositions of corporate property, it
being held that the powers conferred upon such corporation
officers, in respect to the corporate property, are public trusts,
and the property owned by the corporations is held b}^ them
in trust ; and, hence, if these powers are abused, as, if corporate
property is collusively alienated, this is a breach of trust of
which equity will take cognizance. Dillon on Corp. § 729 et
seq. ; 2 Spence Eq. Jur. 34 ; AM. General v. The Mayor of
Dublin, 1 Bligh N. K. 312 ; Att. General v. Mayor of Liv-
erpool, 1 Mylne & Craig, 171 ; Frowim, v. Lewis, 4 Mylne &
Craig, 249; Sherlock v. Village of Wvnnetka, 59 111. 389;
New London v. Brainard, 22 Conn. 552 ; Scojield v. Eighth
School District, 27 id. 499.
This court has repeatedly held, that equity will entertain juris-
diction of a bill, on behalf of tax-payers, to enjoin the misappli
cation of the moneys of a municipal corporation. Colton et al.
v. Hanchett et al. 13 111. 615; Drake et al. v. Phillips et al.
40 id. 388 ; and see The Mayor, etc., of Baltimore v. Gill et
al.U Md. 375; Morrill v. Plaimfield, 45 IS". H. 126.
The same ground of equitable jurisdiction which would cause
equity to interfere to enjoin a meditated misappropriation of
corporate funds, would seem to support a bill for relief against
such act of misappropriation after having been consummated.
1874.] Jackson, ex rel. v. ISTorris et al. 367
Opinion of the Court.
According to the showing of the bill, the bank collusively
received the money in question, with knowledge, at the time,
of its being misapplied. We regard the bill as making a case
which comes within an acknowledged head of equity jurisdic-
tion, that of a breach of trust in relation to the administration
of property, in which the bank is so implicated as to be charge-
able, as well as the individual officers who made the wrongful
appropriation.
I'he managing officers of the city took too active an interest
in bringing about the misapplication of the money, to admit
the idea that they would voluntarily bring suit, in the name
of the city, for the recovery of the money. Their conduct in
the matter, as alleged in the bill, might be taken as quite strong
evidence that they would refuse to bring the suit. And when
a party should be a complainant in a bill, and refuses to become
such, he may be made a party defendant. Smith v. Sackett,
5 Gilm. 534; Whitney v. Mayo, 15 111. 251. The city has here
been made a party defendant. On this latter point, the author
first above quoted remarks: "There can be no doubt but that
the corporation may, in its own name, bring suits, in proper
cases, to be relieved against illegal or fraudulent acts on the
part of its officers. Since, however, experience has shown how
liable these corporations are to be betrayed by those who have
the temporary management of their concerns, it would never
do for the courts to hold that relief against illegal acts could
only be had by an authorized suit, brought by and in the name
of the corporation." Dillon on Corp. § 736.
The right to the aid of equity to prevent a threatened illegal
corporate act, like the one here committed, appears to have
been uniformly held. The difference of opinion has been as to
the proper party plaintiff, whether citizens and tax-payers, in
their own names alone, could maintain the suit, or whether the
public, by its authorized public officer, should not institute the
proceeding. But that question is here avoided, by the bill
having been brought in the latter form.
We are of opinion the demurrers to the bill should have
been overruled, and the decree is reversed.
Decree reversed.
368 McFarland v. The People. [June T.
Opinion of the Court.
Joseph McFarland
v.
The People of the State of Illinois.
1. Bastardy— jury to determine weight to be given to testimony of prose-
cutrix, from all the evidence. Whether the evidence of the prosecutrix in a
bastardy case is entitled to greater or less weight on any point in the case
than other witnesses, depends upon the degree of fidelity with which she
and they adhere to the truth, and must be determined by the jury, from all
the evidence in the case.
2. Same— 'plaintiff must make out a case by preponderance -of tlte evidence.
It is incumbent upon the plaintiff in a bastardy case, as in all other civil
cases, to make out a case by a preponderance of evidence.
3. Where the mother of a bastard child swears that the defendant is its
father, and the defendant swears that he is not, and they are of equal credi-
bility, the one offsets the other, and, unless there is other testimony given or
circumstances proved which gives the preponderance to the plaintiff, the
defendant should be acquitted.
Writ of Error to the County Court of Marion county ; the
Hon. John G. Yaughan, Judge, presiding.
Mr. W. Stoker, for the plaintiff in error.
Messrs. Casey & Dwight, for the defendant in error.
Mr. Justice Scholfield delivered the opinion of the Court:
This is a writ of error to the county court of Marion county
on a judgment for bastardy.
There was, on the trial in the court below, a direct conflict
between the testimony of the prosecutrix and that of the de-
fendant, she swearing positively to his guilt, and he as positively
denying that he had, at any time, illicit sexual intercourse with
her. Her testimony was, in part, corroborated by circumstances
proved by other witnesses, and he proved by other witnesses
that, about the time the child must have been begotten, she
had illicit sexual intercourse with other men.
The court, at the instance of the prosecution, gave, among
others, the following instruction to the jury:
1874.] McFarland v. The People. 369
Opinion of the Court.
" 4. The court instructs the jury that the testimony of the
complaining witness is peculiarly appropriate for the consid-
eration of the jury, and her evidence with respect to the time
of conception is entitled to greater weight than that of any
other person."
This instruction was erroneous, and calculated to mislead
the jury. It should not have been given.
It is insisted by the counsel for the prosecutrix that it is sus-
tained by the language of this court in Jones v. The People,
53 111. 367. The only language used in the opinion in that
case, bearing upon the question, instead of sustaining the in-
struction, is in conflict with it. It is this : " Though the mother
of the child is most likely to know who its father is — by whom
it was begotten — yet she may not always tell the truth."
Whether the evidence of the prosecutrix is entitled to greater
or less weight, on this or any other point, than other witnesses,
depends upon the degree of fidelity with which she and they
adhere to the truth, and must be determined by the jury, from
all the evidence submitted in the case. The court was not
authorized to declare, as a matter of law, the comparative
weight of her evidence.
The following instruction was asked by the defendant, but
refused by the court:
" That, in this case, both the mother of the child and the
defendant are competent witnesses; and if one swears that
defendant is the father of the child, and the other that he is
not, then, if they are of equal credibility, the one offsets the
other, and unless further evidence, given by other witnesses for
the people, or circumstances proven, give the preponderance
for the plaintiff, your verdict should be for the defendant."
"We are unable to perceive the slightest objection to the legal
principle asserted in this instruction.
It was held in The People v. Starr, 50 111. 52, that a prose-
cution for bastardy is a civil proceeding, and the putative father,
24-72D III.
370 U. S. Savings Inst. v. Bkockschmidt et at. [June T.
Syllabus.
who is the defendant in the prosecution, is a competent witness
in his own behalf.
Being a competent witness, we know of no principle by
which, if the parties are equally credible, his evidence can be
held to be inferior to that of the prosecutrix. They are equally
interested in the result of the suit — she in maintaining and he
in defeating it. It is incumbent on the plaintiff in this, as in
all other civil cases, to make out a case by a preponderance of
evidence, and this is not done where the evidence of the prose-
cution is counterbalanced by equally credible evidence of the
defendant.
For the errors indicated, the judgment is reversed and the
cause remanded.
Judgment reversed.
United States Savings Institution
v.
J. F. Brockschmidt et ah
1. Removal of causes from State to Federal courts. A petition by a
plaintiff to remove a cause from the State to the Federal court, which
does not state that he was, at the time the suit was instituted, a citizen of a
State other than the one in which the suit was brought, is defective, and
does not entitle the party to the removal.
2. If a party desires the removal of a cause from a State to a Federal
court, it is his duty to present his petition before the cause is reached for
trial, and the court is under no obligation to delay a trial to enable him to
prepare a petition for that purpose.
3. Practice — dismissing suit wliere there is a plea of set-off. It is a matter
of discretion with the court, whether it will permit the plaintiff to dismiss
his suit, where there is a plea of set-off, after the evidence is all heard, and
before the jury retire.
Appeal from the Circuit Court of Washington county; the
Hon. Amos Watts, Judge, presiding.
Mr. I. Miller, for the appellant.
Mr. William Winkleman, for the appellees.
1874.] U. S. Savings Inst. v. Bkockschmidt et al. 371
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of assumpsit, brought by appellant against
appellees, in the circuit court of Washington county.
The cause was tried by a jury, and verdict rendered in favor
of appellees. A motion for a new trial was overruled, and
judgment entered upon the verdict.
Numerous errors have been assigned on the record, only a
few of which seem to be relied upon by the counsel for appel-
lant in the argument and brief furnished us.
Appellant filed a petition to remove the cause from the State
to the Federal court. The petition was held to be insufficient.
Leave was, however, given appellant to file a new petition, but
before it was prepared and filed, the cause was called for trial.
It is urged that the court erred in holding the petition de-
fective, and in proceeding to a trial of the cause before an
amended one was filed.
The petition filed was clearly defective. It did not state, as
required by the act of Congress, that the plaintiffs, at the
time of the commencement of the suit, were citizens of a State
other than the one in which the suit was brought. Other de-
fects existed, which it is not necessary to consider, for the
reason that this one is vital.
As to the other point, that the court proceeded to a trial of
the cause before an amended petition was filed, we perceive no
error in this. If appellant desired to remove the cause, it was
its duty to present a petition before the cause was reached for
trial. The court was under no legal obligation to delay a trial,
to enable it to prepare a petition. The most that could be said
is, it was a matter purely of discretion, which we will not
review.
It is said by appellant, the court erred in proceeding to a
trial of the cause, as replications were not filed to the pleas,
and the issue was not made up. Upon an examination of the
record, we find pleas ISTo. 1, 2 and 3 were filed on April 14th,
1874. Appellant filed a demurrer to the third plea, which was
overruled, and it abided by the demurrer. On the 15 th of
372 U. S. Savings Inst. v. Bkockschmidt et al. [June T.
Opinion of the Court.
April, by leave of the court, the declaration was amended. On
the same date the pleas were re-filed to the amended declara-
tion. The record also shows replication filed, on the 15th, to
pleas 1 and 2. It, therefore, by the record, appears the issue
was complete.
The next point relied upon by appellant is, the refusal of
the court to permit it to dismiss the suit after the evidence had
been introduced, and before the jury retired.
The act in regard to practice in courts of record, sec. 30,
laws of 1872, page 343, provides, where a plea of set-off shall
have been interposed, 'the plaintiff shall not be permitted to
dismiss his suit without the consent of the defendant or leave
of the court. The defendants had filed a plea of set-off, and
they objected to appellant dismissing the suit. It was then a
matter for the court to determine, in the exercise of a sound
legal discretion, whether appellant should then dismiss the
cause or be compelled to abide by the verdict the jury should
return.
So far as we are able to determine, from the record, we fail
to see wherein the court failed to exercise a wise and judicious
discretion.
The court, no doubt, came to the conclusion, after hearing
the whole case, that appellant did not have a legal or merito-
rious cause of action, and it would be of no benefit to it to
have the cause dismissed, and it might work a great hardship
to appellees, by being compelled, at a future day, to again de-
fend against a claim devoid of legality or merits, and on this,
after a careful examination of the record, we are not prepared
to say the court erred.
The judgment will therefore be affirmed.
Judgment affirmed.
1874.] Hopkins et al. v. Roseclare Lead Co. 373
Opinion of the Court.
Lewis C. Hopkins et al.
v.
The Roseclaee Lead Company.
1. Parties — in chancery — generally. It is a rule of equity pleading, that
all persons having an interest in the subject matter of a suit in equity, which
may be injuriously affected by its determination, are necessary, and must be
made parties.
2. Where the answer of a defendant to a bill in equity discloses the fact
that there are other parties claiming, as his assignees, the interest sought to
be affected by the suit, and whose rights will be so affected by the decree
sought, if rendered, as to drive them to their bill in equity to protect their
rights, the complainant should obtain leave to amend his bill, and make
such persons parties defendant.
3. Same — person having interest in subject matter of suit, not bound
to become defendant on his own motion. Whilst there are cases in which
persons who have an interest may, by petition, become parties defendant, on
leave of the court, yet they are not concluded by the decree of the court if
they fail to thus become parties.
4. Same — effect of want of proper parties. It is the duty of a complain-
ant to see and know that he has before the court all necessary parties, or
his decree will not be binding, and it is the policy of the law to prevent a
multiplicity of suits ; and where a complainant takes a decree without mak-
ing the necessary parties defendants to his bill, when the necessity of their
being made parties is disclosed to him by the answer of those who are made
parties and by the evidence in the case, the decree will be reversed.
5. Corporation — through what agencies it must act. A corporation can
only act through its officers, or by expressly delegating its power to others.
A stockholder, even though he may own a majority of the stock, can not, as
such, sell the property of the corporation.
Appeal from the Circuit Court of Hardin county ; the Hon.
David J. Baker, Judge, presiding.
Mr. Wesley Sloan, for the appellants.
Mr. James M. Warren, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
In the year 1850, William Pell leased to Neir Yalle certain
lands in sec. 32, town. 12 south, range 8 east, in Hardin county,
374 Hopkins et al. v. Roseclare Lead Co. [June T.
Opinion of the Court.
for the period of fifty years. The lands were supposed to con-
tain minerals. Yalle, with others whom he had associated
with him, sunk a number of shafts and ran various tunnels, at
a large expense, and had taken out a large amount of lead ore,
and proved the land to be valuable for the mineral it contained.
The lease still continued in force in 1864, when Yalle trans-
ferred the lease to Anthony LaG-rave, who transferred it to the
Roseclare Lead Company, appellee.
In the spring of the year 1864, the company entered upon
the land with a la^e amount of machinery, went to work, but
some months afterwards it was discovered that there was a
mistake in the description of the land in the lease. It was
described as being in township 13, when it was, in fact, in
township 12; thereupon the owners of the fee brought eject-
ment to recover the land. On a trial they recovered a judg-
ment. The defendant paid the costs, and took a new trial under
the statute.
The company thereupon filed a bill in equity to correct the
mistake, and to enjoin further proceedings in the ejectment suit
until a hearing should be had on the bill. At the first term
after the bill was exhibited, a demurrer was filed, which was
sustained, and the relief sought was refused. Thereupon
another judgment of recovery was had in the ejectment suit.
The complainants in the bill removed that case to the Supreme
Court, where, on a trial, the decree of the court below, refusing
the relief asked in the bill, was reversed and the cause re-
manded. Thereupon complainants filed a supplemental bill,
praying a restitution of the possession of the premises.
Afterwards, on the 15th day of January, 1872, LaGrave, a
large stockholder in the company, executed instruments in
writing, transferring the lease on the lands upon which the
company claim they were operating their mining franchises, to
one Lewis C. Hopkins, and delivered the lease to him, and sold
and gave to him the right to control the suit then pending, in
which the validity of the lease was involved, and an agreement
was executed by the respective attorneys of the parties to dis-
1874.] Hopkins et al. v. Boseclare Lead Co. 375
Opinion of the Court.
miss the suit, and that the relief sought by the cross-bill might
be granted.
On the next day another instrument was executed, by which
LaGrave agreed to convey to Hopkins a 20 and a 40-acre tract
of land, supposed to contain mineral. The agreement states,
that Hopkins was to pay therefor $21,775, within thirty days
after LaGrave should prepare proper deeds therefor. The
deeds were prepared, but Hopkins' attorney refusing to advise
that the title was good, he refused to receive them and pay the
money under the agreement.
It is contended by the company, that these two agreements,
although bearing different dates, constitute but one indivisible
contract, and that they can not be separated ; that the payment
of $25,000 was indispensable to the passing of title to any
portion of the matters contracted to be sold. On the other
hand, it is claimed that the two agreements related to separate
and distinct matters, and were entirely disconnected from each
other, and were not intended to be nor were they in anywise
connected with each other; that each agreement was indepen-
dent of the other, and that when the $3225 was paid, and the
agreement and other papers were executed and delivered on
the 15th of January, that transaction was closed and entirely
consummated ; and that a failure to pay the money on the
purchase of the land in nowise affected the title to the lease, or
any benefit that might accrue to Hopkins by having the right
to control and have any benefit resulting from the suit.
It is charged in the bill, that the statement in the contract
"that the true consideration for the 20 and 40 acres of land is
$21,775," was inserted without being noticed by LaGrave, and
was intended as a cheat and a fraud on him, expressing what
was never intended by LaGrave, and which was wholly foreign
to the contract.
It is likewise alleged, that LaGrave was overreached by
Hopkins, who represented himself as being wealthy and able
to pay the balance of the money on the land, and also that it
was of great importance to him that he should have the control
of the suit on that day, thereby inducing LaGrave to surrender
376 Hopkins et al. v. Roseclare Lead Co. [June T.
Opinion of the Court.
«tm
the leases and make the transfers. It is also charged, that it
was the purpose of Hopkins to get the suit out of the way, and
not to acquire title to the land; that Hopkins was in embar-
rassed circumstances, and a suit against him at law would have
been of doubtful result. The bill further charges, that LaGrave
had no authority whatever to sell the lease, or to give the con-
trol of the suit to Hopkins or any other person, but only had
the leases in his possession to enable him to prosecute the suit.
There seems to be no question that the transfer of the lease to
the company was not recorded when these several transactions
occurred.
In an amended answer, Hopkins alleges that, on the 1st day
of March, 1872, by agreement in writing, he sold to Hugh Mc-
Birney, and a number of others, 175 shares of the Roseclare
Lead and Spar Mining Company, and other mining stocks in
companies being operated in Hardin county; that he trans-
ferred to McBirney and the others all of his interest in the
lease purchased of LaGrave, and all of his rights in the suit
then pending, involving the validity of the lease, and for the
correction of the description of the lands embraced in the lease ;
that the consideration for such transfer was $40,000, all of
which had been paid to him in cash; and that McBirney, and
those associated with him, knew nothing of any difficulty or
trouble growing out of the non-payment of the $21,775, or that
LaGrave imputed any fraud to Hopkins in the transaction.
The bill in this case was filed on the 25th day of April, 1872,
after the purchase by McBirney and the others.
"We are unable to discover, from this record, the precise na-
ture of the suit that was pending, or the cross-bill to which
reference is made in the various agreements. The bill simply
recites that a bill was pending, in which the company was
complainant and John T. Madden and others were defendants,
but We assume that it was to correct the mistake in the lease.
On a hearing in the court below, the relief prayed was
granted, and the court decreed that the parties be restrained
from using the agreement to dismiss the suit for that or any
other purpose, and the agreements to sell the suit and the two
1874.] Hopkins et al. v. Koseclare Lead Co. 377
Opinion of the Court.
tracts of land, and the assignment of the lease, be surrendered
up to be canceled, as fraudulent and void, and that the original
leases be delivered to the company — from which defendants
appeal to this court, and ask a reversal.
It is first urged by appellants, that the suit is defective for
the want of necessary parties. It appears, from the amended
answer of Hopkins, and evidence in the case uncontradicted,
that Hopkins had transferred his 175 shares of stock in the
company, together with the assignment of the lease and the
written agreement that he might control the suit, to Hugh Mc-
Birney and a number of others, before this suit was brought.
And the uncontradicted evidence in the case shows that they
purchased in good faith, and without notice that it was claimed
by LaGrave or the company that Hopkins had perpetrated a
fraud on LaGrave. Holding the lease and the authority to
dismiss the suit when this controversy arose, their interest in
the result of this suit is directly affected. If the suit referred
to was to correct the lease, then the validity of their 175 shares
of stock depends upon the result of that suit. So, we see, in
any event, those persons have a direct interest in the event of
this suit.
If the title they acquired to the lease from Pell to Yalle is
valid, then appellee has no title to the lease or right to exercise
its franchises on the lands embraced in the lease ; and if this
proceeding is to have the effect which the decree purports to
give, then, without being heard, appellant's rights are cut off, and
the lease is vested in the company. Although such would not
be the effect of the decree, still, it would drive them to their
bill in equity to be able to assert their rights. It is a rule of
equity pleading so elementary, and so frequently announced
by this court, that all persons having an interest in the subject
matter of a suit in equity, which may be injuriously affected
by its determination, are necessary, and must be made parties,
that we deem it supererogation to refer to authorities or to
discuss the reason of the rule.
Complainants should, therefore, have obtained leave to amend
their bill, and have made McBirney and the other assignees of
378 Hopkins et al. v. Boseclare Lead Co. [June T.
Opinion of the Court.
Hopkins parties defendant, when their interest was disclosed
by his answer. It is, however, urged, that the notice to the
attorneys of Hopkins, served and filed the fifth day of March,
1872, should be treated as notice to them. Their purchase was
then complete, and had been for several days, and the pendency
of the original suit was no notice to them, as it in nowise re-
lated to the transactions out of which their rights have grown.
The notice to the attorneys did not affect them, as the relation
of attorney and client is not shown. If they examined the files
in that case when they purchased, they there found that Hop-
kins had the right to control the suit, and this suit was not
instituted until the 25th of April following the purchase.
Hence, we can infer no constructive notice that should charge
them at the time they purchased.
It is urged that they had notice before they paid all of the
purchase money, or, rather, were chargeable with notice by the
bringing of this suit or the notice to the attorneys filed in the
case. Whether this is true does not appear from the evidence.
It seems that a portion of the $40,000 was paid in hand, and
the balance on short time — how short does not appear from the
evidence. Even if it was paid afterwards, we will not say, un-
til they have an opportunity to be heard, that they did not
acquire title unless they had actual notice, or its equivalent.
Whilst there are cases in which persons have an interest, and
may, by petition, become parties defendant on leave of the
court, yet we are aware of no case which holds that they must
thus become parties or be concluded by the decree. To so hold
would, in many cases, work great injustice, as persons living
in another State or distant from the court would rarely have
knowledge of the institution of the suit. In such cases, parties
thus situated would be liable to have their most important in-
terests seriously affected, without the opportunity of being heard
in their defense. It is the duty of complainant to see and
know that he has before the court all necessary parties, or his
decree will not be binding. It is the policy of the law to pre-
vent a multiplicity of suits, and where the rights of all persons
may be settled in one proceeding, the parties should not be
harassed by other proceedings.
1874.] Hopkins et al. v. Koseclake Lead Co. 379
Opinion of the Court.
It is insisted that LaGrave had no power to make the sale
of the leases, to transfer the control of the suit, or to sell the
20 acres of land, as they were all owned by the company. He
was but a stockholder, and as such had no power to make the
sale. He, although owning the majority of the stock, could
not act for the company, unless specially authorized. He could,
no doubt, control the action of the company by the election of
its officers, but still the company could only act through its
officers or by expressly delegating power to others, whether a
stockholder or other persons. In this case, LaGrave is not
shown to have been empowered to make these sales; and
whether his acts were ratified by the company so as to bind it,
it would not be proper for us to discuss and determine until
the parties in interest have had an opportunity to be heard in
defense of their rights, and hence we shall not now determine
that question. The questions of whether Hopkins was guilty
of fraud in procuring the several agreements, and whether Mc-
Birney and his associates were chargeable with notice, are
questions that will arise when they shall be made parties.
We gather from the record in this case, that LaGrave was the
apparent owner of the lease when he transferred it to Hopkins ;
that although he had transferred it to the company, he had, per-
haps, never delivered it, or if he had it had never been recorded.
If this was the case, and Hopkins was not chargeable with no-
tice, and McBirney and his associates were bona fide purchas-
ers, then there is no reason perceived why they are not the
legal owners of the lease, and why they do not have the legal
and equitable right to prosecute the suit to have the lease cor-
rected, to enable them to render the lease available. But on
this branch of the case there seems to be a dearth of evidence,
and even if it were fuller, the question should not be deter-
mined until McBirney and his associates are before the court.
But for the want of proper parties defendant, the decree of
the court below must be reversed and the cause remanded, with
leave to amend the bill, and for further proceedings.
Decree reversed.
380 North v. Campbell et al. [June T.
Opinion of the Court.
Thomas E. North
v.
Henry F. Campbell et al.
1. Draft — liability of the drawer when he appropriates the fund drawn
upon. An intestate, in his lifetime, caused his agent to draw a draft against
funds which he had provided for the purpose of meeting such draft, and
afterwards, having occasion to use such funds for other purposes, induced
the holder of the draft not to present it for payment, and then appropriated
all the funds in the hands of the drawee : Held, that this was an appropri-
ation of the money of the holder to the amount of the draft, and that the
holder was entitled to recover against his estate the amount of the draft,
with legal interest from the time the money was appropriated by the intes-
tate.
2. In such a case, the recovery is not upon the draft, hut for money of
the claimant had and received and appropriated to his own use by the intes-
tate, which, in equity and good conscience, his estate ought to repay.
Appeal from the Circuit Court of Jackson county; the
Hon. Monroe C. Crawford, Judge, presiding.
Mr. L. P. Bittler, and Mr. Andrew D. Duff, for the ap-
pellant.
Mr. D. H. Brush, for the appellees.
Mr. Justice Breese delivered the opinion of the Court:
This case originated in the county court of Jackson county,
on the probate side thereof, it being the presentation of a claim
by Thomas E. North against the estate of James M. Campbell,
deceased, which was resisted by his administrators, and disal-
lowed by the court. On appeal by claimant to the circuit
court, the cause was there heard by the court sitting as a jury,
resulting in a finding for the defendant.
A bill of exceptions was duly taken by the claimant, and
the record brought here by appeal, and we are called upon to
determine what liability, if any, exists against the estate of
James M. Campbell, in favor of appellant, from the facts dis-
closed.
1874.] North v. Campbell et al. 381
Opinion of the Court.
The action itself is of an equitable character, as this court
has often held, and may be likened to an action for money had
and received by the intestate in his lifetime, which, when ap-
propriated by him, was the property of appellant.
The facts, as we understand them from the bill of exceptions,
substantially show that the intestate and appellant had pur-
chased the stock of goods of Hindman & Spiller, merchants in
Carbondale, the intestate two-thirds thereof, in payment for
which he caused Samuel E. North to draw drafts of one thou-
sand dollars each, on Bryant, Watts & Co., of the city of New
York, which were accepted by Hindman & Spiller, one of
which was indorsed by them in blank, and came to the hands
and possession of appellant. For the third interest in these
goods which appellant purchased, he paid out of his own funds.
"We are to infer, as there is nothing in the record hostile to the
inference, that these drafts so drawn performed the functions
of money, and were drawn on an existing and responsible
party. Indeed, it is proved that all drafts of this kind, and
previously drawn as this was, were promptly paid by the
drawees, and the presumption is reasonable this one would
have been paid to the appellant, the legal holder, had it been
presented. There was, in the hands of these drawees, belong-
ing to appellant, the amount of this draft, one thousand dollars,
which was his property, or could have become so, had he pre-
sented the draft in time. This is undeniable.
Why did not appellant appropriate these funds ? The answer
is found in the testimony of S. E. North. He was requested
by Mr. Campbell not to do so, as he, the person who had cre-
ated the fund in New York, for a different purpose, had, unex-
pectedly, occasion to resort to it, by using the money for his
own purposes, and made a special application to appellant to
withhold the presentation of the draft. This, appellant did,
and by doing which, it is evident he has lost the amount of it,
together with use. No fraud is intimated, of any character,
against any of these parties, and we must believe, in the ab-
sence of any such imputation, that the draft was paid out to
Hindman & Spiller in good faith, for an honest purpose, and as
382 Mitchell v. Robinson. [June T.
Syllabus.
money, and that it didj in the course of business, come into
the possession of appellant as his own. We do not understand
the law to be, that the holder of negotiable, indorsed paper is,
ordinarily, required to show how he came by the paper.
As the case appears to us, the intestate, James M. Campbell,
virtually appropriated to his own use one thousand dollars, the
money of appellant.
This proceeding is not upon the draft, or an attempt to make
the estate of Campbell liable upon the draft — no such thing.
The liability of the estate to appellant grows out of the fact
that, at the request of, and to promote the interests and views
of the intestate, and to relieve him from financial embarrass-
ment, appellant sacrificed one thousand dollars. This the
estate of Campbell, in equity and good conscience, ought to
repay, with legal interest thereon from the time Campbell ap-
propriated it.
The judgment of the circuit court is reversed, and the cause
remanded for further proceedings in conformity to this opinion.
Judgment reversed.
Martin M. Mitchell
v.
Henry M. Kobinson
Damages — when not excessive in an action of trespass. In an action of
trespass for assault and battery, where the assault is wanton and cruel, and
the circumstances peculiarly aggravated, and the conduct of the defendant
shows cool, deliberate malice, and there is nothing which palliates it in the
slightest degree, a verdict for $1000 damages is not excessive.
Appeal from the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
Mr. W. E. "Welch, for the appellant.
Messrs. Gillespie, Southwoeth & Happy, for the appellee.
1874.] Mitchell v. Eobinson. 383
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court:
It is not claimed there is an y justification for the assault
made by appellant upon appellee. The only point relied on
for a reversal of the judgment is, the damages found by the
jury are excessive.
The circumstances of the assault are peculiarly aggravated,
and warranted the jury in awarding exemplary damages. Ap-
pellant sought to mitigate the enormity of his conduct by
proof that appellee had slandered his daughter. The charge
imputed to him was, that he alleged she was an unchaste
woman. There is no testimony in the record to establish the
guilt of appellee. There was a rumor in the neighborhood
against the purity of the character of his daughter, but the evi-
dence wholly fails to show it was put in circulation by appellee.
He always denied the accusation. When asked to remove the
stain upon her character, he protested his innocence and his
inability to remove the imputation.
The conduct of appellant exhibits a cool, deliberate malice,
seldom witnessed. He was not moved by any sudden passion,
aroused by recent provocation. According, to his own testi-
mony, he " had studied this thing five or six months." He
seems to have calculated upon the want of courage on the part
of appellee to resist an assault. When ready to put his pur-
pose into execution, he went to the house of a neighbor where
appellee was engaged as a laborer, procured of him a pistol,
and asked his employer if he had any objection to his whip-
ping appellee on his premises. Permission was given. By
menaces and the exhibition of the pistol, he compelled appel-
lee to go with him a short distance from the house, where,
holding the pistol in one hand, with the other he deliberately
applied the whip to the non-resisting victim with such severity
that the blood followed the lash.
It is to the credit of humanity that the history of litigation,
or even the annals of crime, affords but few instances of out-
rage more malignant in character or exhibiting a deeper de-
pravity in the perpetrator. There is nothing in the record
384 St. Louis & S. E. Ky. Co. v. Casner. [June T
Syllabus.
that palliates in the slightest degree the conduct of appellant.
It was wanton and cruel in the extreme. The verdict, under
the facts proven, is not too high. In Alcorn v. Mitchell ', 63
111. 553, where no physical injuries were inflicted, but only
personal indignity, a verdict as large as the one in this case
was permitted to stand.
The judgment must be affirmed.
Judgment affirmed.
St. Lottis and Southeastern Kailway Company
v.
George Casner.
1. Jurors — right to challenge array waived by swearing a jury. After a
jury for the trial of a cause has been called, impanneled and sworn from
the regular list of jurors in attendance, a challenge to the array conies too
late. It is waived by the previous calling and swearing of the jury.
2. Evidence — what facts a jury may infer from facts proved. Where the
evidence in a suit against a railroad company for killing stock showed that
the stock was not killed within a corporation nor near a crossing, the jury
might infer that it was not killed within the limits of a town, city or village.
3. Evidence that a cow was found killed within a mile and a quarter of
the plaintiffs house is sufficient proof that she was killed within five miles
of a settlement ; and evidence that a colt which was killed was kept up, and
only ran out to water, is sufficient from which a jury might infer that it was
killed within five miles of a settlement.
4. In a suit against a railroad company for killing stock, where the evi-
dence is that the road was not fenced at the place where the stock was
killed, it is but a fair inference that the stock got upon the road at the place
where it was killed.
Appeal from the Circuit Court of Jefferson county; the
Hon. Tazewell B. Tanner, Judge, presiding.
Mr. J. M. Hamill, for the appellant.
Messrs. Crews & Haynes, for the appellee.
1874.] St. Louis & S. E. By. Co. v. Casner. 385
Opinion of the Court.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action, brought against the railway company, to
recover damages, under the statute (Laws 1855, p. 173), for the
killing of stock, the road of the company not being fenced.
There was a recovery by the plaintiff below, and the defendant
appealed.
The first error assigned is the overruling of appellant's chal-
lenge to the array of jurors. The jury for the trial of the cause
had been "called, impanneled and sworn from the regular list
of jurors in attendance" before the challenge was made. The
challenge to the array came too late. It was waived by the
previous calling and swearing of the jury for the trial of the
cause. Gropp v. The People, 67 111. 154.
It is next assigned for error, that the verdict is not sustained
by the evidence.
It is said, the proof does not negative that the animals were
killed at any of the excepted places named in the statute, viz:
within the limits of any town, city or village, or at a place at
a greater distance than five miles from any settlement. It was
in evidence that they were not killed within a corporation nor
near a crossing. As towns, cities and villages, with us, are
usually incorporated, the jury might infer, from such evidence
as the above, that the animals were not killed within the limits
of a town, city or village.
As the cow was found killed about a mile and a quarter from
plaintiff's house, that would be evidence that she was killed
within five miles of a settlement. As there was evidence that
the colt was kept up, and only ran out to water, the jury might
infer from that, the same as with respect to the cow, that it was
killed within five miles of a settlement.
It is said, the evidence is all in reference to the place where
the animals were found dead by the side of the track, and that
it is not the place where the animals are killed that fixes the
liability of the company for not fencing, but the place where
they got upon the railway track; but the evidence was that the
road was not fenced where the stock was killed, and, in the
25— 72d III.
386 Grand Tower M. & T. Co. v. Hawkins. [June T.
Syllabus.
absence of any other proof, it would be but a fair inference that
the stock got upon the road at the place where it was killed.
In regard to the colt, it is said there was no evidence that
it was killed on appellant's road.
There was direct evidence that the cow was killed on appel-
lant's road; both animals were killed at about the same time,
and, although there was no direct evidence on what road the
colt was killed, it might fairly be inferred, from all the evidence
in the case, that both the animals were killed on the same rail-
road.
It is said there is no evidence in the record that appellee was
the owner of the animals. There is no direct evidence to that
point, but there is evidence tending to show, and from which
it might be inferred, that the animals belonged to the plaintiff,
as, for instance, the plaintiff's testimony as to how they were
kept, in reference to being turned out or not, and his not want-
ing to sell the colt.
There would seem to be no other color of support for appel-
lant's objections, than that there was a lack of direct evidence
of the facts alleged ; but a fact may be proved not only by di-
rect evidence, but by circumstances from which a jury can
reasonably infer it.
We can not say there is such a want of testimony to sustain
the verdict, that the judgment should be reversed.
The judgment is affirmed.
Judgment affirmed.
Grand Tower Manufacturing and Transporta-
tion Company
v.
John S. Hawkins.
1. Negligence — contributory and comparative. Although the mere fact
that a plaintiff was guilty of contributory negligence in reference to the
matter involved in his suit, will not, of itself, prevent him from recovering
1874.] Grand Tower M. & T. Co. v. Hawkins. 387
Opinion of the Court.
for injuries caused by the negligence of the defendant, yet he can not recover
in such case unless his negligence, as compared with defendant's, was slight,
and that of the defendant was gross.
2. Wharf boats — liability of owners of, when not common carriers of
passengers. The owner of a wharf boat, who is not a common carrier of
passengers, and who receives no compensation from passengers for the use
of his boat, whilst he is required to keep the passway safe which he per-
mits the public to use, is not bound to maintain passways for passengers over
and around every part of his wharf boat.
3. A wharf boat, which was the only landing for boats at the point where
it was situated, belonged to a company which was not a common carrier of
passengers ; it was used for the purpose of receiving and transferring freight,
and the public did business with the boats through this wharf boat ; it was
the custom of the owner of the wharf boat to keep it closed of nights; the
passway for passengers was through, and not around it. A party, having
business with a boat approaching the wharf boat, went on to it in the night,
when it was closed, and, in passing around it, in a part not used or intended
as a passway for passengers, fell into a hole and was injured. He had made
no application to have the wharf boat opened. The steamboat had not
landed when he was injured, and the wharf boat was opened in time to
transact business with it when it landed : Held, that the owners of the .
wharf boat were guilty of no negligence, and that the party injured did not
exercise ordinary care and caution, and was not entitled to recover.
Appeal from the Circuit Court of Jackson county; the
Hon. Monroe C. Crawford, Judge, presiding.
Mr. Thomas Gr. Allen, and Mr. Charles H. Layman, for the
appellant.
Mr. William J. Allen, and Mr. John H. Mulkey, for the
appellee.
Mr. Justice Scholfield delivered the opinion of the Court :
Appellee brought his action on the case against appellant
for injuries received by him in falling through a hole in appel-
lant's wharf boat, at Grand Tower, and recovered judgment for
$1000. Appellant, having taken proper exceptions, brings the
case here by appeal, and insists, among other grounds for re-
versal, that the evidence fails to show any cause of action.
The law, as declared by this court through a long series of
decisions, is, that, although the mere fact that the plaintiff was
388 Grand Tower M. & T. Co. v. Hawkins. [June T.
Opinion of the Court.
guilty of contributory negligence, will not, of itself, prevent
liim from recovering for injuries caused by the negligence of
others, yet he can not recover in such case unless his negli-
gence, as compared with the defendant's, was slight, and that
of the defendant was gross.
There must be fault on the part of the defendant, and no
want of ordinary care on the part of the plaintiff, to entitle
him to recover. Galena and Chicago Union Railroad Co.
v. Jacobs, 20 111. 478 ; Chicago, Burlington and Quincy Rail-
road Co. v. Dewey, 26 id. 255; Chicago, Burlington and
Quincy Railroad Co. v. Hazzard, id. 373 ; Chicago and Alton
Railroad Co. v. Pondrom, 51 id. 333; Chicago, Burlington
and Quincy Railroad Co. v. Payne, 49 id. 499; Chicago and
Alton Railroad Co. v. Gretzner, 46 id. 74.
It appears, from the evidence, that appellant owned a wharf
boat at Grand Tower, which was used for receiving and trans-
ferring freight. This was the only landing for boats at that
point, and the public did their business with the boats through
this wharf boat. On Tuesday night, July 12th, 1870, appellee
arrived at Grand Tower on the steamer "Rubicon," a boat
belonging to the Memphis and St. Louis Packet Company. In
consequence of the lateness of the hour, and the fact that the
boat could not approach the wharf boat by reason of coal
barges then lying there, he left his carpet-sack in the boat. He
paid the porter of the boat to look after the carpet-sack, and
bring it ashore for him on its return, and also employed James
Hull, appellant's clerk on the wharf boat, to see the porter and
get his carpet-sack. On the following Sunday night, being the
17th of July, about dusk, as the "Rubicon" was passing down,
appellee went down to the wharf boat to look after his carpet-
sack. When he got to the wharf boat, he found it closed. It
was then quite dark. He walked on to the wharf boat, on the
gang-plank, and around on the opposite side. In going around,
over the water, on the after-guard, he suddenly fell into a hole,
of a circular form, and some two feet in diameter, from which
he received a serious injury in his back.
1874.] Grand Tower M. & T. Co. v. Hawkins. 389
Opinion of the Court.
It was the usual custom of appellant to keep its wharf boat
closed of nights and on Sundays, except for a little while in
the morning. The passway for passengers was through, and
not around it. At the time appellee received his injury, the
"Rubicon" had not landed, and the wharf boat was, on that
evening, opened in time to transact business with it. Appellee
made no application to any of appellant's servants to have the
wharf boat opened, nor did he notify any of them of his de-
sire to communicate with the "Rubicon." In his own language,
he "went round the way he did, and took chances."
There is no evidence that the passway through the boat was
insufficient to accommodate the public, or that it was unsafe,
or that appellant invited the public to pass round on the after-
guard.
We are unable to conceive upon what principle appellant can
be held liable. We are aware of no duty which it owed the
public that was not discharged. It was not a common carrier
of passengers, or in the exercise of functions from which the
law would imply a duty to have a passway open to the public
at all hours of day and night across its wharf boat. It re-
ceived no compensation from passengers for the use of its boat,.
and, while it was its duty to have the passway safe which it
permitted the public to use, the rights of the public were lim-
ited to that passway, and its use, when kept open for that pur-
pose. They can not compel appellant to maintain passways
for passengers over and around every part of its wharf boat.
Appellee was guilty of a high degree of negligence. A man
of ordinary prudence would surely have restrained his anxiety
until the steamboat had landed, and would then scarcely have
been trying to reach it by an unusual mode of access, without
even a light to guide him.
We think it clear, from the evidence, that the plaintiff's own
reckless imprudence was the efficient cause of his injury, and
he alone must therefore bear the consequences.
The judgment is reversed.
Judgment reversed.
390 Ncetling v. Weight. [June T.
Opinion of the Court.
John Ncetling
V.
Charles M. Weight.
1. False representations — as to value of property sold, no cause of
action. A purchaser can not maintain an action against his vendor for false
statements in regard to the value of the property purchased, or its good qual-
ities, or the price he has been offered for it.
2. Where a party, capable of taking care of his own interests, makes a
bad or losing bargain, the law will not assist him, unless deceit has been
practiced against which ordinary care could not protect him.
3. Pleading — two distinct causes of action can not be joined in the same
count. A count in which the plaintiff seeks to recover damages, in an
action on the case, for deceit, and also for a breach of contract, can not be
sustained.
Writ of Error to the Circuit Court of Effingham county ;
the Hon. Hiram B. Decius, Judge, presiding.
Messrs. Underwood & ISTcetlino, for the plaintiff in error.
Messrs. Wood & Barlow, for the defendant in error.
Mr. Justice Craio delivered the opinion of the Court;
This was an action on the case, brought by John Nestling
against Charles M. Wright, in the circuit court of Effingham
county, to recover damages for deceit and misrepresentation on
the sale of certain real estate and drugs, and the practice and
good will of a physician.
The declaration contained six counts, to each of which a gen-
eral demurrer was filed, and sustained by the court.
The plaintiff brings the case here, and assigns for error the
decision of the circuit court in sustaining the demurrer to each
count of the declaration.
It is alleged, in the first count, that the defendant made a
false representation of the value of his property, practice and
good will as a physician; that plaintiff, relying on the repre-
1874.] JSTcetling v. Weight. 391
Opinion of the Court.
sentations, was induced to purchase the property and practice,
and they were worth much less than represented.
In the second count, misrepresentation in the value of the
real estate sold is charged.
In the third count, a sale of property of the value of $500,
and the practice and good will of a physician, are alleged to
have been sold for $2500 ; that the defendant represented his
practice worth from $3500 to $6000 per annum; that these
representations were relied upon, and were false; that the good
will and practice were of no value.
We are aware of no principle of law upon which these aver-
ments can be held sufficient to support an action. Statements
made by a vendor of property, as to its value, or the price he
has been offered for it, or the good qualities of the property,
are of daily occurrence in the sale and transfer of real and
personal property in all commercial countries, and yet it has
never occurred to any respectable law writer that, if such state-
ments should prove to be false, an action for deceit could be
maintained.
Statements of that character do not in anywise relieve the
purchaser from the responsibility of investigation into the true
condition or value of the property about to be purchased.
Such statements are only regarded as gratis dicta, and, as is
well said by Kerr, in his work on Fraud and Mistake, page 84:
"A man who relies on such affirmations made by a person
whose interest might so readily prompt him to invest the
property with exaggerated value, does so at his peril, and must
take the consequences of his own imprudence."
In the case of Van Horn v. Keenan, 28 111. 448, it was de-
clared by this court, where a party, capable of taking care of
his own interests, makes a bad or losing bargain, the law will
not assist him, unless deceit has been practiced against which
ordinary care could not protect him.
In the case of Miller v. Craig, 36 111. Ill, it was said: The
appellant, in endeavoring to effect a trade with appellee, used
no more artifice than is usual and allowable where a party
wishes to dispose of property, real or personal. He has a right
392 ISTcetling v. Wright. [June T.
Opinion of the Court.
to extol the value of his own property to the highest point his
antagonist's credulity may bear, and depreciate that of the
opposing party. This is the daily practice, and no one has
ever supposed that such boastful assertions or highly exagger-
ated description amounted to fraudulent misrepresentation or
deceit.
In view of these authorities, the averments in the three
counts of the declaration can only be regarded as expressions
of opinion as to values, for which no action can be main-
tained. Vernon v. Keys, 12 East, 632.
In the fourth count it is averred defendant was the owner of
certain lots in the town of Fremanton, of the value of $500,
and was in possession of the same as a physician, having a
practice in and around the town; that the defendant, intending
fraudulently to deceive, falsely and fraudulently represented to
plaintiff that the property was worth $3000, and defendant's
practice as a physician was worth $3500 per annum, and that
defendant would sell and transfer said property and practice to
plaintiff for $2500, and wholly relinquish to plaintiff his entire
practice; and plaintiff, relying solely on said false and fraudu-
lent representations as to the value of the property and prac-
tice, and that defendant would transfer the same to him in
good faith, purchased the property and practice, and paid
therefor $2500 ; that the practice was worth not to exceed $500
per annum, and the defendant, in fraud of plaintiff's rights,
after the sale, entered into practice as a physician in the same
neighborhood, thus defeating plaintiff of great profits which
he might otherwise have made.
This count of the declaration can not be sustained by any
well settled rule of pleading. It blends together two distinct
causes of action. By it the plaintiff seeks to recover damages
in an action on the case for deceit, and also recover for a breach
of contract. The object of pleading is the production of a
single issue upon the same subject matter of dispute. This,
the count under consideration fails to do.
If it was conceded the averments in the count were sufficient
to enable a recovery for a breach of the contract of defendant
1874.] Hund v. Geier. 393
Syllabus.
in resuming practice, yet no recovery could be had in this
action for a breach of the contract in this respect. The plain-
tiff would be compelled to resort to an action of assumpsit.
The fifth and sixth counts are liable to the same objection as
the fourth. They, however, contain the additional averment,
that the defendant falsely and fraudulently represented to the
plaintiff that the country surrounding Fremanton was good,
well improved, and the inhabitants, as a class, well off; but this
representation, although false, can not support an action. It
is merely the expression of an opinion, for which the vendor
can not be held liable. The rule that exaggeration, as dis-
tinguished from misrepresentation, goes for nothing, applies
with peculiar force to this statement.
It, however, appears from the averments in these counts
that the plaintiff, at the time of the purchase, was at Freman-
ton, and had an opportunity to see and judge for himself the
quality of the country and the wealth of the inhabitants.
In Vernon v. Keys, supra, the rule is stated to be, that the
seller was liable to an action for deceit, if he fraudulently mis-
represent the quality of the thing sold in some particular
which the buyer has not equal means of knowledge with him-
self. Such, however, is not this case.
We are therefore of opinion the demurrer to each count of
the declaration was properly sustained, and the judgment will
Judgment affirmed.
Mr. Justice Scholfield took no part in the decision of this
case.
Bernhard Hund
v.
Anton Geier.
1. Contract — of a promise to pay expenses of a cure of one injured
by servant of promisor. A defendant, having obtained permission to
haul earth over the ground and alleyway of the plaintiff, sent his son
394 Hund v. Geier. [June T.
Opinion of the Court.
with a team for that purpose, and whilst in the alleyway, one of the
horses kicked and severely injured a little son of the plaintiff. The plain-
tiff employed a physician, and the next day the defendant called on the
plaintiff and inquired what doctor he had, and, on being informed, told the
plaintiff to get another, and he, the defendant, would pay all expenses of the
cure : Held, that the defendant did not thereby become liable for the bill
of the then attending physician, whatever it might be, but that he only in-
tended to express his willingness to pay a reasonable bill, such as other
physicians charged, and that he could in no event be held beyond that ex-
tent of liability.
2. Consideration — what sufficient, to support a promise to pay dam-
ages. If a servant, in the performance of his master's work, is guilty of
negligence, whereby another is injured, the master will be liable, and such
liability is a sufficient consideration to support a promise made by the mas-
ter to pay the damages occasioned thereby, if made with the purpose of pre-
venting a resort by the party damaged to legal proceedings.
3. And even if it is doubtful whether the act of the servant whereby the
injury was inflicted was negligence, still, if the master promises to pay the
damages with a view to prevent a resort to legal proceedings, and the dam-
aged party accepts and acts upon it as a compromise, the consideration is
sufficient.
4. Contributory and comparative negligence. Where a father sues for an
injury to his child, his conduct must be free from blame, or his negligence
at least should be slight and that of the defendant gross, to entitle him to
recover. The rule is different where the child is the plaintiff in a suit to
recover for the injury, as the same degree of care and diligence is not re-
quired of a child as of an adult.
Appeal from the Circuit Court of St. Clair county; the
Hon. William H. Snyder, Judge, presiding.
Messrs. Hay & Knispel, for the appellant.
Mr. "William Winkelman, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
It appears, from the record in this case, that appellant had
obtained permission to haul earth over appellee's ground and
alleyway; that he sent his son with a team of horses for the
purpose, and that, whilst in the alley, appellee's little son, in
passing the horses, was kicked and severely injured; that he
1874.] Hund v. Geiee. 395
Opinion of the Court.
employed a physician to treat his wounds. The next day ap-
pellant went to the house of appellee and expressed sorrow
for the accident, and asked appellee what doctor he had, and,
on being informed, told appellee to get another, and promised
to pay all expenses of the cure. After the boy was cured, and
the physician had visited the boy thirty-six times, he presented
a bill for $100, which appellee called on appellant to pay, but
he refused, and said he would not pay the bill of that doctor.
He himself testified that the reason he wished appellee to pro-
cure the services of another physician was, because Doctor
Myer always charged twice as much as other doctors.
On appellant refusing to pay the bill, this suit was brought,
before a justice of the peace, and appealed to the circuit court,
where a trial was had by the court and a jury, resulting in a
verdict and judgment for the amount of the bill, and the rec-
ord is brought to this court, and we are asked to reverse it on
the grounds that appellant is not bound by the promise, and
that the court gave improper instructions.
We think it is but a fair inference, from the evidence, that
appellant only intended to become liable on the condition that
another physician was employed, or rather, that he was willing
to pay a reasonable bill, such as other physicians charged ; not
that he would pay the bill, let it be what it might. Whilst
willing to pay, he was only willing to pay what was fair and
reasonable. This, we think, is the scope and extent of the
promise, and he can in no event be held beyond that extent of
liability. There is no evidence in the record tending to show
that the charges for services rendered by the physician were
reasonable and customary in the profession. He simply made
out his bill, and appellee presented it to appellant for payment.
For aught that appears, the charges may, as appellant feared,
be double the amount other physicians would have charged.
They may be exorbitant and unreasonable, and if so, there can
be no pretense that appellant agreed to pay such charges. Had
he said nothing in reference to this physician, the law would
only imply that he was willing to pay reasonable compensation
for the services.
396 Hund v. Geiee. [June T.
Opinion of the Court.
It is urged that the promise by appellant was purely volun-
tary, and there was no consideration to support it. If the evi-
dence shows that the son of appellant was guilty of negligence,
and that such negligence was the cause of the injury, then
appellant would have been liable, and such liability would have
been a sufficient consideration to support the promise, if made
with the purpose of preventing a resort by appellee to legal
proceedings. Or even if it were doubtful whether there was
such negligence, and the promise was made with that view,
then the consideration would be sufficient, if accepted and acted
upon by appellee as a compromise. But we fail to find any
evidence that such was the purpose. Appellee was making no
such claim, nor had he intimated an intention to sue, or even
attached any blame to the acts of appellant or his son. On
the contrary, he said the son was not to blame. The promise
seems only to have been made from good feeling, and from
sympathy for appellee in his misfortune.
There was nothing given to base the promise upon when it
was made. So far as we can see, no liability was incurred on
the faith of the promise. Appellee had already employed the
physician, and, so far from changing his course on the promise
being made, he declined to change physicians as appellant pro-
posed when he made the promise. He therefore can not claim
that he incurred liabilities on the faith of the promise, even if
that would constitute a consideration. We fail to find, from
the evidence, that there was any consideration to support the
promise.
The question of negligence was not correctly stated to the
jury. Appellant was only held to the use of all reasonable
and proper precautions to prevent injury. He was not an
insurer, although he was on appellant's ground, and he would
not be liable unless the negligence of appellee was slight and
that of appellant was gross, if both were guilty of negligence.
On this question the instructions were wrong. Appellee, to
have recovered against appellant, would have been required to
show that he was free from negligence, or if he was not, that
his negligence was slight, and that of appellant gross. Had the
1874.] Stowe v. Flagg et al. 397
Syllabus.
child been a plaintiff, to recover for the injury, the rule would
have been different, as the same degree of care and diligence
is not required of a child as from an adult. See The Chicago,
Burlington and Quincy Railroad Company v. Dewey, 26 111.
255. But where the father sues for an injury to a child, his
conduct must be free from blame, or his negligence at least
should be slight, and that of the defendant gross.
The first of appellant's refused instructions was correct, and
should have been given, and the others that were given should
have been modified so as to conform to the views here ex-
pressed.
The judgment of the court below is reversed and the cause
remanded.
Judgment reversed.
James G. Stowe
v.
William F. Flagg et al.
1. Corporations — can only be created by legislative enactment. A cor-
poration can not be constituted by agreement of parties. It can only be
created by legislative enactment.
2. Same — under law of 1857. The signers of the certificate described in
the first section of the act in relation to the formation of corporations (Laws
1857, page 161) do not become a body politic and corporate, under the statute,
by making the certificate. It is only upon the reception of the license issued
by the clerk of the court, as provided for by the act, that they can have a
corporate existence.
3. Stock is essential to the existence of a manufacturing corporation,
under the act for the formation of such corporations. The integral parts
of such a corporation are at least three stockholders.
4. Stockholder — executory agreement to subscribe for stock in a corpora-
tion. An executory agreement between individuals to take stock in a manu-
facturing corporation to be formed under the statute of 1857, made at the
time of filing the certificate of incorporation provided for by that act, but
398 Stowe v. Flagg et al. [June T.
Statement of the case.
before the license required is* issued, is not a subscription of stock, and does
not make the parties thereto stockholders in the corporation when com-
pleted.
5. An agreement between parties about to form a corporation for manu-
facturing purposes, under the act of 1857, which provides for each of them
putting in property, at a fixed value, as stock in the proposed corporation,
and also provides who shall be officers of the corporation, and what com-
pensation they shall receive, is not binding on the corporation when formed.
6. Parties, about to form a corporation for manufacturing purposes, filed
a certificate of incorporation, and on the same day entered into an agreement
by which they each agreed to put into the corporation, when formed, cer-
tain property, as stock, at a fixed price. Afterwards, a license was issued,
as required by law, to complete the incorporation, but no books were opened,
and no action taken with regard to stock, nor was the property conveyed to
the corporation, but the parties to the agreement carried on their business
in the name of the corporation, using the property, so agreed to be put in as
stock therein. After carrying on the business in this way for a time, mis-
understandings arose between the parties, and one of them filed a bill in
chancery for a settlement of their affairs : Held, that the property never
became corporate property, but belonged to the parties, as an association of
individuals, under their written agreement.
Appeal from the Circuit Court of McLean county ; the Hon.
Thomas F. Tipton, Judge, presiding.
August 10, 1870, James G. Stowe, William F. Flagg and
Nathan F. Mathewson, made a certificate of incorporation,
under the statute for the formation of corporations (Laws 1857,
p. 161), which certificate was filed in the office of the Secretary
of State October 5, 1870, and in the office of the circuit clerk
of McLean county November 11, 1870, and said clerk, on the
12th day of said November, issued a license to said Stowe,
Flagg and Mathewson, to carry on the business mentioned in
the certificate, under the corporate name of " Empire Machine
Works."
On the same day (August 10, 1870), the above named per-
sons entered into a written agreement, whereby they agreed to
associate themselves together for the purpose of manufacturing
mowers and reapers, and general machinery, in Bloomington, in
this State. Flagg agreed to remove and put up his then present
planing mill, engine room and dry-house machinery, engine,
1874.] Stowe v. Flagg et al. 399
Statement of the case.
boiler and fixtures, on certain designated ground; Flagg, also,
to complete the building then under construction (a brick
building, 170 by 30 feet, which he was constructing under a
similar contract entered into between him and Stowe alone, in
March previous), by plans agreed upon by all parties; said
building to be put into the company as capital stock, at actual
cost, being shown by properly executed bills and vouchers from
the parties furnishing the materials and labor; the whole ma-
terial, labor, etc., to be purchased and paid for at the lowest
cash prices, and the whole work to be executed in a proper, sub-
stantial and workmanlike manner; the first named building,
machinery, etc., to be put into the company, as capital stock, at
the sum of $7000. If it was not found desirable to move the
brick, engine and dry-house, a suitable deduction was to be
made from the above price. Flagg was to furnish three acres
of land to the company, at $1000 per acre, with a clear, undis-
puted title, and to execute to the company his deed of general
warranty; the land, also, to be put in as capital stock. He
was, also, to take $10,000 of cash stock.
Stowe was to put into the company, as stock, his machinery,
tools, etc., for the sum of $25,000 stock in the company.
Mathewson was to furnish, by proper transfer, the patents
granted him on mower, hay-fork, etc., at the sum of $10,000
stock in the company.
It was further agreed to make the working capital the sum
of $25,000 ; that other parties might unite and take the bal-
ance of the stock, or it could be taken by any of the three
present stockholders. The above buildings were to be removed
at once, and the new one completed without delay. Flagg, as
president and treasurer, and Stowe, as superintendent and
manager, were to act for one year, at a salary of $1500 each,
commencing May 1, 1870; Mathewson to act as agent, at a
salary of $1500 a year, to take effect August 1, 1870.
By-laws were adopted by the company August 10, 1870.
August 15, 1870, Stowe, by an instrument in writing, trans-
ferred his machinery, tools, etc., to the company.
400 Stowe v. Flagg et al. [June T.
Statement of the case.
The by-laws so adopted provided that the annual meeting
of the company for the election of officers should be held on
the first Tuesday of May. The annual meeting for that pur-
pose was called for the first Tuesday of May, 1871. Stowe
objected to the election of officers, claiming that it was illegal,
and no election was held. No stock was ever issued or sub-
scribed, and no stock books ever opened, but Stowe, Mathew-
son and Flagg carried on business, under the name of Empire
Machine Works, getting the building and machinery ready, but
without any manufacturing until January, 1871. Stowe, by
reason of dissatisfaction with Flagg, left the concern in Jan-
uary, 1871, and thereupon filed his bill in chancery, against
Flagg and Mathewson, setting out the above facts, and alleging
that the brick, engine and dry-house, described in the agree-
ment, had not been removed by Flagg on the three acres of
land; that Flagg had not conveyed said land to the company,
nor had put into the company the building erected on the
land, at its cost, but wholly refused so to do, and refused to
exhibit vouchers for the cost, as provided by the contract, and
that Mathewson had not transferred to the company the pat-
ents in the agreement mentioned, and praying for relief.
Upon final hearing on pleadings and proofs, the court ren-
dered a decree, finding that, on the 10th day of August, 1870,
the complainant and the defendants became and were incorpo-
rated under the general incorporation laws of the State, under
and by the name and style of the Empire Machine Works;
that thereupon the machinery, tools, etc., that complainant had
agreed to put into the business, became vested in and thence-
forth belonged to said corporation, and dismissing the bill.
Stowe brings the case here by appeal.
Messrs. Spencer, Williams & Benjamin, for the appellant.
Mr. E. M. Prince, and Messrs. Kowell & Hamilton, for
the appellees.
1874.] Stowe v. Flagg et al. 401
Opinion of the Court.
Mr. Justice Sheldon delivered the opinion of the Court:
The question here presented is, whether there was a corpo-
ration, and the property involved had become corporate prop-
erty.
There clearly was no corporation on the 10th of August,
1870, or until the 12th of November, 1870, the time the
license was issued. A corporation can not be constituted by
the agreement of parties. It can only be created by or under
legislative enactment. The third section of the act relating to
the formation of manufacturing, etc., corporations (Laws 1857,
p. 161), provides that, "when the certificate (described in the
first section) shall have been filed as aforesaid with the clerk
of said court, and a duplicate thereof filed in the office of the
Secretary of State, the said clerk shall issue a license to the
persons who shall have signed and acknowledged the same, on
the reception of which they and their successors shall be a
body corporate and politic, in fact and in name, by the name
stated in such certificate," etc.
The certificate here was signed and acknowledged August
10, 1870, but it was not filed in the office of the Secretary of
State until October 5, and in the office of the circuit clerk
(November 11, and the license was not issued until November
12, 1870.
The signers of the certificate did not become a body politic
and corporate, under the statute, by the making of the certifi-
cate, but it was only upon the reception of the license that
there could have been a corporate existence.
Stock is essential to the existence of a manufacturing cor-
poration, under the statute. The integral parts of such a cor-
poration are at least three stockholders. Section four of the
act referred to provides that "the affairs of such company
shall be managed by a board of not less than three nor more
^than seven directors, who shall be stockholders therein, and
who shall, after the first year, be annually elected by the stock-
holders," etc.
26— 72d III.
402 Stowe v. Flaog et al. [June T.
Opinion of the Court.
There was here no stock book opened, no stock issued, and,
as we regard it, no stock subscribed for or taken in the corpo-
ration. There is no pretense of any subscription for stock,
more than the written agreement of August 10, 1870, aud
appellees' counsel insist upon that as a stock subscription.
That agreement, so far as it relates to stock, is evidently all
executory, to take and put in stock at a future time. It does
not purport that the parties thereby take or put in any stock.
An undertaking to subscribe a certain amount of stock when
books shall be opened, does not make the subscriber a stock-
holder, liable to calls. Thrasher v. Pike County Railroad
Go. 25 111. 393.
The agreement is a mutual one, between three persons, con-
taining various provisions and stipulations, each one's agree-
ment being in view of all the several provisions being carried
into effect as therein designated. This agreement could not
be binding upon the subsequent corporation to be formed under
the statute.
Stowe and Mathewson did not agree to take, respectively,
$25,000 and $10,000 of stock absolutely, but the former was
to put in his machinery, tools, etc., as stock, for $25,000 stock
in the company, and Mathewson was to transfer his patents,
etc., at the sum of $10,000 stock in the company.
The twelfth section of the act provides that nothing but
money shall be considered as payment of any part of the capi-
tal stock of any such company, except real estate and personal
property necessary to carry on the business of the company,
which shall be received as payment only at a cash valuation,
to be fixed by the appraisement of two disinterested persons,
etc. Now, supposing the corporation, when it has occasion to
act with reference to stock, should follow the statute, and only
take the property at its appraised value, which should be less
than the arbitrary values fixed upon it in the agreement.
Clearly the parties would not be bound, by the agreement, to
put in their property at the appraised value. The same may
be remarked as to the building and land to be put in as stock
by Flagg.
1874.] Stowe v. Flagg et all 403
Opinion of the Court.
This agreement, too, assumes to appoint the parties to it
officers in the company for one year, such as president and
treasurer, superintendent and manager, and agent, and to fix
the amount of their salaries. Suppose the corporation should
see fit to choose its officers, and other ones, for itself, or to
diminish these salaries, would, then, the agreements as to stock
be obligatory?
No action whatever with regard to the subject of stock has
been had since the making of the agreement.
Under section nine of the act, stockholders are liable to the
extent of their stock. How much stock have the parties, and
especially Flagg? He has evidently the chief interest in the
concern. The agreement does not fix the amount of the stock
he was to take, nor has it been ascertained as yet, according to
the agreement or otherwise, what his stock would be.
We can not regard this agreement of August 10 as a sub-
scription for stock.
"No one, by the agreement, was to put in any cash stock, ex-
cept Flagg $10,000 ; but he seems to have actually put into
the company as stock no money or anything else. Mathewson
testifies, that whatever money Flagg ever paid in was all cred-
ited to Flagg's account, as money loaned to the company. He
did not understand that Flagg ever paid in any money as on
his stock. On filing his answer, Fiagg tendered with it, for
the company, his warranty deed for the land and buildings, but
never before. The testimony shows that Flagg did not carry
out the contract fully in respect to completing the buildings
within the time agreed upon, and this was a cause of difference
between him and Stowe.
It was claimed by Flagg, that the sum at which Stowe was
to put in his machinery, tools, etc., was too high; that the lat-
ter made false and fraudulent representations as to their value,
they not being open to inspection at the time, and that their
irue value was not to exceed $15,000. These subjects of dispute,
xisting in regard to the performance of the agreement, further
;o to show the impropriety of regarding such an agreement as
,n actual subscription for stock, and that there was a necessity
404 K., E. I. & St. L. E. E. Co. v. Irish. [June T.
Syllabus.
of a future adjustment, in order to ascertain the amount of the
stock which was to be subscribed for.
All seems to have been done under the articles of association
of August 10, and before there could have been corporate ex-
istence by virtue of the issue of the license November 12.
The by-laws were adopted and the officers elected previously;
the transfer of property which Stowe made was August 15,
and though business was subsequently carried on under the
name of Empire Machine Works, that name had been adopted
and used prior to August 10.
A certificate was made and filed and a license procured, and
no further action would appear to have been taken in a corpo-
rate capacity.
In our view, the property here involved has never been
changed into corporate property, but belongs to these parties
as an association of individuals under their written agreement
of August 10, 1870, and we are of opinion the appellant is en-
titled to maintain his bill for relief.
The decree will be reversed, and the cause remanded for
further proceedings.
Decree reversed.
RoCKFORD, KOCK ISLAND AND St. LOUIS RAILROAD Co.
V.
Tyler J. Irish.
1. Railroad companies — required to fence their track, notwithstanding
law prohibiting domestic animals running at large. The law prohibiting
domestic animals from running at large, in force October 1, 1872, does not,
by implication, repeal or nullify any of the provisions of the act of Feb-
ruary 14, 1855, requiring railroad companies to fence their roads, and the
same is true with regard to the law preventing male animals from running
at large.
2. And, in suits against railroad companies for killing such animals, it
is a question of fact, to be determined by the jury, from all the circum-
stances in evidence, whether the act of the owner, in permitting his animals
to run at large in violation of law, is contributory negligence.
1874.] K., E. I. & St. L. E. E. Co. v. Ieish. 405
Opinion of the Court.
3. Negligence — whether permitting male animals to run at large is con-
tributory or not, in suit for injury. Whether permitting male animals to
run at large, which are subsequently injured by locomotives or trains, is
contributory negligence, depends, first, upon whether permitting them to
run at large was a proximate or only a remote cause of the injury; and if
it was a proximate cause, then, secondly, whether such negligence of the
owner was slight and that of the company gross, in comparison with each
other.
4. Same — mere preponderance, on the part of defendant, does not entitle
plaintiff to recover. Where there is evidence of contributory negligence on
the part of the plaintiff, it is improper to give an instruction which assumes
that a mere preponderance of negligence on the part of the defendant will
entitle the plaintiff to recover.
5. Same — degree of care required of railroads where owners of animals
are guilty of negligence. Although a plaintiff may be guilty of negligence
in permitting his animals to get upon a railroad track, it is still the duty
of the railroad company to use ordinary skill and prudence to avoid doing
them injury, and failing in this, it is liable.
Appeal from the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
Mr. Levi Davis, Jr., for the appellant.
Messrs. Irwin & Krome, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court:
"We held in Ewing v. The Chicago and Alton Railroad Co.
ante, p. 25, that the law prohibiting domestic animals from
running at large, in force October 1, 1872, does not, by impli-
cation, repeal or nullify any of the provisions of the act of
February 14, 1855, requiring railroad companies to erect and
maintain fences on the sides of their roads, and that it is a
question of fact, to be determined by the jury, from all the
circumstances in evidence, whether the act of the owner, in
permitting his animal to run at large in violation of law, is
contributory negligence. What was there said is equally ap~
licable to the law preventing male animals from running at
large and requiring their restraint, and need not now be re-
peated. Those who violate that law may, in proper cases, be
held liable for its penalties, but it furnishes no justification or
406 E., E. I. & St. L. E. E. Co. v. Irish. [June T.
Opinion of the Court.
excuse to railroad companies for negligence in erecting and
maintaining their fences; and whether permitting male ani-
mals to run at large, which are subsequently injured by loco-
motives or trains, is contributory negligence, depends, first,
upon whether permitting them to run at large was a proxi-
mate or only a remote cause of the injury; and if it was a
proximate cause, then, secondly, whether such negligence of
the owner was slight and that of the company gross, in com-
parison with each other.
The instructions asked by the defendant were properly re-
fused.
The instruction given by the court was inaccurate in assum-
ing that a mere preponderance of negligence on the part of
the defendant was sufficient to authorize a recovery, and the
evidence is also unsatisfactory as to whether the place at which
the animal was killed was within the limits of a village; and
were we not clearly satisfied that the verdict should be sus-
tained on the ground that defendant was guilty of gross negli-
gence amounting to a wilful injury, we should be compelled
to reverse the case. We, however, think, from the evidence
before us, substantial justice will be administered by affirming
the judgment.
In Illinois Central Railroad Co. v. Middlesworth, 46 111.
497, it was held that, although the plaintiff may have been
guilty of negligence in permitting his animals to get upon the
defendant's road, it is still its duty to use ordinary skill and
prudence to avoid doing them injury, and failing in this, it is
liable; and this has ever since been the ruling of this court.
Illinois Central Railroad Co. v. Baker, 47 111. 295 ; Toledo,
Peoria and Warsaw Railroad Co. v. Ingraham, 58 id. 120.
It is in evidence here that the animal could have been seen
on the track, at the place and time it was killed, for the dis-
tance of thirty or forty rods. ~No bell seems to have been
rung, and no whistle was sounded until the moment the animal
was struck by the engine. The train was running at a very
high rate of speed, and not the slightest effort appears to have
been made to check it, or to alarm the animal in time to get it
1874.] The People v. Woodside. 407
Syllabus.
out of the way of the engine. Had the engine-driver been on
the watch for objects ahead, as it was his duty to have been, by
timely efforts the injury might have been avoided. No attempt
is made to justify this negligence. No witness is examined
either to disprove the fact that the animal could have been seen
on the track in time to have used precautionary measures
against its injury, nor is it attempted to be shown that it sud-
denly got upon the track, immediately in front of the engine.
The evidence is sufficient to sustain the finding of the jury,
and the judgment must be affirmed.
Judgment affirmed.
The People of the State of Illinois
v.
Samuel M. Woodside.
1. Courts — the presumption is, that the judge authorized by law to preside
does so. Although the record may show an agreement that an attorney
named may try a case, yet if it nowhere appears that he in fact did try it,
and the concluding part of the record shows that the court heard and over-
ruled a motion for a new trial and rendered judgment, this court will pre-
sume that the trial was had before the judge authorized by the constitution
and laws to preside.
2. County courts — have jurisdiction in bastardy cases. By the bastardy
act of 1872, (Laws 1872, p. 199,) county courts are vested with full power and
jurisdiction to hear and determine a case of bastardy, and this is in addition
to the jurisdiction conferred by the county court act, nor is any section of
the county court act in conflict with, or repugnant to the bastardy act.
3. The act of April 25, 1873 (Laws 1873, p. 87), requiring the county court
to transfer certain cases to the circuit court, only refers to cases where special
jurisdiction had been conferred upon county courts prior to the adoption of
the constitution of 1870, and has no reference to bastardy cases, whatever.
4. Bastardy—; formal pleading not necessary. Where there is a sworn
complaint before the court in a bastardy case, which shows the complete
character of the charge against the defendant, and the record shows a plea
of not guilty, the issue thus made up, though not as formal as it might be,
is sufficient.
408 The People v. Woodside. [June T.
Opinion of the Court.
Writ of Error to the Circuit Court of Perry county; the
Hon. Amos Watts, Judge, presiding.
Messrs. T. T. & D. W. Fountain, for the plaintiff in error.
Mr. P. M. Davis, for the defendant in error.
Mr. Justice Craig delivered the opinion of the Court:
This was a prosecution, instituted by Mary E. Morgan against
the defendant in error, before a justice, for bastardy. An exam-
ination was waived, and the defendant entered into recognizance
for his appearance in the county court of Perry county for trial.
At the July term, 1873, of the county court, a trial was had
before a jury, and a verdict returned that the defendant was
guilty as charged. The defendant prosecuted an appeal to the
circuit court.
The cause was submitted to the court on a transcript of the
proceedings from the county court, and the original papers.
The evidence was not preserved by bill of exceptions. Upon
an inspection of the papers, the judgment of the county court
was reversed and the cause remanded.
In the circuit court various errors were relied upon to obtain
a reversal of the judgment of the county court, only a few of
which are insisted upon here by the attorney of the defendant,
in the brief with which we have been favored.
One point, made in the circuit court, which has not been
insisted upon here, is, that the cause was not tried before the
county judge, but, by agreement of the parties, an attorney
presided as judge.
This point, if sustained by the record, would have presented
a serious question, but, from a careful inspection of the record,
we can not say the county judge did not preside at the trial of
the cause.
The record shows the county judge, clerk, sheriff and State's
attorney present, then the following appears: "On this day
come the people, by the State's attorney, as also the defendant,
S. M. Woodside, in proper person, attended by counsel, and, by
1874.] The People v. Woodside. 409
Opinion of the Court.
agreement of the parties, the judge of this court being unable,
on account of sickness, to try this cause, E. Y. Pearce, Esq., an
attorney of the bar, is chosen to try this cause."
The record then shows a plea of not guilty entered, a jury
called, and a trial.
While the record does show it was agreed that E. Y. Pearce
should preside and try the cause, it nowhere appears by the
record that he actually did preside as judge, while the conclu-
ding part of the record seems to show the county judge was
presiding.
On the return of the jury with the verdict, a motion was
entered for a new trial, and the record shows the court fixed
upon a day to hear and consider the motion. On the appointed
day, the record discloses the fact that the court heard and over-
ruled the motion and entered final judgment.
From these facts we must presume, in the absence of proof
to the contrary, that the trial was had before the judge author-
ized by the constitution and laws to preside.
The positions assumed by the defendant's attorney to sustain
the decision of the circuit court, in his brief and argument,
are —
First — The county court had no jurisdiction of the subject
matter.
Second — The county court failed to have an issue made up,
before proceeding to a trial of the cause.
We do not regard either of these positions tenable.
The third section of the Bastardy Act of 1872, Laws of 1872,
page 199, where a defendant is arrested and brought before a
justice on a charge of bastardy, declares, if, upon hearing the
evidence, the justice shall be of opinion that sufficient cause
appears, it shall be his duty to bind the person so accused in
bond, with sufficient security, to appear at the next county
court to be holden in such county, to answer to such charge.
The fourth section of the same act provides: "The county
court of such county, at its next term, shall cause an issue to
be made up whether the person charged is the real father of
the child or not, which issue shall be tried by a jury."
410 The People v. Woodside. [June T.
Opinion of the Court.
We apprehend there can be no doubt but by this act the
county court is vested with full power and jurisdiction to hear
and determine a case of bastardy.
It is, however, insisted, the act to increase the jurisdiction
of county courts, in force July 1, 1872, deprives the county
court of jurisdiction in cases of bastardy, for the reason that
this act limits the jurisdiction of county courts in civil cases to
$500, and where a conviction is had in a bastardy case, the act
provides for a judgment of $550.
The two acts are, in no sense, inconsistent, but are entirely
harmonious. The Bastardy Act confers jurisdiction on the
county court. In addition to this jurisdiction, the first section
of the County Court Act confers jurisdiction on the county
court in all that class of cases where justices of the peace have
jurisdiction, where the amount claimed or value of the property
in controversy shall not exceed $500. The second section con-
fers jurisdiction concurrent with the circuit court in appeal
cases. The third gives jurisdiction in certain criminal cases
and misdemeanors.
There is no section of the County Court Act that can be
construed as repugnant to or in conflict with the Bastardy Act.
It is claimed that it was the duty of the county court to
transfer the cause to the circuit court, under the provisions of
the act of April 25, 1873, Laws of 1873, page 87.
Upon an examination of this act, it will be found that it has
no reference whatever to cases like the one under consideration.
That act only refers to cases where special jurisdiction had
been conferred upon county courts prior to the adoption of the
constitution of 1870.
The second point relied upon, that no formal issue was made
up before a trial, is easily disposed of. The court had before
it the sworn complaint, which showed the complete character
of the charge against the defendant. To this complaint the
record shows a plea of not guilty; and while the issue thus
made up is not as formal as it might be, we regard it as suffi-
cient.
1874.] The People v. Young. 411
Syllabus.
The judgment of the circuit court will, therefore, be reversed,
and the cause remanded, with directions to the circuit court to
affirm the judgment of the county court.
Judgment reversed.
The People of the State of Illinois
John Young.
1. Parol evidence — to explain an apparent variance. In a suit against
one for obstructing a public highway, where there is an apparent variance
between the description of the road in the notice to the defendant to re-
move obstructions, and in the declaration, it is competent to prove by
parol that such variance is only apparent, and that the description is, in
fact, the same.
2. Pleading — when misdescription treated as surplusage. In a suit for
obstructing a public highway, anjT general description of the road, with a
minute description of the part obstructed, is sufficient, and any variance in
the general description of the road as given in the declaration from that
given in the notice to remove the obstruction, which only affects the course
of the road at some point other than the place where the obstruction is, is
immaterial. It is sufficient if the description of the part of the road ob-
structed is the same in the notice and declaration, and any variance in the
description as to some other part may be treated as surplusage.
3. Obstructing highway — building and refusing to remove obstructions
are different and distinct offenses. Obstructing a public highway by build-
ing a fence therein, is one offense, and refusing to remove a fence which
was in the road when it was laid out, is a different and distinct offense.
4. Penalty — suit for, %n whose name to be brought. Where a statute
does not, in terms, declare in whose name a suit shall be conducted for the
recovery of a penalty for its violation, but declares that the offender may be
indicted or sued before a justice of the peace, as all indictments run in the
name of the people, it follows that the suit must be in the name of the
people.
5. Jurisdiction op circuit court — can not be affected by legislation when
conferred by the constitution. The fact that a statute declares that a party
may be indicted or sued before a justice of the peace for obstructing a pub-
lic highway, can not in anywise deprive the circuit court of jurisdiction in
such case, as that is conferred by section 12, article 6, of the constitution.
412 The People v. Young. [June T.
Opinion of the Court.
6. Highways — in counties not under township organization, refusal to
remove obstruction no offense. There is no law, in relation to counties not
under township organization, which makes it an offense for a person to fail
or refuse to remove obstructions that may be in the line of a road at the
time it is located and established.
Appeal from the Circuit Court of Marion county; the Hon.
Amos Watts, Judge, presiding.
Mr. W. W. Williard, and Mr. D. C. Jones, for the appel-
lant.
Mr. B. B. Smith, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
This was an action, in the name of the people, on the com-
plaint of Levi Fellenbaum, against appellee, for obstructing
a public highway. The record shows that a petition was pre-
sented to the county court of Marion county, for the location
and opening of a new road. The petition was presented at
the September term, 1866, and commissioners were appointed
to view the road, and report. At the December term, 1866,
the commissioners' report was made to the court and accepted,
and the road ordered to be opened, and commissioners were
appointed to assess the damages sustained by reason of open-
ing the road. The report found that appellee, over whose land
the road was located, had sustained no damage. He prosecuted
an appeal to the circuit court, where he recovered a judg-
ment for $200, which was paid to and accepted by him; but
he failed to remove his fence, after a notice was served on him
by a justice of the peace of the county, and this suit was
brought, and, on a trial in the court below, the court refused
to permit plaintiff to read the notice in evidence, on the ground
of a variance in the description, when plaintiff offered to prove,
by parol, that there was, in fact, no variance, but the court
rejected the evidence, and instructed the jury to find for de-
fendant, which was done, and a judgment was rendered against
the plaintiff.
1874.] The People v. Young. 413
Opinion of the Court.
The question presented for our consideration is, whether
there was such a variance between the notice and declaration
as to prevent its being read in evidence, and if there was,
whether the court erred in excluding the offer to prove, by
parol, that the descriptions were, in fact, the same. If there
was an apparent variance between the declaration and notice,
we can perceive no reason why, if the description was, in fact,
the same, it might not be shown by parol evidence ; but we are
not prepared to hold that there is a variance in fact, as the
description in the declaration is of a road starting at a point in
the Salem and Central City road, where the same is intersected
by the section line between sections 20 and 21, running thence
south on that line " to a point where said section line inter-
sects the Fairfield and Central City road at the corner of sec-
tions 4 and 5," in the township south. This was the descrip-
tion of the road petitioned for in the first place, and the order
establishing the road describes it as originally described in the
petition. The notice follows the same description until it
reaches the township line, and then describes it as running
west 8 chains and 13 links, thence south to the corner of sec-
tions 4 and 5.
All the descriptions embrace appellee's land on section
21, where the obstruction is claimed to exist. Had the notice
only described the portion of the road obstructed as a part of
the road from Salem to Central City, and to the Fairfield and
Central City road, and the obstructed part being on the south-
west of section 21, it would have been sufficient, or any other
general description of the road obstructed would have been all
that is required, if it had minutely described the part of the
road obstructed, and this is clearly done by the notice in this
case. The part of the notice which calls for the west line of
8 rods and the fraction, may be stricken out as surplusage, and
still all persons would know it is the same road and the identi-
cal obstructions that were described. No one could possibly
be misled, and hence there is no variance as to the essential
part of the description. See Ferris v. Ward, 4 Gilm. 499.
The notice should have been admitted.
414 The People v. Young. [June T.
Opinion of the Court.
Again, it may be true, as a matter of fact, that there may be
a jog in the section line of the distance that the notice says
it runs west on the township line, and then the same section
line may run to the corner of sections 4, 5, 8 and 9. If the
original surveys were so made, it was perfectly competent to
prove by parol evidence that they were so made, and thus to
show that the road did, in fact, run on the section line the
entire distance between the two points. The parol evidence
should have been admitted, and the court below erred in its
exclusion.
This suit was brought on the 28th day of May, 1872, and
must be governed by the laws then in force, unless they have
been repealed without any provision for the further prosecution
of such actions. The first count avers an obstruction by build-
ing a fence in the road, and the second count avers that the
fence was in the road when it was laid out and established,
and a refusal of appellee to remove it upon being notified to
do so by a justice of the peace of the county. . They proceed
for different and distinct offenses. See Wiley v. The Town
of Brimfield, 59 111. 306, where it is held that the offenses are
not the same.
Under the first count, there can be no doubt of appellee's
liability, if the averments shall be proved as laid, under the
16th section of the chapter entitled " Koads," E. S. 482, and
the 1st section of the act of 1852, p. 176. The 11th section
of the act of 1872, p. 677, is substantially a transcript of the
16th section of the act of 1845, and the 14th section of this
latter act confers jurisdiction on justices of the peace for a
recovery of the penalty. The 15th provides that all suits
brought for the recovery of the penalty shall be brought in
the name of the people, upon the complaint of any person.
This latter act does not profess to repeal any former acts, and
does not, only in so far as its provisions are repugnant to
former laws.
The 24th section of the act of 1873, p. 156, is substantially
the same as the 16th section of the act of 1845, and hence
that provision is not repealed, nor does the repealing clause in
1874.] The People v. Young. 415
Opinion of the Court.
the act of 1873 profess to repeal the 16th section of the act of
1845. It repeals the act of 1872, and all other acts or parts
of acts inconsistent with the act of 1873; but, as the pro-
visions of the 16th section of the act of 1845 and the 24th
section of the act of 1873 are consistent, there was no repeal,
and the suit may be still prosecuted, notwithstanding the
enactment of the law of 1873 ; but the 1st section of the act
of 1852, giving one-half the penalty to the informer, is re-
pealed, because the later act takes away the portion the pre-
vious act gave to the informer.
There was, then, no error in amending so as to exclude the
informer from any portion of the recovery. The 24th section
of the act of 1873, like the 16th section of the act of 1845,
does not, in terms, declare in whose name the prosecution shall
be conducted, but they declare that the offender may be in-
dicted or sued before a justice of the peace. As all indict-
ments run, and can only run, in the name of the people, the
conclusion is irresistible, as no other name is mentioned, that
the suit must be in the name of the people of the State of
Illinois; nor does the fact that the act declares that the party
may be indicted or sued before a justice of the peace, in any-
wise deprive the circuit court of jurisdiction, as that is con-
ferred by section 12 of article 6 of the constitution, and can
not be thus deprived of it, or even by any enactment.
We have been referred to no provision of law, relating to
counties not under township organization, which makes it an
offense for a person to fail or refuse to remove a fence or other
obstruction that may be in the line of the road at the time the
road is located and established, and, as that is the offense
averred in the second count of the declaration, an enactment
must exist authorizing the recovery. See Wiley v. Town of
Brimfield, supra, where it is held that a conviction can not be
had, under the section for obstructing a public highway, where
the party has only failed or refused to remove an obstruction
that existed before the road was established ; nor does that case
conflict with Ferris v. Ward, supra, as in that case the road
seems to have been actually opened and traveled by the public
416 Kietzell v. The People. [June T.
Syllabus.
before the obstruction was placed in the road, but it did not
distinctly appear bj whom it was opened.' Whilst, in contem-
plation of law, a road may be, for many purposes, held to be
open from the time the order is made declaring it to be estab-
lished and ordering it to be opened, still it is not, by mere
force of such an order, to be considered open, so as to impose
the penalties of the law upon persons for refusing to remove
their fences or other obstructions placed on the land before it
became a road. Unless an act shall be found which imposes a
penalty for failing to remove such an obstruction, a recovery
should not be had under the second count.
But, for the error indicated, the judgment of the court be-
low must be reversed and the cause remanded.
Judgment reversed.
William Kietzell
v.
The People of the State op Illinois.
1. Scire facias — performs office of both writ and declaration. A scire
facias issued upon a recognizance for the appearance of a defendant to
answer to a criminal charge, performs the office of a declaration as well as
process, and a default admits the facts alleged in the writ.
2. Recognizance — proceedings upon forfeiture. Where the law in force
at the time a recognizance is entered into provides for issuing a scire facias,
upon the forfeiture of the recognizance, against the principal and his surety, •
to show cause why judgment should not be entered, etc., and for rendering
a judgment by default upon the return of such scire facias that the defend-
ants can not be found, unless they appear and defend, it is proper, when the
writ of scire facias is returned not found, and the defendants do not appear,
to enter a judgment against them for the amount of the recognizance. Such
law is not in contravention of the letter or spirit of the constitution.
"Writ of Error to the Circuit Court of St. Clair county; the *
Hon. William H. Snyder, Judge, presiding.
1874.] Eietzell v. The People. 417
Opinion of the Court.
Mr. E. A. Halbert, for the plaintiff in error.
Mr. Charles P. Knispel, for the defendant in error.
Mr. Justice Breese delivered the opinion of the Court :
This was a proceeding in the circuit court of St. Clair county,
by scire facias issued upon a recognizance, entered into by
"William Eietzell, plaintiff in error, for the appearance of one
William Hartman, on a charge of larceny. There had been a
return of one nihil as to the cognizors, and a judgment for
default of appearance entered against them. To reverse this
judgment Eietzell, the surety, appears and assigns several
errors.
The scire facias performs the office of a declaration as well
as process, and the default admits the facts alleged in the writ.
Garrison v. The People, 21 111. 535. It must, therefore, be
taken to be true, as alleged in the writ, that plaintiff in error
bound himself to appear and answer the charge.
The objection that the sci. fa. does not sufficiently show that
the recognizance was properly taken, approved and certified to
the circuit court, is not tenable, as the writ contains all the
necessary averments, and the authority of the justices of the
peace can not now be questioned.
The real question in the case is, did the return of nihil jus-
tify the court in defaulting the plaintiff in error. This must
be determined by the statute in force at the time the recogni-
zance was entered into.
• By section 9 of the act of March 31, 1869, it is provided, if
the person does not appear in accordance with the terms of the
recognizance, the courts shall declare such recognizance for-
feited, and the clerk of the court shall, thereupon, issue a scire
facias against such person, and his or her securities, return-
able to the first day of the next term of the court, to show
cause why judgment should not be entered against such person,
and his or her securities, for the amount of the recognizance;
which scire facias shall be served by the sheriff of the county
27— 72d III.
418 Kietzell v. The People. [June T.
Opinion of the Court.,
where the court is held, upon such person, and his or her secu-
rities, by reading the same to the defendants named in such
scire facias, at least five days before the first day of the term
to which the same is returnable ; and in case the person aforesaid
can not be found by the sheriff, he shall make return of that
fact to the court, and the court shall, thereupon, enter judg-
ment by default against the defendants for the amount of the
recognizance, unless the defendants shall appear and defend
such cause. Sess. Laws 1869, sec. 9, p. 113.
Thus stood the law at the time this recognizance was entered
into, and by which the plaintiff in error was informed, if lie
became surety in a recognizance, judgment might be entered
against him without the actual service of process upon him,
and to which he assented by executing the recognizance, and
herein is no hardship, for ample power is given him by the
statute to produce his principal for trial. He is, in law, the
jailor of the principal. He is presumed to have known the
law, and his rights and duties under it, and has no right to
claim immunity. He, by executing the bond, entered into a
covenant with the people of the State, if his principal did not
appear to answer the charge, he would pay the amount of the
bond without further notice, and there is no hardship in it, for
he was free to execute the bond or decline. "While such a stat-
ute must not receive a latitudinous construction, it must receive
one that is reasonable and will effectuate its object. A similar
provision obtains in cases of appeals from a justice of the
peace in judgments for assault and battery. It is provided,
if the defendants shall be found guilty in the circuit court,
judgment shall be rendered against both principal and security
in the appeal bond for the amount of the fine assessed by the
jury in that court, and all costs that may have accrued. R. S.
1845, sec. 100. And the same is the law in regard to security
for costs. The principles controlling such legislation are fully
discussed in Whitehurst v. Coleen, 53 111. 247, and in Hen-
nies et at. v. The People, 70 111. 100, and are not in contra-
vention of the letter or spirit of the constitution.
1874.] Cairo & St. L. E. R Co. v. Holbbook. 419
Syllabus.
In this case, the writ of sci. fa. was returned "not found,"
as required by law, upon which necessarily followed the default.
Perceiving no error in the record, the judgment must be
affirmed.
Judgment affirmed.
Caieo and St. Louis Railroad Co.
v.
Henry Holbrook.
1. Notice — on assessment of damages on default. Where a default
for want of a plea is entered against a defendant, and a writ of inquiry
to assess damages is ordered, tlie defendant is not entitled to notice of the
execution of the writ, and if there is no time fixed for its execution by order
of the court, the defendant, if he would contest the amount of damages, must
keep watch and be ready whenever the plaintiff, with the consent of the
court, chooses to have them assessed.
2. Amendment of record at subsequent term. If the court, by order, sets
a particular day for the assessment of damages upon a default, and afterwards,
whilst such order is still in force, assesses the damages on a clay prior to the
one set by such order, the defendant is entitled to have the record made up
in accordance with the facts, and if the record is not so made up, he is enti-
tled to have it amended at a subsequent term of the court, if the minutes
of the judge made at the time are such as to show, with reasonable certainty,
that the court did, in fact, make an order fixing a day for the assessment of
damages, and that the damages were assessed before that clay arrived.
3. The power of a court over its records after the expiration of the term,
unless the cause is still pending, is confined to errors and mistakes of its
officers ; and these may, at any time, upon notice to the parties in interest,
and saving such rights as, in the interval of time, may have accrued to
third parties, be corrected so as to make the record conform to the action or
judgment of the court.
4. It is requisite to the power of a court to amend its record at a subse-
quent term, first, that there should appear to have been some action of the
court in the cause, which might properly and should have become a part of
the record of that cause ; and, secondly, that its omission from the record
was through the fault or mistake of the clerk.
5. Same — interpolation in judge's minutes not a part thereof though made
by the clerk. It is not error for the court to refuse to amend the record in a
cause to conform to minutes on the judge's docket not made by himself or
420 Cairo & St. L. E. K. Co. v. Holbrook. [June T.
Opinion of the Court.
by his authority, and with no evidence as to when they were made, even
though they are shown to be in the handwriting of the clerk.
6. Default — rights of defendant on assessment of damages. Whilst a
default admits every material allegation of the declaration, it does not admit
the amount of damages, and the defendant, on the execution of the writ of
inquiry, has the right to cross-examine plaintiff's witnesses, to introduce wit-
nesses on his part on the question of damages, ask instructions as to the
proper measure of damages, and preserve the rulings of the court by bill of
exceptions.
Appeal from the Circuit Court of St. Clair county; the
Hon. Joseph Gillespie, Judge, presiding.
Messrs. G. & G. A. Koerner, for the appellant.
Messrs. C. W. & E. L. Thomas, and Mr. William H. Un-
derwood, for the appellee.
Mr. Justice McAllister delivered the opinion of the Court :
This was assumpsit, brought by appellee against appellant,
to the October term, 1872, of the St. Clair circuit court, which
term began the fourth Monday of the month. The summons
was served and the declaration filed in time for that term, the
latter containing only the common counts for work and labor,
money paid, laid out and expended, and money found due upon
account stated.
On the third Thursday of the term, and pursuant to a rule of
the court, the defendant's default was taken, for want of plea,
etc., and a writ of inquiry was awarded by the court to assess
the damages. On the fifth Tuesday of the same term, being
the 26th of November, 1872, the court heard evidence as to
damages, which were assessed by the court at $9500, for which
judgment was rendered. At the March term, 1873, the cause
was re-docketed, upon defendant's motion, whereupon the de-
fendant's attorneys, upon ten days' previous notice given to
the plaintiff, made a motion, based upon the minutes of the
court made at the previous October term, to have the record
of said cause so amended as to show the true proceedings in
said cause, viz: that, at said October term, the hearing upon
1874.] Cairo & St. L. E. E. Co. v. Holbkook. 421
Opinion of the Court.
the assessment of damages was set for the seventh Tuesday of
that term, but such hearing was, in fact, had on the fifth Tuesday
of the term. Upon the hearing of that motion, the defendant's
attorney produced the court docket for the October term, which,
as appears by the bill of exceptions, contained these minutes :
"Set for 7 T. 3d. The defendant called writ of inquiry 5 T.
Evidence heard, damages assessed at $9500. Judgment for
plaintiff for that sum and costs."
These were the only minutes or basis for the proposed amend-
ment of the record. But the bill of exceptions proceeds as
follows: "And it is admitted by both parties that the words
'set for 7 T.' are in the hand- writing of the clerk of said court,
the rest of said minutes being the hand-writing of the judge.
It is also admitted that the clerk, at the beginning of the said
term, set all the cases on the common law side of said docket
of said October term on the first day of said term, and that
'7 T' stands for seventh Tuesday."
The court, upon such minutes and said admissions, overruled
the motion to amend the record, to which defendant's counsel
excepted, and, preserving said matters by bill of exceptions,
appealed to this court from such order.
The only question presented is, whether there was such error
in overruling defendant's motion to have the record amended
as above stated, under the circumstances shown, as that this
court should reverse the order denying such motion.
By our practice, the defendant, not having entered its appear-
ance, was not entitled to notice of the execution of the writ of
inquiry, so that if no time was fixed for its execution by order
of the court, the defendant, if it would contest the amount of
damages, would be under the necessity of keeping watch and
being ready whenever the plaintiff, with the consent of the
court, chose to have them assessed. But if, on the other hand,
the court, by order, set a particular day for such assessment,
which was the seventh Tuesday of the term, and then, while
such order was in force, assessed them on the fifth Tuesday,
such a practice would tend to the surprise and injury of the
defendant — as, if a cause in equity were set for hearing on the
422 Cairo & St. L. E. E. Co. v. Holbeook. [June T.
Opinion of the Court.
second Tuesday of a particular month, and the court should,
without further order, permit the complainant to bring on the
hearing on the first Tuesday. The defendant's rights were not
wholly foreclosed by the default. While the default admits
every material allegation of the declaration, still, it does not
admit the amount of damages. The defendant, on the execu-
tion of the writ of inquiry before the court, could not introduce
evidence tending to show that plaintiff had no cause of action,
but would have the right to cross-examine plaintiff's witnesses
and introduce witnesses on its part on the question of damages,
ask for instructions as to the proper measure of damages, and
preserve the rulings of the court by bill of exceptions. Chi-
cago and Booh Island Railroad Co. v. Ward, 16 111. 522;
Cook v. Shelton, 20 111. 107.
Under this view, it is apparent that the amendment of the
record proposed was material ; and if the minutes made by the
judge at the October term were such as to show, with reason-
able certainty, that the court did, in fact, at that term, make
an order at the time, or after the default of defendant was en-
tered and before the execution of the writ of inquiry, fixing
the time for assessing the damages on the seventh Tuesday of
the term, it would have been defendant's right to have the
record so amended as to show such order.
The general rule is, that courts, while a cause is pending and
the parties before them, have control over the record and pro-
ceedings in the cause, and may, during the term, or while the
cause is depending and the parties in court, for cause appear-
ing,-amend or set them aside; but after the expiration of the
term, unless the cause is still depending and the parties are in
court, their power over the record is confined to errors and
mistakes of their officers, and these may, at any time, upon no-
tice to the parties in interest, and saving such rights as, in the
interval of time, may have accrued to third persons, be corrected
so as to make the record conform to the action or judgment of
the court. CougJiran v. Gutcheus, 18 111. 390, and cases there
cited.
1874.] Cairo & St. L. E. E. Co. v. Holbeooe. 423
Opinion of the Court.
The above rule, so far as applicable to amendments made at
a subsequent term of the nature in question, involves two re-
quisites: First, that there has been some action of the court
in the cause which might properly and should have become a
part of the record of that cause; secondly, that its omission
from the record was through the fault or mistake of the clerk.
So, it follows, that if the court did not, in fact, make an order
setting the hearing as to damages in this cause on the seventh
Tuesday of the term, that is an end of the matter. ISTow, what
is there in the minutes produced, taken in connection with the
admissions of the parties made at the time of arguing the mo-
tion, to show the court made such an order? The words and
figures, "set 7 T.," it is admitted, mean "seventh Tuesday;"
but it is also admitted that they were in the hand-writing of
the clerk and not of the judge, although the rest of the minutes
are in the hand- writing of the latter.
There is nothing in the minutes, or elsewhere in the record
or files, to show when those words were put there; and when
these minutes w^ere produced to the court, on the hearing of
this motion, the judge might have been well aware that he
never made any such order, and even that no such words were
on his docket prior to the final judgment. They did not con-
stitute a part of his minutes — that is, they were not put there
by himself.
In Goughran v. Gutcheus, above cited, the court said: "Or-
dinarily, these errors and mistakes are apparent from the tniri,
utes of the judge, other entries of the same record, or the
pleadings and files in the cause; and, in such case, there
being something to amend by, courts will not hesitate to make
such amendments as will advance justice and sustain the rights
of parties. But where there is nothing to amend by, and
the court is compelled to learn from the memory of witnesses
what its judgment, in fact, was, it may well be doubted whether,
upon motion and ex parte proof, however strong and contra-
dicting the record, an amendment can be made conforming the
record of the judgment to such proof."
424 Caieo & St. L. E. E. Co. v. Holbeook. [June T.
Mr. Justice Breese, dissenting.
Here, the interlocutory judgment appearing of record sim-
ply awards a writ of inquiry. According to that, it would have
been entirely regular to have assessed the damages on that very
day or any succeeding day. Now, it is sought to introduce
into the record, by the proposed amendment, an order supple-
mental to that order of record which would, unless set aside,
tie up the hands of the court, as to assessing the damages, un-
til the seventh Tuesday of the term, and this for the purpose
of developing error in the record, and by a mere interpolation
by the clerk of words into the judge's minutes, unsupported
by proof that their meaning and import received even the im-
plied assent of the court. If there be doubt of the propriety
of admitting affidavits to vary the record at a subsequent term,
then this practice should be condemned without reservation,
for it is far more dangerous to the rights of suitors than ex
parte affidavits.
We are of opinion that the court below properly overruled
the motion, and its order is affirmed.
Order affirmed.
Mr. Justice Beeese: I can not consider the entry on the
judge's docket, in the hand-writing of the clerk, as "an inter-
polation," but think, whatever appears upon the judge's min-
utes is there with his knowledge and approbation, and by his
direction. It was for the party resisting the motion to show
it was an interpolation — presumptively it was the act of the
court. I am of opinion, these minutes show most clearly that
this cause was set for the seventh Tuesday of the term. It was
error, therefore, in the court to dispose of the cause, finally, on
the fifth Tuesday, or on any other day prior to the seventh
Tuesday. The defendant has a clear right to an order amend-
ing the record according to the judge's minutes, and to avail
of that error on writ of error in this court. If the memoran-
dum of the clerk was not made by direction of the judge, and
with his knowledge, it being improperly there he would have
drawn his pen through it, and erased it. The default admitted
only a cause of action, the damages could be contested before
1874.] Hungate et al. v. Reynolds. 425
Syllabus.
the jury of inquiry. This opportunity has been denied the
defendant, who might have been able to show on the inquiry,
if held on the seventh Tuesday of the term, that one hundred
dollars would be full compensation.
Catharine Hungate et al.
v.
Benjamin F. Reynolds.
1. Principal and agent — administrator liable for fraudulent act of
agent. Where the agent of an administrator, in his name, made an illegal
and fraudulent sale of property under a chattel mortgage given to his intes-
tate, it was held, that he was liable to the mortgagor for the difference be-
tween the mortgage debt and the value of the property so illegally sold,
notwithstanding he was himself not guilty of any wilful default or fraud.
2. Administrator — liability of for fraudulent sale under chattel mort-
gage to intestate. Where property is fraudulently sold by an administrator,
under a chattel mortgage given to his intestate, for less than its value, the
mortgagor not only has a remedy against the administrator personally, for
the value of the property over and above the mortgage debt, but he is enti-
tled to have the value of the property applied to the extinguishment of the
debt to the estate.
3. Chattel mortgage — sale of property in parcels, or separately — rem-
edy in equity. At a sale under a chattel mortgage, ten head of horses were
offered and sold in one lot, to the agent of the mortgagee, for less than the
mortgage debt, there being other persons present who wished to purchase a
portion only of the horses, some of whom suggested that they be sold sepa-
rately. Upon a bill filed by the mortgagor to have the note and mortgage
surrendered and canceled, and that the mortgagee pay to complainant the
difference between the amount remaining due upon the mortgage debt after
deducting the amount for which the horses sold, and the reasonable value
of the horses, or what they would have sold for if sold separately, it was
held, that the case was properly cognizable in equity, and that complainant
was entitled to the relief prayed for.
4. Chancery — hearing while cross-bill remains undisposed of. Where it
appears from the record that a cross-bill was filed, but no steps whatever
taken under it, and the parties voluntarily go to a hearing, the cross-bill
may be regarded as having been abandoned.
426 Hunoate et al. v. Reynolds. [June T.
Opinion of the Court.
Appeal from the Circuit Court of Clay county; the Hon.
James C. Allen, Judge, presiding.
Mr. B. B. Smith, Messrs. Smith & Hoff, and Messrs. Henry
& Hitchcock, for the appellants.
Mr. W. B. Cooper, and Mr. H. H. Chesley, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
On the 20th of September, 1871, Benjamin F. Beynolds
made a chattel mortgage of twelve horses to Jackson P. Hun-
gate, to secure the payment of his promissory note to the lat-
ter for $838.50. Hungate died March 9, 1872, leaving
Catharine Hungate, his widow, and George Hungate and John
Hungate, his only heirs. Catharine Hungate was appointed
administratrix of his estate. The note fell due March 20,
1872, and default being made in its payment, ten of the
horses were sold under the mortgage on the 30th of March,
1872, for the sum of $600. Catharine Hungate, the adminis-
tratrix, being sick, was not present at the sale. She instructed
George Hungate to get an auctioneer to sell the horses, and he
engaged one Griffin for the purpose, who made the sale as
auctioneer. George Hungate was present, and, by his direc-
tion, Griffin offered all the horses for sale in one lot, and the
ten together were struck off and sold to George Hungate,
as the highest bidder, for $600, although there were by-
standers present who wished to purchase a portion only of the
horses, some of whom, as also the auctioneer himself, suggesting
that the horses should be sold separately.
This bill was filed by Beynolds against Catharine Hungate,
the administratrix, and George Hungate, asking for a decree
that the note and mortgage should be surrendered up to the
complainant, to be canceled, and that the defendants should
pay to the complainant the difference between the amount
remaining due upon the note after deducting the $600 made
by the sale of the horses, and the reasonable value of the
1874. j Hung ate et al. v. Keynolds. 427
Opinion of the Court.
horses, or what thej would have sold for, if they had been sold
separately.
The court decreed accordingly, finding that the horses, if
sold separately, would have brought $1250, and decreeing that
the defendants pay to the complainant $317, and that the note
and mortgage be surrendered up to be canceled.
The defendants bring the case here by appeal.
There is no attempt on the part of the appellants to main-
tain this sale as a valid one, but it is objected that there should
have been no decree against Catharine Hungate to pay any sum
whatever to the appellee, because she was herself guilty of no
wilful default or fraud. But George Hungate was her agent
in the making of the sale, and we think she should be answer-
able for his acts, under the doctrine that the principal is liable
to third persons for the misfeasances, negligences and omissions
of duty of his agent. Story on Agency, sec. 308.
The property having been sold under what may be regarded
as a trust created by the chattel mortgage, we deem the case
properly cognizable in equity as one of a breach of trust.
The position next taken by appellants is, that, if there be any
liability on the part of Catharine Hungate, the administratrix,
it is for a personal wrong committed by her, for which she
should answer out of her personal estate ; and that it was erro-
neous to allow a recovery therefor out of the assets of the
estate, as was virtually done by the decree, in requiring the
note and mortgage belonging to the estate to be surrendered
up in part of the recovery. It is true that the cause of com-
plaint was a personal wrong of the administratrix, as for which
the complainant recovers $317, being the excess which he was
found entitled to recover, over and above the amount of the
note and mortgage.
The property was placed in the mortgagee's hands for the
purpose of being appropriated for the satisfaction of the note,
and the mortgagor had the right to have it faithfully applied
for that purpose. The administratrix of the mortgagee, in the
exercise of the power of sale contained in the mortgage, having
made an illegal disposition of the property, and placed it
428 Stokes et al. v. Frazier et al. [June T.
Syllabus.
beyond reach, the mortgagor is entitled to recover the value of
the property; the recovery is in the stead of the property, and
the mortgagor is entitled to have it go in extinguishment of
the note and mortgage, the same as the mortgaged property
itself, if it were on hand to be so applied. We perceive no
error in the decree in this respect.
The evidence as to the value of the horses was conflicting.
Upon examination of it, we find no sufficient ground for revers-
ing the finding of the court below in regard to such value.
It is assigned for error that the cause was heard while the
cross-bill of Catharine Hungate remained unanswered, or in
anywise disposed of. Such a cross-bill does appear in the rec-
ord, and that is all. The record states merely that it was filed,
and takes no further notice, and makes no other mention of it.
No steps whatever having been taken under the cross-bill, and
the parties having voluntarily gone to the hearing without any
objection, the cross-bill may be regarded as having been aban-
doned.
Finding no error in the record, the decree is affirmed.
Decree affirmed.
Albert W. Stokes et al.
v.
Alexander Frazier et al.
1. Pledge — presumption as to time of payment. Where bonds are pledged
to a party as collateral security for money advanced by him to aid in doing
the work for which the bonds were issued, and also for a share of the profits
arising from such work, and no time is fixed for the payment of the money,
the law presumes that a reasonable time is intended.
2. Same — who may purchase, etc. The pledgee of bonds held by him as
collateral security for the repayment of money advanced by him, can not
become the purchaser of such bonds at a sale made by himself, in default
of the payment of the money to him. If he does so purchase, the pledgor
has the right to treat it as a valid sale, or to treat it as void ; and if he elects
to treat the sale as void, then the title to the bonds remains precisely as if
1874.] Stokes et al. v. Frazier et al. 429
Opinion of the Court.
no sale had been made, with the lien of the pledgee still on them for the
amount of his debt.
3. But if such sale is made by the pledgee fairly, in good faith and with-
out any fraud, and a disinterested party becomes the purchaser, the title
would pass to him, and the pledgee, on a settlement, would be chargeable
with the proceeds of such sale, to be applied as a credit on the indebtedness
for which the bonds were pledged as of the date of the sale.
4. Interest — rate allowed on decree. A greater rate of interest than six
per cent can not be allowed, unless it is under a contract to pay more, not
exceeding ten per cent, by a court of equity, upon a bill for an accounting.
5. Chancery jurisdiction — distribution of trust fund. Where con-
tractors with a city to make certain improvements, to be paid for in its
bonds, borrow money of a party with which to prosecute the work, and de-
liver to such party the bonds when received, as collateral security, the lender
to be repaid the money advanced, with interest, and to have one-third of the
profits realized, and no time is fixed for repayment to him, or within which
the collaterals may be sold, or a division of profits made, and the lender,
nearly four years after, attempts to dispose of the bonds, they are so far in
the nature of a trust fund as to give a court of chancery jurisdiction, on bill
by one of the contractors to take an account, convert the securities, and dis-
tribute the fund.
6. Pledge — of the notice of sale of collaterals. Where municipal bonds
are delivered as collateral security for money loaned, a notice of their sale
by the pledgee published in a newspaper printed in the city where the bonds
were issued, thirty days before the sale, and also in a newspaper published
in Louisville, and they are sold in the latter city for more than they could
have been sold in the city where issued, and no fraud is shown, the sale will
be valid.
Appeal from the Circuit Court of Pulaski county; the Hon.
David J. Baker, Judge, presiding.
Messrs. Lineqar & Lansden, for the appellants.
Mr. Samuel P. "Wheeler, and Messrs. Green & Gilbert,
for the appellees.
Mr. Chief Justice Walker delivered the opinion of the
Court:
It appears that Frazier and Carter became contractors with
the authorities of Mound City, for the construction of a por-
tion of the levee around the city. For the purpose of pro-
430 Stokes et al. v. Frazier et al. [June T.
Opinion of the Court.
curing means necessary to prosecute the work, they applied to
Stokes for a loan. He agreed to advance $8000, on which
they were. to pay ten per cent interest; to deliver to him the
bonds they were to receive from the city in payment for their
work, to be held by him as collateral security. He was also to
receive one-third of the profits which they should make on the
contract.
Frazier and Carter completed the work, at an outlay of
$12,062.07, exclusive of the cost of tools and implements. As
the work progressed, Stokes, at various times, advanced money,
amounting, in the aggregate, to $8806.56, and Carter advanced
$3255.51; and the city, in payment for the work, at various
times issued its bonds to the amount of $16,900, and credited
Carter on a note held against him of $58.68, which discharged
the city from the contract. Frazier advanced no funds. Under
the agreement, Stokes received $12,000 of the bonds, and Car-
ter retained the balance. Frazier and Carter agree that there
is nothing to be settled between them on account of tools and
implements used in prosecuting the work.
Stokes, not having been paid anything by Frazier and Car-
ter, continued to hold the bonds in his hands, and Carter
retained those which he received at the completion of the
work. Frazier filed a bill for an account, and charged Stokes
with intending to sell the bonds in his hands, and of becoming
the purchaser; also, that Carter, without authority, had offered
to sell the bonds in his hands. A temporary injunction, re-
straining Stokes and Carter from selling the bonds, was granted,
and the court appointed a receiver, who took possession of all
except $2200 of the bonds, which Carter had sold at eighty cents
on the dollar before the injunction was granted. Afterwards, the
court dissolved the injunction as to Stokes, and the bonds were
returned to him by the receiver.
On the 2d day of January, 1871, after giving thirty days'
notice in a paper published in the city of Louisville, Kentucky,
where Stokes resided, and in a paper published in Mound City,
he sold the $12,000 of bonds at auction, and became the pur-
chaser of all but $1000, which was bid in by Henry G. Carter,
1874.] Stokes et at. v. Frazier et al. 431
Opinion of the Court.
of Mound City. On a hearing, the circuit court treated this
sale by Stokes as a conversion of the fund, charged him with
the bonds at seventy-five cents on the dollar, charged him with
the interest on the bonds from year to year, and allowed him
interest on his advances, and applied the excess of interest
received on the bonds to the principal of his debt against
Frazier and Carter. This statement is made up to January 2,
1871, and interest at ten per cent on the amount of bonds at
seventy-five cents on the dollar, over and above his advances,
up to the 1st of April, 1874, the date of the decree, showed in
the hands of Stokes $3860.73, two-thirds of which he was
decreed to pay to Carter and Frazier, and Carter was decreed
to pay to Stokes and Frazier each $19.82, and that $2700 of
the bonds retained by Carter, over and above refunding the
advances made by him, was decreed to be equally divided be-
tween the three parties. From this decree Stokes' executors
appeal to this court.
It is first objected that chancery does not have jurisdiction
of the subject matter of dispute in this case, but we think that
the bonds placed in the hands of Stokes as collateral security
were so far of the nature of a trust fund as to authorize a court
of chancery to take jurisdiction, state an account, convert the
securities and distribute the fund. When the bonds were
pledged, no time was fixed within which they should be sold,
and the money advanced by Stokes should be paid from the
proceeds in case of a default in its payment, nor was any time
fixed in which Stokes should be paid, nor was any time fixed
in which a division of the profits was to be made. Near four
years had expired after the work was completed, and Frazier
had received nothing, and the bonds had not been disposed of
nor the debt paid to Stokes. All these facts, we think, con-
ferred jurisdiction, but it is carrying the rule to its furthest
limit.
It is urged that the court below erred in finding that Stokes,
by the attempted sale on the 2d of January, 1871, converted
the fund, and should be charged with the bonds, at their fair
market value. There would seem to be no kind of doubt that
432 Stokes et al. v. Feaziee et at, [June T.
Opinion of the Court.
the $1000 of bonds purchased by H. G. Carter at the auction
sale were converted, as the pledge was then destroyed, and the
absolute title passed to the purchaser. As to that amount of
the bonds, Stokes was required to account either for the sum
they brought, or if the sale was unauthorized, then for their fair
market value; and the question arises, whether there was a
want of power to sell these bonds as the sale was made, or
whether there was any fatal irregularity in the sale. Where a
pledge of this character is made, and no time is fixed for the
payment of the money, the law presumes that a reasonable
time is intended, and we must hold that four years would be
ample.
It may be that the power to insist upon and to enforce pay •
ment was complete when the work was finished. If so, then
Stokes had forborne to exercise the power four years, wanting
but a short time ; nor do we see any irregularity in the notices
or in the manner of conducting the sale. Notice was pub-
lished in a paper printed in Mound City, the place where the
bonds were issued, also in a newspaper published in Louis-
ville, for sufficient time; nor is there anything to show that
Louisville was not as good, or a better market than Mound
City; nor does the evidence show that there was a sacrifice in
the sale. It is true, that some few of such bonds were sold, or,
rather, most of them were exchanged for goods or property, at
from seventy to eighty cents on the dollar, but this does not
show that $12,000 of such bonds put up at auction in Mound
City would have brought more than fifty cents on the dollar.
The evidence shows no fraud, in fact, in conducting this sale;
but as to the other $11,000, bid in by Stokes, the other parties
had the right to treat the transaction as a valid sale, or to elect
to treat it as void, because a trustee can not purchase trust
property at his own sale; and the other parties in interest in
this case have repudiated it as a sale, and have thereby left the
title to the property precisely as it was before the auction, with
the same lien in favor of Stokes, to secure his debt. Having
elected to avoid the sale, they thereby place all parties in statu
1874.] Stokes et al. v. Fkaziee et al. 433
Opinion of the Court.
quo, neither the one nor the other party having lost or gained
anything by the sale.
Had the purchase been made by a disinterested party, bona
fide and for value, then it would have been different, as the
title would have passed to the purchaser ; and had Stokes
sold without authority, or had his purposes and objects been to
gain an undue advantage, he would have been required to
account for the trust property thus sold, at its fair cash value ;
but in this case we can see no such purpose. He no doubt
supposed he had a right to become a purchaser by being the
highest bidder; otherwise, if he intended fraud, he would have
had the bonds purchased by some one else for him, on a secret
agreement that they were for Stokes; but we find nothing of
the kind developed in the case.
Some stress is laid on the fact that Stokes made the sale
pendente lite. We perceive no fraud in this. The injunction
had been dissolved, and the bonds unconditionally returned to
him, and he had a right to suppose that the court expected
him to act as though the suit was not pending. The dissolu-
tion of the injunction removed all restraint, as there was no
order requiring him to hold the bonds, or restraining him from
selling them. There is nothing to show that he acted otherwise
than in perfect good faith, although without legal authority, in
attempting to become a purchaser.
The title not having been affected, by the sale, to this $11,000,
and Stokes not being shown to have intended any fraud, these
bonds still remain a security for the debt due to Stokes, pre-
cisely as they did before the sale, and it was error for the court
below to find Stokes the purchaser, and that his debt was sat-
isfied. The court should have required the surrender of these
bonds to a receiver, or to the master, to be sold at such time
and place, and on such terms, as the court deemed for the best
interest of the parties, and to have applied a sufficient amount
of the proceeds to pay the debt to Stokes ; but as he had con-
verted the $1000 of bonds sold to H. G-. Carter, the proceeds
of that sale should be applied as a credit, as of the date of the
sale, on Stokes' claim.
28— 72d III.
434 Arter v. Cairo Democrat Co. et al. [June T.
Opinion of the Court.
The court also erred in charging Stokes with ten per cent
interest per annum on any balance supposed to be in his hands.
A greater rate of interest than six per cent can not be allowed,
unless it is under a contract to pay more, not exceeding ten
per cent. This is the provision of the statute, and a court of
equity can not repeal or disregard its requirements.
The decree of the court below is reversed, and the cause
remanded for further proceedings not inconsistent with this
opinion.
Decree reversed.
Charles D. Arter
v.
The Cairo Democrat Company et al.
Chancery — reforming bond taken in judicial proceeding. A bill to re-
form a replevin bond on the ground of the omission to insert the name of
the defendant in the body of the instrument, •which contains no distinct alle-
gation it was the intention to fill the blank in the bond with the name of the
defendant, and that the omission to do so was the result of mutual mistake,
is not sufficient to warrant the interposition of a court of chancery.
Writ of Error to the Circuit Court of Alexander county;
the Hon. David J. Baker, Judge, presiding.
Mr. D. T. Linegar, for the plaintiff in error.
Mr. Samuel P. Wheeler, for the defendants in error.
Mr. Justice Scott delivered the opinion of the Court:
This bill was to reform a replevin bond. The alleged mis-
take consists in the omission to insert the name of the defend-
ant in the body of the instrument. A recovery was had against
the sheriff and his sureties on his official bond, as for a failure
to take a proper bond, in the case of The Cairo Democrat Co.
v. Trover, which was affirmed in this court. Arter et al. v.
The People, 54 111. 228. The sheriff, who is the plaintiff in
1874.] Eeitz v. The People. 435
Opinion of the Court.
error, then filed this bill to correct the alleged error in the
bond taken.
"Without discussing the question whether a court of chancery
has power to reform a bond taken in a judicial proceeding, we
are of opinion the present bill does not contain sufficient alle-
gations to warrant the interposition of that court. It contains
no distinct allegation it was the intention to fill the blank in the
bond with the name of John W. Trover, the defendant in re-
plevin, and that the omission was the result of mutual mistake.
The facts, as alleged, show there was no mistake. The writ of
replevin, which is made an exhibit, shows it was issued against
blank, and for aught that appears on the face of the bill, the
name of the party upon whom it was to be served was not
known at the time of the execution of the bond, either to the
sheriff or the parties executing it.
The case of Arter v. The People, supra, is conclusive that
neither the sheriff nor any one else would have the authority
to insert the name of Trover, when discovered to be the real
defendant in the action about to be commenced.
The facts in the bill repel the inference that it was the inten-
tion of the parties to execute the bond otherwise than they did,
in blank. The writ was itself in blank, and the bond conforms
to it in every particular. It may be it was the intention of
the parties, as alleged, that the instrument should be a replevin
bond in the suit about to be instituted, but that is not sufficient.
The demurrer was properly sustained, and the decree dis-
missing the bill is affirmed.
Decree affirmed.
John Reitz, Impleaded, etc.
The People, for the use of Mary L. Stark.
1. Bankruptcy — discharge in, releases surety from liability on guar-
dian's bond. The liability of a surety on a guardian's bond, before breach
in the condition of the bond, is a conditional liability, within the meaning
436 Reitz v. The People. [June T.
' Opinion of the Court.
of the second clause of section 19 of the Bankrupt Law of March 2d, 1867,
and a discharge in bankruptcy releases the surety from such liability.
2. Same — liability of surety not a debt created in a fiduciary capacity.
The liability of a surety upon a guardian's bond is not a debt created
by him whilst acting in a fiduciary character, within the meaning of
the exception in the Bankrupt Act, which provides that no debt created
by the fraud or embezzlement of the bankrupt, or by his defalcation in a
public office, or while acting in a fiduciary capacity, shall be discharged
under the act.
Writ of Error to the Circuit Court of Washington county;
the Hon. Amos Watts, Judge, presiding.
This was an action of debt upon a guardian's bond, in which
the surety set up, as a defense, a discharge in bankruptcy.
The court below decided that the discharge in bankruptcy did
not release the surety on the guardian's bond, and rendered
judgment against him, to reverse which judgment he brings
the record into this court.
Mr. William Winkelman, for the plaintiff in error.
Mr. Greene P. Harbin, for the defendant in error.
Mr. Justice Scholfield delivered the opinion of the Court:
It is provided by one of the clauses of section 19 of the
Bankrupt Law of March 2d, 1867, that, "in all cases of con-
tingent liabilities contracted by the bankrupt, and not herein
otherwise provided for, the creditor may make claim therefor,
and have his claim allowed, with the right to share in the divi-
dends, if the contingency shall happen before the order for the
final dividend ; or he may, at any time, apply to the court to have
the present value of the debt or liability ascertained and liqui-
dated, which shall then be done in such manner as the court
shall order, and shall be allowed to prove the amount so ascer-
tained." Bump on Bankruptcy, (6th Ed.) 402.
That the liability of a surety on a guardian's bond, before
breach in the condition of the bond, is a contingent liability,
we think, can admit of no question.
1874.] Eeitz v. The People. 437
Opinion of the Court.
The Bankrupt Law of 1841 declared that all "uncertain or
contingent demands against such bankrupt should be dis-
charged by the certificate." It was held, in Bates v. West, 19
111. 134, under that language, that a discharge in bankruptcy
was a good defense to an action upon a covenant of warranty,
which was not broken until the certificate was granted.
In Jones v. Knox, 46 Ala. 53, it was held, under the clause
quoted from the act of March 2d, 1867, that the liability of a
surety on a guardian's bond is a contingent liability, and that
a discharge in bankruptcy releases the surety from such lia-
bility.
The contingency upon which appellant's liability as surety
was fixed occurred on the 1st day of February, 1873, and the
order for the final dividend was not made until the 6th day of
April, A. D. 1874. There was, therefore, ample time in which
the present claim could have been made, so as to entitle it to
participate in the bankrupt's estate, in the hands of the
assignee.
The effect of the discharge of appellant as a bankrupt, is, to
release him from all debts, claims, liabilities and demands,
which were or might have been proved against his estate in
bankruptcy. Bump on Bankruptcy (6th Ed.) 524.
An exception in the provisions of the Bankrupt Act is, that
no debt, created by the fraud or embezzlement of the bank-
rupt, or by his defalcation as a public officer, or while acting in
any fiduciary character, shall be discharged under the act; and
it is argued that, inasmuch as the guardian is acting in a fidu-
ciary character, he could not be discharged as a bankrupt; and
that the liability of the surety is co-extensive with that of his
principal, and therefore he can not be discharged.
The guardian is liable on account of his fiduciary character,
aside from his bond. Even if his bond were invalid on account
of material errors and omissions in its language, he would still
be personally liable for any failure to discharge the duties of
his trust with fidelity, to the same extent he would have been
had his bond been in all respects valid. The surety, however,
merely guarantees the acts of his principal. No trust or con-
438 Mathes et al. v. Dobschuetz. [June T.
Syllabus.
fidence is reposed in him. He has nothing to do with the per-
son or property of the ward, and has no control over the conduct
of the guardian. He is liable simply on his contract, and
according to its terms. We perceive no difference in principle
between his failure to comply with this, and any other contract
he might make, in which the ward is interested. Certainly the
liability of the surety upon the bond of the guardian can not,
by any fair construction of language, be said to be a debt cre-
ated by him while acting in a fiduciary character, so as to bring
it within the exception referred to.
The same view of the law has been taken in Jones v. Knox,
supra. See, also, Amosheag Manuf. Co. v. Barnes, 49 IN". H.
312; Bowie v. Puckett, 7 Humph. (Tenn.) 161.
We are of opinion, for the reasons given, that there was
error in the finding and judgment of the court below.
The judgment is reversed and the cause remanded.
Judgment reversed.
Emma Mathes et al.
Moritz J. Dobschuetz.
1. Real estate — improvements made thereon without consent of the owner.
Improvements made upon real estate by one who has no title or interest in
it, without the consent of the owner of the fee, become a part and parcel of
the land, and the title thereto becomes vested in the owner of the fee.
2. Infants are incapable of consenting to the making of improvements by
a stranger on their real estate, so as to give him or his creditors any interest
or claim thereto.
3. Fraudulent disposition of property by debtor. If a debtor, for the
purpose of covering up his property to keep it from the reach of creditors,
puts it into improvements on the land of his minor step-children, who
are in no way parties to his fraudulent purpose, the improvements will be-
come the property of such step-children, as a part of the land, and can not
be reached either by such debtor or his creditors.
1874.] Mathes et al. v. Dobschitetz. 439
Opinion of the Court.
Writ of Error to the Circuit Court of St. Clair county;
the Hon. William H. Snyder, Judge, presiding.
Mr. William Winkelman, for the plaintiffs in error.
Mr. William H. Underwood, for the defendant in error.
Mr. Justice Craig delivered the opinion of the Court:
This was a bill in equity, filed in the circuit court of St.
Clair county, by the defendant in error, Moritz J. Dobschuetz,
against the plaintiffs in error, Emma Mathes, Fritz Mathes,
Christian Gerhard and Maria Gerhard, to subject certain real
estate to the payment of a claim held by the defendant in
error against Christian Gerhard.
The defendants answered the bill, and replication was
filed. The cause was heard upon evidence taken before the
master, and a decree rendered directing a sale of the real
estate, and out of the proceeds of the sale $500 was directed
to be paid to Emma and Fritz Mathes, and complainant's debt
and costs of suit were to be paid from the balance.
It appears, from the evidence preserved in the record, that,
in the year 1856, Henry Mathes died testate; that, by his will,
he devised to his two children, Emma and Fritz Mathes, lot 87,
in the town of West Belleville; that, in the year 1857, Maria
Mathes, the widow of deceased, married Christian Gerhard.
It also appears that, about the year 1866, this lot was graded
and a house erected thereon ; that, before the improvement, the
lot was worth about $300, but after it was graded and the house
built, it was worth some $2000. The complainant introduced
proof which tended to establish the fact that the improvement
made on the lot was done by Christian Gerhard with his own
means. The weight of the evidence, however, shows that the
grading was mainly done by Fritz Mathes; that the house
erected cost $820 — $520 of which was paid by Maria Gerhard
from money she received from her mother, and the balance
was paid from the rents of the property. This is sworn to by
440 Mathes et al. v. Dobschuetz. [June T.
Opinion of the Court.
Christian and Maria Gerhard, and they seem to be corrobo-
rated bj Nagel, who built the house by contract.
It also appears that Emma and Fritz Mathes were minors.
At the time the cause was tried, one was 17 and the other 16
years old. They had resided with their mother and step-father
from the time of the marriage. Christian had received the
rents of the property and paid the taxes.
The complainant proved that, on the 4th day of November,
1868, he obtained a judgment in the circuit court of St. Clair
county, against Christian Gerhard, for $291.50, upon which,
on the 9th day of November, 1868, an execution issued, and
was levied on the lot, which was, on the 15th day of March,
1869, sold for the amount of the judgment and costs, and pur-
chased by the complainant. The lot not having been redeemed,
the bill was filed for the purpose of reaching the improve-
ments made upon the lot, or the value of the property over
and above the widow's dower and the value of the lot had no
improvements been made thereon.
We are aware of no principle of equity upon which the
decree rendered in this case can be sustained.
The preponderance of the evidence tends to prove, and, in
our opinion, fairly establishes the fact, that the larger portion
of the money that paid for the improvements on the .lot
was furnished by the widow of the deceased, who had dower
in the premises. The rest came from rents derived from the
property; but were it otherwise, and had the improvements
been made by Christian Gerhard from his own money, the
decree could not be sustained.
The owners of the fee of the lot were minors. It is not pre-
tended that a contract was made with them or their guardian
by which Christian Gerhard had any right or authority to
erect a house or make any improvements upon the premises.
It is not claimed that they consented, or even at law could
consent, to the improvements claimed to have been placed on
the property by Gerhard.
If, then, Gerhard erected a house on the lot of these minors
without their approbation or consent, did this give him any
1874.] Mathes et al. v. Dobschuetz. 441
Opinion of the Court.
interest in or title to the property? The solution of this ques-
tion is readily obtained by reference to a few well settled prin-
ciples.
It will be conceded that the term " real estate " embraces
not only lands, but all improvements of a permanent character
placed upon real estate are regarded as a part of the land. In
the case of Dooley v. Crist, 25 111. 556, this court held that,
where a stranger constructs a building upon the land of another
without his consent, it becomes a part of the land, and he
would become a trespasser by removing it. It is said in Hil-
liard on Real Property, vol. 1, page 5: If one man erect
buildings upon the land of another, voluntarily and without
any contract, they become a part of the land, and the former
has no right to remove them. Such buildings are, jprima facie,
part of the realty.
The improvements made upon the property in controversy
were placed there without the consent of the owners of the
fee. They were constructed by a stranger to the property. He
neither had title nor interest in it. The improvements, when
made, became a part and parcel of the land, and the title to
them became vested in the owners of the fee, unless there are
facts connected with this case to take it out of the operation
of the general rule.
It is urged by the defendants in error that Gerhard invested
his own money in improvements on the lot of these minors for
the purpose of defrauding his creditors. It is true, Gerhard
was insolvent, and did not pay his debts, but the record fails
to show that he fraudulently covered up his property to keep
it from the reach of creditors ; but even if such was his design,
there is an entire want of evidence to prove these minors, in
the slightest degree, were parties to the fraud. Before their
rights could be affected, it must affirmatively appear they were
parties to the fraudulent intent of Gerhard. His intent to
hinder, delay or defraud his creditors, as has been repeatedly
held by this court, is not sufficient. Ewing v. Hunhle, 20 111.
448 ; Meixsell v. Williamson, 35 ib. 530.
442 Meyer v. Hartman. [June T.
Syllabus.
It is not questioned but there are cases where a party con-
veys property to another to defraud creditors which he may
not be able to recover back, yet it may be reached by his cred-
itors, but this is not a case of that character.
In this case, we see no principle upon which Gerhard could
recover of the owners of the fee for improvements, nor do his
creditors stand in any better condition.
The owners of the lot did not, nor were they in law capable
of contracting with Gerhard, and whatever money he may have
invested on the lot was placed there at his own risk, and it can
neither be reached by him nor his creditors. Wa&Kbwrn, v.
Sjproat, 16 Mass. 449.
The defendant in error, by the sale of the lot upon his judg-
ment against Gerhard, acquired no title to the premises, for the
plain reason that Gerhard had none to be sold or acquired.
Neither had he, from the facts disclosed by this record, a stand-
ing in a court of equity.
The decree will be reversed and the bill dismissed.
Decree reversed.
Henry Meyer
v.
William Hartman
1. Contract — to pay the debt of another, when made as part of an origi-
nal contract between the parties, is obligatory. Where a creditor, in consid-
eration of the indorsement to him, by his debtor, of certain notes belonging
to the debtor, and of an order given by the debtor to the creditor for money
which was collected by him, released the debtor from his indebtedness, and
also undertook and promised to pay certain indebtedness which the debtor
owed to a third party, it was held, that, if he failed to pay such indebtedness
to the third party, he was liable for such breach of contract, and the debtor
could recover from him all damages sustained by reason thereof.
2. Statute of Frauds — promise to pay the debt of another. Where a
debtor transfers to one creditor certain notes and an order for money, in
payment of his indebtedness to such creditor, and also in consideration of
the undertaking and promise by such creditor to pay a. debt of the debtor to
1874.] Meyer v. Hartman. 443
Opinion of the Court.
another creditor, such promise is not within the Statute of Frauds, and is
"binding.
3. Witness — competency — wife for the husband. Where a debtor trans-
ferred to his creditor securities in payment of his own debt, the residue of
the proceeds to be applied to the payment of other debts owing by the
debtor to third persons, in a suit by the debtor against such creditor for a
failure to make proper application of the fund, the wife of the plaintiff is
not a competent witness in his behalf, under the act of 1867.
Appeal from the Circuit Court of Randolph county; the
Hon. Amos Watts, Judge, presiding.
Mr. J. Blackburn Jones, and Mr. Alexander Hood, for
the appellant.
Messrs. Thomas & Hartzell, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
It appears that appellee brought a suit against appellant,
and had him arrested on a capias ad respondendum. The
matter was arranged by appellant transferring to appellee notes
for $1000, secured by a mortgage, and an order on one Theis
for $62, which was paid. Appellee's claim, which was thus
settled, amounted to between $700 and $800. The arrange-
ment was, that the notes, which were indorsed, and the order,
were to satisfy appellee's claim, and he was to pay a debt of
$500 owing by appellant to Mssen, Steinmeyer & Co. The
transfer of the notes and order was not as collateral security,
but they were sold and assigned to appellee for the specified
consideration.
Appellee subsequently received on the notes $800 in satisfac-
tion thereof, and refused to pay the note to Nissen, Steinmeyer
& Co., or any part of it. Appellant thereupon sued appellee
in assumpsit. The first count was special on the contract, and
there were also the common counts.
Appellee filed the plea of non-assumpsit, and subsequently
asked leave to file a plea of the Statute of Frauds, but the
court refused to grant leave. A trial was had by the court
4:4:4: Meyer v. Hartman. [June T.
Opinion of the Court.
without a jury, by consent of the parties. The issues were
found for the defendant, and judgment was rendered against
plaintiff for costs, and he brings the record to this court and
asks a reversal.
In any view of the case, on the evidence presented in this
record, appellant is entitled to recover.
There seems to be no question that appellant gave to appellee
$1000, in good notes, secured, and well secured, by mortgage,
and $62, which he received on an order, and appellee does not
pretend to account for but $800, applied to his own debt. He
does not pretend that he did not agree, as a part of the consid-
eration for the notes and order, that his debt was satisfied, and
that he was to pay Mssen, Steinmeyer & Co. the debt appellant
owed them. He could have received certainly $200 more on
the notes than he did. That amount was recklessly thrown
away and squandered. He was, at all events, bound, even if
he was not liable to pay Nissen, Steinmeyer & Co., to act in
good faith, and collect, if it could be done, all that was due on
the notes he received from appellant, both principal and inter-
est, and was liable, even if only acting as an agent, for all he
remitted and gave to the maker of the notes.
He, however, was liable for more than the loss. He is re-
sponsible for the breach of the contract, and all damages grow-
ing out of it. It was made on a sufficient consideration, was
not illegal or opposed to public policy, and was obligatory on
him; nor could the Statute of Frauds avail, even had the plea
been interposed.
In Wilson v. Bevans, 58 111. 232, it was said: "The general
rule is, that, if the promise is in the nature of an original
undertaking to pay the debt of a third party, and is founded
on a valuable consideration received by the promisor himself,
it is not within the provisions of the statute, and need not be
in writing, to make it valid and binding." It was there said,
that the promisor received the property, and it is wholly im-
material to him what direction was given to the purchase
money ; that it was his contract to pay the money to the ven-
dor's creditors, and such a contract is valid and binding in law,
1874.] Yarnell v. McGinnis. 445
Syllabus.
although it is not evidenced by a writing. See Runde v,
Runde, 59 111. 98. These cases must control this, as it is, in
principle and in its facts, similar in all essential particulars.
Appellant was, then, entitled to recover an amount equal to
Nissen, Steinmeyer & Co.'s debt, as appellee had, on a sufficient
consideration, promised to pay it, but had broken his contract.
It is also objected that appellee's wife was not a competent
witness in his behalf. The 5th section of the act of 1867, in
relation to evidence, declares that nothing in the 1st section of
the act shall render the husband and wife competent witnesses
for or against each other, unless in specified cases, of which
this is not one. The court, therefore, erred in permitting the
wife to testify.
The judgment of the court below must be reversed and the
cause remanded.
Judgment reversed.
Geoege H. Vaenell
V.
Thomas D. McGinnis;
Debtor and creditor — whether the relation exists. A brother of the
owner of property sold it to a third party without authority so to do, and
the owner reclaimed the property and then sold it to the same purchaser,
treating the amount paid to his brother on the first purchase as so much
paid to himself on the sale made by him. On a suit brought by the pur-
chaser against the first seller, to recover the purchase money paid to him,
it was held, that the defendant was not debtor to the plaintiff in that amount,
nor did he hold money belonging to the plaintiff.
Writ of Error to the Circuit Court of Jefferson county;
the Hon. Tazewell B. Tanner, Judge, presiding.
Messrs. Stoker, Pollock & Keller, for the plaintiff in error.
Messrs. Crews & Haynes, for the defendant in error.
446 Yarnell v. McGinnis. [JuneT.
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court:
This was an action of assumpsit, in the Jefferson circuit
court, brought by Thomas D. McGinnis against George H.
Yarnell, to recover the sum of six hundred and fifty dollars,
alleged to have been paid by the plaintiff to the defendant for
an interest in a certain saloon, and which, it was further alleged,
the defendant had no authority to sell.
There was a verdict and judgment for the plaintiff for eight
hundred and fourteen dollars, to reverse which, the defendant
brings the record here by writ of error.
The sale of the property by the defendant to the plaintiff is
sufficiently established by the testimony; but it is contended
by the defendant, that although the property belonged to his
brother, Rozier Yarnell, and who, after the sale, reclaimed it,
on an adjustment of the matter with plaintiff, he, on pay-
ing Rozier Yarnell for his interest in the property, appropri-
ated this six hundred and fifty dollars paid to the defendant as
a payment to Rozier Yarnell, and which was recognized by
him as a payment to that extent.
Rozier Yarnell testifies, and his testimony is not contra-
dicted, the plaintiff being present at the trial, that for his in-
terest in the saloon which he sold to plaintiff, it being the same
interest defendant had previously sold, he received the sum of
two hundred and seven dollars from plaintiff, which was in
addition to the six hundred and fifty dollars paid his brother,
and which was the foundation of this action.
Whatever conflict or contradiction there may be on other
points in the case, the important fact stands uncontradicted
and unchallenged, and we can not understand under what in-
fluences the jury could have acted, this fact being so promi-
nent in the case and so decisive of it. It must have been under
the influence of the second instruction given for the plaintiff,
which, under the facts proved, was too broad, and shut out the
consideration of the subsequent arrangement made with Rozier
Yarnell, the owner of the property. As worded, the instruc-
1874.] Garvin v. G^ebe, Admr. 447
Syllabus.
tion could not have failed to mislead the jury, and should not
have been given.
In the view we have taken of the case, we are of opinion the
defendant's twelfth instruction should have been given. It
was as follows:
"The court instructs the jury for the defendant, that if you
believe, from the evidence, that the defendant had a right to
do what he did do with the saloon interest, or that the matter
was settled between the plaintiif and Rozier I. Varnell, or if
you believe, from the evidence, that the defendant has not
money which justly belongs to the plaintiff, your verdict should
be for the defendant."
If E-ozier Varnell, the owner of the property, settled for it
with the plaintiff, taking the amount now claimed of the de-
fendant as payment, so far as it would go, then certainly the
defendant could not be debtor to this amount to the plaintiff,
nor could he be said to hold money belonging to the plaintiff.
We express no opinion on the refusal of the court to give
defendant's eleventh instruction, as it is not sufficiently clear
in its terms.
For the reasons given, the judgment is reversed and the
cause remanded.
Judgment reversed.
James Garvin
William Gjebe, Admr. etc.
Married women — title to crops grown on land rented. Where wheat
is raised on land rented by a married woman, with her teams, by hands em-
ployed by her, and from seed procured by her with means derived from
sources other than her husband, it is her property, and the fact that her hus-
band may have done some work about raising the crop gratuitously, or for
compensation, does not affect her title.
448 Garvin v. G^ebe, Admr. [June T.
Opinion of the Court.
Appeal from the Circuit Court of Washington county; the
Hon. Amos Watts, Judge, presiding.
Mr. Greene P. Harbin, for the appellant.
Mr. P. E. Hosmer, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
The only question presented by this record is, whether the
property in controversy belonged to appellee's intestate, or
whether it belonged to the execution debtor. It had been
levied upon by the appellant, who was an officer, by virtue
of two executions against the goods and chattels of Christ.
Schmalsede. The appellee, who is the administrator of the
estate of Louisa Schmalsede, deceased, who was the wife of
the execution debtor, then brought this action in replevin to
recover the property for the benefit of the estate. The cause
was heard before the court without the intervention of a jury.
It found the issues for the plaintiff in the action, and the only
point made is, whether it found correctly on the evidence.
There is no controversy, Mrs. Schmalsede in her lifetime
acquired all the property upon which the executions were levied,
except the wheat, by devise under the will of William Schmal-
sede, deceased. We do not understand it is claimed the prop-
erty she acquired under the will is liable to the executions the
officer had against the property of her husband.
As to the wheat, the evidence is all one way. It was raised
on a farm Mrs. Schmalsede in her lifetime had rented, with her
teams, and by hands employed by her. She furnished the seed,
which she procured by means which she derived from sources
other than her husband. The fact her husband may have done
some work about raising the crop, gratuitously, or for compensa-
tion, does not affect her title to the property. The evidence is
full to the point, the wheat was raised by her, for her, and was in
fact her individual property, in which her husband had no
interest whatever.
1874.] Jones v. JSTeely. 449
Syllabus.
The administrator is the legal representative of the deceased
as to the personal estate, and the suit was property brought in
his name.
The judgment is right, and must be affirmed.
Judgment affirmed.
John C. Jones
v.
John W. Neely.
1. Chancery— jurisdiction in matters of fraud. Courts of equity, in
cases of fraud, have concurrent jurisdiction with courts of law.
2. So, where a bill to set aside a deed alleged that the grantor had exe-
cuted and delivered it to the grantee in consideration of the execution by
the grantee of his four promissory notes for the purchase money, and a
bond obligating himself to support the grantor so long as the notes remained
unpaid ; that the grantor in the deed and payee of the notes placed the notes
and bond in the hands of the grantee in the deed and maker of the notes,
for safe keeping, the latter promising to return them to the former ; that
the grantee had neglected and refused to return the notes and bond,
although frequently requested to do so, and had wholly failed and neglected
to support the grantor ; that, by fraud and deceit, the grantee had obtained
the deed from the grantor, without paying or giving any consideration, and
had conveyed the land to another without any consideration, it was held,
that the circumstances justified the inference of an abandonment of the con-
tract by the grantee and a presumption of fraudulent intent in entering into
it, and that a court of chancery should entertain the bill on the ground of
fraud.
3. Same — answer as evidence — absence of replication. An answer to a bill
in equity, which is not sworn to, is not, for any purpose, evidence in the
case, but performs the office of pleading merely, and the mere want of a
replication is not a sufficient cause for reversing a decree, where the parties
have submitted the case for decision upon pleadings and proof, and the
court heard proof without objection. In such a case, the filing of a replica-
tion will be deemed to have been waived.
4. Same — ■presumption is., that facts recited in a decree as appearing to
the court, appeared from the evidence. Where it appears, from the record,
that the court heard proof, and the decree recites that certain facts appeared
to the court, but the evidence is not preserved in the record, the presump-
tion is, that the court found such facts from the evidence.
29— 72d III.
450 Jones v. Neely. [June T.
Opinion of the Court.
Writ of Error to the Circuit Court of Kandolph county;
the Hon. Amos Watts, Judge, presiding.
Mr. Thomas G-. Allen, and Mr. Levi Davis, Jr., for the
plaintiff in error.
Mr. Justice Sheldon delivered the opinion of the Court:
This was a bill in chancery, for the cancellation of two cer-
tain conveyances of land, filed September 4, 1869.
The bill charges, in substance, that Neely, the defendant in
error, on the 13th of April, 1868, sold and conveyed to Henry
A. Ash 117T2^ acres of land, in consideration of $2000, to be
paid according to the tenor of four promissory notes of that
date, given by Ash to Neely, payable in one, two, three and
four years, respectively, and also in consideration that the
former would support and maintain the latter as long as the
$2000 should remain unpaid; to secure the performance of
which last mentioned undertaking, Ash executed to JNTeely a
bond for its faithful performance; that Neely placed the notes
and bond in the hands of Ash, for safe keeping, the latter
promising to return the same to the former when "they should
come to his house;" that Ash had wholly and absolutely re-
fused to deliver to Neely either the notes or bond, although
the latter had frequently requested him to do so, and demanded
the delivery of the notes and bond; and that Ash had wholly
refused and neglected to support and maintain Neely ; that, by
fraud and deceit, Ash had obtained from the complainant the
deed, without paying or giving any consideration; that, at the
time, and now, as complainant believed, Ash was and is a
minor, and that, on the 5th of August, 1868, the latter con-
veyed the land to John C. Jones without consideration.
There having been publication of notice to Ash, and he
failing to appear, his default was entered. Jones answered,
and, on hearing, the court decreed the cancellation of both
deeds as prayed for. Jones brings the case here by writ of
error.
1874.] Jones v. Neely. 451
Opinion of the Court.
It is insisted, first, that the decree should be reversed, be-
cause no facts are shown by the bill which justified the court
in assuming jurisdiction and decreeing equitable relief to
Neely.
It is said that, by the showing of the bill, Neely's contract
with Ash is one that may be enforced in a court of law; that
the wrongful detention or withholding of the notes and bond
by Ash after they were placed in his hands for safe keeping,
by Neely, is no sufficient reason why the latter may not recover
their possession by a proper action, or bring suit for the amount
that was thus promised and secured to him at the time he sold
the land to Ash, and that there is an adequate remedy at law.
But it is familiar doctrine, that courts of equity, in cases of
fraud, have concurrent jurisdiction with courts of law.
The circumstances set forth in the bill, taken altogether, may
well justify the inference of an abandonment of the contract
by Ash, and a presumption of a fraudulent intent in entering
into it. Frazier v. Miller, 16 111. 48; Oard et al. v. Oard, 59
id. 46. We regard these decisions as furnishing ample warrant
for the maintenance of this bill on the ground of fraud.
It is next insisted, that, even if it were shown by the bill
that JSTeely is entitled to equitable relief against Ash, in view
of the answer made by Jones denying the allegations of the
bill, and the absence of a replication, and of evidence to the
contrary of what is alleged in the answer, it was erroneous to
decree against the deed of conveyance obtained by Jones from
Ash. The answer of Jones, not being under oath, was not, for
any purpose, evidence in the cause, but performed the office of
pleading merely. The mere want of a replication is not a
sufficient cause for reversing a decree, where parties have sub-
mitted the cause for decision on the pleadings and proofs, with-
out objection. They will be deemed to have waived the filing
of a replication. Webb v. The Alton Marine and Fire Ins.
Co. 5 Gilm. 223 ; Jameson v. Conway, id. 227 ; Chambers v.
Howe, 36 111. 171.
The decree recites that, "this cause coming on for hearing,
is tried by the court on bill and answer of the defendant, John
452 Illinois Central R. R. Co. v. Iryin. [June T.
Syllabus.
C. Jones, and proofs ; and A. G. Gordon is appointed special
master to reduce the testimony to writing, as heard in open
court; and it appearing to the court that," etc., etc., reciting
various facts which we deem sufficient to support the decree;
and we do not understand appellant's counsel as questioning
their sufficiency in that respect, but only questioning that they
were found upon the evidence.
It is said, the recital in the decree that, it "appearing" to the
court, so and so, is not a recital that the matters therein stated
were found by the court upon the evidence in the case. This
is construing the language of the decree with unwarrantable
strictness, and presuming against, instead of in favor of, the
correct action of a court. It is recited that the cause was tried
on bill, answer and proofs; that a special master was appointed
to reduce the testimony to writing, as heard in open <?ourt.
Courts act in view of testimony, and we can not and ought not
to presume that anything "appeared" to the court on the trial
of the cause, except what appeared from the testimony.
The evidence is not preserved in the record, but we think it
sufficiently appears from the recital in the decree, that the facts
were found by the court upon the evidence in the case.
This is sufficient, as has been frequently ruled. Durham v.
Jftdkey, 59 111. 91, and cases there cited.
Perceiving no error in the record, the decree is affirmed.
Decree- affirmed.
The Illinois Central Railroad Company
v.
Alexander H. Irvin.
1. Illinois Central Railroad Company — construction of clause in
charter exempting it from taxation. The taxes from which the legislature
intended to relieve the Illinois Central Railroad Company, by the 22d sec-
tion of the act incorporating it, are only such taxes as it, as a railroad cor-
poration, would be otherwise liable to pay upon its property, acquired in
1874.] Illinois Central K. R. Co. v. Irvin. 453
Opinion of the Court.
the prosecution of its business in constructing and operating the lines of
road authorized by said act to be constructed and operated.
2. Steamboats are not railroad property, and are not, although owned
and used by a railroad company, exempt from taxation as such, under a
charter which exempts such railroad company from taxation.
3. Where the charter of a railroad company exempts the corporation
from taxation, its property which is necessary and indispensable to the con-
struction and use of the road will, alone, be within the exemption — all other
property will be liable to taxation.
Appeal from the Circuit Court of Alexander county; the
Hon. David J. Baker, Judge, presiding.
Messrs. Green & Gilbert, for the appellant.
Messrs. Linegar & Lansden, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court:
Appellant prayed, by its bill, that the collector of taxes for
the county of Alexander be perpetually enjoined from the col-
lection of certain taxes levied on two boats, one a wharf and
the other a steamboat, which it claimed as its property.
The steamboat is used by appellant for the promotion of its
business, chiefly in carrying passengers and freight to and from
Cairo, Illinois, and Columbus, Kentucky, thus connecting the
southern terminus of its road with the northern terminus of
the Mobile and Ohio Railroad, and also, to a limited extent, in
carrying passengers and freight to and from those points and
intermediate points on the river. The wharf boat is used for
the transfer of freights shipped or to be shipped by appellant's
road to and from points south of Cairo. It is not used in con-
nection with the receipt or delivery of freight consigned to
parties at Cairo ; and the only purpose and use of the steam-
boat is, to facilitate and extend appellant's business as a com-
mon carrier to and from points south of Cairo.
The court below, on hearing, decreed that the injunction be
made perpetual as to the wharf boat, but dissolved it as to the
steamboat, and the only question raised by this appeal is,
whether the steamboat is liable to taxation.
454 Illinois Central K R. Co. v. Irvin. [June T.
Opinion of the Court.
By the 22d section of the act approved Feb. 10, 1851, incor-
porating appellant, it is provided: ".•* * * The stock,
property and assets belonging to said company shall be listed
by the president, secretary, or other officer, with the Auditor
of State, and an annual tax for State purposes shall be assessed
by the Auditor upon all the property and assets of every name,
hind and description belonging to said corporation. When-
ever the taxes levied for State purposes shall exceed three-
fourths of one per centum per annum, such excess shall be
deducted from the gross proceeds or income herein required to
be paid by said corporation to the State, and the said corpora-
tion is hereby exempted from all taxation of every kind, except
as herein provided for. * * * "
The constitutionality of this section was sustained, and it
was held to constitute a vested contract between the State and
appellant, which it was beyond the power of the legislature to
impair by subsequent enactments, in The Illinois Central
Railroad Co. v. McLean Co. 17 111. 291, and Neustadt v. The
Illinois Central Railroad Co. 31 id. 484.
It is said to be the most natural and genuine exposition of
a statute, to construe one part by another part of the same
statute, for that best expresses the meaning of the makers.
Potter's Dwarris on Statutes, 188.
The object of creating appellant a corporation was, to con-
struct and operate a great railroad through the central part of
the State. The powers expressly conferred upon it were, to
"survey, locate, construct, complete, alter, maintain and oper-
ate a railroad, with one or more tracks or lines of rails, from
the southern terminus of the Illinois and Michigan Canal to a
point at the city of Cairo, with a branch of the same to the
city of Chicago, on Lake Michigan, and also a branch, via the
city of Galena, to a point on the Mississippi river opposite the
town of Dubuque, in the State of Iowa." Laws of 1851, p. 61,
§ 2. ~No authority is given to construct other lines of rail-
way, or to engage in carrying by water, or otherwise than by
the lines of railway so to be constructed. Every section of the
act relates to the accomplishment of this purpose and none
1874.] Illinois Central ~R. E. Co. v. Irvin. 455
Opinion of the Court.
other. It was to aid in it that the munificent donation of
lands was made by the State, and the exemption granted by
the 22d section.
As was observed in JVeustadt v. The Illinois Central Hail-
road Go. supra: "In consideration of the undertaking of the
company to construct a great thoroughfare, which should in-
volve the expenditure of millions, and which was an experiment,
and seven per cent of the gross amount of its receipts or in-
come to be paid to the State, the company was relieved from
the payment of all other than State taxes, to be assessed as pro-
vided for in this section."
The taxes, then, from the payment of which the legislature
intended to relieve appellant, could have been only the taxes
which it, as a railroad corporation, would be otherwise liable
to pay upon its property acquired in the prosecution of its
business in constructing and operating these lines of road.
None other could have been contemplated, for the plain reason
that it was not intended that any other business should be
engaged in. And it is a familiar rule of construction, that a
corporation has such powers only as are specifically granted by
its act of incorporation, or as are necessary for the purpose of
carrying into effect those powers. 2 Kent's Com. (8 ed.) 350 ;
Met. Bank v. Godfrey, 23 111. 602.
It surely needs no argument to prove that steamboats are
not railroad property, or that the right of carrying by rail does
not include, as a necessary incident, the right to carry by water.
The duties and obligations of carriers by water are, in many
respects, entirely different from those of carriers by land, and
it is impossible that a system of rules and regulations strictly
applicable to the duties of the one could be applied to the other.
It may be, that the business prosperity of appellant is greatly
promoted, and the public convenience subserved, by its owner-
ship and use of this boat. So, too, it might be by lines of
stage coaches, or by constructing canals or other lines of rail-
way, to connect with its lines of road at such convenient points
as would enable it to draw to itself the trade and travel of the
country for many miles east and west ; yet, it could not be
456 Pkout et al. v. Grout et al. [June T.
Syllabus.
claimed that, therefore, such enterprises are within the powers
conferred by appellant's charter, or that property so employed
is within the contemplation of the legislature in the enactment
of the section under consideration.
We take the true inquiry to #be in regard to property ac-
quired and used by appellant, and claimed to be exempt from
taxation, as was held in a similar case in New Jersey, (State
v. Newark, 2 Dutcher, 520,) "Where does the necessity
end and the mere convenience begin?" It was there said :
"The necessary appendages of a railroad and transportation
company are one thing, and their appendages which may be
convenient means of increasing the advantages and profits of a
company are another thing." And in R. R. v. Berks County,
6 Barr, 70, under a somewhat similar exemption clause, it was
held that, as the railroad was exempt from taxation, that prop-
erty only which was necessary and indispensable to the con-
struction and use of the road was within the exemption. See,
also, to like effect, The State v. The Com'rs of Mansfield, 3
Zabriskie, 510; Inhabitants of Worcester v. The W. R. R.
Co. 4 Metcalf, 564; Vermont Central Railroad Co. v. Bur-
lington, 28 Yt. 193.
We think it clear that the steamboat is not such property as
is within the contemplation of the 22d section of appellant's
charter, and that the court below properly dissolved the injunc-
tion against the taxes levied upon it.
The decree of the court below is affirmed.
Decree affirmed.
Uei S. Pkout et al.
Elmer Grout et al.
1. Attachment — promissory note, in what manner to be reached. A
promissory note belonging to a defendant in an attachment suit is not
liable to levy and sale under a writ of attachment. The proper way to
reach promissory notes in attachment proceedings is by garnishee process.
1874.] Prout et al. v. Grout et al. 457
Opinion of the Court.
2. Bill of exceptions — evidence not preserved — judgment presumed to
be right. Where the evidence is not preserved in the record by a bill of
exceptions, the presumption is, that it was sufficient to justify the judg-
ment.
3. Garnishee — when judgment for costs may be rendered against. Gar-
nishees can only be held liable for costs where they fail to disclose the true
amount of indebtedness by their answer, and an issue formed and a trial
had, and the issue is found against the garnishees. Where judgment is
taken for the amount of indebtedness as disclosed by the answer, it is error
to render judgment against the garnishee for costs.
Writ of Error to the Circuit Court of Lawrence county;
the Hon. Richard S. Canby, Judge, presiding.
Messrs. Bell & Green, and Mr. Jehu Fields, for the plain-
tiffs in error.
Mr. T. P. Lowry, for the defendants in error.
Mr. Justice Craig delivered the opinion of the Court:
This was an action, brought by Nathan P. Grout, against
Elmer Grout, in the circuit court of Lawrence county.
A writ of attachment was issued, and served on Uri S. Prout
and George W. Prout, plaintiffs in error, as garnishees.
At the October term, 1870, of the court, the plaintiffs in
error answered interrogatories which had been filed by Nathan
P. Grout, the plaintiff. The answer to the second and third
interrogatories was as follows:
"To second and third interrogatories: We jointly and sev-
erally had given our promissory note, for value received, to one
Charles Lamott, for the sum of $700, dated August 30, 1867,
payable three years after date, with 8 per cent interest, and
said note was assigned, at our knowledge, to Elmer Grout, the
defendant, some time previous to the serving of said summons,
and that we paid to said Charles Lamott, on said note, previous
to the assignment to said Elmer Grout, a sufficient amount to
reduce said note to $550, and we paid, after said assignment,
on said note, to J. N-i French, the custodian of said note, a
sufficient amount to reduce said note to the amount of $240,
previous to the time of the service of said summons, and said
458 Prout et al. v. Grout et al. [June T.
Opinion of the Court.
note became due on the 30th day of August, 1870, and at that
time there was due on said note to said Elmer Grout, the
defendant, the sum of $247.20."
At the April term, 1871, Uri S. Prout, by leave of the court,
filed an amended answer, in which he alleged, before the gar-
nishee process was served on him, and before the note became
due, it was levied upon as the prope rty of Elmer Grout, by
James Bryan, a constable, by virtue of an attachment issued
by a justice of the peace against the goods and chattels of
said Grout, and that afterwards, and before the note became
due, it was sold by the constable, at public sale, to one Wilkin-
son, who acquired possession under the sale, and has held it
ever since, claiming title thereto.
The plaintiff in the attachment filed exceptions to the
amended answer, which were sustained by the court, and this
decision is assigned as error.
The 1st section of the Attachment Act provides, the writ
may issue against the personal estate, goods, chattels, rights,
moneys and effects of the debtor. See Gross, page 28. Sec-
tion 5 of the same act declares that the constable shall execute
the writ by levying on the personal property of the defendant
of value sufficient to satisfy the debt claimed to be due. Sec-
tion 9 of the same act declares, when the constable shall be
unable to find personal property of the defendant sufficient to
satisfy the attachment, he is required to notify all persons in
his county, whom the creditor shall designate, that may have
any property, effects or choses in action in their possession or
power, belonging to the defendant, or who may be indebted to
the defendant, to appear and answer, etc.
While the 1st section, standing alone, might be regarded as
sufficiently comprehensive to authorize a constable to levy upon
and sell a promissory note under a writ of attachment, yet,
when this section is considered in connection with sections 5
and 9 of the same act, we are of opinion it was the intention
of the legislature to confine the levy of the writ to personal
property.
1874.] Prout et at. v. Grout et at. 459
Opinion of the Court.
Section 5 expressly says the writ shall be levied on personal
property, and this is followed by section 9, which provides a
mode for reaching promissory notes, not by levy and sale, but
by the garnishee process.
From these views, it follows that the promissory note named
in the answer of the garnishee was not liable to levy and sale
by the writ of attachment, and the court did not err in sus-
taining exceptions to the answer. Ingots v. Lord, 1 Cowen,
240; Handy v. Dooms, 12 Johns. 220.
It is, however, urged by the plaintiffs in error that the court
erred in rendering judgment against them as garnishees.
Upon what evidence the court based its judgment, we have
no means of knowing, as the evidence has not been preserved
in the record by bill of exceptions. Where the evidence has
not Jbeen preserved, we will presume it was sufficient to justify
the judgment. McPherson v. Nelson, 4:4: 111. 126.
This brings us to the last point relied upon by plaintiffs in
error, that the court erred in rendering judgment against them
for costs. This position is well taken. The court not only ren-
dered judgment against plaintiffs in error for the full amount
due on the promissory note which the defendant in the attach-
ment held against them, but also all costs. This was erroneous.
The garnishee can not be held liable for costs, except as pro-
vided hj section 21, Gross, page 35. Where they fail, by the
answer, to disclose the true amount of indebtedness, and an
issue is formed and trial had, and found against the garnishee,
in such case costs would properly follow the verdict ; but where
judgment is taken for the amount disclosed by the answer to
be due the defendant in the attachment, then the garnishee
should not be required to pay costs.
For this error the judgment will be reversed, and the cause
remanded with directions to the circuit court to render judg-
ment against plaintiffs in error for amount due on the promis-
sory note as disclosed by the answer, and against plaintiffs in
attachment for costs.
Judgment reversed.
460 Meyers v. Phillips. [June T.
Opinion of the Court.
Morris Meyers
v.
Lewis M. Phillips, for use, etc.
1. Assessment of damages on default. On a default, where the assess-
ment rests in computation, it may be made by the clerk, but in all cases
where the promise is not in writing, for a specific sum of money, the dam-
ages must be assessed by the court or a jury.
2. Pleading — count for money payable upon contingency, must aver the
happening of the event. A declaration upon a contract to pay money, if at
any time the promisor becomes intoxicated or drunk, which does not con-
tain an averment that he had become intoxicated or drunk, is not sufficient
to sustain a judgment by default. •
3. Pleading and evidence — common counts for money. Under the
common counts for money paid, for money loaned, and for money due on
an account stated, an instrument for the payment of money if the maker
should at any time become intoxicated, etc., is not admissible in evidence,
nor is any other instrument which is not for the unconditional payment of
a specific sum of money.
4. Consideration. Where a promise to pay money is averred in the
declaration to have been made for value received, it will be sufficient proof
of a consideration to show a written promise to pay for value received.
Writ of Error to the Circuit Court of Washington county;
the Hon. Silas L. Bryan, Judge, presiding.
Messrs. Yennor, Watts & Forman, for the plaintiff in error.
Mr. P. E. Hosmer, and Mr. L. M. Phillips, for the defend-
ant in error.
Mr. Chief Justice Walker delivered the opinion of the
Court:
This suit was brought on this instrument:
" Nashville, III., September 18, 1872.
For value received, one day after, if I, at any time, become
intoxicated or drunk, or mistreat or abuse Minnie Meyers, I
promise to pay L. M. Phillips the sum of $600, for the use of
Minnie Meyers, with 10 per cent interest from maturity until
paid. Morris Meyers."
1874.] Meyers v. Phillips. 461
Opinion of the Court.
Plaintiff in error failed to appear or plead, and a judgment
by default was entered, and a reference was made to the clerk
to assess and report the damages, which he did, at $600, for
which sum judgment was rendered, and to reverse which this
writ of error is prosecuted.
It is first objected that the court erred in referring the instru-
ment to the clerk to compute the damages.
The 40th section of the Practice Act, Sess. Laws 1872, p.
344, provides that, in cases of default, where damages are to
be assessed, it shall be lawful for the court to hear the evidence
and assess the damages without a jury, but either party may
have the assessment made by a jury. It has been held, on a
default, under our statute, that, where the assessment rests in
computation, a jury is not necessary, but, under verbal agree-
ments, as stated in the common counts, and breaches of con-
tracts declared on in special counts, or, in fact, in all cases
where the promise is not in writing, for a specific sum of
money, the damages must, on a default, be assessed by the
court or a jury.
In the first count of this declaration, the instrument is de-
clared on as a note, and it is described according to its legal
effect, but there is no averment that plaintiff in error had be-
come intoxicated or drunk, or had mistreated or abused Min-
nie Meyers, but it simply avers that he thereby became liable
to pay the note according to the tenor and effect thereof, and
that he promised to pay the same when thereunto requested.
This count is not sufficient to sustain the judgment, as it avers
no breach. Whilst it describes the note, it shows nothing
from which it can be inferred that defendant had become liable.
The second is a count for money paid for the use of defend-
ant, for money due on account stated, and for money loaned.
Under this count, this instrument was not admissible in
evidence, as it is not a note for the unconditional payment of
a specific sum of money, and no other instrument is admissible
under the money counts.
The third count is special, but not on this note. It avers
the agreement as it is stated in the note, but it is not referred
462 Kjnmundy v. Mahan et al. [June T.
Syllabus.
to in the count. On the default, then, under this count, on
assessing damages, proof would be required, as it was not on
an instrument in writing for the payment of a specific sum of
money, and where the damages may be computed. This being
the case, the court erred in referring the assessment of dam-
ages to the clerk. It was in violation of the Practice Act,
which requires the assessment to be made by the court or jury.
It is objected that this was not a promissory note, and a con-
sideration should have been averred and proved. Had there
been a proper breach in the first count, the note could have
been read in evidence under it, as the averment is, that, "for
value received," he made the promise, and the note states that
the promise is made "for value received." This is an
acknowledgment that the maker had received value for the
undertaking, and it imports a sufficient consideration to sup-
port the promise.
The third count avers that the instrument was given in con-
sideration that Minnie Meyers should dismiss a suit against
plaintiff in error, and the breach of his promise not to become
intoxicated or drunk, or mistreat or abuse her. "We shall not
now determine whether that was a sufficient consideration to
support the promise, as it was not questioned by a proper plea,
and its breach was admitted by the default, and had the court
assessed the damages, the judgment would have been sustained.
The judgment of the court below is reversed and the cause
remanded.
Judgment reversed.
City of Kinmundy
v.
James Mahan et al.
1. Municipal corporation — execution can not be awarded. An execu-
tion can not be rightfully issued against a municipal corporation on a judg-
ment for debt or damages, or costs, rendered against it.
1874.] Kinmtjndy v. Mahan et al. 463
Opinion of the Court.
2. Same — -power to license traffic in liquor can not be delegated. Where
the power to license the traffic in spirituous liquors is, by the charter of a
city, expressly conferred on the city council, this power can not be delegated
to the mayor of the city by ordinance.
3. Imprisonment— -for violation of city ordinance. In an action of debt
for violation of a city ordinance, it being a civil suit, it is error to adjudge
imprisonment against the defendant.
Appeal from the Circuit Court of Marion county; the Hon.
Amos Watts, Judge, presiding.
Messrs. Raser & Goodnow, for the appellant.
Mr. Thomas E. Merritt, for the appellees. <
Mr. Justice Breese delivered the opinion of the Court:
This was an action originally brought before the police mag-
istrate of the city of Kinmundy, to recover a penalty for an
alleged violation of an ordinance of that city prohibiting the
sale of spirituous liquors therein without a license, and taken
by appeal to the county court, wherein it was considered that
judgment be entered against the defendants for forty-five dol-
lars and costs of suit, and that they be committed to jail until
the fine and costs are paid or released, as provided by law and
the ordinance of the city.
On bill of exceptions filed by the defendants, the cause was
taken to the circuit court by writ of error, this judgment was
reversed, and a judgment for costs entered against the city,
with an order of execution against the city for the same.
To reverse this judgment the city appeals, and assigns for
error, 1st, the award of an execution against the city, and, 2d,
the reversal of the judgment of the county court.
Appellee takes no notice of the first point, thereby tacitly
admitting it is well taken. Indeed, it could not well be con-
troverted, since the decision of this court in City of Chicago
v. Uasley, 25 111. 595, where it was held, that a fi.fa. can not
be rightfully issued against a municipal corporation on a judg-
ment for debt, or damages, recovered against it. The scope of
this decision includes, as well, a judgment for costs, as any
464: WlCKERSHAM V. HlTRD. [June T.
Opinion of the Court.
other on which a fi. fa. might issue. Town of Odell v.
Schrwder et ux. 58 111. 353. For this error the judgment must
be reversed, but in all other respects it must be affirmed, as, by
the charter of the city, the power to license the traffic in spirit-
uous liquors is expressly conferred upon the city council, this
power could not be delegated, as was done, to the mayor of the
city, by section 15 of ordinance No. 5, under which this prose-
cution originated. City of East St. Louis v. Wehrung, 50
111.31.
E"o other points are made by counsel, and we notice none
other, though it may be proper to say, that the county court
erred in adjudging imprisonment against the defendants. The
action was debt for a penalty, and is a civil suit. Hoyer et al.
v. Town of Mascoutah, 59 ib. 137.
For the error above indicated, the judgment is reversed and
the cause remanded.
Judgment reversed.
Alexander Wickersham
v.
Silas Hurd.
Apportioning costs on trial of appeal from justice of the peace. The
apportionment of the costs by the circuit court on an appeal from the
decision of a justice of the peace, is the exercise of a discretion with which
this court can not interfere.
Appeal from the Circuit Court of Marion county; the
Hon. Amos Watts, Judge, presiding.
Mr. Henry C. Goodnow, for the appellant.
Mr. William Walker, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
This action was originally commenced before a justice of
the peace, by appellee against appellant. On the first trial the
1874.] Wickersham v. Hurd. 465
Opinion of the Court.
jury found for plaintiff, in the sum of $52.48. On the trial
of appellant's appeal in the circuit court, the jury again found
for plaintiff, but only in the sum of $35.08.
It is urged, as a ground of reversal, that the verdict is
against the weight of the evidence. The testimony is contra-
dictory in the extreme, and it must be admitted it is difficult
to determine with which party is the weight of the evidence,
but two juries having found the issues for appellee, we are
unwilling to disturb the verdict. By far the largest portion
of the accounts of the respective parties seem to have been
admitted, and we must regard the verdict as settling the right
as to the disputed items.
The objections taken to the instructions are not tenable.
There is nothing in any of them that could have misled the
jury to the prejudice of appellant. In the main they are cor-
rect, and such as the nature of the case required.
It is insisted the court erred in not apportioning the costs,
because the verdict in the circuit court was for much less than
before the justice of the peace. Where the judgment of the
justice of the peace is affirmed in part, the statute provides the
court shall divide the costs between the parties according to the
justice of the case. R. L. 1845, p. 128.
In Lee v. Quirk, 20 111. 392, this court had occasion to con-
strue this statute. The judgment in that case, as in the one
we are considering, was for less in the circuit court than before
the justice of the peace.
One error assigned, as appears from the statement of the
case, was, that the court erred in rendering judgment in favor
of plaintiff for all his costs. It was held, the apportionment
of the costs by the circuit court, on an appeal from the decision
of a justice of the peace, is the exercise of a discretion with
which this court can not interfere. A majority of the court
are of opinion that is the true construction of the statute on
this subject, and is conclusive of the case at bar. The writer
of this opinion takes a different view of the meaning of the
statute, and holds it is the imperative duty of the circuit court,
in case the judgment of the justice is only affirmed in part, to
30— 72d III.
466 Bcester v. Byrne, Admr. [June T.
Statement of the case.
make some division of the costs. The manner of making the
apportionment is discretionary.
The majority of the court, however, adhering to the rule
adopted in Lee v. Quirk, supra, the judgment in this case
must be affirmed.
Judgment affirmed.
Henry Bcester
v.
Michael Byrne, Admr. etc.
1. Witnesses — defendants not competent, in suit by an administrator.
In a suit by the administrator of a mortgagee to foreclose a mortgage
against the mortgagor and subsequent purchasers from him, such subsequent
purchasers are not competent witnesses on behalf of the defendants to prove
payments on the mortgage.
2. And the fact that such subsequent purchasers hold under a warranty
deed, upon which they might have a remedy over against their grantor in case
of their suffering damage from the mortgage, would not change the fact of
their having a direct interest in the removal of the incumbrance from their
land, and therefore being incompetent witnesses.
3. Decree of foreclosure — its requisites in respect to redemption. The
more formal mode of decreeing a foreclosure of a mortgage is, to direct
that the mortgagor pay the amount due, and, in default of payment, that
the master sell the land, and if not redeemed, then all the rights of the
defendants be foreclosed; but the right of redemption provided by the
statute will not be considered as denied by a decree, although it may
declare a foreclosure without reference to the subject of redemption.
Appeal from the Circuit Court of Washington county; the
Hon. William H. Snyder, Judge, presiding.
This is an appeal from a decree of foreclosure of a mort-
gage, executed by Henry Bcester to Patrick Byrne, now deceased,
January 4, 1867. The bill was filed by Michael Byrne, as
administrator of the estate of Patrick Byrne, against Henry
Bcester, the mortgagor, and his two sons, Frederick Bcester
1874] Bcester v. Byrne, Admr. 467
Opinion of the Court.
and Henry Boaster, Jr., as subsequent purchasers, from the
mortgagor, of the mortgaged premises.
Henry Boaster, the mortgagor, brings the case here by appeal.
Mr. P. E. Hosmer, for the appellant.
Mr. James A. Watts, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
The first error assigned, is the rejection as witnesses of the
two subsequent purchasers of the mortgaged premises, Fred-
erick and Henry Boaster, Jr., who were offered as witnesses to
prove certain alleged payments on the mortgage.
The statute provides, that no party to a suit, or person directly
interested in the event thereof, shall be allowed to testify therein,
of his own motion or in his own behalf, when any adverse
party sues as the executor or administrator of any deceased
person, unless when called as a witness by such adverse party.
Laws of 1867, p. 183. The persons here offered as witnesses
were parties, and directly interested in the event of the suit —
in the removal of a charge from their land; and the circum-
stance that they held warranty deeds, upon which they might
have had a remedy over against their grantor in case of their
suffering damage from the incumbrance of the mortgage, would
not change the fact of their having a direct interest in the
removal of the incumbrance, in whole or in part, from their land.
We think the offered witnesses were properly excluded.
It is next assigned for error, that in making computation of
the amount due, "credit of interest for 1868" is construed to
mean interest due January 4, 1868, instead of interest due
January 4, 1869. The computation was made by the master,
on reference to him. ]STo exception was taken to his report.
The report does not appear in the record, but only the result
of the master's computation in the statement of the amount
due. We have no means of knowing the basis of his compu-
tation, and can not see that there is any foundation in fact for
the alleged error. .
4c68 Wilhelm v. The People. [June T.
Syllabus.
It is lastly assigned for error, that the decree is erroneous,
because it decrees that all rights of all the defendants be fore-
closed, and then orders the sale of the land, when it should
have been, that the mortgagor pay the amount found due, and,
, in default of payment, that the master sell the land, and if not
redeemed, then all rights of the defendants be foreclosed. The
mode suggested would have been the more formal one; but
such is, substantially, the decree, as it is drawn. The statute
provides for a redemption after a sale, and the decree is not to
be construed as interfering with the statutory right of redemp-
tion after a sale.
Finding none of the alleged errors to be well assigned, the
decree is affirmed.
Decree affirmed.
Louis Wilhelm
v.
The People of the State of Illinois.
1. Continuance — absence of witness. An affidavit for a continuance,
in a criminal case, on account of the absence of a witness who resides in
another State, should state the facts upon which the affiant bases his belief
that the attendance of such witness can be procured at a subsequent term,
of court, so that the court may see the reasonableness of the grounds for
such belief.
2. An affidavit which does not state that the facts expected to be proved
by the absent witness are true, nor that the witness was present at the time
of the transaction about which he is expected to testify, and an observer
thereof, is not sufficient to entitle a defendant in a criminal case to a con-
tinuance.
3. Jurors — challenging array. A mere irregularity in drawing the jury,
where no positive injury is shown to have been done the accused, is not
sufficient cause to sustain a challenge to the array.
4. Jury — withdrawing in charge of an officer not specially sworn, during
progress of trial, not error. Where, during the progress of a trial of a
criminal case, and before the evidence is all heard, the jury withdraw for a
short time, for a necessary purpose, in charge of an officer of the court, but
who is not specially sworn for that purpose, no objection being made by the
1874.] Wilhelm v. The PEorLE. 469
Opinion of the 'Court.
defendant, and the jury are not tampered with, nor subjected to any improper
influences, the defendant has no cause of complaint.
5. Practice — time to object to evidence. If a party sits quietly by, and
permits incompetent evidence to be given to the jury, he can not, for the
first time, make the objection in this court.
Writ of Error to the Circuit Court of St. Clair county;
the Hon. William H. Snyder, Judge, presiding.
Mr. William Winkelman, for the plaintiff in error.
Mr. Justice Scholfield delivered the opinion of the Court:
Plaintiff in error was convicted, at the January term, 1874,
of the St. Clair circuit court, of the crime of an assault with
intent to murder one Xavier Schoenstein^ and sentenced to be
punished by confinement in the penitentiary for the term of
four years. Various exceptions were taken to the rulings of
the court below, during the progress of the trial, which are
now assigned for error. We shall notice them in the order in
which they are discussed in the briefs before us.
On the fourth Friday of the term, plaintiff in error moved
to continue the cause until the next April term of the court,
and, in support of the motion, filed his own affidavit as fol-
lows, omitting the caption:
" Louis Wilhelm, the defendant in the above cause, being
duly sworn, upon his oath, says: That he can not safely pro-
ceed to the trial of this cause at this term of court, on account
of the absence of Philip Grummel, who resides on Carondelet
avenue, in the city of St. Louis, Missouri, and who is a mate-
rial witness for and on behalf of this defendant in said cause ;
that he expects to prove by said Grummel that, just before
and at the time Xavier Schoenstein received the injury com-
plained of in said indictment, this defendant was at his own
house, and not near to nor about the premises where said
Schoenstein received said injury, and that this defendant is
innocent of the charges against him in said indictment; that,
just before and at the time said Schoenstein received the injury
470 Wilhelm v. The People. [June T.
Opinion of the Court.
complained of in said indictment, said Grummel was at the
house of this defendant.
"Defendant further says: That said indictment in this case
was found at this term of this court, and returned into court
by the grand jury, on the 9th day of January, A. D. 1874;
that, on said 9th day of January, A. D. 1874, this defendant
was arrested and lodged in the jail of this county, where he
has ever since been, and still is in confinement; that said
Grummel has been absent from the city of St. Louis; that he
returned on Wednesday last to his home in St. Louis; that
this defendant, on Thursday last, ordered and requested his
son to go to St. Louis and bring said Grummel over here, and
have him present on the trial of said cause, but his said son,
contrary to the order and request of this defendant, on said
day, Thursday last, telegraphed to said Grummel, at St. Louis,
to come over at once, but has received no answer, though he
caused due inquiry to be made at the office from which said
message was sent ; that the fact aforesaid, to be proved as afore-
said, is the point in dispute in this case, and more than one
witness will be examined and testify on the part of the people.
" Defendant knows of no other person or persons except said
Grummel, and one other witness now here present in court, by
whom he can prove said facts expected to be proved as afore-
said; that said defendant expects to procure the testimony of
said Grummel at the next term of this court.
" Defendant is anxious to have said Grummel present as a
witness on the trial of this cause, and did everything in his
power to have him here ; that said Grummel is not absent by
permission or connivance of this defendant, and that this affi-
davit for continuance is not made for delay, but that justice
may be done.
"G. L. Wilhelm.
" Subscribed and sworn to before me, this 30th day of Janu-
ary, 1874. « Charles Beckek, Clerk.
"By George H. Stolberg, Deputy."
The court held the affidavit to be insufficient to authorize a
continuance, and overruled the motion ; and this, it is claimed,
1874.] Wilhelm v. The People. 471
Opinion of the Court.
was error. We .think the affidavit was clearly insufficient, and
the motion was properly overruled. It is not stated that the
facts expected to be proved by Grummel are true, or that he
was actually present at the time, and an observer of the trans-
action, but merely that he expects to prove by him that he
was present, etc; nor are any facts given as the grounds why
the attendance of the witness might have been expected at the
April term. The witness being a non-resident, this was indis-
pensable, in order that the court could see the reasonableness
of those grounds; for it would have been useless to have con-
tinued the cause unless there was a reasonable probability that
the witness would be present at the time to which the cause
was continued. Eubanks v. The People, 41 111. 486.
It is next insisted that the court should have sustained the
challenge to the array of the petit jury. Even if the attempt
to make this challenge had been in apt time, and interposed in
proper form, which we do not concede, the irregularity com-
plained of is not such as to authorize a reversal. It is not
shown that any positive injury was sustained by the plaintiff in
error in consequence of the refusal of the court to quash the
panel, and we have heretofore held, under the law pursuant to
which this jury was selected, that a mere irregularity in draw-
ing the jury, where no positive injury is shown to have been
done the accused, is not sufficient cause to sustain a challenge
to the array. Mapes v. The People, 69 111. 523.
During the progress of the trial, and before the evidence
was all heard, the jury withdrew for a short time, for a neces-
sary purpose, in charge of an officer of the court, but who was
not specially sworn for that purpose. No objection was made
to this by the plaintiff in error, at or before the time, nor did
he give his express consent thereto.
This, it is insisted, was error, and Mclntyre v. The People,
38 111. 514, and Lewis v. The People, 44 id. 453, are cited to
sustain the position; but in those cases the jury had retired to
consider of their verdicts, and were not accompanied by a sworn
officer as required by the 189th section of the Criminal Code,
and the decisions are predicated on the language of that sec-
472 Hedges et al. v. Mace et al. [June T.
Syllabus.
tion. It, however, has no application to cases where the jury
retire, as in the present case, before the evidence is all in, and
there can be found no common law authority that will sustain
the objection.
It is not claimed that the jury, while absent, were tampered
with, or subjected to any improper influences, and as the
plaintiff in error suffered no injustice by this action of the
court, he has no cause of complaint.
It is finally objected that several witnesses gave their evi-
dence through an interpreter, and the record fails to show that
he was sworn. The record also fails to show that any objection
was made to the evidence, at the time, by the plaintiff in error,
on this account. Had the objection been interposed, if he was
not in fact sworn, it could and would then have been obviated.
The principle is too well settled to require argument or citation
of authorities, that a party who sits quietly by and permits
incompetent evidence to be given to the jury, can not, for the
first time, make the objection here..
Several other errors are assigned on the record, but they are
trivial in character, and were abandoned on the argument. It
is not deemed necessary to further notice them.
We are unable to discover any error in the record, and the
judgment is therefore affirmed.
Judgment affirmed.
Keziah Hedges et al.
James Mace et al.
1. Process — what is sufficient return to show service. Where the statute
requires the sheriff to deliver to the defendants, if found, a copy of the sum-
mons, a return by the sheriff that he served each of the defendants with a
true copy of the summons, is equivalent to a return that he delivered each
of them a copy, and is a substantial compliance with the statute.
2. Appeal — defendant against whom there is no judgment has no right
A defendant to a bill in chancery against whom no decree or judgment is
1874.] Hedges et al. v. Mace et al. 473
Opinion of the Court.
rendered, can not appeal or prosecute a writ of error from a decree dismiss-
ing complainant's bill.
3. Error — party not affected can not complain. A complainant in a bill
to impeach a former decree and sale, can not complain of an error commit-
ted by the court below against one who is a party defendant to his bill,
which in no manner affects the rights of such complainant.
4. Purchasers under decree— how far protected. On a bill to impeach
a decree and sale under it, nothing can be urged as against purchasers
under such decree that does not go to the jurisdiction of the court. As to
such purchasers, the bill to impeach the decree and sale is a collateral pro-
ceeding, in which mere matters of error in the former proceeding can not
be considered.
Writ of Error to the Circuit Court of Crawford county; the
Hon. Hiram B. Decius, Judge, presiding.
Mr. E. Callahan, for the plaintiffs in error.
Mr. Justice Craio delivered the opinion of the Court:
Roswell W. Hale, conservator of Sally Mace, an insane per-
son, and James Mace, filed a bill in the circuit court of Craw-
ford county against Margaret Delopp, Keziah Hedges, and
others, for partition and assignment of dower in certain lands
owned by complainants and defendants, which descended to
them as heirs at law of Solomon Mace, deceased.
At the March term, 1852, a decree was rendered appointing
commissioners to apart and divide the lands. At the Septem-
ber term, 1852, the commissioners filed a report, in which they
stated the lands could not be divided without manifest injury
to the owners of the same. The court entered a decree, direct-
ing a sale of the lands. The lands were sold, the sale reported
to the court, and a decree of confirmation entered.
In September, 1868, Keziah Hedges filed this bill against
the complainants and defendants in the original bill and the
purchasers of the lands under the decree, for the purpose of
impeaching the decree and to set aside the sale made under it.
Answers were put in to the bill, to which the complainant filed
a replication. The court, on the hearing, entered a decree dis-
missing the bill at the costs of the complainant Keziah Hedges.
474 Hedges et al. v. Mace et al. [June T.
Opinion of the Court.
This writ of error is brought by Keziah Hedges, against
whom the decree was rendered dismissing her bill, together
with Margaret Delopp, Jacob Mace and Sally Mace, three of
the defendants to the bill, against whom no decree was rendered.
As to the three defendants against whom no decree or judg-
ment was rendered, we are aware of no rule of law or practice
which would permit them to prosecute a writ of error.
The only question to be determined, then, is, whether the
record contains error as to Keziah Hedges, against whom the
decree was rendered dismissing her bill.
The only objection to the proceedings in the partition case,
in which the lands were decreed to be sold, which goes to the
jurisdiction of the court, is based upon the alleged insufficiency
of the service made by the sheriff upon the defendants. The
return of the sheriff upon the summons is in the following
form:
"August 18, 1851.
"I have this day served the within writ on the within named
defendants, by serving them each with a true copy of the same,
to-wit: Margaret Delopp, Jeffrey Delopp, Jacob Mace, and
Keziah Mace.
"J. M. Grimes, Sheriff C. C"
The objection taken to the return is, that it is silent as to
the manner in which the service was made.
The service of a writ is defined to be the reading of it to the
person to whom notice is intended to be given, or the leaving
of an attested copy with the person. If the term "serving
them" means to read to the defendants, or deliver them a copy
of the process, then it is clear the return is sufficient, under the
statute, for it is expressly stated that each of the defendants,
by name, was served with a copy of the summons.
The statute required the sheriff to deliver to each of the
defendants, if found, a true copy of the summons. We are
inclined to the opinion, when the sheriff returned that he had
served each of the defendants with a true copy of the summons,
that was equivalent to a return that he had delivered each of
1874.] Hedges et at. v. Mace et al. 475
Opinion of the Court.
the defendants a copy of the process, and hence was a substan-
tial compliance with the statute.
On the trial, the court heard proof that the sheriff had, in
fact, delivered each of the defendants a copy of the process, and
upon this allowed the sheriff to amend the return. It is insisted
that, after the lapse of so many years, it was error for the court
to permit the return to be amended. Conceding the point to
be well taken, we can not, on that account, reverse, for the rea-
son that the return was good, in substance, before the amend-
ment was made.
It is insisted that Sally Mace was not a party plaintiff or
defendant to the proceedings ; that the bill could not be brought
in the name of Hale, as conservator of Sally Mace, and
that as to her interest in the land the decree is void. "Whether
the court had jurisdiction to render a decree which would be
binding upon Sally Mace it is not necessary to inquire, as the
circuit court rendered no decree against her from which she
could appeal or prosecute a writ of error ; and the complainant,
who filed this bill to impeach the decree and sale, can not com-
plain if an error has been committed which, in no manner,
affected her own rights.
This disposes of the objections arising upon the record that
go to the jurisdiction of the court, and effectually disposes of
the case.
Various other objections are made to the proceedings, but it
is not necessary to consider them. If the questions raised are
at all tenable, they are but errors, and can not be urged in this
collateral manner against the title of the defendants who pur-
chased at the sale under the decree.
The law is well settled, that where the court has jurisdiction
of the subject matter, and obtains jurisdiction of the person by
service of process, then, although errors may intervene, the
title of a purchaser under the decree, who is not a party to the
proceeding, will be protected. Stow v. Kimball, 28 111. 108 ;
^^^^£,3910.256; Wight v. Wallbaum, 39 ib. 554;
Mulford v. Stalzenback, 46 ib. 303.
476 Terry et al. v. Hamilton Primary School. ["June T.
Opinion of the Court.
As to the defendants in this bill, who were the purchasers
under the decree, and whose title is sought to be impeached,
this proceeding is as clearly collateral to them as would be an
action of ejectment brought to recover the premises. Moore
v. JVeil, supra. Perhaps a different rule might prevail in re-
gard to such of the defendants as were parties to the original
proceeding, but none of these were purchasers under the decree.
No substantial error is perceived in the decree of the circuit
court, and it will be affirmed.
Decree affirmed.
Jaspeb M. Terry et al.
v.
The Trustees of Hamilton Primary School.
1 Injunction — assessment of damages on dissolution. Where the only
prayer of a hill is for an injunction, and a temporary injunction is granted,
which, upon the coming in of the answer, is dissolved, hut no decree ren-
dered dismissing the hill or disposing of the case upon its merits, it is im-
proper to assess damages.
2. Certificate op evidence — recital in, can not be treated as a decree.
A recital in a certificate of evidence, that a hill was dismissed, is not a
decree, nor can it be treated as such, and this court will not act on it.
Appeal from the Circuit Court of Jersey county ; the Hon.
Cyrus Eplee, Judge, presiding.
Messrs. Warren & Pogue, for the appellants.
Mr. O. B. Hamilton, and Messrs. Hodges & Burr, for the
appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
The bill alleges that one Silas Hamilton bequeathed $4000
for the purpose of establishing and maintaining a primary
school, one half to be used in erecting a building suitable for
1874.] Terey et al. v. Hamilton Peimaey School. 477
Opinion of the Court.
a school and a place of public worship, and the balance to con-
stitute a fund for the support of a teacher. The executor
named in his will procured a lot of ground, and erected a
building thereon. Subsequently, the school was incorporated
by act of the General Assembly, and the act was amended in
1869, and fixed the limits of the district at three miles square.
The bill also alleges, that the board of trustees created by the
act of incorporation have maintained a school, and are still ex-
ercising their powers and authority under the act of incorpora-
tion; that they had power conferred upon them to assess and
collect taxes to pay a teacher, and to repair the school building,
and to erect new school buildings, the tax not to exceed two
per cent per annum on the taxable property of the district.
It is alleged that complainants are inhabitants and property
holders of the district, and entitled to the benefits of the trust;
that the building erected by the executor is sufficiently large
to accommodate all persons entitled to the benefits of the
endowment, with the necessary repairs, and would be safe, suit-
able and convenient for many years to come; that the trustees,
without legal authority, ordered an election by the voters of
the district, to authorize them to issue bonds of the district to
raise money to build a new house, which resulted in favor of
issuing bonds ; that the board of trustees had selected the site
of the old school house on which to erect the new building,
and had adopted a plan and specifications of an architect for
the building of a house, at an estimated cost of $8590, with 5
per cent commission to the architect; that the trustees were
about to issue the bonds, and had commenced tearing down
and destroying the old house; that the highest legal rate of
taxation on the property of the district would not yield more
than one-fourth of the sum required to build the new house.
The bill prays an injunction.
A temporary injunction was granted restraining the trustees
from tearing down the house, and from issuing bonds. An
answer was filed by the trustees. It denies the house was safe.
They say the election was held, resulting in favor of issuing
bonds. They admit that they had adopted plans, but deny
478 Terry et al. v. Hamilton Primary School. [June T.
Opinion of the Court.
they had agreed to pay the architect 5 per cent on the esti-
mates of the cost of the building; that they had decided to
erect a new school building on the site of the old one. They
deny that they intend to issue bonds, as charged. They admit
that they had commenced to tear down the old building, but
claim authority to do so under the law. A replication was
filed.
A motion was made, on the coming in of the answer, to dis-
solve the injunction. The motion was heard at chambers on
the 27th of June, 1873, when the injunction was dissolved, and
defendants filed suggestions of damages by reason of the wrong-
ful suing out of the injunction. They claim $300 for attorneys'
fees, $100 for procuring affidavits, $100 for expense in attend-
ing on the hearing of the motion, and $1000 damages for
delay in delivering brick for the house.
At the next term of the court, a hearing was had on the
assessment of damages, when the court found and decreed the
payment of $200 for attorneys' fees, $25 for expense in pro-
curing affidavits to be read on the motion to dissolve the injunc-
tion, and $500 for damages sustained by delay in the fulfillment
of a contract to deliver brick for the new building. From that
order an appeal is prosecuted to this court.
The fee of $200 for arguing a motion for the dissolution of
the injunction seems too large. It is not supported by the
evidence. We infer that the fee embraces, as it should, no
other services, as the expense of preparing the affidavits read
on the hearing was allowed in another item. The evidence of
one witness was, that $100 would be a reasonable fee, and that
of the other that $150 would not be unreasonable, if the attor-
ney prepared all of the papers, and went to Jacksonville to
argue the motion. It does not appear the attorney did pre-
pare the papers and go to that place. There is no evidence as
to what contract was made with the attorney. It may be he
agreed for half the sum fixed by either witness.
The contract, if it may be termed such, with Bettis, was,
that he was to make the brick, and the trustees were to have
the option to find everything and pay him $2 per thousand, or
1874.] Terry et aL v. Hamilton Primary School. 479
Opinion of the Court.
he find everything and they pay him $8 per thousand. The
trustees did not determine which proposition they would accept,
nor did Bettis do anything towards fulfilling his contract, but
to rent a yard. He employed no hands or did anything else
towards making the brick. The agreement was not reduced
to writing, and seems to have been but a loose and rather in-
definite understanding that Bettis was to make the brick, but
no time was fixed when he should commence, when they were to
be delivered, or how and in what quantities they were to be
delivered ; nor were the trustees enjoined from making brick,
or from having others to do so, and hence they could still have
gone on with their contract. Again, there is no evidence that
the trustees, acting under the injunction, directed him not to
make the brick; and if they had, we are not prepared to hold
that they would have been warranted in their action. Bettis
was not enjoined, and could have proceeded to fulfill his con-
tract until stopped by the trustees; nor does it appear that
Bettis is pursuing or threatening a remedy for any such loss.
There is no definite evidence that the brick could or would
have been made at all, and if they could, that it would have
been done any sooner without the injunction, than by its being
issued. The evidence is too loose and indefinite as to the terms
of the agreement, to sustain the finding on this branch of the
case.
Again, it was improper to assess damages until there was a
final hearing, and it was determined whether the relief sought
should be granted. The only prayer of the bill was for an
injunction, and although, by affidavits and other proofs, it
might appear to be eminently proper to dissolve the injunc-
tion temporarily granted, still, on a final hearing, evidence
might have been adduced requiring that there should be a per-
petual injunction. We find no decree in the record dismissing
or otherwise disposing of the bill ; nor do we find that the case
was ready for a hearing on the merits. "We can not act on a
mere recital in the certificate of evidence, that the bill was
dismissed. That is not a decree, nor can it be treated as such.
It has none of the elements of a decree, and can not be so
480 Shepherd v. The People. [June T.
Opinion of the Court.
regarded. Hence we refrain from discussing the merits of the
case.
The decree of the court below in assessing the damages is
reversed and the cause remanded.
Decree reversed.
John Shepherd
The People of the State of Illinois.
1. Criminal law — identity of party killed must be shown on trial for
murder. On the trial of one for murder, the party killed must he proved to
be the same person named in the indictment — the identity must be estab-
lished.
2. But this may be done by the man's occupation as well as by his chris
tian name ; thus, where the christian name of the party killed was given in
the indictment, and he was spoken of by the witnesses by his surname only,
but was also spoken of as the barber, and the evidence was that he was a
barber, and the only one in the place of that surname, it was held, that the
identity was sufficiently established.
3. Instruction — must be based upon evidence. Instructions upon ques-
tions not in the case, as made by the evidence, and which have no connec-
tion with it, should not be given.
Writ of Error to the Circuit Court of Franklin county;
the Hon. Monroe C. Crawford, Judge, presiding.
Mr. Thomas J. Layman, for the plaintiff in error.
Mr. Justice Breese delivered the opinion of the Court:
This was a prosecution in the Franklin circuit court, against
John Shepherd, for murder. A verdict of guilty was rendered,
and the prisoner sentenced to fourteen years confinement in
the penitentiary.
To reverse this judgment, the record is brought here by writ
of error, and various errors assigned, the most important of
which have been fully considered.
1874.] Shepherd v. The People. 481
Opinion of the Court.
The homicide consisted in killing a barber, one "Wesley John-
son, in his shop, with a pistol. The factum was undisputed.
The justification alleged was, that the barber had had criminal
conversation with the wife of the prisoner.
The instructions to the jury were very voluminous, as asked,
on both sides, which it is not necessary to examine seriatim.
The points relied on to reverse the judgment are: That it
was not proved that the Johnson killed by the prisoner was
the Wesley Johnson named in the indictment.
That the party killed must be proved to be the same person
named in the indictment, is a clear principle — the identity
must be established. Davis v. The People, 19 111. 74. That
identity was established in this case is clearly shown, as all the
witnesses speak of the Johnson killed as Johnson "the barber,"
and there was but one such at the place of killing, whose name
was charged in the indictment to have been Wesley Johnson.
A man can be identified by his christian name or by his occu-
pation, and this victim was identified by his occupation. The
prisoner's counsel, in instructions asked of the court in his be-
half, refers to the person killed as Wesley Johnson. In fact,,
there was no question as to identity.
The principal point made by the prisoner's counsel is upon
the instructions, in several of which the question of the insanity
of the prisoner was sought to be made a feature in the case, to
support which there was not a scintilla of testimony; a donbt,
even, of his sanity was not raised, and all instructions sought
on that point were properly refused, as having not the remotest
connection with the case. The act was done by the prisoner
coolly and deliberately, with the intention, deliberately formedy
to take the life of Johnson. He meditated on it for some time,
and proceeded with all imaginable coolness and deliberation to
do the deed of death. It was the offspring of malice and re-
venge for an alleged violation of his marital rights, of the truth
of which there is not, in the record, any proof. All the instruc-
tions containing the element of insanity should have been re-
fused by the court, there being no testimony whatever on which
to base them.
31— 72d III.
482 Shepherd v. The People. [June T.
Opinion of the Court.
It is complained by prisoner's counsel, that the court refused
to give the first and third instructions asked by him, which
are substantially the same. The third is as follows:
"The court further instructs the jury, that although you may
believe, from the evidence, that the prisoner killed Wesley
Johnson, yet if, from the evidence and all the circumstances
connected with or causing the killing, you further believe that
the killing stands upon the same or an equal footing of reason
and justice as the case mentioned in the preceding instruction,
then you should find the defendant not guilty."
"The preceding instruction," which was also refused, and for
which no complaint is made, was as follows:
"The court instructs the jury, that among the cases of justi-
fiable homicide or man-killing, the law declares that the killing
of a person who manifestly intends and endeavors, in a violent,
riotous or tumultuous manner, to enter the habitation of another
for the purpose of assaulting or offering personal violence to a
person dwelling or being therein, is justifiable."
As this instruction had nothing to do with the case, and
was properly refused, the third, making special reference to it,
was properly refused, as there was no evidence by which the
jury could be informed that this case stood upon the same or
an equal footing as where death is caused in self-defense or in
defense of one's habitation, as provided in the statute.
The instruction is claimed to be framed upon section 38 of
the Criminal Code, which, after defining the various kinds of
homicide justifiable and excusable, provides, that "all other
instances which stand upon the same footing of reason and
justice as those enumerated, shall be considered justifiable or
excusable homicide." E. S. 1845, p. 157.
It will not be denied this section gives to juries a large-
discretion, but it could not have been the intention of the leg-
islature to allow them to reach conclusions without any evidence
to justify them. It can not be they can act in such cases from
1874.] Davis v. Pickett. 483
Syllabus.
mere whim and caprice. There being nothing in the evidence
to place this case on the same footing as the cases enumerated,
the instruction was properly refused as irrelevant.
It is complained, that the second instruction given for the
people was erroneous. It was as follows :
"Malice includes not only anger, hatred and revenge, but
jealousy and every other unlawful and unjustifiable motive."
This instruction is inaccurate, and should not have been
given, but it could not have worked any injury to the prisoner,
the evidence, being so overwhelming and conclusive of his
guilt, fully warranting the verdict as rendered.
It is unnecessary to consider the fourth, fifth and sixth in-
structions of the prisoner, raising the question of sanity, and
the modification of the same by the court, for the reason al-
ready given, of the total absence of testimony on which to base
such a question.
As to the objection that the court refused time to prisoner's
counsel to argue a motion for a new trial, we perceive no error
in this regard, as the term of the court in the county of the
trial terminated, by law, on the night in which the verdict was
rendered, and it would have been against the law to have held
the court there on the following Monday. Besides, the record,
as presented, discloses no ground whatever for a new trial.
On full consideration, we are satisfied this record contains no
error, and the judgment of the circuit court must be affirmed.
Judgment affirmed.
C. K. Davis
v.
F. M. Pickett.
1. Sheriff's sale — inadequacy of price no ground for setting aside.
Mere inadequacy of price, no matter how great, is not sufficient of itself ta
set aside a sheriff's sale, where the right of redemption is given, unless
484 Davis v. Pickett. [June T.
Opinion of the Court.
there are some indications of fraudulent practices, or some advantage
against the debtor not warranted by law.
2. Pleading — charge of fraudulent combination in a bill in equity should
be supported by facts disclosed in the bill. The mere charge in a bill to set
aside a sheriff's sale, that there was a fraudulent combination and confedera-
tion between the sheriff and the purchaser to wrong complainant, is not
sufficient. Such a charge should be based on facts disclosed in the bill
tending to implicate them in such practices, and if such facts are not dis-
closed, and there is no other ground for the interposition of a court of equity
shown, a demurrer should be sustained.
"Writ of Error to the Circuit Court of Saline county; the
Hon. Andrew D. Duff, Judge, presiding.
Mr. H. H. Harris, for the plaintiff in error.
Messrs. Gregg & Duff, for the defendant in error.
Mr. Chief Justice Walker delivered the opinion of the
Court:
The bill in this case alleges that, at the April term, 1871,
of the Saline circuit court, Martha J. Gaston recovered a judg-
ment in that court, against plaintiff in error, for the sum of
$138.14, and for $10.80, costs of suit; that, on the 29th day
of the following May, an execution was issued and placed in
the hands of the sheriff, who, on the 12th of the next June,
levied on the south-west quarter of the north-east quarter of
section 32, township 7 south, range 5 east, which he offered for
sale on the 14th of the next July, when F. M. Pickett became
the purchaser for $5, and received a certificate of purchase.
On the 26th of the same month, the sheriff levied the same
execution on the south-east quarter of section 30, township 10
south, range 6 east, and, on the 31st of the succeeding August,
sold the same to H. H. Harris for $2.50, and gave him a certifi-
cate of purchase. It is alleged that the 40-acre tract was worth
$300, and the quarter section $2000 to $3000 ; that there was
more cost incurred, in making these levies and sale, by $12.60,
than was realized by the sales; that another execution was
levied on two town lots, in the town of Harrisburg, which
were worth $75 each, and these lots were sold by the sheriff,
1874.] Davis v. Pickett. 485
Opinion of the Court.
for $2, to F. M. Pickett; that, some time in the month of
August, 1872, plaintiff in error attempted to and supposed he
had paid off all liabilities which were incumbrances upon his
property, but he had lost sight of the sale of the 40-acre tract,
and did not discover the mistake until about the 14th day of
January, 1873, when the time for redemption had expired;
that, immediately upon the discovery of the mistake, plaintiff
in error applied to Pickett to be permitted to redeem the 40-
acre tract from the sale, by paying him the amount bid, with
10 per cent interest from the day of sale, when Pickett ex-
pressed himself as entirely willing for the redemption to be
made. Plaintiff in error thereupon prepared a certificate of
redemption, and caused the same to be presented to him, with
a tender of the $5, with 10 per cent interest thereon from the
day of sale to that time; that Pickett refused to accept the
redemption money and to sign the certificate of redemption,
and informed plaintiff in error that he had taken from the
sheriff a deed for the land; that plaintiff in error then ten-
dered the redemption money and costs of a conveyance, and
requested him to convey the lands to plaintiff in error, but
this he refused to do ; that the amount for which the land was
sold was merely nominal, and w#s inadequate and insufficient
to support the sale, and that the sale for such nominal sum
was fraudulent and void for want of consideration. Plaintiff
in error charges, on belief, the sale of the land for the nominal
sum was the result of a fraudulent combination and confedera-
tion between the sheriff and Pickett, to wrong, oppress and
defraud plaintiff in error. The bill concludes with a prayer
that the sale be set aside and Pickett be required to convey to
plaintiff in error.
To this bill defendant in error filed a demurrer, which was
sustained by the court, and the bill was dismissed. To reverse
that decree, the record is brought to this court on error.
This court has repeatedly said that mere inadequacy of price
it a sheriff's sale is not ground for setting it aside; that there
must be other grounds connected with the inadequacy of price
to warrant the interference of a court of equity. Ayers v.
486 Dayis v. Pickett. [June T.
Opinion of the Court.
Baumgarten, 15 111. 444; Mixer v. Sibley, 53 ib. 61. In this
latter case, it was said: "We do not think mere inadequacy
of price, great as it may have been, would be sufficient of itself
to set aside a sale in any case where the right of redemption is
given, unless there are some indications of fraudulent practice,
or some advantage against the debtor not warranted by law."
That case seems to be decisive of this. It is the latest deter-
mination of this court, and it must control.
Here was a sale, the regularity of which is not questioned,
by a sheriff, under a judgment and execution entirely regular,
made after due notice, at the time and place specified, as we
may infer, as nothing is charged to the contrary. A regular
bid was made when the land was offered, and it was struck
off to the purchaser. The bid is, perhaps, extremely small,
still it was a legal bid, and the best that was offered, and the
sheriff was bound to accept it, and strike the land off at the
bid, or adjourn the sale, and that was in his discretion. There
is nothing shown from which any unfairness can be inferred.
A certificate of purchase was executed to the purchaser, and
he permits the matter to slumber for eighteen months before
plaintiff in error takes any steps to relieve himself from the sale.
He gives no excuse, but simply says he had lost sight of the
sale — not even that he had never known of the sale, but simply
he had forgotten the matter, leaving us to infer that he was so
indifferent to his interest, and affairs that should concern him,
that he even did not charge his memory with the transaction.
The amount was small, and the plaintiff in error could cer-
tainly have paid it and redeemed the land without much incon-
venience or sacrifice. The time was ample, and nothing but
his careless inattention to the matter prevented him from
redeeming. We look in vain in the bill to find that anything
wrong or illegal was done by the sheriff or purchaser at or
since the sale. If loss ensues, plaintiff in error, and he alone,
is responsible for the result.
Nor does the bill allege a sufficient agreement by defendant
in error to permit a redemption, when called upon for the pur-
pose. Leaving the question of the Statute of Frauds out of
1874.] T., "W. & W. Ey. Co. v. Reynolds. 487
Syllabus.
view, the allegation does not show an agreement. The allega-
tion is, that defendant expressed himself as entirely willing
for such a redemption to be made — not that he agreed that it
might be made, or that such was the contract between them.
Defendant then held the legal title, and a redemption could
not be made under the statute, and if any redemption could be
had, it would have been by contract between the parties, and
on such terms as might be agreed upon by them.
The mere charge that plaintiff in error believed and charged
that there was a fraudulent combination and confederation
between the officer and purchaser is not sufficient. Such a
charge should be based on facts disclosed in the bill, tending
to implicate them in such practices, to require an answer.
Hence this does not aid the bill in its want of a charge of
fraudulent practices.
We are unable to see any equitable grounds of relief dis-
closed by the bill, and the court below committed no error in
sustaining the demurrer, and the decree must be affirmed.
Decree affirmed.
Toledo, Wabash and Western Kailway Company
v.
T. J. Reynolds, use of L. Marx.
1. Garnishee — process may be sent to any county in the State. Where a
judgment is rendered in the circuit court, process of garnishment can be
sent to any county in the State where the garnishee may be found, and in
this respect there is no difference between natural persons and corporations.
Either may be served as garnishee.
2. Appearance— plea to the jurisdiction. Where a garnishee files a plea
to the jurisdiction of the court, to which a demurrer is sustained, and the
garnishee stands by his plea, this does not constitute a full appearance on
the part of the garnishee, and it is error to render final judgment against
him. In such case, the judgment should be a conditional one, as upon a
default, and a scire facias ordered returnable to the next term.
488 T., W. & W. Ey. Co. v. Reynolds. [June T.
Opinion of the Court.
"Writ of Error to the Circuit Court of Washington county;
the Hon. Silas L. Bryan, Judge, presiding.
Mr. O. T. Reeves, for the plaintiff in error.
Mr. P. E. Hosmer, for the defendant in error.
Mr. Justice Scott delivered the opinion of the Court:
In 1872, L. Marx recovered a judgment in the circuit court
of Washington county, against Reynolds, on which execution
was issued, and returned no property found. Marx then sued
out a garnishee process against the railroad company, which
was served on its agent in McLean county. A plea to the
jurisdiction of the court was filed, to which the court sustained
a demurrer. Plaintiff in error having elected to stand by its
plea, the court rendered final judgment against it for the
amount of the judgment, in favor of Marx, against Reynolds.
It is insisted a proceeding in garnishment is an original suit,
and hence it is claimed it was not lawful to serve the garnishee
process upon an agent of the company out of the county where
the original suit was pending. The statute under which these
proceedings were had seems to authorize the judgment creditor
to have process directed to any county where any person may
reside, who may have money or effects in his possession belong-
ing to the judgment debtor. The statutory provisions are
very broad and liberal. It is declared it shall be lawful for the
court or justice of the peace before whom the original judg-
ment had been rendered, to cause any person or persons sup-
posed to be indebted to or to have any effects or estate of de-
fendant, to be summoned forthwith to appear "before said court
or justice of the peace as garnishee or garnishees." R. S.
1845, sec. 38, p. 307.
The remedy given by the statute is not limited. Any per-
son, whether resident or not of the county in which the origi-
nal judgment is rendered, may be summoned as a garnishee.
It is not material, therefore, to determine whether a pro-
ceeding in garnishment is to be regarded as an original suit or
1874.] Johnson v, Johnson. 489
Syllabus.
a proceeding in the nature of execution of the original judg-
ment. In either view, a court of general jurisdiction, by virtue
of the statute giving the remedy, may send its process to any
county in the State where the garnishee may be found. There
is no difference between natural persons or corporations in this
regard. Either may be summoned as garnishee. It is true, a
justice of the peace can not send process beyond the territorial
jurisdiction of such a court, as denned by statute.
The judgment in this case was obtained in the circuit court,
and no reason is perceived why it could not send process of
this character to any county in the State. The fact the gar-
nishee is to be summoned to appear before the court which ren-
dered the original judgment, excludes the idea the proceeding
can be commenced in any other county. Any other construc-
tion would defeat the intention of the legislature in the passage
of the act. Manifestly, it was the intention to give a remedy
in exactly such cases as this, to facilitate the collection of debts.
The second error, however, is well assigned. The filing of
the plea to the jurisdiction was not a full appearance on the
part of the company. Hence it was error to render final judg-
ment on sustaining the demurrer to the plea to the jurisdiction
of the court. The judgment should have been a conditional
one, as upon default, and a scire facias should have been
ordered returnable to the next term of the court, to show cause
why the judgment should not be made absolute. E. S. 1845,
sec. 16, p. 67.
For the error indicated, the judgment must be reversed and
the cause remanded.
Judgment reversed.
William H. Johnson
v.
Louisa J. Johnson.
1. Husbatto and wife— suit by one against the other. As between hus-
band and wife, in order to the maintenance of a suit by the one against the
other for a recovery as to personal property, the evidence should show, by
490 Johnson v. Johnson. [June T.
Opinion of the Court.
facts proved, that the property is brought clearly within the operation of
the Married Woman's Act of 1861.
2. The supposition of the parties, or their general statement, of the prop-
erty being or having been the separate property of the wife, is not sufficient
proof of the fact to maintain a suit in relation thereto between the husband
and wife. In such case, the facts should be stated from which it would
appear whether or not the property is the separate property of the wife
within the act of 1861, and not the conclusion of the witnesses from the facts.
Appeal from the Circuit Court of Fayette county; the
Hon. H. M. Yandeveer, Judge, presiding.
Mr. E. M. Ashcraft, for the appellant.
Messrs. Henry & Fouke, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action of replevin, by husband against wife, for
the recovery of a horse, originally commenced before a justice
of the peace, and taken by appeal to the circuit court, where,
upon trial of the cause, the court gave this instruction to the
jury:
"The court instructs the jury, for the defendant, that if they
believe, from the evidence, that the plaintiff is the husband of
the defendant, that then the law is, that a husband can not sue
his wife in a suit at law, and you will find for the defendant."
In accordance wherewith, the jury found for the defendant,
and there was judgment accordingly.
The giving of this instruction is assigned as error.
As applicable to the facts of the case, we regard the instruc-
tion as correct. The question was as to the ownership of the
horse. The plaintiff testified that he purchased the same from
defendant; that it was foaled by a mare which was, at the time
of foaling, the separate property of the defendant. This was
the Chief and strongest testimony in the case, going to show
that the wife was ever the owner of the horse, the rest of it
being of the same general character. Such testimony fails to
show that the horse or mare was the sole and separate property
of the wife within the statute of 1861, in relation to married
1874.] Johnson v. Johnson. 491
Opinion of the Court.
women. The statement of the witness was bnt his conclusion
from facts, which might have been a mistaken one. The mare
might have been acquired by the wife from the husband during
coverture, in which case, by the express provision of the stat-
ute, the animal would not have been the sole and separate prop-
erty of the wife ; and yet both parties might have supposed it
to be such. Facts should have been stated, from which it
might appear whether or not the mare was the sole and separate
property of the wife within the act of 1861.
As between husband and wife, in order to the . maintenance
of a suit by the one against the other for a recovery as to per-
sonal property, the evidence should show, by facts proven,
that the property is brought clearly within the operation of
the Married Woman's Act of 1861. We can not accept, in
such case, the supposition of the parties, or their general
statement, of the property being or having been the separate
property of the wife, as sufficient proof of that fact. The pre-
sumption is, that the property, during the coverture, is that of
the husband. The proof, in the present case, we do not regard
as sufficient to overcome this presumption, and show the prop-
erty to have ever been subject to the operation of the act of 1861.
It follows, then, that the relations of the parties, with respect
to the property in controversy, are, for aught that appears from
the evidence, as at common law, and are to be so regarded.
The rule of the common law is, that the effect of marriage is to
deprive the wife of all separate legal existence, her husband
and herself being in law but one person. 1 Blackst. Com. 442 ;
1 Chit. PL 31. The bringing of such a suit as this does vio-
lence to this principle. It supposes the separate legal existence
of the parties. This is a suit, in legal contemplation, with but
one party to it, or of a party against himself. It is an answer
to an action that a party is legally interested in each side of
the question. A party can not be both plaintiff and defend-
ant in an action. 1 Chit. PL 46. The common law rule, in
respect of its application to such a case as the one in hand, has
not been changed by any statutory enactment.
The -judgment is affirmed. T 7 ,*? 7
J & Judgment affirmed.
492 Mitchell v. Shook. [June T.
Opinion of the Court.
Mr. Chief Justice "Walker: I do not concur in the reason-
ing of the court in this case, or the rule announced, since the
adoption of what is known as the Married Woman's Law. I
hold that the parties are distinct persons in all cases where
their separate property is involved.
George M. Mitchell
v.
Lemuel Shook.
1. Abuse of pkocess — non-resident creditor attaching property of his
debtor who is also a non-resident. A creditor who only takes such steps for
the collection of a bona fide debt as itself permits, however zealous and
vigorous in so doing, can not be guilty of an abuse of process or of obtain-
ing the jurisdiction of the court for a fraudulent and improper purpose.
2. A resident of the State of Indiana commenced an attachment suit
before a justice of the peace in this State, against another resident of Indi-
ana, who was temporarily in this State, with property which, by the law of
Indiana, was exempt from attachment. The attachment writ was levied on
that property. It appeared that both plaintiff and defendant lived in the
same county in Indiana, and that the defendant could have been easily found
in the county and State where both parties resided. It further appeared
that the debt sued for was a just debt, and past due: Held, that there was
nothing in these facts to justify a finding that the plaintiff was guilty of any
abuse of process, or that he had sought the jurisdiction of the courts of this
State for a fraudulent purpose.
Appeal from the Circuit Court of White county; the Hon.
Tazewell B. Tannek, Judge, presiding
Messrs. McDowell & McClintock, and Messrs. Pollock &
Keller, for the appellant.
Messrs. McCartney & Graham, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court:
This was a proceeding by attachment, commenced before a
justice of the peace of White county, and thence taken by
1874.] Mitchell v. Shook. 493
Opinion of the Court.
appeal to the circuit court of that county, where the case was
tried, by agreement of parties, by the court without the inter-
vention of a jury, and judgment was rendered in favor of the
defendant. The case is brought to this court by appeal.
The object of the suit is to recover the amount due on a prom-
issory note given by the defendant to the plaintiff, and there is
no claim made that the debt was unjust, not due, or that it
had been paid. It is admitted to be both just and unpaid.
The judgment of the court below was rendered in favor of
the defendant upon the ground that the evidence showed that
the process of the court was abused, and its jurisdiction sought
for a fraudulent purpose; and the errors assigned only ques-
tion the correctness of this ruling.
The evidence upon which the judgment was predicated was
that of the defendant alone, no other witness being examined,
and there being no evidence introduced save the promissory note,
and the evidence of the defendant.
His evidence in full, as set out in the abstract, is as follows :
"I -am the head of a family, and reside in Posey county,
Indiana. Plaintiff resides in Posey county, Indiana, also. F.
H. Kelley resides in same county and State. I am a colpor-
teur and Sunday school missionary in the church to which I
belong. My stay in White county has been but temporary.
I have been in the habit of visiting my family every little
while, and staying a few days. I could easily have been found
in Posey county, Indiana. I have been following my occupa-
tion, in Illinois, since September last. The property attached
in this suit would be exempt from attachment and sale under
execution, under the laws of the State of Indiana."
Cross-examined. — "The note upon which this suit is brought
is a just note. The sulkey and harness attached were what
the note was given for in Indiana."
We are unable to perceive, in this, sufficient evidence of the
abuse of process, or that the jurisdiction of the courts of this
State was sought for a fraudulent purpose.
494: Mitchell v. Shook. [JuneT.
Opinion of the Court.
The case is very different from that of Warner et at. v.
Bright, 52 111. 36. In that case, by the false and fraudulent
pretenses of the plaintiff, the defendant was brought into the
State for the express purpose of being arrested, while here the
defendant voluntarily comes into the State, engages in business
for several months, and only returns, occasionally, to Indiana,
for the purpose of visiting his family. It may be that he might
have been served with process in Indiana, and that his prop-
erty not exempt from execution here, would be exempt there ; but
it has never been held, so far as we are advised, that the juris-
diction of a court depends upon whether the party might have
been served with process within another jurisdiction, where the
laws relating to the enforcement of the judgment -are different,
or that a party is compelled to seek an enforcement of his con-
tract at the place where his debtor resides.
The defendant, by bringing his property here, voluntarily
placed it within the jurisdiction of our courts. While it shall
remain here, for any invasion or disturbance of his rights
in reference to it, he is entitled to their protection; and if
others seek to enforce a claim to it, he must submit to the
same jurisdiction. Had he desired that his possession and
enjoyment should remain, as determined by the laws of Indi-
ana, he should have kept the property within the jurisdiction
of her courts, by which alone those laws can be enforced.
Where the creditor and debtor reside in the same State, but
the property of the debtor, liable to execution, is all within
another State, there would be obvious convenience, and surely
no great impropriety, in the creditor prosecuting suit for the
collection of his debt in the State where the property of the
debtor may be, from which the payment of any judgment to
be recovered must necessarily be made.
It is not pretended that non-residents are, either by express
enactment or the policy of the law, as declared by this court,
excluded from our courts; and the proposition that the cred-
itor can not be guilty of an abuse of process, or of obtaining
the jurisdiction of the court for a fraudulent or an improper
purpose, who only takes those steps for the collection of a bona
1874. J Lill v. Stookey. 495
Opinion, of the Court.
fide debt, which the law itself permits, however zealous and
vigorous he may be in so doing, needs no demonstration.
The judgment is reversed and the cause remanded.
Judgment reversed.
Petee W. Lill
v.
James M. Stookey.
1. Amendment of record at a subsequent term of court. After the expi-
ration of a term of court at which a judgment has been rendered, the same
court that rendered the judgment has no supervisory power over it at a sub-
sequent term, except to correct it in mere matter of form, on notice to the
opposite party.
2. Same — writ of retorno habendo can not be awarded at a subsequent term
after judgment for costs only in a replevin suit. When a replevin suit is
dismissed for want of a declaration, and a judgment rendered against the
plaintiff for costs, the court rendering the judgment can not, at a subsequent
term, upon notice to the plaintiff that a writ of retorno habendo will be ap-
plied for, so amend the record as to find the property in question in the
defendant, and determine that he recover it from the plaintiff, and order a
writ for its return.
3. The fact that the court, at the time of dismissing a replevin suit, has
the right to award a writ of retorno habe?ido, but fails to do so, does not au-
thorize it to sit in review of its own judgment at a subsequent term, and
then enter a judgment, which should have been entered in the first instance,
finding the property in the defendant and awarding a writ for its return to
him.
"Writ of Error to the Circuit Court of St. Clair county ; the
Hon. William H. Skyder, Judge, presiding.
Mr. William H. Underwood, for the plaintiff in error.
Messrs. Gr. & Gr. A. Kcerner, for the defendant in error.
Mr. Justice Craig delivered the opinion of the Court:
This is a writ of error, brought to reverse a judgment entered
in the circuit court of St. Clair county at the January term,
496 Lill v. Stookey. [June T.
Opinion of the Court.
1874, amending the record of a judgment rendered in the same
court at the October term, 1871.
It appears, from the bill of exceptions contained in the re-
cord, that on the 22d day of April, 1870, the plaintiff in error
brought an action of replevin against the defendant in error, in
the circuit court of St. Clair county, to recover certain property.
At the return term of the writ, the cause was continued for
want of a declaration. At the second term it was again con-
tinued, and at the third and October term, 1871, the cause was
dismissed for the want of a declaration.
The judgment reads as follows: "On the first Thursday of
the term, on motion of the defendant's attorney, the court
orders that this cause be dismissed for want of a declaration,
this being the third term; and it is further ordered, that the
plaintiff pay the costs of this suit, and execution is awarded
therefor."
At the March term, 1873, the defendant in the suit entered
a motion to amend the prior order of the October term, 1871,
by awarding a writ of retomo habendo. At the same term
this motion was withdrawn. During the January term, 1874,
the defendant in error served a written notice on the plaintiff
in error, that on a certain day he would apply to the court for
a writ of retomo habendo, to compel said plaintiff to return
the property involved in said suit to said defendant.
The record of the court, after reciting service of notice of
the motion and the appearance of the parties, concludes as fol-
lows: "And the motion for a writ of retomo habendo coming
on to be heard, and the court being fully advised of and con-
cerning the premises, allows the same. It is, therefore, con-
sidered and adjudged by the court, that the defendant recover
of and from said plaintiff the property in the affidavit and writ
in this cause described, to-wit: one steam engine, two engine
boilers, one collar of the main pitman of said engine, and that
he have a writ of retomo habendo for the recovery thereof;
and it is further ordered by the court, that the defendant re-
cover of the plaintiff costs by him in this behalf expended, and
have execution therefor."
1874.] Lill v. Stooket. 497
Opinion of the Court.
While the notice served on the plaintiff in error, upon its
face, would seem to imply the only intent of this proceeding
was to obtain an order of court for a writ of retomo habendo,
yet it is apparent, from the whole record, that the true object
was to obtain an order of court amending the judgment ren-
dered several years before; at least such was the result of the
proceeding.
This court has uniformly and in a number of cases held, that
after the expiration of a term of court at which a judgment has
been rendered, the same court that rendered the judgment has
no supervisory power over it at a subsequent term, except to
amend it in mere matter of form, on notice to the opposite
party. Cook v. Wood, 24 111. 296; Smith Y.Wilson, 26 ib.
187; McKvndley v. Buck, 43 ib. 490; State Savings Institu-
tion v. Nelson, 49 111. 172.
It would be establishing a precedent of the most dangerous
character to hold that a final judgment, after the close of the
term of court at which it was entered, was liable to be changed
or modified, in substance, to suit the whim or caprice of one
of the parties litigant, or to conform to a second opinion the
court might form on the subject. A circuit court can not re-
view its own decisions, or that of a predecessor, unless it may
be to correct a clerical mistake or a matter formal in its nature.
The amendment of the judgment, as shown by this record,
clearly falls within the principles announced in the case of
Cook v. Wood, cited supra, and must be controlled by it. The
judgment entered in the first instance was merely an order
dismissing the cause, for the reason that no declaration was
filed.
By the amended judgment, the court finds the property in
question in the defendant, and determines that he recover it
from the plaintiff, and orders a writ for its return.
It needs no argument to show that this amendment is not
formal or clerical; on the contrary, it is an amendment of the
most vital and substantial character. It is true, the court, on
dismissal of the suit in the first instance, had the right to award
a writ of retomo habendo, but because the court failed to do
32— 72d III.
498 Songeb v. Lynch. [June T.
Opinion of the Court.
this, it by no means follows that several years afterwards the
court can sit in review of its own judgment, and then enter the
judgment that should have been entered in the first instance.
Such a practice would supersede the writ of error or appeal to
the higher court.
We are of opinion that the judgment entered at the January
term, 1874, was unauthorized. It will, therefore, be reversed.
Judgment reversed.
Giles M. Songer
v.
George Lynch.
Exchange of property — a party, to maintain a suit on a contract to
exchange property, must show performance on his part. A party took corn
to a mill to exchange for rneal, where the custom was to weigh the corn
and require the owner to put it in a crib near the mill, and then deliver
meal to him in exchange. In putting the corn in the crib, the owner let a
portion of it fall on the ground, and the employees at the mill told him he
must put the corn in the crib, or be docked in the amount of meal. He
declined to put the corn in the crib, and left without demanding either his
corn or meal : Held, on a suit brought by the owner of the corn, that he
could not recover on the ground of a breach of contract to deliver meal,
because he had not performed his part by delivering the corn in the crib,
nor for a conversion of his corn, because, having put it into the miller's
possession, a demand and refusal would be necessary before he could claim
that there was any conversion.
Appeal from the Circuit Court of Marion county; the Hon.
Amos Watts, Judge, presiding.
Messrs. Raser & Goodnow, for the appellant.
Mr. B. B. Smith, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
In the fall of 1873, appellee took to the defendant's grist
mill a sack of corn, in the ear, to exchange for meal. It was
1874.] Songer v. Lynch. 499
Opinion of the Court.
the custom of appellant to receive corn and exchange meal for
it, weighing the corn, and requiring the owner to put it in a
crib near the mill. The custom seems to have been to weigh
the corn, and, after deducting the weight of the cobs and the
toll, to give the same number of pounds in meal. In this
case, the corn was weighed, amounting to 62 pounds in the
ear. Appellant was directed to put the corn in the crib. This
he did through a window, but in doing so, the weight of the
evidence, we think, shows that he let fall on the ground from
a peck to a half bushel of ears. He then presented his sack
for the meal, but was told by hands in the mill that he must
throw the corn into the crib, or be docked on the amount of
meal. He declined to put the corn in the crib, and left. He,
without making any demand for the meal or corn, brought
suit before a justice of the peace. A trial was had, resulting
in a judgment for 25 cents, whereupon an appeal was prose-
cuted to the circuit court, where a trial resulted in a similar
judgment, from which this appeal is prosecuted.
As a general rule, a party, to recover on a contract, must
perform, or offer to perform, his part of the agreement, before
he can put the other party in default. If this transaction be
considered as an agreement to exchange corn in the ear for
meal, and the owner of the corn to put it into the crib, and
then receive the meal, then appellee has signally failed to prove
that he has complied with his contract, as the decided weight
of the evidence shows that he did not put the corn in the crib,
but, on the contrary, left from a fourth to a half of it on the
ground. He was, therefore, not entitled to demand the meal
until he put the corn into the crib. Appellant was not bound
to deliver the meal until he put all the corn into the crib, but
the hands of appellant said they must dock him in the weight
of the meal unless he would put the corn that had fallen out,
into the crib, but were willing to give him the proper amount
of meal for what he had placed in the crib. Having failed to
perform his part of the undertaking, he can not sue for a
breach of contract.
500 Padfield v. Pierce. [June T.
Syllabus.
If, however, it be treated as an action of trover, then appel-
lee testifies that he made no demand for the meal or a return
of the corn. Having placed the corn in the possession of
appellant, he can not claim there was a conversion, unless he
had made a demand and there had been a refusal, which would
have been evidence of a conversion. He can not know but
appellant is ready to restore to him his corn, if he will demand
it, or give him the amount of meal, without any deduction, if
he will but make the demand ; but none having been made,
trover will not lie, nor are we aware of any other action in
which he could recover without performing his part of the
undertaking, or making a proper demand.
The amount is trifling in this case, and the suit must have
been the result of bad feeling and a disposition to annoy.
Appellee never saw appellant, but acted entirely on what was
said and done by the employees at the mill. He made no
demand, and may have been, and probably was, anxious for a
pretext for the suit, as the evidence shows he demanded $10
when he sued before the justice of the peace, and claimed an
amount he knew appellant would not pay to the constable,
when the service was made, and thus end the strife; but trifling
as the case is, and as much feeling as there may be, we must
apply the rules of law that govern similar cases of import-
ance. The finding of the jury was manifestly against the
evidence, as well as the instructions, and the court below erred
in not granting a new trial.
The judgment is reversed.
Judgment reversed.
Hiram Padfield
v.
Hiram Pierce.
1. Guardian and ward — where guardian receives land in payment due
the ward, rights of tlie latter. Where a guardian recovers a judgment as
such, and takes a conveyance of land to himself, in satisfaction thereof,
1874.] Padfield v. Pierce. 501
Opinion of the Court.
his ward may, on attaining his majority, take the land or charge his guar-
dian with the amount of the judgment and accruing interest, at his election,
and if, within a reasonable time after coming of age, he elects to take the
land, a court of equity will enforce a conveyance of the legal title to him.
2. Same — when ward estopped to claim land conveyed in satisfaction of
judgment. Where a guardian, who had taken a conveyance of land to him-
self, in satisfaction" of a judgment in his favor as guardian, and, upon his
ward arriving of age, settled with him, and charged himself, in such settle-
ment, with the amount of the judgment, and the ward was, at the time of
such settlement, apprised of his rights in the land, and made no attempt to
enforce his claim, but accepted the balance found to be due him upon such
settlement, and never made any claim to the land for seventeen years after-
wards, it was held, that the ward was estopped from asserting his claim to
the land, both because of his election to take the proceeds of the judgment
with full knowledge of his rights, and of his gross laches in making his
claim.
Appeal from the Circuit Court of St. Clair county ; the Hon.
Joseph Gillespie, Judge, presiding.
Messrs. C. W. & E. L. Thomas, for the appellant.
Mr. Justice Scholfield delivered the opinion of the Court:
From the evidence presented to us by the record, it is clear
that appellant might, had he made his election so to do within
a reasonable time after coming of age, have treated the land
in controversy as being held in trust for him, and a court of
equity would then have enforced the conveyance of the legal
title. . Daniel Pierce was his guardian, and as such recovered
a judgment against McKendree College for $400, and this land
was conveyed to him in satisfaction of that judgment. Appel-
lant, therefore, had his election to take the land or charge his
guardian with the amount of the judgment and accruing inter-
est. He was born on the 10th of December, 1829, and was,
consequently, 21 years of age on the 10th of December, 1850.
He admits, in his evidence, that he was then apprised of his
rights in the land; but, instead of making claim to it, and
attempting to enforce his claim, on the final settlement with
his guardian, he allowed him to charge himself with the pro-
ceeds of the judgment against McKendree College, and
502 Koleman v. Weil. [June T.
Syllabus.
accepted the balance then found to be due him. He has thus
had the benefit of the judgment, and, after the lapse of nearly
IT years from the period when his minority ceased, he filed
his bill in chancery, asking that the land be decreed him also.
ISTo reason is given for this long delay in attempting to assert
his rights. He appears to have been all the time in the vicin-
ity of the property, in possession of the same information
which he now has, yet he permits lasting and valuable im-
provements to be placed on the property, without objection,
and makes no claim that the property is his. In June, 1866,
he says he became unfriendly with appellee and his family,
and to this cessation of friendship, we apprehend, is to be attrib-
uted so late an attempt at an assertion of his imaginary rights.
We do not perceive a single meritorious feature to be ad-
dressed to a court of chancery, in favor of his claim. He is
estopped from now asserting it, both because of his election to
take the proceeds of the judgment against McKendree Col-
lege with full knowledge of his rights, and of his gross laches
in making and attempting to enforce his claim. Penn and
Wife v. Heisey, 19 111. 295; Smith and Wife v. Warder
and Alexander, 19 Fenn. St. R. 424; Maple v. Kussort, 53
id. 349; Pursley v. Hays, 17 Iowa, 310; Kane County et al.
v. Herrington, 50 111. 232 ; Gibson et al. v. Bees, ib. 383.
The decree of the court below is affirmed.
Decree affirmed.
Robert D. Noleman
v.
Jacob P. Weil
1. Service of summons by a special deputy must be by copy as well as by
reading. A special deputy, appointed under the act of 1869, is required to
serve a summons in a case at law by reading the same to the defendant, and
by delivering to him a copy.
2. Practice — when return of service is defective should be amended, or the
cause continued for service. Where the return of a special deputy upon a
1874.] Noleman v. Weil. 503
Opinion of the Court.
summons in a case at law shows service only by reading, it should be
amended to show that a copy was delivered to the defendant, if such is the
fact, and if not, then the return should be quashed and the cause continued,
for the purpose of getting service. In such a case, the defective service is
no cause for dismissing the suit.
Appeal from the Circuit Court of Marion county; the
Hon. Amos "Watts, Judge, presiding.
Messrs. Casey & Dwioht, for the appellant.
Mr. Henry C. Goodnow, for the appellee.
Mr. Chief Justice "Walkee delivered the opinion of the
Court:
This was an action of assumpsit, brought in the Marion cir-
cuit court. The summons was in the usual form. The sheriff
indorsed on the back thereof an appointment of Thomas R.
Ord, as special deputy, to serve the writ. He made this return
of service:
"I have served the within writ, by reading the same to
Jacob P. "Weil, this 1st day of August, A. D. 1873.
H. R. Hall, Sheriff.
By T. R Ord, Special Deputy:*
At the return term, a motion was entered to quash the
return, which the court sustained and dismissed the suit, and,
thereupon, plaintiff appealed to this court.
The single question presented is, whether the court erred in
quashing the return. There seems to be no objection to the
manner in which the special deputy was appointed, nor the
manner in which he signed the return. The 2d section of the
act of 1869, p. 399, provides, that "the person so appointed
shall have power and authority, and is hereby required, to
serve any such summons issuing in a case at law, by reading
the same to the defendant or defendants, and delivering to such
defendant or defendants a copy thereof. "Writs issuing in cases
in chancery shall be served in the same manner as the sheriff
is now required, by law, provided that such special .deputy
shall make return of the time and manner of making such ser-
504 St. Louis & S. E. Et. Co. v. Dorman. [June T.
Syllabus.
vice, in writing, verified by his oath or affirmation, made before
some officer now competent to administer oaths."
This return is fatally defective, in not showing that a copy
of the summons was delivered to the defendant. It is ex-
pressly required by the statute, and the return, to be sufficient,
should show, on its face, that the requirements of the statute
have been performed, at least substantially. If such a copy was
delivered, then the sheriff should, by the special deputy, have,
on leave of court, amended the return to conform to the facts.
If no such copy was delivered, then the service was not what
is required by the statute, and the cause should have been con-
tinued, for the purpose of obtaining sufficient service before a
judgment could be taken. The statute has made the require-
ment, and the command must be obeyed.
There is no assignment of error for dismissing the suit.
Had there been such an assignment, the judgment would have
been reversed, as the fact that a return of service is defective
is no ground for a dismissal of the suit, which should, in such
case, be continued.
The judgment of the court below is affirmed.
Judgment affirmed.
St. Louis and Southeastern Railway Co.
v.
William Dokman.
1. Common carriers — liability for delivery of live stock. The common
law liability of a common carrier to deliver live animals is not different
from that where the delivery of merchandise or other matter is concerned.
Cars of sufficient strength for such purpose should always be provided, and
the want of them is negligence, for which the carrier will he responsible
in case of any loss occasioned thereby.
2. Practice — when jury fail to return special verdict as requested. Where
the jury are instructed to return an answer directly to certain questions of
fact in the case, and fail to do so, but return a general verdict, the proper
course is, to move the court to send the jury back to respond to the questions,
1874.] St. Louis & S. E. By. Co. v. Dorman. 505
Opinion of the Court.
and if this is not done, and the general verdict is just and right, the judg-
ment will not be reversed in this court.
Appeal from the Circuit Court of Hamilton county; the
Hon. Tazewell B. Tanner, Judge, presiding.
Mr. J. M. Hamill, for the appellant.
Mr. "William Hamill, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
This was an action on the case, in the Hamilton circuit court,
brought by William Dorman, against the St. Louis and South-
eastern Railway Company, to recover damages for the loss of a
horse which the plaintiff had placed on a car of defendants, of
their own selection, to be transported from McLeansboro to
Shawneetown. There was a verdict and judgment for plaintiff
for two hundred dollars, to reverse which defendants appeal,
and make the points, that the verdict was against the evidence
and against the law, and in overruling the motion for a new
trial. There is a further point made, that defendants requested
the jury to respond to certain questions put by defendants, by
way of special verdict, and in not requiring the jury so to
respond.
So far as the verdict is concerned, on the facts, we think the
testimony fully sustains it, and no objection is made to any of
the instructions.
The defendants, in their fifth instruction, requested the jury
to answer directly to certain questions of fact in the cause, and
distinctly put, which they did not do, but returned a general
verdict, to which the defendants, at the time, took no other
exception than that which is involved in every case in the
motion for a new trial.
The proper course for the defendants to have pursued would
have been, to move the court to send the jury back to respond
to each question. They did not do this, but rested content
with the general verdict as rendered.
506 Bridge Co. v. L., W. A. & St. L. Et. Co. [June T.
Opinion of the Court
The verdict is just and right, on the evidence. The com-
mon law liability of a carrier to deliver live animals is not
different from that where the delivery of merchandise or other
dead matter is concerned. Cars of sufficient strength for such
purpose should always be provided, and the want of them is
negligence.
This horse was lost to the owner for want of safe and ade-
quate means of conveyance, of which defendants had the entire
control, and they ought to answer in damages.
Seeing no error in the record, the judgment is affirmed.
Judgment affirmed.
The Smith Bridge Company
v.
The Louisville, New Albany and St. Louis Air
Line Kailway Co.
1. Writ of error — to what judgment it will lie. Where there was a de-
murrer filed to the first count of a declaration, and a plea of the general issue
to the second count, the judgment of the court sustaining the demurrer to
the first count leaves the cause pending upon the second count, and the
general issue filed thereto, and there is no final judgment to which a writ
of error will lie.
2. Mechanic's lien — who entitled thereto. The Mechanic's Lien Law
of 1869 does not extend to a sub-contractor of a sub-contractor.
Writ of Error to the Circuit Court of "Wabash county;
the Hon. Tazewell B. Tanner, Judge, presiding.
Mr. S. Z. L andes, for the plaintiff in error.
Mr. Justice McAllister delivered the opinion of the Court:
The declaration in this case contains two counts, the first of
which is framed under sections one and five of the act of 1869,
giving a mechanic's lien to sub-contractors. The allegations
show, that plaintiff in error was a contractor under a sub-con-
1874.] Newton et al. v. The People. SOT
Opinion of the Court.
tractor. The second is the ordinary common count. The
defendant demurred to the first count, and filed the general
issue to the second. The court sustained the demurrer to the
first count, and the cause is still pending upon the second, and
the general issue filed thereto. Upon this state of the record
the plaintiff brought error to this court.
While we are of opinion that the demurrer was properly
sustained to the first count, on the ground that the statute does
not extend to a sub-contractor of a sub-contractor, yet we can
not affirm the judgment. There was no final judgment to
which a writ of error will lie.
The writ will, therefore, be dismissed.
Writ of error dismissed.
Joseph H. Newton et ah
v.
The People of the State of Illinois.
1. School law — suit to recover fine. In a suit under section 76 of the
School Law of 1872, to recover a fine imposed by that section, the information
required need not be in writing, nor is it necessary that it should run in the
name of the People of the State of Illinois. It is sufficient, if the process
which brings the defendant into court runs in the name of the people.
2. The word "information," as used in the 76th section of the School Law
of 1872, means "complaint."
Appeal from the Circuit Court of Jefferson county ; the
Hon. Tazewell B. Tanner, Judge, presiding.
Messrs. Crews & Haynes, for the appellants.
Mr. C. H. Patton, and Mr. T. S. Casey, for the appellee.
Mr. Justice Soott delivered the opinion of the Court:
This action was commenced before a justice of the peace, on
the information of Benjamin F. Clifton, against appellants,
508 Peers v. Boaed of Education, etc. [June T.
Syllabus.
under the 76th section of the School Law of 1872, to recover a
fine imposed by that section upon school officers, for malfeas-
ance in office. The only point made is, that the written infor-
mation or affidavit filed with the justice of the peace, upon
which he issued the summons, did not run in the name of the
People of the State of Illinois.
No written pleadings are required before a justice of the
peace. The information given in this case might have been
made orally, under oath. The process that brought appellants
into court, did run in the name of the people, and that is all
the law requires in such cases.
The word "information," as used in the statute, means "com-
plaint," in the connection in which it is used in the section under
which this action was commenced. The context shows that
other penalties, imposed by the same section, may be collected in
an action of assumpsit, before a justice of the peace. Whether
this action is debt or assumpsit, is immaterial. It is sufficient
that it is in the name of the people, on the information or com-
plaint of any citizen aggrieved.
The action was properly brought in the name of the People
of the State of Illinois. No objection has been or can be taken
to the sufficiency of the complaint or information to warrant
the institution of the prosecution.
It is quite formal, and contains every material fact necessary
to be alleged.
The judgment of the circuit court must be affirmed.
Judgment affirmed.
J. W. Peers
v.
The Board of Education of School District No. 3,
Etc., Madison County.
1. School directors — powers limited to those specially defined by stat-
ute. A board of school directors, though a corporation, are possessed of
1874.] Peers v. Board of Education, etc. 509
Opinion of the Court.
certain specially defined powers, and can exercise no others, except such as
result by fair implication from the powers granted.
2. Same — have no power to make acceptances. A board of school direct-
ors have no power to make acceptances of orders or bills of exchange, so as
to bind the school district and create a right of action thereon against them
3. Action — will only lie against the party contracting. Where a party
contracts to build a house for another, and to furnish the materials therefor,
an action will lie in favor of the seller of the materials to the contractor,
against the latter alone, not against him for whom the house is built.
Appeal from the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
Mr. W. F. L. Hadley, for the appellant.
Mr. A. W. Metcalf, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action by appellant against appellee, upon an
alleged acceptance of the following written order:
" No. 624. St. Louis, 18th of Jan. 1873.
Board of Directors School District No. 3, range No. 8, town-
ship No. 14, Collinsville, 111., pay to the order of J. W. Peers
$267.88, on account of fm. H. Phillips & Bro.'s contract
for building school house.
$267.88. C. B. Clark,
Architect and Supt."
The cause below was tried by the court without a jury, and
judgment rendered for the defendant, and the plaintiff brings
the case here by appeal.
The questions made are, whether a board of directors of a
school district can bind the district by the acceptance of an
order or bill of exchange, and if so, whether the facts in this
case show an acceptance.
It appears, from the evidence, that, on the 20th of March,
1871, a written contract was entered into between appellee and
Vm. H. Phillips & Brother, for the erection by the latter of a
school house in the school district, for the sum of $23,512, to
be paid, 80 per cent as the work progressed, and the remainder
510 Peeks v. Board of Education, etc. [June T.
Opinion of the Court.
on its completion; the building to be completed on or before
August 1, 1872, and for each day after that date, until it should
be completed, Phillips & Brother were to pay the sum of $25.
The house was to be built under the control and supervision
of C. B. Clark, who was, by the contract, appointed architect
and superintendent.
Section 67 of the School Act, Laws 1871-2, p. 733, provides,
that school funds shall be paid out by the township treasurer,
on the order of the proper board of directors, and that in every
such order shall be stated the purpose for which, and on what
account drawn.
In Glidden et al. v. Hophms, 47 I1L 526, this court held
that such an order, where it did not express on its face the pur-
pose for which it was drawn, was void, as being without
authority.
In Newell v. School Directors, 68 111. 514, we held that a
board of school directors had no authority to issue such an
order payable at a future day, so as to cut off a defense against
the order in the hands of a bona fide assignee for value before
maturity.
In the former case it was said, the board of school directors,
though a corporation, are possessed of certain specially defined
powers, and can exercise no others, except such as result, by
fair implication, from the powers granted. The statute cer-
tainly gives no such power to the board of school directors as
to make acceptances of orders or bills of exchange. They had
power to contract for the erection of, and provide for the pay-
ment for, this school house, but in order to the exercise of this
power, it was not necessary that they should accept orders.
Their mode of making provision for the payment of the work
was prescribed by the statute, viz: to issue their own orders
therefor on the township treasurer, not to assume obligations
in respect thereof to third persons.
The acceptance of such orders is liable to create a conflict of
interests and rights between third persons as to the money
called for by the orders; to expose the directors to the risk of
a double liability therefor, and thus endanger the school fund,
1S74.] Peers v. Board of Education, etc. 511
Opinion of the Court.
and expose it to the hazard of the costs of litigation. There is
danger, too, in such case, of being subjected to a liability as
for a verbal acceptance, where none was intended. There was
here no written acceptance of the order. Three previous sim-
ilar orders in favor of appellant, appellee had arranged in the
lawful mode, by giving its own orders on the township treas-
urer for the money. The one in question, the directors refused
to thus settle, telling appellant that they had decided not to
" pass any more " orders until the building was completed ;
and yet, inasmuch as the order" was retained in the directors'
hands, and they represented that there would be funds enough
to " pay everything up," and appellant relied upon their pay-
ing the order, appellee is sought to be made liable as upon
a verbal acceptance, when, upon completion of the building,
from the insufficient performance of the contract, or delay in
the time of its completion, none of the money represented by
the order might be due and owing by appellee under the con-
tract.
The accepting of orders respects alone the convenience and
accommodation of third persons ; it furthers no purpose of the
school law, and subserves no interest of the school fund. The
powers of school directors are very limited, and are specially
defined. The path marked out by the statute is clear and safe.
By following it, school directors will best protect the interest
of the school fund.
We are of opinion that the school directors had no authority
to bind the school district by the acceptance of the order in
question, so as to create a right of action thereon in favor of
appellant ; and if otherwise, we should be inclined to hold that
the court was warranted in finding, from the evidence, that
there had been no acceptance of the order.
But it is insisted that, if there be no liability on the order,
there would be one under the common counts which are con-
tained in the declaration, as the school district received the
benefit of the lumber for which the order was given.
In order to establish such a liability, the lumber should have
been sold to the directors. But it was sold to Phillips & Bro.
512 I. C. E. E. Co. v. Keen, Admx. [June T.
Opinion of the Court.
for the school house, and not to the directors. They never
ordered or contracted with appellant for the lumber, and Phil-
lips & Bro. alone are liable for it. If it went into the school
house, it was as the lumber of Phillips and Bro., and the board
of directors would be bound to pay them for it, but not appel-
lant.
The judgment will be affirmed.
Judgment affirmed.
Illinois Centkal Railroad Company
v.
Emma J. Keen, Admx.
Negligence— of servant does not render master liable to fellow-servant in
same branch of employment. A railroad company is not liable for an injury
occasioned to a brakeman on one of its trains, caused by the carelessness of
the engineer on the same train.
Appeal from the Circuit Court of Marion county; the
Hon. Amos Watts, Judge, presiding.
Mr. George W. Wall, for the appellant.
Mr. W. W. O'Beien, and Messrs. Casey & D wight, for the
appellee.
Mr. Justice Scholfield delivered the opinion of the Court:
This action was brought against the defendant for negligence
in killing the plaintiff's intestate. He was a brakeman on a water
train running between Centralia and Big Muddy, and was killed
by the explosion of the boiler of the engine, on the 11th of Dec,
1871, a few miles south of Centralia. There is no question but
that he and the engineer, Houck, who was also killed at the same
time, were fellow- servants, in the same branch of employment,
and if the defendant's death was caused by the carelessness of
Houck, there can be no recovery. The case of Illinois Central
Railroad Co. v. Houck, Admr., ante. p. 285, presenting the
1874.] Hewett v. Johnson. 513
Opinion of the Court.
question of Houck's negligence on that occasion, was argued
in connection with the present case, and we have considered
them together. In that case we were of opinion, and so held,
that the evidence clearly shows that the explosion resulted
from Houck's negligence in running with more steam than the
rules of the company allowed, and in not keeping his boiler
properly supplied with water.
The same view of the evidence must apply to the present
case, and the result necessarily is, that the judgment must be
reversed, and judgment will be given in behalf of appellant
for costs in this court and in the court below.
Judgment reversed.
Miles Hewett
v.
John T. Johnson.
1. Instructions — must be applicable to the issues. It is not error to re-
fuse an instruction which is foreign to any issue in the case.
2. Same — should not give prominence to isolated fact. It is not proper
to single out an isolated fact and give it prominence in an instruction, as
such a course would have a tendency to mislead the jury.
3. Fraud and circumvention — either, ichen shown in procuring the
execution of a note, is a sufficient defense. The statute does not require fraud
and circumvention to be used in obtaining the making of a note, before the
defense can be interposed, but when fraud or circumvention is practiced in
obtaining the execution of the instrument, in either event the defense can
be made availing.
Appeal from the Circuit Court of Jefferson county; the
Hon. Tazewell B. Tanner, Judge, presiding.
Messrs. Casey & Dwight, for the appellant.
Messrs. Pollock & Keller, for the appellee.
33— 72d III.
514 Hewett v. Johnson. [June T.
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court:
This was an action of assumpsit, brought by appellant in the
circuit court of Jefferson county, against appellee, on a promis-
sory note, dated February 5, 1870, due in eight months after
date, for $250, with ten per cent interest, given by John T.
Johnson to Jas. B. Drake. The note was assigned to appellant
without recourse, and the indorsement is without date, but the
proof showed it was transferred before due.
Appellee pleaded the general issue, and that the making of
the note was obtained by fraud. Issues were formed upon these
pleas, a trial was had before a jury, and a verdict returned in
favor of appellee, upon which the court rendered judgment.
Appellant brings the case here, and insists upon a reversal of
the judgment upon the following grounds:
First — The court erred in refusing appellant's third, fourth
and seventeenth instructions.
Second — In giving appellee's first, third, fourth, fifth and
sixth instructions.
Third — The court erred in overruling the motion of appel-
lant for a new trial.
The refused instructions are as follows:
"3. If you believe, from the evidence, that Hewett, the
plaintiff, purchased the note here sued on before the same was
due, for a valuable consideration, and without notice of any
defense against the same, and that, at the time of such purchase,
said Hewett, plaintiff, was sick, and was some fifteen or twenty
miles distant from defendant, then the law did not require said
plaintiff, Hewett, under the circumstances, to use the diligence
of going to see defendant before he, plaintiff, purchased said
note."
" 4. That if you believe, from the evidence, that before the
execution of the note here sued on, defendant himself was and
had been engaged in the vending of patent rights in this part
of the country, then greater diligence would be expected and
required of him than of a man who had not been so engaged."
1874.] Hewett v. Johnson. 515
Opinion of the Court.
" IT. That if you believe, from the evidence, that defend-
ant, Johnson, admitted to William Stoker that he gave the
note, you have a right, if you believe said evidence, to find for
plaintiff."
We are at a loss to perceive how the third instruction could,
if given, have had a bearing on any legitimate issue involved
in this case. The statute declares : " If any fraud or circum-
vention be used in obtaining the making or executing of a
promissory note, such fraud or circumvention may be pleaded
in bar to any action to be brought on such instrument so ob-
tained, whether such action be brought by the party commit-
ting such fraud or circumvention, or any assignee of such
instrument."
Appellee did not, by his pleas or proof, raise the question
that appellant had notice, when he purchased the note, of any
fact calculated to cast suspicion upon it. He relied solely upon
the defense given by the statute, which, when established,
would defeat the note in the hands of an innocent holder as
well as if it was held by the original payee.
The instruction being foreign to any issue involved in the
case, the court did not err in refusing to give it to the jury.
As to the fourth refused instruction, we are aware of no rule
of law that would require a person engaged in one branch of
business to use more diligence than one having some other
occupation or calling. A rule of that character would neither
be just nor reasonable.
The seventeenth instruction was properly refused. It was
the duty of the jury, in making their verdict, to consider all
the evidence together, and from the evidence, as a whole,
determine who was the meritorious party. This instruction
singled out an isolated fact and brought it prominently before
the jury, which would have a tendency to mislead; and it is
always proper for the court to protect a jury from an unfair
instruction of this character.
In regard to the second point relied upon by appellant, we
have carefully considered the instructions to which exceptions
have been taken, and we are unable to agree with the positions
516 Hewett v. Johnson. [June T.
Opinion of the Court.
assumed by the counsel for appellant. The instructions are
based upon the evidence, and declare the law correctly.
The statute does not require fraud and circumvention to be
used in obtaining the making of a note, before the defense can
be interposed, but where fraud or circumvention is practiced
in obtaining the execution of the instrument, in either event
the defense can be made availing.
We now come to the last point relied upon by appellant:
that the verdict is not sustained by the evidence.
Appellee testified, that about the 4th of February, 1870,
Rea, the agent of Drake, came to his residence and desired to
stay all night. During the evening he informed appellee he
was agent for Drake's patent hay-fork and knife, and wished
to get appellee to canvass part of Jefferson county ; that Rea
was a fine looking man, seemed to be devout, and took part in
the family worship. Appellee declined to make any arrange-
ment. The next morning Rea showed the working of the
knife, and again urged appellee to canvass for him. Appellee
told Rea he was low in finances, and could not incur any lia-
bility. Rea told appellee he could canvass until fall, and then,
if he desired, buy the territory. He said, if appellee could
make anything, all right ; if not, he would be around in six or
eight months and cancel the papers, and divide the profits, if
any. Appellee finally agreed to canvass the north half of Jef-
ferson county for eight months. Nothing was said about a
note. Rea then filled up the blanks in a printed paper, and
requested appellee to sign it. Said it was to show appellee's
authority to act. He also said, it was necessary to have a du-
plicate for Drake, the patentee, and filled up another. Appellee
read them over carefully, found they were contracts, and alike.
He laid them on the table, and he and Rea signed them. Rea
gave appellee one and kept the other. Appellee testified that
he signed only the two papers. A note was not mentioned,
and no note was to be given. That he did not knowingly sign
a note. Never signed any such instrument as the one sued
onN The two papers signed were larger than the note sued
upon. Did not knowingly sign a note.
1874.] Wiggins Ferry Co. v. Higgins. 517
Syllabus.
The deposition of Rea was taken by appellant, and he testi-
fied that Johnson executed the note in his presence.
Evidence was introduced that tended to corroborate appellee
as well as Rea.
From the whole evidence in the case, we think it is apparent
that appellee did not agree to give a note, and did not know-
ingly execute a promissory note. The only two papers that
he signed, were by him examined carefully before they were
executed.. In what manner appellee's signature was obtained
to the note, it is somewhat difficult, from the evidence, to de-
termine.
Appellee testifies, when the two papers were ready for his
signature, and he was about to sign them, Rea laid them upon
the table and "shuffled them around." By this device it is not
improbable that the note was substituted for one of the con-
tracts which had been previously examined by appellee, and
his signature to it thus fraudulently obtained.
But be that as it may, the question was fairly submitted to
the jury whether the making of the note was obtained by fraud,
and we can not disturb the finding where the evidence is con-
flicting, as it is shown to be by this record, unless the verdict
was clearly in conflict with the weight of the testimony, and
we can not say such is this case; on the contrary, we are satis-
fied the weight of evidence preponderates in favor of appellee.
The judgment will, therefore, be affirmed.
Judgment affirmed.
Wiggins Ferry Company
v.
Thomas Higgins.
1. New trial — verdict against the evidence. Although the evidence may
not be entirely satisfactory, still, if it tends to sustain the issue, and the
circuit judge, who saw the witnesses on the stand and had facilities for de-
termining the weight of the evidence which this court does not possess, is
518 Wiggins Ferry Co. v. Higgins. [June T.
Opinion of the Court.
satisfied with the verdict, and refuses to set it aside, this court will not dis-
turb it.
2. Error will not always reverse — improper instructions. A judgment
will never he reversed simply because an inaccurate instruction has been
given, where the court can see that it has resulted in no injury to the party
complaining.
Appeal from the Circuit Court of St. Clair county ; the Hon.
"William H. Snyder, Judge, presiding.
Mr. William H. Underwood, for the appellant.
Mr. Charles Conlin, and Mr. Luke H. Hite, for the appel-
lee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
It appears, from the evidence in this case, that, in August,
1873, appellee, in driving on the ferry boat of appellant, at
East St. Louis, with a two-horse team and a wagon loaded with
about 6000 pounds of iron, was directed by the captain of the
boat to make a short turn, so as to drive on the other end of
the boat. In making the turn, appellee fell, and the fore wheel
of his wagon ran on and injured his foot. From the injury,
he was confined to his bed and the house for some time, and
was wholly disabled from work or business for some two months
and a half. He was, at the time of the accident, receiving $40
per month wages. His bill for dressing and attending to the
wound was $25, and some expense for medicines, and his board
bill. The jury found in his favor, and assessed his damages at
$140, for which amount, after overruling a motion for a new
trial, a judgment was rendered against the company, from
which this appeal is prosecuted.
Appellee testified that the place where the turn was made
was narrow, and there was a slant, or depression, on the floor
of the wharf boat where it was made, that rendered the effort
to turn dangerous, and that he remonstrated with the captain
of the boat, and told him he could not make the turn; and as
1874.] Wiggins Ferry Co. v. Higgins. 519
Opinion of the Court.
to the character of the place, he is corroborated by other wit-
nesses. On the other hand, witnesses testified that the place
was safe, and that it had been so used for years, and great
numbers of persons had made similar turns at the same place,
and no such accident had ever occurred before this one. A
number of appellant's witnesses attribute the accident to the
character of the seat on the wagon, which appellee was occu-
pying at the time. They say it was unsafe, and the accident
is attributable to the seat, and not the character of the way on
which the turn was made. There were, on the other side, wit-
nesses who testified that similar seats were used on the wagons
of the transfer company, and others, with safety.
Although the evidence is conflicting, and seems not to be
entirely satisfactory, still it tends to sustain the issue; and
whilst we might have arrived at a different conclusion, the
judge who tried the case was satisfied with the verdict, and
overruled a motion for a new trial. He saw the witnesses on
the stand, and had many facilities for determining the weight
of the evidence, which we do not possess, and we should not
lightly disregard his decision on the motion for a new trial.
We, therefore, feel ourselves unwarranted in disturbing . the
verdict. We can not say it is so clearly against the weight of
evidence as to require a reversal.
It is urged that the court below erred in giving instructions
for appellee; that the law in reference to punitive damages is
not correctly stated. Even if this is true, it has worked appel-
lant no injury, as we see, from the evidence, that only compen-
satory damages were assessed. When the jury found the issues
for appellee, the evidence required them to find all they did as
compensation for loss of time and expense in being cured.
They, from the evidence, could not rightfully find less ; and we
never reverse a judgment simply because an inaccurate in-
struction has been given, when we can see that it has resulted
in no injury to the party against whom it has been given. A
party, to entitle himself to a reversal, must show that there
has been error committed which resulted, or may have resulted,
520 Cairo & Yin. E. E. Co. v. Joiner. [June T.
Opinion of the Court.
in injury to him. In this case, no such wrong or probable in-
jury to appellant appears from the record.
]STo error appearing in the record requiring a reversal, the
judgment must be affirmed.
Judgment affirmed.
Cairo and Vincennes Railroad Company
v.
George Joiner, Guardian, etc.
1. Service of process on railroad company. Service of process on a
railroad company, under the Practice Act in force July 1, 1872, can only be
by leaving a copy with the proper person, and can not be by reading the
same.
2. Same — must be on president of railroad company, if he can be found.
Where the return of the officer states that he read the process to a station
agent (naming him) of the defendant, the president and secretary not being
residents of the county, it is defective, both because it shows attempted ser-
vice by reading instead of by copy, and because it does not show that the
president could not be found in the county ; the fact that he was not a resi-
dent of the county, does not exclude the idea that he might have been found
therein at the time of service.
Appeal from the Circuit Court of Saline county; the Hon.
M. C. Crawford, Judge, presiding.
Mr. Green B. Rattm, for the appellant.
Mr. Justice Scholfield delivered the opinion of the Court:
The only error assigned upon this record is, that the court
below erred in rendering judgment by default against appel-
lant, without proper service of process.
The return upon the writ is as follows:
" I have duly served the within summons by reading the
same to G. B. Raum, attorney for the Cairo and Yincennes
Railroad Co., and S. B. Church, station agent of said company,
1874.] C. & T. Coal & K. E. Co. v. Lickiss et al. 521
Syllabus.
the president and secretary of said company not being resi-
dents of this county.
James A. Eice, Sheriff,
This 24th day of October, 1873."
This was clearly defective, and insufficient to give the court
jurisdiction.
The 4th section of the "Act in regard to practice in courts
of record," in force July 1, 1872, (Laws of 1872, p. 339,) re-
quires that service of process in such cases shall be made " by
leaving a copy thereof with the president, if he can be found
in the county in which the suit is brought; if he shall not be
found in the county, then by leaving a copy of the process
with any clerk, secretary, superintendent, general agent, direc-
tor, engineer, conductor, station agent," etc., of the company.
Here, not only was no copy left with the person upon whom
service was attempted to be made, but it does not appear, from
the return, that the president could not be found in the county.
The fact that he did not reside in the county, does not exclude
the idea that he might have been there when service of the
process was attempted to be made, in which case service could
only have been lawfully had by leaving a copy of the process
with him.
The judgment is reversed and the cause remanded.
Judgment reversed.
Chester and Tamaroa Coal and Kailroad Co.
v.
Eobert Lickiss et al.
1. Amendment — when merely formal, may properly be allowed without
terms. The Practice Act of 1872 allows amendments at any time before
final judgment, either in form or substance, on proper terms, and where a
merely formal amendment of a summons is made, it is discretionary with
the court, and proper not to impose terms.
2. Where a summons fails to name the form of action, an amendment
by inserting the words "in an action of assumpsit," is properly allowed,
and is merely formal.
522 C. & T. Coal & E. E. Co. v. Liokiss et al. [June T.
Opinion of the Court.
3. Summons — its requisites. A summons which fails to name the form
of action, but which informs the defendant that he is sued, by whom, in
what court, to what term, and the amount of damage claimed, is as effectual
as if it named the form of action, and the fact of the amendment of such a
summons, after service, by inserting the name of the form of action, would
not be cause for quashing the summons on the ground of a variance between
it and the copy served on defendant.
4. Pleading — of an averment of the indorsement of a note. In declaring
upon an indorsed promissory note, an averment that the payee indorsed the
note to the plaintiff is sufficient, without averring a delivery. The aver-
ment that the payee indorsed the note to the plaintiff imports a delivery.
5. An averment that the payee of a promissory note indorsed it, imports
that he put his name on it in writing, and delivered it to the indorsee, as
there can be no indorsement except by the legal holder's name being on
the instrument, and it can not be complete without a delivery.
Appeal from the Circuit Court of Eandolph county; the
Hon. Amos Watts, Judge, presiding.
Mr. E. M. Davis, for the appellant.
Mr. William Hartzell, for the appellees.
Mr. Chief Justice Walker delivered the opinion of the
Court:
It is first insisted that the court erred in not quashing the
summons, and in permitting appellees to amend the summons.
In this there was no error. The only defect in the summons
was a failure to name the form of action, and the court per-
mitted its amendment by inserting the words " in an action of
assumpsit." The amendment was merely formal, and is
allowed by the 23d section of the Practice Act of 1872, (Sess.
Laws, 352). That section allows amendments at any stage of a
proceeding before final judgment, either in form or substance,
on proper terms. This being merely a formal amendment, it
was discretionary with the court, and proper not to impose
terms. 'No injury could result to appellant by the amend-
ment, and hence there was no error.
It is next urged that the court erred in refusing to quash the
return. It is stated, as the ground for doing so, that the copy
1874.] C. & T. Coal & K. R. Co. v. Lickiss et al. 523
Opinion of the Court.
delivered varied from the original, but in what the variance is
claimed to consist does not appear. The copy is not brought
into the bill of exceptions, so that we can learn by inspection
and comparison with the original. The presumption is in
favor of the action of the circuit court, until it is shown to be
erroneous, and that has not been done in this case. If the
variance was produced by the amendment, then there was no
ground for quashing the return, as the amendment was only
in form, and was wholly immaterial as to the question of no-
tice. It was as effectual without as with the amendment. It
informed the company that they were sued, by whom, in what
court, to what term, and the amount of damages claimed.
These facts were all that it was essential for the company to
know, to enable it to see the declaration and learn the specific
grounds of plaintiffs' claim. In this the decision of the court
below is correct.
Nor do we perceive any grounds for the demurrer, either
general or special. It is urged that the precedents aver that
the note or bill was indorsed and delivered, and that the want
of an averment that the note was delivered rendered the special
counts liable to the special demurrer. Whilst precedents con-
tain an averment of a delivery, it is immaterial, and may be
omitted. The averment that the payee indorsed the note to
appellees, imported a delivery, as such an indorsement as would
pass the note was not complete, as between the parties, until
the note was delivered after the indorsement was made.
In the case of Churchill v. Gardner, 7 Term R. 596, it was
held, on a special demurrer, that an averment that a bill was
delivered was not necessary, as the averment that the defend-
ant made it, implied that it was delivered. Such an instru-
ment is not completely made until it is delivered, and so of an
indorsement. And the same is true of the indorsement beins:
in writing on the instrument, with the payee or holder's name
indorsed. There would, as the word implies, be no indorse-
ment unless it were by the legal holder's name being on the
instrument. That is included in the term, and the declara-
524 Wescott v. Wicks et al. [June T.
Opinion of the Court.
tion was good, and the court did not err in overruling the
demurrer.
The judgment of the court below is affirmed.
Judgment affirmed.
William B. Wescott
v.
Chauncey E. Wicks et al.
Equity pleading. Although a case is so defectively made by a bill in
chancery that the court can not fully comprehend it, and pronounce upon it
with confidence, still, if the court can see, from what is stated, that there is
equity in the bill, it is error to sustain a demurrer to the whole bill, for want
of equity.
Appeal from the Circuit Court of Washington county; the
Hon. Amos Watts, Judge, presiding.
Mr. J. M. Durham, for the appellant.
Messrs. Turner & Eountree, for the appellees.
Mr. Justice Breese delivered the opinion of the Court:
The imperfect manner in which this case is presented, ren-
ders it quite difficult to get at the merits. The transcript of
the record, as we understand it, presents a case of a bill in
chancery, filed by the appellant, in a double aspect — first, to
revive a mortgage, of which appellant became the owner by
assignment from one Pease, to whom it had been executed by
Chauncey E. Wicks and A. W. Wicks to secure the purchase
money for the lands described in it, and which they had pur-
chased of Pease, and which, by assignment, became the prop-
erty of appellant. The ground of this prayer seems to be,
that, on the death of A. W. Wicks, a proceeding was had by one
Geiger and wife, who are not stated to be heirs at law of Wicks,
but it appears only inferentially, for a partition of these lands,
1874.] Wescott v. Wicks et at. 525
Opinion of the Court.
in which proceeding appellant was not a party; and judgment
for partition having resulted, and commissioners appointed,
who reported that partition could not be made, an order of
sale was made, and L. L. Post appointed a commissioner to
make the sale. The commissioner performed this duty, and
C. E. Wicks became the purchaser, and executed to Post a
mortgage to secure the purchase money. Subsequent to this,
it would seem, Geiger, as the agent of C. E. Wicks, applied to
appellant, then in St. Louis, Missouri, to release his original
mortgage, and take a new one from C. E. Wicks on a part
thereof, he, Geiger, not disclosing to appellant the fact that
C. E. Wicks had, before, mortgaged the land to Post.
The prayer of the bill in this respect, to restore this original
" Pease mortgage," being granted, appellant then prays that
the same be foreclosed ; and these are the two aspects, so far as
we are able to comprehend the case, which it presents.
A general demurrer was interposed, which the court sus-
tained, thereby adjudging there was no equity in the bill. To
reverse this judgment, the complainant appeals.
We repeat our inability to comprehend the case fully, as
stated in the bill, but, from what we do understand, there
appears to be equity in the bill, though very defectively stated.
There are no allegations in the bill that the Geigers and Lewis
were heirs at law of A. W. Wicks, or in any way interested in
this land. The proceedings in partition are not set out, and
so lamely alluded to as not to be easily understood. The pur-
pose and object of the receipts by appellant on the record of
the mortgage are not set out distinctly, nor the reason given
why he took the new mortgage. In short, the whole case is so
defectively presented, we are at a loss as to its real merits,
though we think we see such an equity in it which, if properly
presented, might result in a favorable decree. On a proper
presentation, appellant might have his original mortgage, the
" Pease mortgage," restored and foreclosed, as it has not been
discharged or satisfied, certainly, as against all persons having
notice of his rights, which Post, the second mortgagee, had. His
interests, when the case is properly presented, may be post-
526 Groves et al. v. Maohee et al. [June T.
Syllabus.
poned to those of appellant. Apparently, he has superior
equities, but we repeat, the case is so defectively stated we can
not pronounce upon it with confidence. Enough appears, how-
ever, to require that the demurrer should be overruled, there
being equity in the bill and the demurrer going to the whole
bill.
The decree is reversed, and the cause remanded with leave to
amend the bill, in which all the facts shall be clearly and fully
stated.
Decree reversed.
Mr. Justice McAllister, dissenting: The rules of plead-
ing in equity require the plaintiff to set out the facts and
circumstances constituting his ground for relief, with such
reasonable certainty as that the court can intelligently grant
the relief prayed, from what appears upon the face of the bill.
This bill is wholly wanting in this particular, and the demur-
rer, in my opinion, was properly sustained.
Geokge B. Geoves et al.
v.
Gillison Maghee et al.
1. Mastek's sale — assignment of undivided interest in land sold. An
assignment, by the holder of a master's certificate of sale of land, of an undi-
vided interest therein, though it may be valid as between the parties, is not
such an assignment as is recognized by the statute, and it seems the officer
making the sale is not bound to recognize such an assignment.
2. But if the officer making the sale chooses to recognize such assign-
ment, and convey the land to the assignee in accordance therewith, and
report the fact to the court, no reason is perceived why it should not be
approved.
3. Redemption — of undivided interest. Where the purchaser at a mas-
ter's sale, of an entire tract of land, afterwards assigns an undivided interest
in such purchase, there can be no legal redemption of such undivided in-
terest.
1874.] Groves et al. v. Maghee et al. 527
Opinion of the Court.
Appeal from the Circuit Court of Saline county; the Hon.
Andrew D. Duff, Judge, presiding.
Mr. Alfred C. Duff, and Mr. James M. Gregg, for the
appellants.
Mr. Justice McAllister delivered the opinion of the Court:
This was a bill in equity, brought by Jones, as drainage
commissioner of Saline county, to the March term of the cir-
cuit court of that county, to foreclose a mortgage for condition
broken, executed upon lands situate there, by Robinson and
Hundley, who were made defendants, and regularly brought
into court. April 2, 1868, the default of defendants was en-
tered, and a decree pro confesso passed, finding the amount
due, foreclosing the mortgage, and directing a sale of the mort-
gaged premises by the master in chancery, in case of default
in paying amount of decree within a time therein prescribed.
October 8, 1868, the master filed in court his report of sale,
which was approved by the court. On September 29, 1870, the
master submitted a report, showing that after sale of the pre-
mises and execution of certificate of sale to the drainage com-
missioner, the latter had, June 22, 1869, in pursuance of an
order of the county court, assigned said certificate to George B.
Groves conveying to him an undivided half in said lands; that
June 15, 1869, one Maghee, claiming title as judgment creditor
of Robinson, had redeemed the undivided half for which Groves
held the certificate, by depositing the amount with him, as
such master, but that Groves refused to receive such redemp-
tion money. He also reported the execution of a deed to the
drainage commissioner for the other undivided half, September
21, 1870.
At the April term, 1873, a stipulation was entered into be-
tween the respective parties to the suit, and therein filed, to the
effect that the cause, which had been dropped from the docket
by mistake, might be re-instated, in order that the report of the
master, showing execution of deed to Groves, the assignee of
an undivided half interest of Robinson in the lands mentioned
in the decree, might be submitted and approved.
528 Groves et at. v. Maohee et at. [June T.
Opinion of the Court.
At the November term, 1873, a motion was made, with the
concurrence of the parties to the suit, for approval of the report
of the master showing execution of deed to Groves of the one
undivided interest in the lands in controversy, whereupon,-
solicitors appearing for Maghee objected to such confirmation,
and asked that redemption of such undivided half interest by
Maghee be declared valid. Affidavits were submitted upon
both sides, Maghee placing his right to redeem in his affidavit
on the ground that he was grantee of Robinson ; but there is
no evidence that he was a judgment creditor, except the bare
recital of the master in his report, or that his attempt to
redeem was within twelve months after the master's sale.
A decretal order was entered at the November term, 1873,
though the date is left in obscurity, overruling the previous
motion of Groves, Robinson and Hundley for confirmation of
the master's report, showing execution of deed of undivided
half to Groves, and that the order of the court at the April
term, 1873, approving such report, be revoked, vacated, and
declared void; that complainant and Maghee recover their costs
of Groves, Robinson and Hundley, and have execution there-
for, and that the cause be stricken from the docket. From this
order Groves, Robinson and Hundley appealed to this court
While the claim of Maghee was not regularly brought before
the court in accordance with proper rules of practice, yet, inas-
much as he was permitted to come in upon affidavits without
objection, we may regard the court as having jurisdiction of
his person and his claim. The same may be said of Groves.
We find in the record no such order, purporting to be entered
at the April term, 1873, as is attempted to be set aside, vaca-
ted, and declared void by the order appealed from. But upon
the case made by Maghee in his affidavit, he was not entitled
to a deed from the master, or to intermeddle in the cause.
While the assignment of the drainage commissioner, under the
authority of the county court, of an undivided interest in the
subject matter of the certificate of sale to him, might be valid
as between him and Groves, yet, as between the assignee and
the officer making the sale, we very much doubt if he is bound
1874.] Outhouse v. Allen. 529
Syllabus.
to recognize assignments by the original purchaser of several
or any undivided interests in such certificate. The assignment
recognized by the statute is of the whole certificate. Nor
could there legally be a redemption of the undivided interest
thus assigned. Tittsworth v. Stout, 49 111. 78.
If the master had, in fact, executed a deed to Groves as such
assignee, we perceive no reason why, if such act be reported to
the court by the master, it should not be approved. At all
events, Maghee is in no situation to make objections.
The order appealed from will be reversed, and the cause
remanded for further proceedings not inconsistent with this
opinion.
Order reversed.
Olivek Outhouse
v.
Thomas E. Allen.
1. Officer — when his official character must be proved. Where a defend-
ant in a replevin suit sets up the defense that he was a constable, and took
the property under an execution in his hands against the owner of the prop-
erty, and the direct question is raised as to whether he was a constable or
not, he must show that he was a constable de jure; evidence that he was an
acting constable is not sufficient.
2. Evidence— -justification by officer under process. The general rule is,
that an officer may justify his seizure of property under an execution if it is
regular on its face, and appears to have been issued by a court having com-
petent jurisdiction, without making proof of the judgment on which it was
issued.
Appeal from the Circuit Court of Clinton county; the
Hon. Silas L. Bryan, Judge, presiding.
Messrs. Murray & Andrews, for the appellant.
Mr. Thomas E. Merritt, for the appellee.
34-72D III.
530 Outhouse v. Allen. [June T.
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court:
The property which is the subject of this litigation originally
belonged to Jerry S. Ballenger. It consists of a pair of horses.
They were sold at sheriff's sale, and appellant became the pur-
chaser, at the sum of $80. On the day of the sale, after the
property had been delivered to him by the sheriff, appellant
entered into an agreement with Ballenger, by which he agreed
that- if Ballenger would reimburse him for the amount of his
bid, and pay the balance due on the execution under which the
sale had been made and for which appellant's property was
liable, then the horses were to belong to Ballenger, or to his
children, if paid for with their money. Under this agreement
the property was delivered to Ballenger.
Neither the amount bid for the horses nor the balance due
on the judgment had been paid, and while the property was
in the possession of Ballenger, where it had been before and
was after the sale, it was levied on by appellee, acting in the
capacity of a constable, by virtue of an execution against the
goods and chattels of Ballenger. Appellant then brought this
action in replevin to recover the property.
The horses having been conditionally sold to Ballenger, and
being in his possession, it may be they were liable to any exe-
cution against his goods and chattels, but there is a conclusive
reason why the present judgment can not be permitted to stand.
Appellee seeks to justify the taking of the property by his official
acts — that it was done in the capacity of a constable, by virtue
of an execution against the property of Ballenger. His right
to exercise the functions of a constable was directly challenged,
and it was, therefore, incumbent on him to prove that he was
a constable de jure. The cases in this court are conclusive
upon this point. Schlenclcer v. Risley, 3 Scam. 483; Case v.
Hall, 21 111. 632.
The requisite proof could have been made by the production
of the officer's certificate of election. There was evidence he
was an acting constable, but this is not sufficient. Where the
direct question is raised, and the officer is a party to the record,
1874.] Western Screw & Manf. Co. v. Cousley. 531
Syllabus.
there should be the additional evidence he was the officer he
claimed to be.
It is insisted, it was indispensable to the justification of the
officer making the levy, that he should not only produce the
execution, but should make proof of the judgment on which it
was issued. We have been referred to no case that holds the
doctrine contended for. The general rule seems to be, the
officer may justify his seizure of the property under the execu-
tion if it is regular on its face, and appears to have been issued
by a court having competent jurisdiction. It would appear to
be sufficient for the defense of the officer, that he can prove he
made the levy by virtue of an execution during its lifetime,
and while it was unsatisfied. Dayton v. Fry, 29 111. 525.
For the error indicated, the judgment will be reversed and
the cause remanded.
Judgment reversed.
Western Screw and Manufacturing Company
James Cousley.
1. Coepokattons — not liable for debts created before their organization.
A corporation, after its organization, is not liable for the payment of debts
contracted previously thereto, without an express promise to pay them after
acceptance and receipt of the benefit of that for which they were incurred.
2. An attempt was made to organize an incorporation under the general
law of the State, with a capital stock of $100,000. After a part of the stock
was subscribed, the stockholders held a meeting and employed a superin-
tendent to attend to work being done for the proposed corporation, which
he commenced doing, but afterwards, when it was ascertained that the re-
quisite subscription of stock could not be obtained, he quit work. Most of
the stockholders afterwards formed another company, with a capital stock
of $50,000, for the same purpose of the first one, and completed their organ-
ization and incorporation : Held, that, even if the first company had com-
pleted its organization, the superintendent could not have recovered against
it for his services, much less against the new company.
532 "Western Screw & Manf. Co. v. Cousley. [June T
Opinion of the Court.
Appeal from the Alton City Court; the Hon. Henry S.
Baker, Judge, presiding.
Mr. Charles P. Wise, for the appellant.
Mr. J. H. Yager, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was a suit brought by Cousley, the appellee, to recover
compensation for services claimed to have been rendered by
him for appellant prior to its incorporation. The plaintiff
below recovered, and the defendant brings the case here by
appeal.
The facts of the case, in substance, are, that one Ingalls was
the patentee of a certain patent for casting screws, and desired
to form a company at Alton, in this State, for the purpose of
manufacturing his patent screws. With that object in view,
he purchased and had conveyed to him a piece of ground, with
buildings formerly used as a foundry, and endeavored to have
organized, under the general law of the State, a company with
a capital stock of $100,000, to be called the Western Screw
and Manufacturing Company, and to which company, when
organized, he would sell the property. The plaintiff subscribed
for $500 of the stock, upon condition that he was to be employed
by the company, and pay for the stock in labor. After a part
only of the stock was subscribed, the stockholders held a meet-
ing, and authorized Ingalls to act as superintendent in having
work done about the building; the plaintiff was employed by
him, and did the work for which suit is brought, from March
3, to May 18, 1873, it consisting in keeping the time of the
workmen employed. The requisite amount of stock could not
be obtained, and the organization could not be completed, and
appellee quit work. Most of those who had subscribed for stock
concluded to form a new company, having the same name and
object, with a capital stock of $50,000; other subscribers, to
the amount of $16,000, were obtained, and this company, the
present defendant, was organized. The company purchased
1874.] "Western Screw & Manf. Co. v. Cousley. 533
Opinion of the Court.
the land and building from Ingalls, August 5, 1873, for the
expressed consideration of $11,000, receiving from him a gen-
eral warranty deed. In his settlement with the company for
the purchase, Ingalls put in a list of claims he owed for work
previous to the organization, and they were allowed, and the
money paid to Ingalls. He testifies that he handed in all the
accounts except Cousley's and one or two others, which he lost,
and they were not handed in.
In order to the formation of a corporation under the general
law, a certain required statement in writing, stating, among
other things, its capital stock, has first to be filed in the office
of the Secretary of State. He then issues to the persons who
make the statement, "a license, as commissioners, to open books
for subscriptions to the capital stock of said corporation."
The third section of the law provides that, "as soon as
may be after the capital stock shall he fully subscribed, the
commissioners shall convene a meeting of the subscribers, for
the purpose of electing directors or managers, and the trans-
action of such other business as may come before them."
The fourth section directs that the commissioners shall make
a full report of their proceedings, including therein, among
others, the names of the directors elected, which report shall
be filed in the office of the Secretary of State, who shall there-
upon issue a certificate of the complete organization of the
corporation, making a part thereof a copy of all papers filed
in his office, in and about the organization, and the same shall
be recorded in the office of the recorder of deeds of the county
where the principal office of the company is located; and that,
" upon the recording of the said copy, the corporation shall be
deemed fully organized, and may proceed to business."
The plaintiff was employed and did the work for which suit
is brought, before the stock, under the first attempted organi-
zation with $100,000 capital stock, was fully subscribed, and
before any election of directors, and it is evident that any con-
tract made for the services before that time, by such stockhold-
ers as had then subscribed, would not be binding upon the
company if afterwards it had become fully organized, much
534 Western Screw & Manf. Co. v. Cousley. [June T.
Opinion of the Court.
less upon the present company, after the old attempted organ-
ization had been abandoned. The work had all been done pre-
vious to May 18, 1873. It was not until July 15, 1873, that
the first step was taken for the formation of the present com-
pany, with a capital stock of $50,000, by making its applica-
tion by filing the required statement in writing. All the
requisites of the law had to be again complied with, the state-
ment made, the license to open books for subscription, and the
commissioners, except Ingalls, were all different.
It seems preposterous to claim that a corporation is under
any legal liability for debts contracted before the first step had
been taken to bring it into existence.
This court has decided that a corporation, after its organiza-
tion, is not liable for the payment of debts contracted pre-
viously thereto, at least without an express promise to pay
them after acceptance and receipt of the benefit of that for
which they were incurred. Hock ford, Bock Island and St.
Zouis Railroad Go. v. Sage, 65 111. 328.
The plaintiff should look to whoever employed him, for his
pay. Surely the defendant was not his employer.
Had Ingalls, at the time of the sale of this property to the
company, presented the account of the appellee, and insisted
upon it as a just item in the cost of the building, very likely
it would have been allowed and paid to Ingalls as a part of the
purchase price. But it would have been entirely as a matter
of option, and not one of obligation.
The expectation and understanding between Ingalls and the
subscribers toward the stock of the company first attempted
to be organized, that that company, when organized, would take
the building, did not bind the present company to take it.
"When it became organized, and empowered to transact busi-
ness, it was at entire liberty to purchase this property of
Ingalls, or to procure, or build any other works for its use. It
saw fit to take this property of Ingalls at $11,000, as expressed
in the deed. An addition to the purchase price, of the amount
of appellee's claim, had it been demanded before the purchase,
1874.] Garnhart v. Rentchler et al. 535
Opinion of the Court.
might have defeated the purchase ; but whether so or not,
there was no legal obligation on the part of this company to
pay it.
The judgment must be reversed.
Judgment reversed.
John H. (xaknhaet
v.
Daniel Rentchler et al.
1. Principal and agent — compensation of the latter. Where a principal
authorized his agent to sell machines for him, and to make certain repre-
sentations in regard thereto, and the agent was to receive a per cent out of
the proceeds of sales made by him, and the agent makes sales, but the ma-
chines were all returned, because of their not coming up to the representation
made in regard to them by the authority of the principal, it was held, that
the agent could recover the amount of his per cent upon the sales so made
by him, he having done all the contract required of him, and failed to get
his pay through the fault of his principal.
2. Under a contract to pay an agent a commission on sales made by him,
he can only recover for sales made, and not upon contracts to sell.
Appeal from the Circuit Court of St. Clair county ; the Hon.
William H. Snyder, Judge, presiding.
Mr. Marshall W. Weir, for the appellant.
Messrs. Ease & Hinchcliffe, and Messrs. Wilderman &
Hamill, for the appellees.
Mr. Justice Scholfield delivered the opinion of the Court:
By the terms of the contract between appellant and appel-
lees, he was to pay them for selling his machines, 20 per cent
on cash sales, and 12 per cent on time sales. They were,
among other things, required to set up and start all machines
when sold, and remedy every complaint within their power; and
they also agreed not to hold the appellant liable for damages
536 Gaenhart v. Rentchler et al. [June T.
Opinion of the Court.
in the event that he was not able to fill their orders. Each
machine was to pay its own commission — that is, the commis-
sion for the sale of each machine was to be deducted and re-
tained by appellees from the proceeds of such sales. Appellant
failed to furnish such a machine as he was bound to furnish by
the contract, and thereby rendered it impossible for appellees
to receive the proceeds of the sales of any machines, and, neces-
sarily, the commissions to which they were entitled. Appel-
lees sold and delivered 31 machines sent to them by appellant
for that purpose, but they were all returned, because they were
not constructed in conformity with the requirements of the
contracts which he authorized appellees to make in regard to
their sale.
As to the commissions on these 31 machines, it is clear that
appellees were entitled to recover. They did all they were re-
quired to do by the contract, and failed to receive their com-
missions in the manner by it provided, by reason of his default.
He must be held to make his contract good, and pay them what
they would have received but for his default.
But the appellees, having elected to rely on the contract, can
only recover by virtue of its provisions. These only authorize
the payment of commissions on sales, and not on contracts for
sales. The sales were not complete until the machines were
delivered, and the duties of appellees in that respect were not
performed until they had " set them up and started them," and
"remedied every complaint made against them within their
power."
No provision was made for payments to be made for solicit-
ing orders, or making preliminary contracts in respect to the
sale of machines ; and appellant was expressly absolved from
liability on account of his inability to fill orders. It is not
pretended that the appellees received more than 31 machines
from appellant, or that they consummated actual sales for more
than that number. It is therefore impossible, even if we were
to presume, what the evidence does not warrant, that these were
sold for cash, to sustain the judgment for $1400. This amount
can only be reached by including commissions on the sale of
1874.] Illinois Central E. R. Co. v. Bull. 537
Opinion of the Court.
machines that were never received by appellees; and, inas-
much as there is no evidence to authorize a recovery on a
quantum meruit for the value of the services actually rendered,
the judgment must be reversed and the cause remanded.
The modification of the appellant's instructions was not
proper; still, as we do not conceive that it was calculated to
mislead the jury, we should not reverse for that cause alone.
Judgment reversed.
Illinois Centkal Kailroad Company
v.
John S. Bull.
Railroad company — only liable for stock killed in cities where negligence
is shown. Where stock is killed by a railroad company at a place where
the law does not require the company to fence its road, the party seeking a
recovery must prove that the killing of the stock was caused through the
negligence of the company ; and where the proof shows that the stock was
killed within the limits of a city, and there is no evidence of negligence on
the part of the railroad company, no recovery can be had against it.
Appeal from the Circuit Court of Perry county; the Hon.
Monroe C. Crawford, Judge, presiding.
Mr. George "W. Wall, for the appellant.
Mr. Justice Craig delivered the opinion of the Court:
This action was brought to recover the value of a horse
killed on the track of appellant.
By agreement, a jury was waived, and the cause submitted
to the court for trial. Upon hearing the evidence, the court
rendered judgment in favor of appellee for $100, the value of
the horse.
The proof does not show any carelessness or negligence on
the part of the railroad company at the time the horse was
killed.
538 St. Louis & S. E. Er. Co. v. Wheelis. [June T.
Syllabus.
Where stock is killed by a railroad company at a place where
the statute requires the road to be fenced, and where it has not
been fenced, or the fence, although built, has not been kept in
proper repair, the railroad company will be liable for all dam-
ages sustained by the killing of stock, regardless of whether
the stock was killed through the negligence of the company or
not. Where, however, stock is killed within the limits of an
incorporated town or city, or place where the law does not
require the company to fence the road, then a different rule
prevails, and, before a recovery can be had, the party seeking
a recovery must prove the killing of the stock was caused
through the negligence of the railroad company. Ohio and
Mississippi Railroad Co. v. Brown, 23 111. 95.
The proof clearly shows that appellee's horse was killed
within the limits of the city of Du Quoin, an incorporated city
of 3000 inhabitants. It follows, then, that appellee, having
failed to make a case according to the rule here announced,
was not entitled to recover under the evidence introduced
before the court.
The judgment will be reversed and the cause remanded.
Judgment reversed.
St. Louis and Southeastekn Railway Co.
v.
Isham Wheelis.
1. Jury — challenging the array. The practice is, that there can be no
challenge of the array till first there is a full jury.
2. Presumption — always in favor of action of the court. The presump-
tion is always in favor of the action of the court below, in a suit at law, and
the party alleging error must show it by the record ; and where the record
does not show that any evidence was offered in support of a motion to quash
the panel of jurors, on a challenge of the array, the motion was properly
denied.
Appeal from the Circuit Court of Jefferson county; the
Hon. Tazewell B. Tanner, Judge, presiding.
1874.] St. Louis & S. E.' Ey. Co. v. Wheelis. 539
Opinion of the Court.
Mr. J. M. Hamill, for the appellant.
Messrs. Casey & Dwight, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court:
The first objection urged is, that the court below erred in
not quashing the panel of jurors on the challenge of the array.
The practice is, that there can be no challenge of the array till
first there is a full jury. The King v. Edmonds, 4 Barn, and
Aid. 471; Hawk. P. C. vol. 2, chap. 43, sec. 1; 1 Arch. Prac.
204; Crown Circuit Compan. 13. In the case in Barn, and
Aid. it is said that it is an established rule, as to proceedings
of this kind, " that no challenge, either to the array or to the
polls, can be taken, until a full jury shall have appeared; and
if twelve of those named in the original panel do not appear,
a tales must be prayed, and the appearance of twelve obtained
before any challenge be made."
In this case, appellant, when the jury were called, challenged
the array, but the motion was overruled. This was correct
practice, as laid down in The King v. Edmonds, supra / but
it does not appear that any grounds were shown to sustain the
motion. It is true that an affidavit of the county clerk appears
in the bill of exceptions, but it does not appear how or for
what purpose it is there. There is no statement that it was
read to the court or offered in evidence on the hearing of the
motion. For aught that appears, no evidence was heard by
the court, and if so, the judge could not do otherwise than
deny the motion. The presumption always being in favor of
the action of the court below, the party alleging error must
show it by the record, which has not been done in this case.
The evidence is sufficient to warrant a jury in the conclusion
that the animals were killed at a place where the company was
required to fence its track. The evidence is, that it was on
appellee's farm, which was a mile from the town of Ashley.
From this, it appears the place was within five miles of a set-
tlement, and was not in a town or village. The fact that it
540 Fentz v. Meadows. [June T.
Syllabus.
was within a farm, negatives the idea that it may have been in
a village or town. The evidence strongly tends to show that the
stock got on the road at a place not fenced, as they were found at
such a place, and there is nothing to show that the road is fenced
anywhere in the vicinity of the accident. The evidence shows
that the road had been opened for use for two years or more.
The evidence embraces the entire road, and if the whole road
had been opened two years, and as the whole includes all the
parts, this portion must have been so opened.
The evidence warranted the jury in finding that the hay and
rails were destroyed by fire communicated from appellant's
engines ; and appellee being in possession, and testifying that
the farm was his, the evidence was sufficient to justify the find-
ing. Again, the hay, and rails not in the fence, are personal
property, and appellee testified they were his, and there is no
evidence that the rails were attached to the freehold.
All the evidence considered, we fail to see how the jury
could have found otherwise than they did. "We perceive no
error in the instructions, nor do we think that the damages are
in the least excessive.
The judgment of the court below must be affirmed.
Judgment affirmed.
John J. Fentz
v.
Mary C. Meadows.
1. Intoxicating liquors — statute in relation to sale of, should be strictly
construed. The act in force July 1, 1872, entitled "An act to provide against
the evils resulting from the sale of intoxicating liquors in the State of Illi-
nois," is of a character highly penal, providing a right of action unknown
to the common law, in which the party prosecuting has a decided advantage,
and the act should receive a strict construction.
2. Same — exemplary damages. A party, suing under the statute to pro-
vide against the evils resulting from the sale of intoxicating liquors, can not
recover exemplary damages, without first proving, to the satisfaction of the
jury, that she has sustained actual damages.
1874.] Fentz v. Meadows. 541
Opinion of the Court.
3. Same — the fact that sale was made by servant, in violation of mas-
ter's orders, may be considered in mitigation of exemplary damages. In a
suit by a wife against one for selling intoxicating liquors to her husband, if
the defendant, in good faith, had forbidden his bar-tender to sell or give
liquors to the husband of plaintiff, and the bar-tender wilfully disobeyed
him without the defendant's connivance, such fact would be proper to be
considered in mitigation, not of the actual damages which may have been
caused, but of exemplary damages claimed.
4. Same — the wife's right of action, to what it extends. The statute in
relation to the sale of intoxicating liquors gives the wife a right of action
only in cases where, by the selling of liquors to a drunken husband, she
has been injured in person or property or means of support; and where no
injury in either of these respects is proyed, no recovery can be had.
Appeal from the Circuit Court of Richland county; the
Hon. James C. Allen, Judge, presiding.
Messrs. Wilson & Hutchinson, for the appellant.
Messrs. Longenecker & Carnes, for the appellee.
Mr. Justice Breese delivered the opinion of the Court:
This was an action on the case, brought to the Richland cir-
cuit court by Mary C. Meadows against John J. Fentz, under
the act in force July 1, 1872, entitled "An act to provide
against the evils resulting from the sale of intoxicating liquors
in the State of Illinois."
The declaration is framed under section five of that act, and
on trial, under the plea of not guilty, a verdict was rendered
for five hundred dollars damages, which the court refused to
set aside, but entered judgment thereon.
To reverse this judgment the defendant appeals, and assigns
various errors, the principal of which are upon the instruc-
tions, and which we have heretofore had occasion to consider
and determine, first, in the case of Freese v. Trijpjp, 70 111.
496, and followed by Keedy v. Howe et al. ante, p. 134, Keller-
man v. Arnold, 71 111. 632, and Meidel v. Anthis, 71 111. 241.
In these cases, all of them brought under the same statute,
it was held, the statute was of a character highly penal, pro-
viding a right of action unknown to the common law, in which
54:2 Fentz v. Meadows. [June T.
Opinion of the Court.
the party prosecuting has a decided advantage, and should,
according to the well understood canon, receive a strict con-
struction.
The various provisions of the statute were commented on,
in the cases referred to, and their meaning fixed by the judg-
ment of this court, and with which the judgment of the cir-
cuit eourt in this case conflicts in many important particulars.
We have said, a fair construction of this statute requires a
party, suing under it, should prove, to the satisfaction of the
jury, actual damages sustained, without which exemplary dam-
ages could not be awarded. This is the substance and point
of defendant's second instruction, which the court refused to
give, which was error.
So it was held in one or more of the cases cited, that, if the
defendant, in good faith, had forbidden his clerk or bar-tender to
sell or give liquors to the drunkard, and the clerk wilfully dis-
obeyed him, without defendant's connivance, that would be a
fair subject for consideration in mitigation, not of the actual
damage which may have been caused and done, but of the
exemplary damages claimed. This is the point of defendant's
seventh instruction, which the court refused to give. This was
also error, and it was error to refuse evidence on that point.
In this view, the court should have given defendant's third
instruction, for the statute gives the wife a right of action only
in cases where, by the selling liquor to a drunken husband, the'
wife has been injured thereby in person or property or means
of support. No injury is proved in either of these respects,
and no foundation appears for the verdict. There is no proof
sufficient to sustain it. The husband is proved to be a chronic
drunkard, contributing nothing to the support of his wife. For
selling to such a person a glass of whiskey, the seller may be
indicted and punished criminally for the violation of a public
law, but it is rank injustice to require him to pay to the wife
five hundred dollars, she failing to show any injury to her in
person, property or means of support in consequence of such
selling. If this was allowed, it might be a very desirable
acquisition, to a certain class of women, to have a confirmed
1874.] Lewis v. City Nat. Bank of Cairo. 543
Syllabus.
inebriate for a husband. She could not fail to make money
out of him.
For the errors indicated, the judgment of the circuit court
is reversed, and the cause remanded for further proceedings con-
sistent with this opinion.
Judgment reversed.
Thomas Lewis
v.
City National Bank of Cairo.
1. Injunction bond — executed by a stranger, conditioned to pay the debt of
another. The mortgagee in a chattel mortgage took possession of the mort-
gaged property before the debt secured thereby became due, and a third
party brought a suit in chancery to restrain the mortgagee from selling the
property before the maturity of the note, and in compliance with the require-
ment made by the court as a condition to granting the injunction, entered
into a bond, containing an absolute covenant to pay the mortgage debt to
the mortgagee, upon maturity. In a suit upon the bond, there was nothing
in the record showing that the defendant occupied the relation of surety to
the debtor in the chattel mortgage, or that his position was other than a
mere stranger entering into the bond to pay the debt of the mortgagor debtor,
without even so much as a request, on the part of the debtor, to do so : Held,
that there was no available defense to the suit on the bond under such a state
of facts, except performance of the covenants, or such legal defense as would
overthrow the instrument itself.
2. Subrogation. When a third party enjoined the sale of property by
the mortgagee under a chattel mortgage, being no surety for the mortgagor,
and in the suit gave an injunction bond conditioned for the payment of the
mortgage debt on dissolution of the injunction, it was held, in a suit on the
bond, that the doctrine of subrogation had no application to the case.
Appeal from the Circuit Court of Pulaski county; the
Hon. David J. Baker, Judge, presiding.
Messrs. Linegar & Lansden, and Mr. Samuel P. Wheeler,
for the appellant.
544 Lewis v. City Hat. Bank of Cairo. [June T.
Opinion of- the Court.
Mr. Justice McAllister delivered the opinion of the Court:
The Cairo Democrat Company being indebted to appellee
in the sum of $3,911.20, executed a mortgage to the latter upon
certain goods and chattels, the mortgage containing the usual
"insecurity" clause. Before the debt secured had become due,
appellee, under that clause, had taken possession of the mort-
gaged property. Appellant, but upon what ground does not
appear, brought suit in chancery to restrain appellee from
selling the property before maturity of the debt. The court,
as a condition to the issuing of such injunction, required appel-
lant to enter into a bond, containing an absolute covenant to
pay said debt to appellee when it became due. Appellant
complied, and, as principal, gave the required bond. Failing
to prosecute his suit with effect, and to pay the debt as obli-
gated, appellee brought this suit against him and his sureties
upon that bond. There was a recovery below for the balance
of the debt, after applying what the mortgaged property brought
on sale thereof upon the mortgage, and appellant brings the
record to this court on appeal.
The only question presented, arises upon the ruling of the
court below in sustaining appellee's demurrer to certain of
appellant's pleas.
The pleas are clearly defective. There is nothing in the
declaration, or any averment in either of the pleas, showing
that appellant, as respects the transaction between the Cairo
Democrat Company and appellee, occupied the position of
surety to appellee's debtor. So far as this record shows, his
position was that of a mere stranger entering into a bond, as
principal, containing an absolute covenant to pay the debt of
the Cairo Democrat Company to appellee when such debt
should become due, without even so much as a request on the
part of the debtor to do so. The doctrine of subrogation can
have no application to the circumstances disclosed by this
record, and, so far as circumstances are brought out by the
pleadings, we can conceive of no defense which would be avail-
able to appellant except performance of his covenant, or such
1874.] Phelps v. Phelps. 545
Opinion of the Court.
legal defense as would overthrow the instrument itself. None
such is attempted to be set up.
The judgment of the court below must be affirmed.
Judgment affirmed.
Makgaret Phelps
v.
Jacob S. Phelps.
1. Widow's award — effect of ante-nuptial contract. The special allow-
ance made by statute for the widow of a deceased person is as much
for the advantage of the children of the deceased as for his widow, and
where there are such children residing with the widow, she has no power to
release it, and it can not, in such case, be affected by an ante-nuptial con-
tract.
2. An ante-nuptial contract provided that the property of the husband
and wife should be kept separate, and held and enjoyed by each separately,
in the same manner as if they had remained unmarried, and upon the death
of either party, his or her real estate and personal property should pass to
his or her heirs, executors and administrators, free from all claims of the
survivor : Held, that the effect was to debar the wife of dower in her hus-
band's real estate, and prevent her from taking any portion as heir under the
statute, but that it did not deprive her of the right to the specific articles of
property allowed by the statute in all cases for the benefit of the widow and
family of a deceased person.
"Writ of Error to the Circuit Court of St. Clair county ; the
Hon. William H. Snyder, Judge, presiding.
Messrs. Wilderman & Hamill, for the plaintiff in error.
Mr. Marshall W. "Weir, for the defendant in error.
Mr. Justice Scott delivered the opinion of the Court:
The decision in this case depends upon the construction that
shall be given to the ante-nuptial agreement between the peti-
tioner and her late husband, Michael Phelps, deceased.
85 — 72d III.
516 Phelps v. Phelps. [June T.
Opinion of the Court.
Under our Statute of Wills, the widow, in all cases, is
allowed certain specific articles of property for the benefit of
herself and family, and the petitioner in this case would be
entitled to the benefit of that provision unless her right is
barred by the terms of that agreement. The clause which it is
insisted bars the right is as follows: "It is agreed that the
property of each shall be kept separate and distinct, held and
enjoyed by each separately and distinctly, by each in the same
manner as if they were and had continued unmarried; and,
upon the death of either party, his or her real estate and per-
sonal property shall pass to his or her heirs, executors and
administrators, free from all claims of survivor."
The decedent had children by a former marriage. It was
provided that the issue of their marriage, if any, should inherit
the estate of the husband equally with his other children. One
child was born unto them, which was living with the widow at
the time of filing this petition.
No doubt ante-nuptial agreements are to be construed lib-
erally for the purposes which they were intended to accom-
plish. The obvious meaning of the agreement in the case at
bar is, that it cuts off all the interest the widow would personally
have by reason of her marriage, in the property of her husband,
both real and personal, but further than that it does not go. It
was certainly never contemplated it would debar the wife of
the right of support at the hands of her husband during his
lifetime, nor release him from his obligation to support their
children, the fruits of their marriage, if there should be any.
Neither party ever expected it to have such an effect. It was
only intended to operate upon her interest in his property, but
not to relinquish the means of support which it was his duty
to furnish her and her family. That duty the law imposed
upon him during life. Surely he was not released from his
obligation in this regard, by anything contained in the ante-
nuptial agreement.
The law also charges the husband's estate with the support
of his widow and his children residing with her, for the period
of one year after his death, at least to the extent of certain
1874.] Phelps v. Phelps. 547
Opinion of the Court.
articles of property, or their value in money. This latter right
is one created by positive law, and attaches in all cases, whether
there is sufficient property or not to pay the debts of the dece-
dent. Being a statutory right, it is one of which the husband
can not deprive his wife and children, no more than he can
relieve himself of his obligation to support them while living.
It is in no case affected by the widow renouncing or failing to
renounce the benefit of the provisions made for her in the will
of her husband, or otherwise. Our laws on this subject have
always been liberal, but the tendency of more recent legislation
is to enlarge, rather than abridge, the beneficent provisions in
this regard. The same protection has been extended by statu-
tory enactments to the minor children of the decedent, where
he is a householder at the time of his death, and leaves no
widow.
The right of the wife to support during marriage is not an
interest, strictly speaking, in the property of her husband. It
is a benefit arising out of the marital relation by implication
of law. Treating the provision which the law makes for the
widow and the children residing with her, by the allowance of
specific articles of property, as a means of support, it can not
be said to be an interest in the property itself of the husband.
It comes within no definition of property. It is a benefit
created in their favor by positive law, and adopted for reasons
deemed wise and politic.
The ante-nuptial agreement in this case makes no allusion
to these rights. Hence it can not be said that the petitioner
has released her right to the benefits of the obligations im-
posed upon her husband and his estate which are to inure to
her and her family in case of his death. Its effect would be,
to debar her dower in the estate of her husband, and prevent
her from taking any portion as heir under the statute ; but it
is an unreasonable construction to say that it deprives her of
the provisions the law has made in her behalf and for her hus-
band's minor children residing with her. The specific allow-
ance is as much for the advantage of the children of the
decedent as for his widow. It is an absurd conclusion that
548 Phelps v. Phelps. [JuneT.
Opinion of the Court.
any ante-nuptial agreement can deprive the children of the
means of support, in their tender years, which the law has
given. Shonld the construction contended for prevail, the
debts of the decedent might exhaust the entire estate, and leave
the family in utter destitution. As we said in Strawn v.
jStrawn, 53 111. 263, it was the design of the legislature to
furnish the necessary sustenance for the household for one year
after the death of the husband. "We are at a loss to understand
how this humane provision of law for the family of a deceased
party can be affected by an ante-nuptial contract, however
broad and comprehensive its terms.
The suggestion, the petitioner may have had separate prop-
erty at the time of her marriage, can make no difference in the
decision of the case. She was not bound to use it for the sup-
port of his children, to the exclusion of the estate of her
husband; but if that question was material, we can not know
the amount of the property, nor that any portion of it was pre-
served until the death of her husband. So far as anything
appears in the record, the family may be entirely dependent
on the estate. Independently of the question whether there is
sufficient property to discharge the debts, the law has appro-
priated to the widow and the family residing with her such
specific allowance as was deemed necessary for their support
for one year, and made it a first charge upon the estate, to be
first discharged to the extent there may be assets belonging to
the deceased.
But there is another ground upon which the agreement may
be held to be inoperative as to the widow's award. The statutory
provision that exempts a portion of a man's estate from the
payment of his debts, for the maintenance of his widow and
minor children for a limited period, was adopted from motives
of public concern. It is, that they may not become a charge
upon the eleemosynary institutions of the State, as in many
instances they would, but for this humane provision of the
law. It is undeniable law that a party may waive the advan-
tage of a statute intended for his sole benefit, but there are
grave reasons why a law enacted from public considerations
1874.] Phelps v. Phelps. 549
Opinion of the Court.
should not be abrogated by mere private agreement. The
statute we are considering is of this character. It was in-
tended to throw around the persons named that protection
they are unable, in their helplessness, to procure for them-
selves. This is not a matter of mere private concern. It
would be in contravention of the policy of this enactment to
permit a party, by an ante-nuptial contract, to relieve his estate
altogether from the maintenance of his widow and his chil-
dren, when they could no longer sustain themselves. The
statute has made a temporary provision for them, inadequate
as it may be in many instances, and we think every principle
of justice and humanity, as well as due regard for the general
welfare, require us to hold that a party may not, by private
agreement, contract against the liability imposed. It would
place upon the State or local municipality the obligation the
law has fixed upon his estate.
In Kneetle v. Newcomb, 22 K. Y. 249, it was ruled that a
contract made by the head of the family, waiving the benefit
of statutory exemptions designed exclusively for the benefit
of the family, was subversive of the policy of the enactment,
and hence illegal and void. The decision, in part, is based
upon the reasoning in Woodward v. Murray, 18 Johns. 400.
See Harper v. Leal, 10 How. Pr. R. 282, upon the same point.
Motives of public interest cause the imposition of restraints
or prohibitions as to the alienation of certain things, and even
as to any dealings with them. The principle is, the citizen
may not deal even with his own property in a manner detri-
mental to the general welfare or public safety. This is the
doctrine of both the common and civil law. If the rule pre-
vails as to articles of property, there is no just reason why it
should not be maintained as to duties and obligations imposed
by positive laws. The statute which sets apart certain specific
articles of property, or their value in money, for the mainten-
ance of the widow and family of the deceased, is in the nature
of a charge upon the estate, dictated by the spirit of humanity
and adopted in accordance with an enlightened public policy,
and to permit a party to contract against its salutary pro-
550 Bond et al. v. Ramsey et al. [June T.
Syllabus.
visions, is simply to abrogate the law itself. This can not be
done.
"Were there no child or children of the decedent residing
with the widow after his death, a very different question would
be presented. The award would be for her sole use in such
case, and might be treated as a personal right, which she could,
if she chose, relinquish; but it is otherwise where there are
children of the decedent constituting the family. The award
is as much for their benefit as for hers, and she has no power
to release it by an ante-nuptial agreement or otherwise. The
policy of the law is, to provide a home for the family, that the
domestic circle might remain unbroken during the period for
which provision is made for them, notwithstanding the death
of the husband. To effectuate that purpose, it is necessary
that the widow should share in the benefit of the award.
For the reasons indicated, the judgment of the circuit court
will be reversed, and the cause remanded with directions to
affirm the judgment of the county court granting the prayer
of the petition.
Judgment reversed.
Mr. Chief Justice Walker: I am unable to concur in the
conclusion and the reasoning of the majority of the court in
this case. It is apparent to my mind that the ante-nuptial
contract cut off all claims of the widow to any interest in the
property of the husband, without regard to whether it be
dower, award or other claim.
Mary S. Bond et al.
v.
RtTFus N. Ramsey et al.
1. Failure of consideration — re-conveyance by purchaser to avail of
defense. Where a will directed that all the real estate of the testator
should be sold by his executors, and a deed or deeds executed by them to
1874.] Bond et al. v. Eamsey et al. 551
Opinion of the Court.
the purchaser or purchasers, a deed executed by such executors which pur-
ports to convey their own interest only, whilst it might, for that reason, be
defective, would still convey an equitable estate in the land, which the pur-
chaser would be bound to re-convey before he could make a defense of failure
of consideration against a note given for the purchase money of the property
so conveyed.
2. Evidence — proof of want of title. A judgment of recovery in eject-
ment, in favor of a stranger against a defendant in possession, is not of itself
proof of want of title in the grantor of such defendant, in a suit by the
grantor upon a note given by the defendant for the purchase money of the
premises.
Writ of Error to the Circuit Court of Clinton county;
the Hon. Silas L. Bryan, Judge, presiding.
Mr. James M. Dill, for the plaintiffs in error.
Mr. H. P. Buxton, for the defendants in error.
Mr. Justice Sheldon delivered the opinion of the Court:
This was a suit brought by the payees against the makers
of a promissory note, dated May 5, 1869, whereby John P.
Blackwell and P. IS". Pamsey promised to pay, twelve months
after the date of the note, to Mary S. Bond and Joshua S. Bond,
executors of Leah P. Webster, the sum of $510, with six per
cent interest per annum until paid.
The cause was tried below upon issues formed upon two spe-
cial pleas, in substance as follows:
1. That the note was given as part consideration for the
execution of a deed by the plaintiffs to Blackwell, purporting
to convey to the latter lots 24, 25, 26 and 27, in block 5, in the
lower town of Carlyle, with covenants of warranty, seizin of
Leah P; Webster, and right and power of the plaintiffs, her
executors, to convey; averring the want of ownership or seizin
in Leah P. Webster, and the want of right and power in the
executors to convey; that the said Webster and her executors
had no right or title whatever to said premises, and that the
title to the same was the sole and only consideration of the
note.
552 Bond et al. v. Ramsey et al. [June T.
Opinion of the Court.
2. That the note, together with one other, was given in con-
sideration that plaintiffs wonld execute to Blackwell a deed,
conveying all the right, title and interest that Leah P. Webster,
deceased, had at the time of her death in and to the afore-
described lots, and averring a failure to execute such deed.
A verdict and judgment were rendered for the defendants.
•It is assigned for error that the verdict was against the evi-
dence.
There was no testimony tending to prove that plaintiffs had
agreed to give a warranty deed, or that there was any want of
title in Leah P. Webster, further than the introduction in evi-
dence of a judgment of recovery in ejectment on the fifth day
of June, 1871, by James A. Hill against John P. Blackwell,
of the lots described in the pleas. But such judgment, of it-
self, was no proof of any want of title in Leah P. Webster.
The proof showed that the note sued, together with another
of like amount, was given in consideration of the purchase by
Blackwell at public sale, from the plaintiffs, as executrix and
executor of the will of Leah P. Webster, of the lots mentioned
in the pleas, and that the plaintiffs, at the time, executed to
Blackwell a deed, whereby they conveyed, released and quit-
claimed to him all the right, title, claim and demand in law
and equity "which the said executors have" to the lots.
The will of Leah P. Webster contained this clause: "It is
my will that all the real estate, of whatever kind or nature, I
may own at the time of my death, shall be sold by my execu-
tors hereinafter named, and a deed or deeds executed by them
to the purchaser or purchasers thereof; and the proceeds of
such sale shall be applied, first, to the payment of debts, then
to the payment of the following bequests, viz:" Then follow
bequests of various sums of money to fourteen different per-
sons, including the plaintiffs in this suit, the latter being lega-
tees, of $1000 each.
The plaintiffs were also appointed executors of the will.
Although the executors' deed might be defective, as pur-
porting to convey their own interest only in the lots, they
having no legal interest but only a naked power of sale, Black-
1874.] Eiggin et al. v. Love et al. 553
Syllabus.
well, we think, by his purchase, must have acquired an equit-
able estate in the lots. He can not hold whatever interest he
did purchase, and escape the payment of the purchase money.
He should have re-conveyed or have tendered a re-conveyance
of the property, before he could make defense against the pay-
ment of the note.
There being no such proof in the record, the judgment will
be reversed and the cause remanded.
Judgment reversed.
Mary A. Riggin et ah
James Love et ah
1. Deed— of the habendum clause. The habendum clause in a deed can
not perform the office of divesting the estate already vested by the deed, and
is void if it is repugnant to the estate granted.
2. But where no estate is mentioned in the granting clause, then the
habendum becomes efficient to declare the intention, and it will rebut any
implication which would otherwise arise from the omission in this respect
in the preceding clause.
3. Where the granting clause in a deed merely describes the property,
and does not define the nature or character of the estate granted, and is not
followed by language assuming to supply what is thus omitted, it results,
by legal implication under the statute relating to Conveyances, that the es-
tate conveyed is a fee ; but where the habendum describes what estate is con-
veyed, it does not contradict the language of the granting clause, but simply
supplies what is omitted therefrom, and removes all necessity for resorting
to implication to ascertain the intention of the parties.
4. Same — what character of estate passes. A deed whereby certain land
is granted to one without defining the estate, but in the habendum clause
the estate is limited to her during her natural life, with a remainder to her
husband, naming him, and in case of his death before the death of his wife,
then to his heirs at law, creates a life estate in the wife, with remainder in
the husband in fee simple absolute.
5. Tenancy by the entirety — arises only when deed is to husband and
wife jointly. Where land is conveyed to a wife for life with remainder to
her husband, and, in case of his not surviving her, to his heirs, the wife can
554 Riggin et al. v. Love et al. [June T.
Opinion of the Court.
not, on the husband's death, take the whole by right of survivorship, as in
the cases of Mariner v. Saunders, 5 Gilm. 124, Lux v. Hoff, 47 111. 425, and
Strawn v. Strawn, 50 111. 33, for the reason that those cases only apply where
the fee has vested in the husband and wife jointly.
Appeal from the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
Messrs. Gillespie & Happy, for the appellants.
Messrs. Irwin & Krome, for the appellees.
Mr. Justice Scholfield delivered the opinion of the Court:
There is but a single question presented by this record for
our consideration, and it arises upon the construction to be
given to the following language in the deed to the property in
controversy:
" This indenture, made, etc., * * * between Erastus
Wheeler and Julia A. Wheeler, his wife, of, etc., * * *
of the first part, and Eliza McGilton, of, etc., * * * of
the second part, witnesseth: That the said parties of the first
part, for and in consideration of, etc., *■■.*,-•■* have
granted, bargained, sold and conveyed, and by these presents
do grant, bargain, sell and convey, unto the said party of the
second part, the following described real estate, to-wit: *
* * together with all and singular the privileges and ap-
purtenances to said land in anywise appertaining and belonging.
To have and to hold the said above granted premises to the
said Eliza McGilton during her natural life, and at her death
the same is, by these presents, conveyed and confirmed abso-
lutely unto her husband, Andrew McGilton, of, etc., * * *
and in case of the death of him, the said husband, Andrew
McGilton, before that of her, the said Eliza McGilton, then,
by these presents, the said aforedescribed real estate is conveyed
and confirmed absolutely unto the heirs-at-law of him, the said
Andrew McGilton, subject only to the lawful claims of her,
the said Eliza McGilton, as aforesaid."
1874.] Biggin et al. v. Love et al. 555
Opinion of the Court.
Andrew McGilton died intestate in the lifetime of his wife,
Eliza, leaving no child or children, or descendants of child or
children, surviving him. Eliza was subsequently married, and,
at the time of her death, being intestate, left surviving her,
as her only child and heir-at-law, the appellant, Mary A. Biggin,
to whom descended whatever of inheritable interest she had in
the property in controversy.
Appellees insist that interest is the undivided one-half of the
property in controversy, and so the court below held. Appel-
lants, on the contrary, insist, that the deed vested a fee simple
estate in the property in Eliza McGilton, and that Mrs. Big-
gin, consequently, is entitled to the whole of it. They argue,
that the granting clause in the deed conveys the estate to Eliza
McGilton without any limitation or qualification; that this,
under the statute relating to Conveyances, is sufficient to con-
vey the fee, although words which, at common law, were neces-
sary for that purpose are omitted; and that, consequently, the
words in the habendum clause are repugnant to the grant,
and void.
We concede that the habendum can not perform the office
of divesting the estate already vested by the deed, and that it
is void if it be repugnant to the estate granted. But where no
estate is mentioned in the granting clause, then the habendum
becomes efficient to declare the intention, and it will rebut any
implication which would otherwise arise from the omission in
this respect in the granting clause. 4 Kent's Com. (8th ed.)
524; 2 Washb. on Beal Estate, (2d ed.) 689. The statute to
which reference is made, excepts, by its terms, cases in which
a less estate than a fee is limited, by express words, and since
it does not enjoin that this limitation shall only appear in the
granting clause, it is, obviously, unimportant to the present
question.
The granting clause in this deed merely describes the prop-
erty conveyed, and does not pretend to define the nature or
character of the estate granted. If it were followed by no lan-
guage assuming to supply what is thus omitted, it would result,
by legal implication, under the statute relating to Conveyances,
556 Higgin et al. v. Love et al. [June T.
Opinion of the Court.
that the estate conveyed was a fee ; but the habendum follows,
for the express purpose of describing what estate in the prop-
erty is conveyed. It does not contradict the language of the
granting clause, but simply supplies what is omitted therefrom,
and removes all necessity for resorting to implication to ascer-
tain the intention of the parties. A construction which re-
quires us to reject an entire clause of a deed is not to be
admitted, except from unavoidable necessity ; but the intention
of the parties, as manifested by the language employed in the
deed, should, so far as practicable, be carried into effect. City
of Alton v. III. Trans. Co. 12 111. 56; Pool v. Blakie, 53 id.
500.
But it is further argued, that upon the theory that Eliza
McGilton only took a life estate, there is no place where the
fee could vest, and, therefore, it must have vested in her. This
proceeds upon the assumption that the words "heirs at law of
him, the said Andrew McGilton," are words of purchase and
not of limitation, which is incorrect. Had Andrew McGilton
been the owner of the fee, and died intestate, the property
would have descended precisely as described by these words,
or if the property had been conveyed to him for life, with re-
mainder over, as thus described, he would have taken, accord-
ing to the rule in Shelly's case, a fee simple. Baker et al. v.
/Scott, 62 111. 86. It is, therefore, manifest, that they neither
modified nor enlarged the preceding words investing title in
Andrew McGilton. He could have no present estate in the
property so long as his wife's life estate continued, and, dying
intestate before her, invested with the remainder in fee simple,
it would necessarily descend to his heirs at law, just as well
without as with the use of these words in the deed.
The further position contended for by appellants, that Eliza
McGilton having survived her husband, took the whole by right
of survivorship, on the principle of Mariner v. Saunders, 5
Gilm. 124, Zux v. Roff, 47 111. 425, and Strawn v. Strawn,
50 id. 33, is not tenable, for the reason that those cases only
apply where the fee is conveyed to the husband and wife,
jointly.
1874.] McGanahan v. East St. L. & C. Kr. Co. 557
Opinion of the Court.
We are of opinion that the deed conveyed a life estate to
Eliza McGilton, with remainder over to her husband, Andrew
McGilton, in fee simple absolute, and that there was, there-
fore, no error in the ruling of the court below.
The decree is affirmed.
Decree affirmed.
John McGanahan
v.
The East St. Louis and Carondelet Railway Co.
Pleading — declaration must show that negligence averred contributed to
injury complained of. A declaration in an action on the case for injury-
sustained by the plaintiff through the negligence of the defendant, which
does not show that the negligence averred contributed in some degree to the
injury complained of, is bad on demurrer.
Appeal from the Circuit Court of St. Clair county; the
Hon. William H. Snyder, Judge, presiding.
Messrs. McCormick, Wilderman & Hamill, for the appel-
lant.
Messrs. C. W. & E. L. Thomas, for the appellee.
Mr. Justice Craig delivered the opinion of the Court:
This was an action on the case, brought to recover damages
for an injury received by the plaintiff in coupling cars of the
defendant. A demurrer was filed to the declaration, which
was sustained. The plaintiff brings the record here by appeal,
and assigns for error the decision of the court in sustaining the
demurrer.
The declaration contains but one count, in which it is aver-
red that, on the 17th of March, 1873, the defendant employed
the plaintiff as a brakeman, and that it was his duty to couple
together the cars of defendant; that while he was so engaged,
he received only ordinary wages, and did not assume any spe-
558 McGanahan v. East St. L. & C. Kt. Co. [June T.
Opinion of the Court.
cial risks, but only such as were ordinarily incident to such
employment; that it was the duty of the defendant to furnish
suitable cars and appliances, so as to enable him to perform
his duty with safety; that defendant did not furnish safe and
suitable cars, but negligently furnished a car for the transpor-
tation of certain railroad iron, which was unsafe; that the car
was much shorter than the iron, so that the iron projected over
the ends of the car, thereby rendering it unsafe and dangerous
to plaintiff while in the performance of his duty, all of which
the defendant well knew ; that while plaintiff was coupling two
of defendant's cars, one of which was a box car, on its track,
and the other was a rear car of a train attached to an engine
of defendant, which engine and train were being backed up by
defendant to be coupled to the box car, he necessarily had to
go between the cars to couple them; that while his attention
was wholly absorbed in watching the signals from the train,
which was backing up, and while he was between the cars for
the purpose of making the coupling, the cars came violently
together, and while he was using all due care, and without fault
or negligence on his part, without any knowledge or notice
whatever that the iron bars were projecting over the end of the
car at the time, etc., but by reason of the negligence of the
defendant, he had his right hand caught between said cars, and
thereby mangled and hurt, etc.
This declaration can not be held sufficient. The only act of
negligence on the part of the defendant, of which the plaintiff
seems, by his declaration, to complain, is, the car upon which
the iron was. loaded was too short, and the iron projected over
the end of the car.
While this may be conceded to be an act of negligence on
the part of the defendant, yet, unless this negligence of the
defendant contributed, in some degree, to the injury received
by plaintiff, then it certainly could be no ground of recovery.
The declaration does not aver that the plaintiff was injured
by the iron projecting over the end of the car. The substance
of the averment is, that the cars came violently together, and
his hand was caught between the cars and injured while he
1874.] First 1ST. Bank Centralia v. Strang et al. 559
Opinion of the Court.
was in the act of coupling the cars. For aught that we are
able to perceive, this would as readily occur if no iron had been
projecting over the end of the car.
The plaintiff entirely fails, by his declaration, to show that
the injury received was occasioned by the negligence he attrib-
utes to the defendant. This objection to the declaration we
regard as fatal.
The judgment of the circuit court will, therefore, be affirmed.
Judgment affirmed.
First National Bank op Centralia, for use, etc.
v.
Henry W. Strang et al.
1. Promissory note — delivery necessary to validity. A delivery to the
payee, either actual or constructive, is necessary to the validity of a promis-
sory note.
2. Where the makers of a promissory note, payable to a bank, place it
in the hands of their agent, for the purpose of getting it discounted at the
bank, and the bank refuses to take the note, it does not become valid as a
note, and a suit can not be maintained on it by the bank, either for itself or
for any other person.
3. Same— -party taking without indorsement, when not payable to himself,
takes subject to all legal or equitable defenses. A person receiving a promis-
sory note not payable to himself, without indorsement, or after due, takes it
subject to all legal and equitable defenses; and if it turns out that it never
was delivered to the payee, it can not be collected from the maker.
"Writ of Error to the Circuit Court of Clinton county ; the
Hon. Silas L. Bryan, Judge, presiding.
Mr. G. Tan Hoorebeke, for the plaintiff in error.
Mr. Chief ' Justice Walker delivered the opinion of the
Court:
The note sued on in this case was made and delivered by the
payors to one Ervy, as their agent, to get it discounted at the
bank. It was never negotiated to the bank, nor did it ever
560 First ~N. Bank Centralia v. Strang et al. [June T.
Opinion of the Court.
own the note. It was presented to the bank for discount, but
it refused to receive it and loan the money. Ervy thereupon
sold and delivered the note to one Smith, who afterwards sold
and delivered it to Gillespie, for whose use this suit is brought.
He instituted suit on the note in the name of the bank, for his
own use, giving bond for costs. A trial was had before the
judge and a jury, resulting in a verdict in favor of the defend-
ant, whereupon a motion for a new trial was entered, and over-
ruled by the court, and a judgment was rendered on the verdict,
to reverse which this writ of error is prosecuted.
The decision of this case turns upon the question of whether
this instrument ever became valid and binding upon defendants
in error— whether they are or can be liable on this paper. It
was not received by the bank, but, on the contrary, the bank
refused to accept or discount it. It never acquired any title to
it, or any interest in or connected with it. Then, did it ever
become a promissory note? Such instruments, until placed
in a condition to be nogotiated, are not operative as valid and
binding negotiable paper; and persons receiving promissory,
notes not payable to them, without indorsement, or after due,
take them subject to all legal and equitable defenses. If, then,
this did not become a binding note on defendants in error
before it was sold to Smith, he acquired no rights under it by
his purchase from Ervy, nor did Gillespie acquire any from
him. Had the bank received it, and sold it, with or without
indorsement, the purchaser would have acquired title, under
which he could have recovered, and so of any person to whom
he might have sold the note.
But, like anything else which does not lie in grant, but in
livery, title can only be acquired by delivery. Hence the
bank to whom the note was payable never acquired any right
to the note or the money named in it, either legal or equitable ;
but a note not delivered to the payee, or some one for him, is
not a complete and executed instrument. A delivery to the
payee, either actual or constructive, is necessary to the validity
of the note. Chamberlin v. Hopps, 8 Yerm. 94. Then, if a
delivery to the payee was essential to vest the title in the
1874.] First "N. Bank Centralia v. Strang et al. 561
Opinion of the Court.
payee, this note, not having been delivered, never became
effective or operative as a note. Did it bind defendants in
error to pay the bank for their own use, or that of any other
person ? So far as the bank was concerned, it had no title, legal
or equitable, to the note or the money, and, having no title, it
could not maintain an action for the recovery of the money for
itself or others.
When Smith purchased the paper of Ervy, he took it with-
out indorsement by the payee, and hence took it chargeable
with notice that defendants in error were not liable to pay the
money; that it was an incomplete instrument, lacking a de-
livery to the payee, to give it legal force and vitality, and hence
acquired no legal rights which he could enforce against defend-
ants in error, and having no rights, legal or equitable, he could
confer none by a sale to Gillespie. The instrument, as they
received it, was simply void for want of execution by delivery.
They hold it precisely as if defendants in error had written the
paper, signed it, lost it before delivery, and they had found it
and attempted to force its collection, which all must concede
they could not do. Having taken it without indorsement, they
are presumed to have inquired, or, if not, it was their duty
to inquire, and learn what Ervy's power was. He had no
authority to sell or negotiate the note. His only authority was
to procure its discount at the bank; and such being the limit of
his power, and Gillespie being chargeable with notice of that
fact, he has no claim, equitable or legal, to enforce its payment.
Had the bank indorsed it, then the rights of a bona fide pur-
chaser, without notice, would have been protected, as they would
then have had evidence that the note had been executed as a
legal instrument, and such evidence as the makers could not
have controverted.
When negotiable paper is indorsed and put into circulation, if
even by fraud, all persons taking it before dishonor or maturity,
as bona fide purchasers, without notice, are protected ; but in
the case at bar, this element was entirely wanting. They pur-
chased from a person having no title, an instrument entirely
36— 72d III.
562 Brockschmidt v. Hagebusch et al. [June T.
Opinion of the Court.
void, and chargeable with, notice of those facts, and have
acquired no rights which can be enforced in the courts.
This view of the case renders it unnecessary to determine
whether there was error in giving, refusing or modifying
instructions in the court below.
The judgment of the circuit court must be affirmed.
Judgment affirmed.
J. F. Bkockschmldt
V.
Hentcy Hagebusch et al.
Mortgage — effect of subsequent agreement as to application of payments.
A husband and wife executed a mortgage upon their homestead to secure
an indebtedness of the husband, and the wife released her dower and home-
stead. A portion of the debt was subsequently paid, and the amount in-
dorsed on the note. Afterwards, the husband, by an arrangement with the
mortgagee, agreed that the payment made on the mortgage debt should be
applied on another indebtedness, and the note with the credit on it was given
up, and another note, of same date and amount, executed and delivered,
with the agreement that the mortgage should stand as security for it : Held,
that, on a bill to foreclose, the wife was entitled to have the amount of the
payments credited on the mortgage debt, and that, as against her, the mort-
gage could only be foreclosed for the balance due after deducting the pay.
ments, but that, as against the husband, the complainant was entitled to
foreclose for the whole amount of the original debt in accordance with the
last agreement.
Appeal from the Circuit Court of Washington county ; the
Hon. William H. Snyder, Judge, presiding.
Messrs. Watts & Forman, for the appellant.
Mr. George Yerner, for the appellees.
Mr. Justice Breese delivered the opinion of the Court:
This is an appeal from a decree of the circuit court of Wash-
ington county, to reverse proceedings had therein to foreclose
1874.] Brockschmidt v. Hagebusch et al. 563
Opinion of the Court.
a mortgage,, in which one J. F. Brockschmidt was complainant
and Henry Hagebnsch and Onesia, his wife, were defendants.
It appears that, on the 3d day of October, 1860, the defend-
ant Hagebnsch executed and delivered to complainant, Brock-
schmidt, his note for one thousand one hundred and ninety
dollars, payable four years after date, with interest at ten per
cent. To secure the payment of this note, Hagebusch, with
his wife, Onesia, executed a mortgage upon certain real estate
described therein, in which mortgage both the grantors released
their right of homestead, and the wife her dower. In 1863,
two payments were made on this note, one of eight hundred
dollars and the other of two hundred dollars, which were duly
indorsed on the note, leaving a balance due, with interest, of
about four hundred dollars.
It appears, about this time, Hagebusch was much embar-
rassed, and the firm of F. Danckmeyer & Co. had a capias
against him for a considerable amount. In this emergency,
Hagebusch applied to complainant for assistance out of his
trouble. One Seiving, a witness in the cause and a justice of
the peace, went with Hagebusch to negotiate with complainant
and to use his influence to extricate him from his embarrass-
ments, and this was the plan Hagebusch proposed, to which
complainant assented: An estimate was made of the balance
due on the note given in October, 1860, of what was due com-
plainant on other accounts, and what was due Danckmeyer &
Co. for which they had issued a capias/ and it was then agreed
that these several payments of eight hundred dollars and of
two hundred dollars, on the note of October, should be applied
in discharge of these other claims. Accordingly, the old note
was taken up, and a new note, bearing the same date and time
of payment, and amount, was executed to complainant, the
mortgage to remain as security, whereupon Hagebusch was
released from arrest.
There are two aspects in which this case is to be viewed —
first, in regard to the defendant Onesia, the wife of Hagebusch,
and second, in regard to the interests of Hagebusch alone.
It appears, by the record, that the premises mortgaged were
564: Am'n Board Foreign Missions v. Nelson. [June T.
Syllabus.
the homestead of defendants, which they had released in the
mortgage, and the wife her right of dower also. So far, then,
as her rights and interests are involved, she has an unques-
tioned right to claim and insist upon the full benefit of all the
payments made on this mortgage, and be liable for the balance
only. This balance is stated to have been about four hundred
dollars at the time this subsequent arrangement was made, and
to which she was not a party. To this extent, only, are her
rig] its exposed.
As to Hagebusch's liability, that is involved in the subse-
quent arrangement — one which he had a right to make, and
did voluntarily make, and, so far as appears, to secure a bona
fide debt due to complainant.
Justice and equity demand, therefore, in this view of the
case, that the mortgage should be foreclosed as against the wife
for the balance due thereon only, and foreclosed against the
husband according to the terms and tenor of the subsequent
agreement. This will be doing justice to all parties.
The decree of the circuit court is reversed, and the cause
remanded to the circuit court with instructions to refer the
cause to the master to ascertain how much was due on the
mortgage at the time the after-arrangement was made, and for
that amount the mortgage will be foreclosed as to the interest
of the wife. The circuit court will decree against Hagebusch
to the extent of his subsequent agreement as to the amount of
his indebtedness.
Decree reversed.
American Board of Commissioners for Foreign
Missions et al
v.
Charlotte H. Nelson.
"Will— when revoked by marriage. Marriage, under our statute making
the husband and wife heirs to each other where there are no children or
descendants of a child, is, in the absence of facts arising subsequent to mar-
1874.] Am'n Board Foreign Missions v. Kelson. 565
Opinion of the Court.
riage showing an intention to die testate, a revocation of a will, made by the
husband prior to his marriage, by which he disposed of his whole estate
without making provision in contemplation of the relations arising out of it.
The rule in Tyler v. Tyler, 19 111. 151, adhered to.
Appeal from the Circuit Court of Madison county; the Hon.
"William H. Snyder, Judge, presiding.
Mr. Levi Davis, Mr. Charles P. Wise, and Messrs. Isham
& Lincoln, for the appellants.
Mr. Henry S. Baker, and Mr. Lyman Trumbull, for the
appellee.
Mr. Justice Scott delivered the opinion of the Court:
On the 2d day of May, 1867, Arba Nelson, then a widower,
without children, made and published his last will and testa-
ment. He was at the time possessed of very considerable
property, all of which was entirely disposed of by the will, and
by far the largest portion was given to the several religious
societies named. On the 12th day of October, 1868, he mar-
ried appellee, with whom he lived as husband until his death,
which occurred on the 6th day of February, 1871. There
being no issue by either marriage, it is true, as alleged, that
the testator died, leaving no child, or descendant of any child,
heir surviving.
The will contained no provisions for his widow, in case he
should contract a second marriage, nor was any provision made
for her support after the marriage took place.
On the will being admitted to probate, letters testamentary
were issued to the executors named. There is no evidence of
any express revocation of the will under the statute, nor is it
insisted there was any re-publication after the marriage with
appellee.
The bill is framed on the hypothesis that the will of Arba Nel-
son, disposing of his entire estate, made when he was a widower,
without issue, was revoked, by operation of law, on his mar-
riage with appellee, with whom he lived as husband until the
566 Am'n Board Foreign Missions v. Kelson. [June T.
Opinion of the Court.
date of his death, leaving no child, or descendant of any child,
heir surviving, and without having made any provision for the
support of his widow.
The question raised is purely one of law, and has been most
elaborately discussed. The arguments of counsel present an
interesting field for investigation, but we decline to enter upon
it, for the reason we regard the law which must control the
decision as having been definitely settled by Tyler v. Tyler,
19 111. 151. The case is an authority exactly in point, and
distinctly enunciates the doctrine that marriage, under our
statute making the husband and wife heirs to each other, where
there is no child, or descendants of a child, is, in the absence
of facts arising subsequent to marriage showing an intention
to die testate, a revocation of a will made by the husband prior
to his marriage, by which he disposed of his whole estate with-
out making provision in contemplation of the relations arising
out of it.
It is conceded this case is conclusive of the one at bar, if its
authority can be maintained. We have been urged to recon-
sider the grounds of the decision, with a view to overrule it.
This we must decline to do. The case was determined seven-
teen years ago, and during all that period the soundness of the
conclusion reached has never before been challenged. What-
ever might be the views of the court, were it a question of
first impression with us, we are of opinion it would be most
disastrous to change the rule now. By a recent statute, passed
since the rights of the parties to this litigation attached, the
principle of that decision has become the positive law. It is
declared, " marriage shall be deemed a revocation of a prior
will."
It is obvious, therefore, that a reversal of that decision could
only have a retroactive operation. Where a decision has be-
come a rule of property, it would be hazardous in the extreme
for the court to change it. The inevitable consequence would
be to unsettle titles to vast amounts of property. If any
change is to be made in the rule adopted, it can only be done
with safety by legislative interference. In this case the Gen-
1874.] I. C. K. E. Co. v. Goddard, Admx. 567
Syllabus.
eral Assembly has not only not repealed it, but, by solemn
enactment, has adopted for the future the rule itself. In
view of this fact, it would be unwise, and productive only of
disastrous results, to unsettle the rule on this subject that has
prevailed through so many years, whether it is supported by
the weight of authority or not. Without entering upon an
investigation of the reasons of the decision or the origin of the
rule, we shall regard it as the settled law. The principle from
which the rule was deduced was borrowed from the civil law,
and incorporated into the common law of England. We do
not wish to be understood as intimating that the case of Tyler
v. Tyler, supra, can not be maintained by reason and authority.
We simply decline to investigate it as a new question.
Acknowledging the conclusive authoritativeness of the case,
it is decisive of the chief point at issue in the case at bar. It
covers the whole ground, and leaves nothing open for decision.
We can not do otherwise than regard the will of Arba Nelson
as having been revoked by operation of law, under the facts
presented in this record. His estate was therefore intestate,
and the court very properly so decreed. This view of the law
renders it unnecessary to consider any other question raised in
the case.
ISTo error appearing, the decree must be affirmed.
Decree affirmed.
Illinois Central Railroad Company
v.
Nannie A. Goddard, Admx.
1. Negligence — contributory and comparative. In a suit for damages
caused by the negligence of the defendant, the plaintiff can not recover if
he has been guilty of contributory negligence, unless the negligence of the
plaintiff was slight and that of the defendant gross, and it is error to instruct
the jury that the plaintiff can recover if the negligence of defendant was of
a higher degree than that of the plaintiff.
568 I. C. E. E. Co. v. Goddard, Admx. [June T.
Opinion of the Court.
2. Same — what constitutes. As a general rule, it is culpable negligence
for any one to cross the track of a railroad without looking in every direc-
tion that the rails run to make sure that the road is clear.
3. Instructions — need not be repeated. Where the court has given an
instruction to the jury at the instance of the plaintiff, it need not repeat it
at the instance of the defendant.
Appeal from the Circuit Court of Jackson county; the Hon.
Monroe C. Crawford, Judge, presiding.
This was an action, brought by the administratrix and admin-
istrator of James Goddard, deceased, against the Illinois Cen-
tral Eailroad Company, to recover damages on account of the
death of said deceased, caused by the alleged negligence of the
defendant, in not ringing a bell or sounding a whistle when its
cars were approaching a public road crossing where said de-
ceased was run over and killed.
Mr. George W. Wall, for the appellant.
Mr. "William J. Allen, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court:
The court below gave, for the plaintiff, the following instruc-
tion to the jury:
" 1. The court instructs you that even though you may
find, from the evidence, that the deceased was guilty of some
slight negligence, yet, if you further find, from the evidence,
that the defendant was guilty of gross or a higher degree of
negligence than deceased, and that the death of Jas. M. God-
dard was caused by such negligence on the part of the defend-
ant, then you should find defendant guilty, if all the other
material averments in the declaration have been proven, and
assess the plaintiff's damages at any sum the evidence may
warrant, not exceeding $5000."
This instruction was wrong in informing the jury that the
plaintiff might recover if the negligence of the defendant was
of a higher degree than that of the deceased. This court has
1874.] I. C. E. E. Co. v. Goddard, Admx. 569
Opinion of the Court.
said that the plaintiff can not recover where he has been guilty
of contributory negligence, unless his negligence is far less in
degree than that of the defendant (Chicago, Burlington and
Quincy Railroad Co. v. Dunn, 52 111. 452); unless that of
the defendant was greatly in excess {Keokuk Packet Co. v.
Henry, 50 id. 264.) And in defining more specifically the
relative degrees of negligence, where the plaintiff is allowed
to recover, although his own negligence has contributed to the
injury, it is laid down that the negligence of the plaintiff must
be comparatively slight and that of the defendant gross. Ga-
lena and Chicago Union Railroad Co. v. Jacobs, 20 111. 478 ;
Chicago and Alton Railroad Co. v. Gretzner, 46 id. 76; St.
Louis, Alton and Terre Haute Railroad Co. v. Manly, 58
id. 300.
The court refused the following sixth and seventh instruc-
tions asked by the defendant, which is assigned for error:
" 6. The court instructs the jury that, if they believe, from
the evidence, that the deceased, Goddard, might, in the exer-
cise of ordinary care, have seen the danger, and avoided it, and
that he did not do so, and that the omission of deceased to do
so contributed to the result, then he was guilty of such negli-
gence as will prevent a recovery, unless the injury was produced
by wilful or intentional acts of defendant or its agent.
"7. It is the duty of every person, when going upon or
across a railroad track, to look in each direction to see if cars
are approaching, and a failure to do so amounts to a want of
ordinary care."
The court did instruct the jury, in the second instruction
given for plaintiff, that plaintiff could not recover if the de-
ceased was guilty of a want of ordinary care, and it was not
required to repeat that instruction by giving the sixth one
asked.
As respects the seventh instruction, this court has repeatedly
said that it is the duty of persons about to cross the track of a
railroad to look about them and see if there is danger. Chi-
cago and Alton Railroad Co. v. Gretzner, supra/ Manly' 's
570 Wilson et al. v. Rounteee. [June T
Syllabus.
case, supra/ Chicago and Alton Railroad Co. v. Jacobs, 63
111. 178 ; Chicago, Rock Island and Pacific Railroad Co. v.
Bell, 70 id. 102; Illinois Central Railroad Co. v. Godfrey,
71 id. 500. And in Shearm. and Redf. on Negligence, section
488, it is laid down that, as a general though not invariable
rule, it is culpable negligence for any one to cross the track of
a railroad without looking in every direction that the rails run,
to make sure that the road is clear. We see nothing in the
facts of this case to except it from the general rule, and are of
opinion the instruction should have been given.
For the errors indicated, the judgment will be reversed and
the cause remanded.
Judgment reversed.
John Wilson et al.
v.
William T. Rountree.
1. Chattel mortgage— failure of mortgagee to exercise his right of
election to declare a forfeiture, does not release the lien. Where a chattel
mortgage provides for the property remaining in the possession of the mort-
gagor until the maturity of the mortgage debt, unless such property shall
be in danger of being levied on, etc., in which case the mortgagee shall be
entitled to and may take possession, etc., the right thus conferred upon the
mortgagee is a mere right of election, and his failure to exercise it can not,
in the least, affect other parties, or release the lien of the mortgage.
2. Same— permitting possession to remain with mortgagor — when fraudu-
lent and when not. Where the mortgagee of personal property permits the
possession to remain with the mortgagor after his failure to comply with
the express terms of the mortgage, it has been held to be a fraud per se, and
not subject to explanation; but such is not the case where the mortgagee
suffers the property to remain in the hands of the mortgagor when he has a
mere election to declare a forfeiture. In the one case the forfeiture is abso-
lute, in the other it depends upon the pleasure of the mortgagee.
Appeal from the Circuit Court of Washington county; the
Hon. Amos Watts, Judge, presiding.
1874.] Wilson et al. v. Rountree. 571
Opinion of the Court.
Mr. P. E. Hosmer, for the appellants.
Messrs. Alexander & Watts, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court:
This was an action of replevin, brought by appellants against
appellee, for certain wheat. The wheat was originally owned
by one Gilbert Wilson, who executed a chattel mortgage upon
it to appellants, to secure them against the payment of certain
notes of his, whereon they were sureties. The mortgage con-
tained this condition:
" If I, the said Gilbert Wilson, shall well and truly pay said
notes by the 1st day of April, 1874, according to the tenor and
effect thereof, then the above conveyance to be void, otherwise
in full force and virtue; and it is hereby expressly understood,
that I shall retain possession of the above property until said
1st day of April, unless said property shall be in danger of
being levied upon, or I should offer to or actually trade the
same, or any part thereof, or remove the same from said county,
in which case the said John W. Wilson and Aaron W. Ken-
nedy shall be entitled to and may take possession thereof, and
sell the same at public vendue, to pay said notes, the same as
if they were due, together with all interest then accrued."
The notes were not paid at the time of the commencement
of suit, and no question is made that appellants were not still
liable for their payment.
The appellee justified the caption and detention of the prop-
erty, as constable, by virtue of an execution from a justice of
the peace, in favor of one Dunkhorst, against said Gilbert Wil-
son, which came to his hands on the 12th day of April, 1873,
and claimed that the property was released from the mortgage
because two separate executions, issued on separate judgments
against said Gilbert Wilson, had been levied on the property
in March, 1873, and that appellants were notified of these levies,
but neglected to take the property into possession. It appears
that these executions were returned satisfied a few days after
they were levied, and that the property remained in possession
572 Wilson et al. v. Kountree. [June T.
Opinion of the Court.
of the mortgagor, Gilbert Wilson, until it was taken by ap-
pellee under the execution in favor of Dunkhorst, on the 12th
of April, 1873.
The case was tried by the court, without the intervention of
a jury, and judgment rendered in favor of appellee.
The only question presented for our determination is, did
the failure of appellants to take possession of the mortgaged
property when the executions were levied upon it, in March,
1873, release the lien of the mortgage?
It is insisted by appellee, that the levy of the executions
per se worked a default in the condition of the mortgage, and
that it was the imperative duty of the mortgagees then to take
possession of the property, or forfeit their rights under the
mortgage. The language of the condition before quoted will
not bear this construction. It is, that upon the happening of
the contingencies named, appellants "shall be entitled to and
may take 'possession ," etc. This, obviously, conferred upon
the mortgagees a mere right of election for their own protec-
tion, and the failure to exercise it could not, in the least, aifect
other parties.
The mortgage was of record, and all persons are charged
with notice of its terms. Ko absolute default was provided
for until the 1st day of April, 1874, at which time, if the notes,
to protect the mortgagees against the payment of which the
mortgage was given, were not paid, the mortgagees were au-
thorized to take and sell the mortgaged property. Until that
time, the property might lawfully remain in the possession of
the mortgagor, subject to the lien of the mortgagees.
We can not distinguish this case, in principle, from that of
Barbour et al. v. White et al. 37 111. 168. It was there said,
in speaking of the provision in the chattel mortgage authoriz-
ing the mortgagees to declare a forfeiture of the condition be-
fore the maturity of the debt secured by the mortgage: "By
this clause it is, in substance, provided, that on the happening
of any one of certain contingencies, all the notes, though not
due by their terms, shall become due and payable, and the
mortgagee may elect to take possession of the mortgaged prop-
1874.] "Wilson et al. v. Rountree. 573
Opinion of the Court.
erty. We are of opinion that the reasonable construction of
this provision, when taken in all its parts, is not that the notes
shall become absolutely due, and the mortgagee compelled to
take possession in order to preserve his lien, but that he has
the election to treat the notes as due, and take possession, or
let them stand upon their original terms, as he may desire.
The clause is, so far as the mortgagor is concerned, in the na-
ture of a forfeiture, and to hold that the mortgagee must declare
the forfeiture or lose his security, would be an extremely harsh
rule for the debtor and an onerous one for the creditor. For
the same rule applies to all the contingencies mentioned in the
mortgage, and if the construction claimed by the plaintiffs in
error were adopted, it would be necessary for the mortgagee to
keep a daily watch upon the property, in order to be advised
of the occurrence of the contingency. The clause was inserted
in the mortgage merely to give the mortgagee additional secu-
rity, and if he does not deem it necessary to avail himself of
his privilege of claiming payment of his notes sooner than they
are due by their face, no other person is injured or has a right
to complain."
The cases referred to by appellee, in support of the position
that suffering property to remain with the mortgagor after
default is fraud per se, and not subject to explanation, Reed
v. Fames, 19 111. 595, Funky. Stoats, 24 id. 633, Cass v. Per-
kins, 23 id. 382, Hanford v. Obrecht, 49 id. 146, Wylder v.
Crane, 53 id. 490, are all cases in which the property was suf-
fered to remain in the possession of the mortgagor, notwith-
standing his failure to comply with the express terms of the
mortgage, and have no reference whatever to cases where the
mortgagee surfers property to remain in the possession of the
mortgagor when he has a mere election to declare a forfeiture,
as in the present case. In the one case the forfeiture is abso-
lute, in the other it depends upon the pleasure of the mort-
gagee.
The judgment of the court below is reversed, and the cause
remanded for further proceedings not inconsistent with this
opinion. T , , 7
r Judgment reserved.
574 Meyer v. Temme, Guardian, etc. [June T.
Syllabus.
Frederick Meyer
v.
Christian Temme, Guardian, etc.
1. Guardian — suit against, for board and clothing of ward. A testator
gave to his widow, by his will, money and the rents and profits of land, in
lieu of dower, incumbered with the provision that she should maintain and
support his children. She renounced the provisions of the will, and had
dower assigned, married again, and, with her second husband, resided upon
the land set off to her for her dower : Held, in a suit by the second husband
against the guardian of the children, for their board and clothing, that he
was in no way bound or affected by the will or the relinquishment of the
widow, and was not thereby precluded from maintaining his suit.
2. Same — may set off labor of ward against claim for board and clothing.
In a suit against a guardian for board and clothing furnished his wards, he
may prove that the wards have worked for the plaintiff, and the value thereof,
and set it off against his claim, but the jury can not take into consideration
any labor that such wards may do for the plaintiff in the future, and for the
court to instruct them that they may, is error.
3. Step-father — right to pay for support of step-children. When a man
marries a widow with children, if he assumes the relation of father to the
children, and, as such, provides them with board and clothing, and, in turn,
has their labor, and has no contract with their guardian, he can not recover
for the support thus furnished.
4. But if, at any time, he had a contract with their guardian in regard to
the keeping of the wards, he would be entitled to recover on that contract;
or if, at any time, he should refuse longer to keep the children without com-
pensation, and should so notify their guardian, and the guardian should
neglect or refuse to provide a place for them, or make a contract with the
step-father in regard to compensation, then he would be entitled to recover
reasonable pay for the keeping after such notice, deducting the value of
their services.
5. Instructions — even if erroneous, will not ordinarily reverse, unless all
given appear in the record. This court will not ordinarily reverse on account
of erroneous instructions, unless the record contains all those given, but
where the instructions given contain errors that could not be cured by others,
it may be proper to reverse on account of erroneous instructions, although
all that were given are not in the record.
Appeal from the Circuit Court of Washington county ; the
Hon. William H. Snyder, Judge, presiding
1874.] Meyer v. Temme, Guardian, etc. 575
Opinion of the Court.
Messrs. Watts & Forman, for the appellant.
Mr. S. L. Bryan, and Mr. J. M. Rountree, for the appellee.
Mr. Justice Craig delivered the opinion of the Court:
This was an action brought by appellant against appellee, as
guardian of certain wards, to recover for their boarding and
clothing.
The jury rendered a verdict against appellant, and the court
overruled a motion for a new trial and entered judgment upon
the verdict.
It appears, from the record, that, in 1865, Herman H. Hem-
minghaus died testate, leaving a widow and six children. A
certain farm owned by the testator, in Washington county, was
devised to the two older children. The widow, however, was
to have the rents and profits of the farm until these children
arrived at the age of 21 years. The will also contained a clause
as follows:
" My said wife, Sophia Dorotha, shall maintain, support and
educate my minor children out of the income, rents and profits
of the farm left to her, until the majority of my son, John
Frederick, shall be of age, as above stated, free of any charges
for the support of the said minors."
About three months after the death of the testator, appellant
married the widow of the deceased, who was then residing on
the farm with the four minor children. The widow renounced
the provisions of the will, and had dower assigned her out of
the lands. Appellant, after his marriage, took up his residence
upon the farm, and has resided there ever since, the four minor
children remaining with him as a part of the family. The
boarding and clothing of the four minor children has been
provided by appellant, and he has had their labor, such as
children of their age were able to perform.
Appellant has had the use and benefit of that part of the
farm assigned to his wife as dower. That portion of the land
set off to the children of deceased has been cultivated by appel-
576 Meter v. Temme, Guardian, etc. [June T.
Opinion of the Court.
lant, lie having leased it from the guardian of the children, and
paid rent therefor.
It is insisted by appellant that the court gave improper in-
structions for appellee, the 7th and 9th of which read as fol-
lows:
" 7th. That if the children's father, in his will, provided
that their mother should have the rents and profits of the farm,
for the purpose of rearing the children, and, afterwards, the
widow renounced her rights under the will, then the will, as to
her, became void, and she could not sue, nor can the plaintiff."
" 9th. That, in making up a verdict, the jury should set
off against the plaintiff the value of services that the children
have rendered, now render, and may render if they remain
with the plaintiff."
"We are aware of no principle upon which these instructions
can be sustained.
The 7th instruction, as given, was conclusive of the case, and
the jury could not render a verdict other than for appellee.
As we understand the will, $1000 and the rents and profits
of the land, until a specified time, were devised to the widow,
incumbered with the provision that she should support and
maintain the children, in lieu of dower. When she renounced
the provisions of the will, it became, as to her, inoperative and
void; and in so far as she was concerned, she occupied the
same position as if no will had ever been executed; and even
if she had supported the children, and brought the suit, the
provisions of the will and relinquishment alone would not
have barred a right of action. But in this case appellant is a
stranger to the will. He is in no manner bound or affected by
the will or the relinquishment of the widow. It was, there-
fore, error to give the 7th instruction.
The 9th instruction authorized the jury to set off against
appellant's account, not only the value of the services that the
children had rendered, but the value of services they might in
the future render.
1874.] Meyer v. Temme, Guardian, etc. 577
Opinion of the Court.
It would be a very unsafe way to administer justice, to allow
a defendant, under a plea of set-off, to prove that the plaintiff
would, or might at some future time, be indebted to him, and
we know of no rule by which it can be done.
It was eminently proper for the defendant to prove that his
wards had labored for appellant, and the value of such service,
and it was proper for the court to instruct the jury that such
labor was a proper set-off against appellant's claim, but the
action of the court in going further than this can not be sus-
tained.
"While we will not ordinarily reverse on account of erroneous
instructions, unless the record contains all those given, yet,
where the instructions given contain errors that could not be
cured by others, then it may be proper to reverse on account
of erroneous instructions, although all that are given are not
in the record. Such is this case.
The law involved in this case is plain and free from difficulty.
If appellant, when he married the widow of the deceased, and
commenced to reside upon the farm, assumed the relation of
father to these children, and, as such, provided them with
board and clothing, and, in turn, had their labor, and had no
contract with their guardian in relation thereto, then he can
not recover while the children were thus supported.
If, on the other hand, in the first instance, he assumed the
relation of father to the children, without any contract or
understanding that he should be paid, while he can not recover
pay while they were thus kept, yet, there being no legal duty
or liability resting upon appellant to keep them any longer
than he saw proper, if at any time he had a contract with
the guardian in regard to the keeping, this was competent
evidence to go to the jury, to show appellant's relation as
father towards them had ceased. Or if, at any time, appellant
refused longer to keep the children without compensation, and
so notified their guardian, and the guardian neglected or re-
fused to provide a place for them, or make a contract with
appellant in regard to compensation, then he would be entitled
37— 72d III.
578 The People ex rel. v. Lippincott, Auditor. [June T.
Statement of the case.
to recover reasonable pay for the keeping after such notice,
after deducting the value of their services.
For the errors indicated, the judgment will be reversed and
the cause remanded.
Judgment reversed.
The People ex rel. Peter W. Harts
Charles E. Lippincott, Auditor, etc.
1. Constitution of 1870 — construction. The first fiscal quarter contem-
plated by the provisions of section 18, article 4, of the constitution of ,1870,
did not end until the adjournment of the session of the General Assembly
whose members were elected at the regular election in 1872, that being the
next regular session after the adoption of the constitution.
2. Sections 3 and 4 of the act of February 12, 1849 (Sess. Laws 1849, p.
77), are in the nature of standing appropriations for the purposes therein
specified, and they did not expire by constitutional limitation until the end
of the first fiscal quarter after the adjournment of the regular session of the
General Assembly which commenced in January, 1873.
3. State indebtedness — right of creditor to Auditor's warrant. If
the State has received the services or property of an individual under a con-
tract, there would seem to be no doubt that it would be the duty of the
Auditor to draw a warrant for the sum due, and of the Treasurer to counter-
sign it and deliver it to the person entitled to receive it, whether there be
money in the treasury or not. Hence it is not a sufficient answer to a peti-
tion for a mandamus to compel the Auditor to issue such warrant, to say
that there is no money in the treasury with which to pay it if issued.
This was an application to this court for a writ of mandamus
to compel the Auditor of State to draw his warrant on the
treasurer in payment of a claim held by the relator, against the
State, for stationery furnished for the use of the office of the
Secretary of State.
Messrs. Stuart, Edwards & Brown, for the relator.
Mr. James K. Edsall, Attorney General, for the respondent.
1874.] The People ex rel. v. Lippincott, Auditor. 579
Opinion of the Court.
Mr. Justice Scholfield delivered the opinion of the Court:
The relator applies to this court for a mandamus against the
Auditor of State, commanding him to draw his warrant on the
Treasurer, in favor of the relator, for the sum of $3943.90, on
account of books and stationery furnished for the use of the office
of the Secretary of State, for the years 1869, 1870, 1871 and 1872.
The items of account, together with the certificate of the cor-
rectness thereof, the approval of the Governor, and the certifi-
cate to the Auditor, in the usual form upon which his warrants
for similar expenditures are drawn, as shown by the certificate
of the Secretary of State, appear as exhibits attached to the
petition. It appears, also, from the petition, that the certifi-
cate of the items and account, and approval by the Governor,
have been regularly filed with the Auditor, warrant demanded
by the relator, and refused by the Auditor, for the reason and
upon the ground that all acts of appropriation heretofore
passed by the General Assembly, out of which the claim
might have been paid, except the 3d and 4th sections of the
act of February 12, 1849 (Session Laws of 1849, p. 77), have
either been fully exhausted and paid out upon other claims or
demands to which such other appropriations were applicable,
or that such other acts of appropriation have expired by con-
stitutional limitation.
There is a demurrer to the petition, and also a stipulation
by the Attorney General and the attorneys for the relator, that
the case may be heard in this division, at the present term,
and that, if the court shall be of opinion that the relator is
entitled to the warrant, on the facts stated in the petition, the
mandate therefor may be issued immediately.
The 3d and 4th sections of the act of February 12, 1849,
under which the relator claims that he is entitled to have the
warrant issued, are as follows:
" Section 3. The incidental expenses of the offices of the
Auditor of Public Accounts, State Treasurer and Secretary of
State, shall include postage on all public papers sent by mail
to or from said officers, relative to the business thereof, furni-
580 The People ex rel. v. Lippincott, Auditor. [June T
Opinion of the Court.
ture for the same, the necessary fuel, and all such books, blanks
and other stationery as shall be considered necessary for the
convenient transaction of business in said departments, respect-
ively.
" Sec. 4. For the purpose of defraying the incidental ex-
penses aforesaid, it shall be the duty of said officers, respect-
ively, from time to time, as said expenses may be incurred, to
lay proper vouchers for the same before the Governor, whose
duty it shall be, if such accounts appear to be reasonable, to
allow the same, and to certify the amount thereof to the
Auditor, who shall thereupon be required to issue his warrant
for the same to the person entitled thereto, to be paid out of
any moneys in the treasury not otherwise appropriated."
The objection urged against these sections by the Attorney
General, on behalf of the Auditor, is, that they were repealed by
the adoption of the constitution of 1870, -being, as he claims,
in conflict with the following portions of section 18, article 4,
of that instrument:
" Each General Assembly shall provide for all the appropria-
tions necessary for the ordinary and contingent expenses of
the government until the expiration of the first fiscal quarter
after the adjournment of the next regular session of the Gen-
eral Assembly; *■'•*** aiic[ all appropriations, general
or special, requiring money to be paid out of the State treas-
ury from funds belonging to the State, shall end with such
fiscal quarter."
The same question was before this court in The People
ex rel. v. The Auditor, 64 111. 256, and decided adversely to
the position assumed in the present objection. It was there
held that the fiscal quarter contemplated in these provisions
did not end until the adjournment of the session of the Gen-
eral Assembly whose members were elected at the regular
election in November, 1872, that being, in the language of the
constitution, " the next regular session " after the adoption of
the constitution. It is unnecessary to repeat the line of argu-
ment by which that conclusion was reached, or to attempt to
add to its force. It must be accepted as the construction given
1874.] The People ex ret. v. Lippincott, Auditor. 581
Opinion of the Court.
by this court to those provisions, and conclusive against the
objection now urged.
The objection that there is no money in the treasury from
which the relator's warrant, if drawn, can be paid, is fully
answered by The People ex ret. v. The Secretary of State, 58
111. 94, and what was there said, in this respect, applies with
equal force to the present case. The court said: "If the peti-
tion was, alone, for a writ to compel the payment of the money
by the treasurer, then the answer would be a bar to the relief;
but the prayer is, that the Auditor issue, and the Treasurer
countersign and pay, a warrant for the amount petitioner is
entitled to receive. If the State has received the services or
property of an individual under a contract, there would seem
to be no doubt that it would be the duty of the Auditor to
draw a warrant for the sum due, and of the Treasurer to coun-
tersign it and to deliver it to the person entitled to receive it,
whether there be money in the treasury or not for its payment.
This the law, at least, requires, and also that it be paid when
funds are provided for that purpose. If there is no money in
the treasury for the payment of a proper claim when the war-
rant issues, it should be paid when there are funds."
The sections of the act of February 12, 1849, which we have
quoted, are in the nature of standing appropriations for the
purposes therein specified, and they embrace the relator's
claim. Since, therefore, it must be held, on the authority of
The People ex rel. v. The Auditor, supra, that they did not
expire by constitutional limitation until the end of the first
fiscal quarter after the adjournment of the regular session of
the General Assembly which commenced in January, 1873, it
follows that the relator should be paid whenever there are funds
in the treasury which may be lawfully used for that purpose.
He is, then, entitled to the writ of mandamus, as prayed for
in his petition, and it is ordered to be issued accordingly.
Mandamus aivarded.
582 .Roan v. Rohrer. [June T
Opinion of the Court.
Robert Roan
v.
John Rohrer.
1. Time — rule for computing. Where an act is required to be performed
within a specified time from a day named, the rule for computing the time
is to exclude the day from which the time commences to run, and include
the day on which the act is to be performed.
2. Same — when redemption from sale on execution may be made. Where
a statute provides that redemption from a sale may be made within twelve
months, and a sale is made on the ninth day of a month, a redemption may
be made on the ninth day of the same month of the next year.
3. Redemption — to ichom money may be paid. Where the owner of land
which has been sold on execution, within the time allowed by law for re-
demption, leaves the redemption money, for the purpose of making re-
demption, with a person named by the officer who made the sale, and by his
direction, it is the same as if the money had been paid directly to such
officer, and operates as a redemption.
Appeal from the Circuit Court of Jefferson county; the
Hon. Tazewell B. Tanner, Judge, presiding.
Messrs. Crews & Haynes, for the appellant.
Messrs. Casey & Wilson, for the appellee.
Mr. Chief Justice "Walker delivered the opinion of the
Court:
The bill in this case shows that appellee's land was sold by
virtue of an execution, on the 9th day of September, 1871, for
the sum of $39.55, to appellant, and a certificate of purchase
was given to him. On the 6th day of September, 1872, appel-
lee went to the county seat to redeem the land from the sale,
but was unable to find the sheriff at his office or in the town,
nor could any one be found with whom the money could be
properly left. On the 9th day of September, 1872, appellee
went to town to redeem, and on his way to that place met the
sheriff, who directed him to leave the redemption money with
John S. Bogan, the clerk of the circuit court. Appellee, on
1874.] Roan v. Eohree. 583
Opinion of the Court.
that day, left in the hands of the clerk the sum of $50, more
than enough to redeem the land, as directed by the sheriff.
The sheriff refused to issue to appellee a certificate of redemp-
tion. Thereupon, this bill was filed, and appellant interposed
a demurrer, which the court overruled, and appellant declining
to answer, the court rendered a decree, pro confesso, that the
sheriff execute to appellee a certificate of redemption, and that
he be perpetually enjoined from making a deed to the pur-
chaser. From that decree defendant Roan, the purchaser, ap-
peals to this court and asks a reversal.
The act of 1872, Sess. Laws, 507, repeals the chapter of the
Revised Statutes of 1845, entitled "Judgments and Executions,"
except some enumerated sections not affecting the sale or re-
demption of lands. The 18th section of the act of 1872 gives
the right to the defendant, his heirs, administrators, assigns, or
any person interested in the premises, to redeem land sold
under execution, but limits no time within which the redemp-
tion shall be made. This, then, authorized the redemption at
any time before the expiration of fifteen months, if not even
after that time. The law was, however, amended by act of
the 29th of April, 1873, p. 107, so as to require such redemp-
tions to be made by the defendant in execution within twelve
months from the sale.
But, under the 13th section of the act of 1845, the money
was placed in the hands of the agent of the sheriff in proper
time. That act provides, that the redemption may be made
within twelve months from such sale.
When an act is required to be performed within a specified
time from a day named, the rule is, to exclude the day from
which the time commences to run, and include the day on
which the act is to be performed. In computing the time for
redemption in this case, the 9th day of September, 1871, the day
on which the sale was made, is excluded, and a year expiring
after that day 'would include the 9th day of September, 1872,
the day on which the money was paid, by the direction of the
sheriff, to the circuit clerk. Ewing v. Bailey, 4 Scam. 420 ;
Waterman v. Jones, 28 111. 55 ; Vairin v. Edmonson, 5 Gilm.
584 Heiks of Wright v. Minshall. [June T.
Opinion of the Court.
270; Richardson v. Ford, 14* 111. 332; The People v. Hatch,
33 111. 14. It, then, follows that the money was paid in time.
When appellee obeyed the directions of the sheriff, and paid
the money to the person he named, that person thereby became
his agent, and in effect was the same as a payment to the
sheriff, and had the payment been made directly to that officer,
there can be no doubt that it would have amounted to a re-
demption, had it been paid and received as and for a redemp-
tion, as it was in this case. The mere fact that a written
certificate was not given, could in nowise affect the rights of
appellee. He had complied with the law, and should not lose
his land because the officer, for any cause, has refused to fur-
nish him with written evidence of the redemption, and he was
entitled to the relief sought.
The decree of the court below is affirmed.
Decree affirmed.
Heirs of Matthew T. Weight, Deceased,
v.
Elizabeth Minshall.
Will — a devise of land previously sold out not conveyed, passes the pur-
chase money due on the land. Where a testator devises land, the legal title
to which is in him, but which he has sold and given to the purchaser a bond
for a deed therefor, the purchase money, when paid by the purchaser, will
belong to the devisee.
Appeal from the Circuit Court of Clay county.
Mr. G. W. Henry, and Mr. F. J3. Hitchcock, for the appel-
lants.
Messrs. Cope & Boyles, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
Matthew T. Wright, in his lifetime, being the owner of cer-
tain lands in Clay county, in this State, on the 15th day of
1874.] Heirs of Wright v. Minshall. 585
Opinion of the Court.
May, 1871, made his last will and testament, by which he de-
vised to Elizabeth Minshall all his real estate, land and appur-
tenances in Clay county.
Prior to the execution of the will, the testator had contracted
to sell his lands in Clay county, had executed a bond for a
deed, and received the notes of the purchaser, which were
unpaid at the time of his death.
He left a number of collateral heirs-at-law, and among them
Elizabeth Minshall, his sister and sole devisee, under the will,
of his real estate.
The notes having been paid after the death of the testator,
and the fact reported to the probate court, the heirs-at-law
applied to that court for a pro rata distribution of their pro-
ceeds, amounting to about eleven hundred and seventy-five
dollars.
That court directed the administrator to pay the entire pro-
ceeds to Elizabeth Minshall. An appeal was taken from this
order, to the circuit court, where, on due consideration, the
same was affirmed.
To reverse this judgment, the heirs-at-law, except Elizabeth
Minshall, appeal to this court, insisting it was error to appro-
priate these proceeds in this manner.
These proceeds were the proceeds of the real estate, all
which had been devised to Elizabeth Minshall subsequent to
the contract of sale. There is no ambiguity in the terms of
the will. They are plain, direct and positive. At the time
the will was made, the testator held the legal title to this land,
and was, to all intents and purposes, the legal owner of it, and
had full power to devise it. Suppose the party who had agreed
to purchase it, had failed to perform his contract, or the con-
tract had been rescinded, it will not be pretended the land
would have gone to the heirs-at-law. It would have been con-
trolled by the will. By that, the legal title was devised to
appellee, and there can be no question she is rightfully entitled
to the proceeds of this legal title when sold and conveyed, and
this, manifestly, was the intention of the testator. His inten-
tion was, to devise to appellee such interest as he had in or to
586 Morgan et al. v. Evans et al. [June T.
Opinion of the Court.
arise from the land, and that was the purchase money, and,
though described in the will as land, the devise passed the
purchase money.
Woods v. Moore, 4 Sanford (N. Y.), 579, is a case in point.
The judgment of the circuit court is affirmed.
Judgment affirmed.
John H. Morgan et al.
v.
Joshua J. Evans et al.
1. Execution — issued more than a year after judgment, voiddb,. ,.t not
void. A first special execution issued upon a judgment in an attachment
suit more than a year after the rendition of such judgment, is voidable only,
and not void.
2. A sheriffs deed upon a sale under a special execution issued more
than a year affer the date of the judgment upon which it was issued, and
which execution is not set aside, conveys good title to the grantee.
3. Former decision. The rule above announced is not in conflict with
the decision in The People v. Peck, 3 Scam. 118.
Appeal from the Circuit Court of Effingham county ; the
Hon. James C. Allen, Judge, presiding.
Mr. James M. Warren, for the appellants.
Mr. H. B. Keplet, for the appellees.
Mr. Justice McAllister delivered the opinion of the Court:
This was ejectment, brought in the Effingham circuit court,
by appellants against appellees, to recover possession of a cer-
tain tract of land situate in that county, of which appellees
were in possession.
It appeared, that Joshua B. Whitney was the common source
of title, and September 15, 1860, he conveyed the land in ques-
tion, by warranty deed, to James M. Whitney. While the
legal title was so in James M. Whitney, the appellants sued
1874.] Morgan et al. v. Evans et al. 587
Opinion of the Court.
out of said circuit court an attachment against the estate of
said' James M. Whitney, who was a non-resident, which was
levied upon the land in question, and constructive notice hav-
ing been given pursuant to statute, appellants, at the April
term, 1862, recovered a judgment for $1096.25, against said
James M. Whitney, and special execution against the property
attached was ordered. ISTo execution, however, was issued un-
til July 3, 1863, over a year from the time of the rendition
of the judgment. On this execution, which was levied on the
lands attached, the sheriff sold and appellants became the pur-
chasers, receiving the sheriff's deed in December, 1864.
Some question has been made as to the sufficiency of the
form of the judgment, but we have no doubt the proceedings
in the attachment suit were regular down to the entry of the
judgment, and that the latter is sufficiently formal to be valid.
The ground that the judgment lacked the requisite form
being untenable, the only question remaining is, whether the
circumstance that the special execution was not issued within
one year after the rendition of the judgment, rendered it void,
or only voidable. The court below excluded it from the evi-
dence, and if it was not void but only voidable, this was error.
The statute is as follows: "All and singular the goods and
chattels, lands, tenements and real estate of every person against
whom any judgment has been or hereafter shall be obtained in
any court of record, either at law or in equity, for any debt,
damages, costs, or other sum of money, shall be liable to be
sold upon execution to be issued upon such judgment, and
the said judgment shall be a lien on such lands, tenements and
real estate, from the last day of the term of the court in which
the same may be rendered, for the period of seven years : Pro-
vided, that execution be issued at any time, within one year,
on such judgment, and from and after the said seven years the
same shall cease to be a lien on any real estate as against bona
fide purchasers, or subsequent incumbrances by mortgage,
judgment or otherwise."
This statute contains a plain recognition of the common law
rule, requiring an execution to be issued within a year from
588 Morgan et al. v. Evans et al. [June T.
Opinion of the Court.
the judgment, and if it had been intended that the consequences
of non-compliance with that rule should be different from
those which had been declared by the courts to follow such
non-compliance at common law, such intention, it seems to us,
would have been expressed in other language than that em-
ployed.
Patrick v. Johnson, 3 Levinz, 404, was trespass for false
imprisonment. The defendant justified under an execution in
his favor, against the plaintiff. The latter demanded oyer of
the execution, which appeared to have been sued out above a
year after the judgment, and then replied that no execution
issued within the year; to which the defendant demurred, and
it was resolved that the execution sued out after the year was
not void, but only voidable by writ of error, but that until it
was reversed it was a good justification.
In Shirley v. Wright, 1 Salk. 273, the sheriff had the de-
fendant in custody on a ca. sa., which issued after a year and a
day without a sci^e facias, and let him escape; and it was
held the sheriff was iable, and should not take advantage of
the error.
In Parsons v. Loyd, 3 Wils. 345, Lord Chief Justice De-
Grey marked the distinction between void and voidable pro-
cess in this language: "There is a great difference between
erroneous process and irregular (that is to say void) process:
the first stands valid and good until it be reversed, the latter is
an absolute nullity from the beginning; the party may justify
under the first until it be reversed, but he can not justify under
the latter, because it was his own fault that it was irregular
and void at first."
The doctrine of these cases was fully recognized in Reynolds
v. Corp dh Douglas, 3 Caines R. 271. Kent, Oh. J., there
said: "The case that most resembles the present, is that of
issuing execution upon a judgment which has lain dormant
above a year and a day. At common law, the plaintiff in such
case was driven to sue out a new original, but the statute of
13 Eliz. c. 1, gave him a sci. fa. to revive the judgment. If,
however, instead of bringing debt or scire facias upon the
1874.] Morgan et al. v. Evans et al. 589
Opinion of the Court.
judgment, the plaintiff sues out a ca. sa., the court, upon ap-
plication, will set it aside, with costs. 2 Wils. 82, Barnes, 197,
206, 213. But it has been often adjudged, and it is well settled,
that the party is not responsible in trespass for suing out the
ca. sa./ for that the execution was voidable only, and was a
good justification till reversed."
In Jackson v. Bartlett, 8 Johns. R. 361, the question arose
in respect to a fi. fa. and in an action of ejectment, as in the
case at bar, only that a third person was the purchaser instead
of the plaintiff in the execution. The court, however, laying
no stress upon that circumstance, said : " The question on the
regularity of the fi.fa. could not be raised in this case. Though
the execution may have issued a year and a day after judgment,
without revival by sci. fa., it was only voidable at the instance
of the party against whom it issued. (3 Lev. 403, 3 Gaines,
271, 273.) It was good in point of form, and several reasons
might possibly have been assigned, if the question had come
up on motion to set it aside, why the execution was duly issued,
even after the year and a day. It was not for the present de-
fendant to question a purchaser's title under such an execution.
It was good authority for the sale. (Shirley v. Wright,
supra.)"
It may be proper to suggest, that if the judgment debtor
should stay the execution, by injunction, upon a motion to set
aside the execution issued after a year, that fact might be shown
in answer to the motion. And it will be observed, that most
of the cases above cited expressly hold, that because it is void-
able only, a ca. sa. sued out more than a year and a day after
judgment is a justification to the plaintiff himself. This is
upon the ground that, although erroneous and subject to beJ
set aside at the instance of the defendant, yet it is not void,
and constitutes a good authority in law to take the person. If
good authority, as against the plaintiff who sues it out, for
taking the person, it must be. for taking the property of the
defendant.
This principle, by analogy, is recognized by Lord Chancellor
Hardwioke, in Jeanes v. Wilkins, (1 Yes. Sen. 195,) where he
590 Morgan et al. v. Evans et al. [June T.
Opinion of the Court.
said: "To avoid the sale and title of the defendant, it must
be proved that the fi. fa. was void and conveyed no authority
to the sheriff, for it might be irregular and yet, if sufficient to
indemnify the sheriff so that he might justify in an action of
trespass, he might convey a good title, notwithstanding the
writ might afterwards be set aside."
The principle here announced is, that where the writ is not
void but only voidable, and for that reason will afford a justi-
fication to the plaintiff in an action of trespass, the sheriff, by
virtue of such writ, may convey a good title.
This whole doctrine was ably and elaborately discussed in
Woodcock v. Bennett, in the Court of Errors of New York,
(1 Cow. ~R. 711,) and fully re-affirmed. It seems to us to be
based upon principles having their foundation in necessity and
convenience in the administration of justice.
The counsel for appellees has referred us to no case in this
court directly holding to a contrary doctrine, nor are we aware
of any so holding.
The case of The People v. Peck, 3 Scam. 118, has been sup-
posed to hold, that an execution issued more than a year and a
day after judgment is void; but a close examination of that
case will show that such is not the effect of that decision. It
was a motion in this court for a mandamus, to compel the
clerk to issue an execution after a year and a day, without sci.
fa. The motion was denied on that and other grounds. The
court did not say it was because the execution would be void,
nor was it necessary that the court should so hold in order to
sustain the decision; for if the execution would be voidable,
the court would not compel the clerk to issue it — that is, the
court would not compel the clerk to issue a process which the
defendant therein would have the right to immediately call
upon the court from which it emanated, to set it aside.
It is the opinion of the majority of the court, that the special
execution in question in the case at bar was voidable only, and
not having been set aside, the sheriff had authority, by it, to
convey good title to appellants. It follows that it was error to
1874.] Johnson v. Yisnuskki. 591
Opinion of the Court.
exclude it from evidence, and for that error the judgment of
the court below must be reversed, and the cause remanded.
Jxidgment reversed,
Mr. Justice Scott dissents.
Sylvester Johnson
v.
Felix Visnuskki.
Mortgage — mistake in description — rights of purchaser. A man who
owned two tracts of land, one being his homestead and the other a piece
of timber, sold the timbered land, but, by mistake, conveyed the homestead.
The purchaser took possession of the timbered land, and sold it to a third
party, but conveyed by the description in the deed to him, being the home-
stead of the original owner, upon which such owner was still residing. The
second purchaser executed a mortgage upon the same land conveyed to him,
which mortgage contained a power of sale. After the execution of this
mortgage, the mistake in the various conveyances was, for the first time,
discovered. On the maturity of the mortgage debt, the mortgagee gave
notice of sale under the mortgage, and, at the sale, the original owner of both
tracts of land became the purchaser, and, as part of the purchase price, con-
veyed to the mortgagee the timber land which was originally sold and
intended to be conveyed by him : Held, on a bill by the mortgagor to set
aside the sale, that whatever might be his rights as to the timber land, he
had no grounds for equitable relief as to the land sold under the mortgage.
Appeal from the Circuit Court of Washington county; the
Hon. Amos Watts, Judge, presiding.
Mr. B. B. Smith, and Mr. H. H. Chesley, for the appellant.
Messrs. Hosmer & Teener, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
This bill was to set aside a sale made under a power contained
in a mortgage, and let appellant in to redeem the premises.
The circuit court dismissed the bill for want of equity, and
that decision is assigned for error.
592 Johnson v. Yisnuskki. [June T.
Opinion of the Court.
It appears that William ~R. Yirgin was the owner of two
tracts of land, each consisting of forty acres — one in section 3,
timber land, and the other in section 35, prairie land, on which
he resided. He sold the timber land to Patrick Ducie, but, by
mistake, described the piece in section 35. There can be no
controversy on this point in the case, for Ducie entered into
possession of the tract he purchased, and removed the principal
part of the timber. Before the mistake in the description was
discovered, Ducie sold his land to appellant, and conveyed it
by the erroneous description contained in his deed. The evi-
dence fully establishes the fact that appellant knew he was pur-
chasing the land in section 3, and not the home farm of Yirgin.
It can not be claimed for him that he occupies the position of
an innocent purchaser. The law made it his duty to inquire
of the party in possession, what interest he claimed in the
premises. Had he made the inquiry, he would have learned
that Ducie neither owned nor claimed to own the land on which
Yirgin resided. Aside from this view, the evidence is conclu-
sive, he was distinctly told where the land was situated. He
had no reason for the belief he was buying any other than the
timber piece.
Afterwards appellant executed a mortgage upon the land
bought of Ducie, to appellee, Yisnuskki, to secure an indebted-
ness of $240. The mortgage contained a power of sale. The
mistake in the description was then discovered. On the matu-
rity of the indebtedness, Yisnuskki advertised the property for
sale under the provisions of the mortgage. There is evidence
tending to show appellant was notified of the time and place of
sale.
At that sale, Yirgin became the purchaser of the land
described in the mortgage, for $275, but it had previously been
agreed between him and Yisnuskki that he could pay him the
amount of the bid, except $25, by conveying to Yisnuskki the
land in section 3, which, in equity, belonged to appellant, which
was accordingly done. It was thought by the parties, this
arrangement would correct the mistake in the descriptions con-
tained in the deeds, and bar appellant's equity of redemption
1874.] Bkackett v. The People ex rel. 593
Syllabus.
in the land bought of Ducie, which he really intended to describe
in the mortgage.
Under the facts as shown by the evidence, appellant is entitled
to no relief as to the land in section 35, against Virgin or any-
body else. He never had even the shadow of an equitable title to
it. The claim of Mrs. Virgin, the grantee of William R.
Virgin, presents superior equities, and must prevail. These
parties have all the time been in the open and notorious posses-
sion of the land. It constituted notice to all the world, of their
rights in the premises.
Whether the equitable title of appellant to the land in section
3 was foreclosed by the sale under the mortgage, is a question
not before us, and about which we express no opinion.
It is decisive of this case, that appellant has shown no grounds
for equitable relief, so far as the land in section 35 is concerned.
He has asserted claim to no other in his bill; hence it was
properly dismissed, and the decree is affirmed.
Decree affirmed.
Geokge W. Bkackett
v.
The People ex rel. Daniel McGowan.
1. Town charters — -provisions prevail as to the town, over prior general
law, when inconsistent with it. The provisions of the charter of a town,
passed subsequent to the passage of a general law, must, as to such town,
prevail over any inconsistent provision of the general law.
2. Pleading — carrying demurrer lack. An information in the nature
of a quo warranto was filed to test the right of respondent to hold an office
claimed by the relator, to which respondent filed five pleas, to four of which
a demurrer was sustained, and issue of fact joined on the other, which pre-
sented the question of the alienage and consequent ineligibility of the rela-
tor : Held, that there was nothing in the issue of fact joined on the plea,
or in the other pleas, which were clearly bad, to prevent the demurrer being
carried back to the information.
38— 72d III.
594 Brackett v. The People ex rel. [June T.
Opinion of the Court.
Appeal from the Circuit Court of St. Clair county ; the Hon.
William H. Snyder, Judge, presiding.
Messrs. C. W. & E. L. Thomas, for the appellant.
Messrs. G. & G. A. Kcerner, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an information in the nature of a quo warranto to
test the right of Brackett, the defendant, to hold the office of
police magistrate for the city of East St. Louis.
Demurrers were sustained to defendant's 1st, 2d, 4th and 5th
pleas, and issue being joined on the first replication to the 3d
plea, it was tried by the court without a jury, and found against
the defendant, whereupon judgment of ouster was rendered
against him, and he brings the case here by appeal.
The pleas to which demurrers were sustained are manifestly
insufficient, and there is no attempt in argument to sustain
them, but the point made is, that the demurrers should have
been carried back and sustained to the information.
The information sets out that, at an election held according to
law on the 4th day of April, 1871, at East St. Louis, the rela-
tor, Daniel McGowan, was elected police magistrate for that
city, to succeed the plaintiff, Brackett, who was then holding
said office; that Brackett was a candidate for re-election, and
received the next highest number of votes for the office; that
McGowan, on the 13th day of April, 1871, filed his official
bond, and, on the 17th day of the same month, received his
commission and was duly qualified; and that Brackett, after
the expiration of his term of office, and after the election and
qualification of his successor as aforesaid, did, on the 18th day
of April, 1871, unlawfully hold the office and exercise its pow-
ers and duties, and still continues to do so.
It is urged by appellant, that the information admits that
Brackett held the office on the 4th day of April, 1871, and
claims that he lost title to hold it afterward by reason of the
election on that day of his successor, and his subsequent quali-
1874.] Brackett v. The People ex rel. 595
•
Opinion of the Court.
fication; and ajDpellant contends that no successor to him was
elected, because there was no law authorizing any election of
police magistrate in East St. Louis, to be held on April 4th,
1871, and that he is entitled by law to hold the office until his
successor is elected and qualified; that the various charters of
East St. Louis, and its predecessor, Illinoistown, are silent upon
the subject of police magistrate, with the exception of the
charter of Illinoistown, (Private Laws 1861, p. 648,) which
provides that a police magistrate for that town shall be elected
on the first Monday of April, 1861, and every four years there-
after, who shall hold his office for the term of four years, and
until his successor shall be elected and qualified — so that the
election could have come round only in 1865, 1869, and 1873.
The only answer attempted to this view is, that the general
law in regard to police magistrates (Laws of 1854, p. 11,) super-
sedes the charter, which general law provides for the election
of police magistrates at the next regular election for city and
town officers, which is said to be the first Tuesday in April, by
the charter of East St. Louis, and that the law of 1855 (Laws
of 1855, p. 44,) allowed the cities and towns which failed to
elect in 1854, to elect in any subsequent year at the city elec-
tion. Had the date of the charter of Illinoistown been prior
to that of the general law, it might have been plausibly said
that the general law superseded the provision of the charter,
as to the time of the election of police magistrates. But the
time of the passage of the general law having been in 1854, and
that of the charter of Illinoistown in 1861, the subsequent
special provision of its charter as respects Illinoistown, now
East St. Louis, must prevail against any inconsistent provision
of the prior general law. The provision respecting the time of
electing police magistrates in that corporation on the first Mon-
day of April, 1861, and every four years thereafter, it seems to
be conceded, has not been repealed by any subsequent act;
consequently, the election of a police magistrate on the 4th
day of April, 1871, was not authorized by law, and was invalid,
and no successor of Brackett has been legally elected.
596 Bkackett v. The People ex rel. [June T.
Opinion of the Court.
But, then, it is said, as there was an issue of fact formed on
the 3d plea, the demurrer can not be carried back to the infor-
mation. The several pleas were as follows:
1. That one McCracken was elected to the office April 1,
1867, and afterward died, and that on the 11th day of October,
1870, the defendant was elected to fill the vacancy.
2. That, the office being vacant on the 11th day of October,
1870, defendant was on that day elected to fill it, wherefore his
term of office had not expired.
3. That relator was not eligible to the office, because he
was an alien, and because he held the office of city engineer,
and the two offices were incompatible.
4. That defendant was allowed by law to hold the office
until his successor was designated by the clerk of the county
court as the person elected to succeed the defendant; that the
clerk had never made such designation, and had not entered
relator's name upon the list of justices of the peace, as the suc-
cessor of defendant, as required by law.
5. That no notice was given by the county clerk or sheriff, as
required by law, of the election in the information named.
The issue of fact formed on the 3d plea was upon the alien-
age of the relator.
This court has held that, where a plea of the general issue
is put in to a declaration, a demurrer to a plea can not be car-
ried back to the declaration, upon the well .settled ground that
a party can not plead and demur to the same pleading at the
same time. Wilson v. Myrick, 26 111. 35. It has also held,
that, where, in an action of covenant, the plea of non est
factum had been filed, a demurrer to other pleas could be car-
ried back to the declaration. Reeves v. Foreman, 26 111. 313.
Under the authority of these cases, we see nothing in the pleas
in this case, or in the issue of fact formed, to prevent the de-
murrers of the appellee from being carried back and sustained
to the information. We are of opinion this should have been
done.
The judgment is therefore reversed and the cause remanded.
Judgment reversed.
1874.] Atkins et at. v. Billings, Executrix. 597
Opinion of the Court.
Amos Atkins et al.
v.
Elizabeth Billings, Executrix, etc.
1. Parties in chancery — generally. It is a rule in equity pleading
that all persons who have any substantial, legal or beneficial interest in
the subject matter of litigation, and who will be materially affected by the
decree which may be pronounced, must be made parties.
2. Same — on bill to enjoin judgment at law, and to cancel contracts of sale.
A bill was filed to enjoin the collection of a judgment at law and to cancel
a contract of sale of land for the purchase money of which the judgment
was obtained. It appeared that another person than the grantor named in
the contract was interested in the subject matter of the sale and was to receive
one half the purchase money: Held, that such third person was a necessary
party to the bill.
3. Amending bill to make parties. In sueh a case, where a necessary
party had been omitted, it was held, if the complainant applied for leave to
amend his bill by making the necessary parties, it would have been proper
to allow him to do so, after the dissolution of the preliminary injunction
which had been granted. But in the absence of such an application the bill
should be dismissed.
Appeal from the Circuit Court of Madison county; the Hon.
William H. Snyder, Judge, presiding.
Mr. Henry S. Baker, for the appellants.
Mr. Charles P. Wise, for the appellee.
Mr. Justice Sciiolfield delivered the opinion of the Court:
Appellants exhibited their bill in chancery in the court
below, against appellee, praying that the collection of a cer-
tain judgment be enjoined, and, also, that a contract for the
sale of the real estate therein described be canceled.
The contract for the sale of the real estate was made in the
name of Henry W. Billings, in his lifetime, and the judgment
sought to be enjoined was obtained by appellee, as his execu-
trix, on the promissory notes which appellants had given Henry
W. Billings in payment for the real estate.
598 Atkins et al. v. Billings, Executrix. [June T.
Opinion of the Court.
A preliminary injunction was granted, and, on filing appel-
lee's answer and certain affidavits in support of it, the court
below, on motion, dissolved the injunction and dismissed the
bill.
A single objection to the bill is all that we deem necessary
to notice, as, in our opinion, it, alone, authorized the ruling of
the court.
Appellee is alone made defendant to the bill, yet its allega
tions are, that Lewis B. Parsons had an interest in the sale of
the real estate to the same extent that Billings had, and he was
to receive one-half of the purchase money and join with Bil-
lings in the execution of a deed to the property, with full
covenants of warranty ; and, in showing why appellants failed
to interpose their defense in the suit at law, it is alleged:
" Your orators did not make any defense to said action at law,
for the reason that they were assured, as aforesaid, by the said
Lewis B. Parsons (who was interested as aforesaid therein, and
to whom the whole matter was left for his determination), that
no further steps on judgment would be taken therein until
the said Billings and Parsons could procure a title to said
land," etc.
The answer admits Parsons' interest to the extent charged
in the bill, and the question is, was he not a necessary party to
the bill?
A familiar rule in equity pleadings is, all persons must be
made parties who have any substantial, legal or beneficial
interest in the subject matter of litigation, and who will be
materially affected by the decree which may be pronounced.
Parsons, therefore, having a substantial beneficial interest in
the subject matter of litigation, would seem to be a necessary
party. Had the prayer of the bill been granted, the decree
could not have been limited to appellee's interest in the sub-
ject matter of litigation, but must necessarily have extended,
also, to that of Parsons.
On the bill alone, then, appellants were not entitled to the
relief which was sought, and we can, therefore, perceive no
error in dissolving the injunction and dismissing the bill. Had
1874.] Village of Coulterville v. Gillen. 599
Syllabus.
appellants applied for leave to amend the bill by making the
necessary parties, it would have been proper to have allowed
them to do so after the dissolution of the injunction; but this
was not asked.
The decree is affirmed.
Decree affirmed.
The Village op Coultekville
v.
John Gillen.
1. Spirituous liquors — license for sale thereof— by whom. Where the leg-
islature has declared that incorporated towns shall have the exclusive privi-
lege to grant license within the incorporated limits of the town, the county
authorities have no right or power to interfere in any manner whatever
with the granting of license.
2. Incorporated towns have the power to declare the sale of spirituous
liquors within their limits shall be deemed a nuisance, and punished as
such ; they have the exclusive privilege of granting license to sell such
liquors, and to prescribe the terms upon which they may be sold.
3. The fact that an incorporated town sees proper not to grant a license
for the sale of spirituous liquors within its limits, does not confer power
upon the county authorities to act in the matter, and a license issued by
them is void.
4. Appeal from justice of the peace — waives all informalities.
When a defendant files an appeal bond in the circuit court, he thereby enters
his appearance and waives all defects in the process, the want of process,
and in the service or want of service before the justice of the peace, and the
circuit court can not dismiss the suit unless, upon hearing the evidence, it
appears the justice had no jurisdiction.
Writ of Error to the Circuit Court of Randolph county;
the Hon. Amos "Watts, Judge, presiding.
Messrs. C. W. & E. L. Thomas, for the plaintiff in error.
Mr. J. Blackburn Jones, for the defendant in error.
600 Tillage of Coulterville v. Gillen. [June T.
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court:
This cause was originally commenced before a justice of the
peace of Randolph county, by the village of Coulterville
against John Gillen, to recover a penalty for a violation of an
ordinance of the town. A judgment of $50 was recovered
before the justice, and the defendant appealed to the circuit
court, where a trial was had before a jury, and a verdict re-
turned in favor of defendant.
The village of Coulterville brings the record to this court,
and insists upon a reversal of the judgment on the ground
that the circuit court admitted improper evidence, and gave
improper instructions for defendant.
It is conceded that the village of Coulterville is incorporated
under the general incorporation laws of the State, but the date
when it became incorporated does not appear.
In November, 1873, an ordinance was passed by the town,
which is as follows:
" Sec. 1. It shall not be lawful for any person to sell or give
away, within the limits of said village, any intoxicating, malt,
vinous, mixed or fermented liquors.
" Sec. 2. Any person violating this ordinance shall be fined
not less than $50 nor more than $150."
The plaintiff, on the trial of the cause, read in evidence this
ordinance, and introduced evidence that tended to prove the
defendant sold spirituous liquors on or about the 20th day of
December, 1873, in the incorporated town, in violation of the
provisions of the ordinance.
The defendant, against the objection of the plaintiff, read in
evidence a grocery license issued by the county court of Ran-
dolph county, dated October 20, 1873, which authorized the
defendant to sell spirituous liquors in Coulterville precinct for
one year; also a bond which had been filed in and approved by
the county court of Randolph county.
This evidence, no doubt, had a controlling influence over the
mind of the jury, in the decision of the case, in favor of the
defendant, and it was improperly admitted.
1874.] Tillage of Coulterville v. Gillen. 601
Opinion of the Court.
Section 13, Gross' Statutes, page 420, of the act which
authorizes county commissioners' courts to grant license to
keep a grocery, declares, " The president and trustees of incor-
porated towns shall have the exclusive privilege of granting
licenses to groceries within their incorporated limits."
The language used in this section of the statute is plain and
explicit, and not of doubtful construction. When the legisla-
ture has declared that incorporated towns shall have the exclu-
sive privilege to grant license within the incorporated limits
of the town, the county authorities have no right or power to
interfere in any manner whatever with the granting of license.
This court held, in Bennett v. The People, 30 111. 394, that
incorporated towns have the power to declare the sale of spirit-
uous liquors within their limits shall be deemed a nuisance,
and punished as such; they have the exclusive privilege of
granting licenses to sell such liquors, and to prescribe the
terms on which they may be sold within the limits of the in-
corporation.
The license issued by the county was without authority, and
void.
The fact that the town saw proper not to issue license, did
not confer any power on the county court to act in the matter.
If the town saw proper to decline to grant license, and pro-
vide a penalty to prevent the sale of spirituous liquors, it was
but a due exercise of the right conferred upon it by the legis-
lature.
The case of Fant v. The People, 45 111. 259, cited by coun-
sel for defendant, is not in point on the question involved in
this case.
The second point relied upon by the plaintiff is, the court
erred in giving an instruction for the defendant, as follows:
" You are further instructed, that no penal ordinance of any
city or village incorporated under the law in force July 1, 1872,
can go into effect until it has been posted ten days."
It is insisted that the plaintiff was incorporated prior to 1872,
and this instruction was calculated to mislead the jury. It is
602 Tillage of Coulterville v. Gillen. [June T.
Opinion of the Court.
not shown by this record when the plaintiff became incorpor-
ated, and we have no means of ascertaining that fact, and are
therefore not prepared to say the instruction is liable to the
objection taken.
The defendant, before the justice of the peace, entered a
motion to quash the process and dismiss the suit. This motion
was renewed in the circuit court, and denied, which is now
assigned as error by the defendant. The ground of the motion
is, the process issued by the justice did not run in the name
of the people, and because the suit was brought in the name of
the president and trustees of the village of Coulterville, when
it should have been brought in the corporate name of the
village of Coulterville.
While the process issued by the justice was not technically
correct and formal, yet, when the defendant filed his appeal
bond, he thereby entered his appearance in the cause in the
circuit court, and, by so doing, waived all defects in the pro-
cess, the want of process, defects in the service of or want of
service before the justice. Swingley v. Haynes, 22 111. 214.
No exception was allowable in the circuit court to the form
or service of the writ, or to any proceedings before the justice.
Town of Jacksonville v. Block, 36 111. 507.
The circuit court could not dismiss the suit unless it appeared,
upon hearing the evidence, the justice had no jurisdiction of
the subject matter.
For the error of admitting in evidence the license issued by
the county court, and the bond filed in the county court, the
judgment will be reversed and the cause remanded.
Judgment reversed.
1874.] S. & I. S. E. By. Co. v. Cold Spring Tp. 603
Opinion of the Court.
Speingfield and Illinois Southeastern Ry. Co.
Supervisor and Clerk of Cold Spring Township.
1. Municipal corpokations — in issuing bonds in aid of private enter-
prises, the law must be strictly complied with. Where a municipal corpora-
tion is empowered to enter into trade or enterprises of a private nature,
there are no presumptions in favor of its acts in respect thereto, but, in
their performance, it must appear that the law has been strictly complied
with, before the performance of such acts will be enforced by law.
2. Municipal subscriptions — bonds can not issue for, unless conditions
upon which subscription was voted are complied with. The notice of an elec-
tion upon the question of issuing bonds of a township in aid of a railroad
contained a condition that neither the principal nor interest of the bonds
should be payable unless they should first be registered in the Auditor's
office, according to the provisions of an act entitled "An act to fund and
provide for the payment of the railroad debts of counties, townships, cities
and towns," in force April 16, 1869, which act provided that none of its
benefits, advantages or provisions should apply to any debt unless the sub-
scription or donation creating the debt was first submitted to the legal
voters of the township, etc., and a majority of the legal voters living in said
township, etc., were in favor of such aid. There was not a majority of the
legal voters living in the township in favor of the aid proposed : Held, that
the meaning of the condition in the notice of election was, that the vote
should so result that the bonds might be legally registered, or that they
should not issue, and the vote not having so resulted, there was no power to
compel their issue.
Writ of Error to the Circuit Court of Shelby county; the
Hon. Horatio M. Yandeveer, Judge, presiding.
Mr. T. W. Ewart, and Mr. H. Tompkins, for the plaintiff
in error.
Mr. Anthony Thornton, for the defendants in error.
Mr. Chief Justice "Walker delivered the opinion of the
Court:
This was an application for a mandamus to compel the
supervisor and clerk of the town to issue $15,000 of bonds
donated by the township to plaintiff in error. On a hearing
604 S. & I. S. E. Ey. Co. v. Cold Spring Tp. [June T.
Opinion of the Court.
in the court below, the petition was denied and the writ re-
fused.
The vital question in the case is, whether the conditions
imposed in the notice have been performed. The return states,
and the demurrer admits, that a condition in the notice required
that the vote should so result in favor of the issue of the bonds
that they could be registered with the Auditor, and that there
was not a majority of the voters of the township who cast their
votes in favor of subscription.
It has been uniformly held by this court that, inasmuch as
municipal corporations are created for governmental, and not
for business purposes, where such a body is empowered to
enter into trade or enterprises of a private or business charac-
ter, there are no presumptions in favor of such acts, but, in
their performance, it must appear that the law has been strictly
complied with, before the performance of such acts will be
enforced by the law.
The notice of election, as it is alleged and is admitted by
the demurrer, provided that the bonds should be delivered
upon the conditions, only: when the railway company shall
have completed its line of road, "and that neither the princi-
pal nor interest of said bonds shall be payable unless they
shall have first been registered in the office of the Auditor of
Public Accounts, by and at the expense of the holders thereof,
according to the provisions of an act entitled 'An act to fund
and provide for the payment of the railroad debts of counties,
townships, cities and towns,' " in force the 16th of April, 1869.
That act contains this provision: "And none of the benefits,
advantages or provisions of this act shall apply to any debt,
unless the subscription or donation creating such debt was first
submitted to an election of the legal voters of said county,
township, city or town, under the provisions of the laws of
' this State, and a majority of the legal voters living in said
county, township, city or town, were in favor of such aid, sub-
scription or donation." (Sess. Laws 1869, sec. 7, p. 316.) This
is the provision of the act to which reference i,s made in the
notice.
1874.] S. & I. S. E. Ey. Co. v. Cold Spring Tp. 605
Opinion of the Court.
In the case of Dunnovan v. Green, 57 111. 63, it was held,
that this provision of that act was peremptory, and that, even
if the bonds had been improperly registered, the Auditor was
powerless to levy the tax as provided in that act, unless a
majority of the voters living in the township voted in favor of
subscription; that such a vote was a prerequisite to his power
to levy a tax to pay the interest on bonds issued by the township.
Again, in the cases of Mc Whortor v. The People ex rel. 65
111. 290, and The People ex rel. v. Chapman, 66 ib. 137, it
was held, that, where a note had been taken on a notice con-
taining a similar provision to this, and a majority of the voters
living in the township had not voted in favor of the proposi-
tion, the municipality could not be compelled to issue the
bonds. When such conditions were imposed, it was with the
view of availing of that enactment. Its benefits were the
moving cause for voting the aid, and being made a condition
precedent, the people should not be compelled to forego their
expectations of receiving the benefits contemplated by the act.
Under that statute, the Auditor has no power to register bonds,
and levy and distribute the tax, unless a majority of the legal
votes of the municipality shall have been in favor of the propo-
sition. The condition in the notice is, that neither principal
nor interest of the bonds shall be payable unless they shall
have been registered in the office of the Auditor of Public
Accounts according to the provisions of that act. It being
admitted that a majority of the votes of the township had not
been cast in favor of this donation, it follows that the bonds
could not be legally registered, and if not, neither principal
nor interest of the bonds could ever become payable, and hence
it would be an useless act to compel their issue. The meaning
of the condition is, that the vote shall so result that the bonds
may be legally registered, or they shall not issue; and the vote
not having so resulted, there is no power to compel their issue.
This question is decisive of the case, and renders the discussion of
the other questions raised on the record unnecessary in this case.
The judgment of the court below must be affirmed.
Judgment affirmed.
606 Groves et al. v. Webber. [June T.
Opinion of the Court.
George B. Groves et al.
v.
Andrew J. Webber.
1. Injunction — to restrain sale which would create cloud upon title. A
court of chancery has jurisdiction to prevent the creation of a cloud upon
title, as well as to remove such cloud, and where it appears that a deed ac.
quired at a sale about to be made by a sheriff on execution, would only be
a cloud upon the title of the complainant, such sale will be enjoined.
2. The owner of land sold and conveyed the same to a bona fide pur-
chaser, who filed his deed for record on the clay of its execution. On the
same day, and after the deed was filed for record, an attachment was issued
in aid of a suit then pending, against the vendor, in another county, directed
to the sheriff of the county where the land was situated, and on the same
day was levied by the sheriff on the land, but no certificate thereof filed
until several clays afterwards; the attachment suit was prosecuted to judg-
ment, and a special execution issued thereon against the land : Held, that a
sale under the execution would only create a cloud upon the title of the pur-
chaser from the defendant in the attachment, and that a court of chancery
had jurisdiction to and should restrain the sale.
3. Purchaser — of his rights as against an attaching creditor. A bona fide
purchaser of land, whose deed is delivered to him and filed for record in
the county where the land lies, before the issuing of an attachment against
the vendor in another county, which is issued and levied on the land on the
same day of the execution, delivery and recording of the deed, but no certifi-
cate of such levy filed until several days afterwards, acquires the title to the
land, whatever may have been the purpose or intention of the vendor in
making the sale.
"Writ of Error to the Circuit Court of Perry county; the
Hon. Monroe C. Crawford, Judge, presiding.
Mr. F. M. Youngblood, and Messrs. Casey & Wilson, for
the plaintiffs in error.
Mr. Edward Y. Pierce, for the defendant in error.
Mr. Justice McAllister delivered the opinion of the Court :
Webber, the defendant in error, purchased of Bales the lands
in question, situate in Saline county, April 3, 1867, paying
Bales therefor the sum of $1500, and taking from him a deed,
1874.] Groves et al. v. Webber. 607
Opinion of the Court.
which was filed for record at 3 o'clock P. M. of that day.
Groves, having at that time an action at law pending in Frank-
lin county, against Bales, on the same day sued out an attach-
ment in aid, which was delivered to the sheriff in the afternoon of
the same day, but after Webber had received his deed, and which
he levied upon the same land, at 3 o'clock P. M. of that day,
but no certificate of levy was filed until several days thereafter.
Groves, having prosecuted his suit against Bales in the Franklin
circuit court, to judgment, sued out a special execution against
these lands, and placed it in the sheriff's hands, whereupon
Webber filed this bill in equity to enjoin such sale, and to pre-
vent a cloud upon his title. Answers and replication were
filed, a change of venue taken to Perry county, where the
cause was heard upon pleadings and proofs, and a decree
entered in favor of the complainant, enjoining such sale, and
the defendants bring the case here by writ of error.
The first point made is, that, conceding Webber's purchase
to have been made in good faith, without notice, and to have
been fully consummated before the delivery of the attachment
to the sheriff, still there was no jurisdiction in equity, for the
reason that there was an adequate remedy at law.
In Christie v. Hale, 46 111. 122, a similar objection was
answered by this court, thus: " It is also insisted that, although
plaintiffs in error may have no lien or other right, the remedy
of defendant in error is complete at law, and equity will not
entertain jurisdiction to grant relief. The fact that the holder
of a cloud on complainant's title may compel him to defend
himself against it, with the expense and vexation attending a
suit, is the ground upon which bills quia timet are placed.
Jarvis v. White, 7 Yes. 415. And if the court may, to pre-
vent litigation, expense and vexation, entertain jurisdiction to
remove a cloud, no reason is perceived why it may not be ex-
ercised to prevent the creation of such a cloud. And in the
case of Pettit v. Shepherd, 5 Paige, 493, it was held, that the
court of chancery would restrain a sale on an execution, where
it appeared that a deed acquired at such a sale would only be a
cloud on the title of a bona fide purchaser. In that case, a
608 Gkoves et al. v. Webber. [June T.
Opinion of the Court.
creditor, after his judgment had ceased to be a lien, sued out
an execution, and the sheriff was proceeding to sell land upon
which the judgment had been a lien, but had been sold bj the
judgment debtor to a bona fide purchaser, and, on his applica-
tion, the court enjoined the sale."
If "Webber was a bona fide purchaser, and had become so
before the writ of attachment was issued, then it clearly follows
that a deed acquired at a sale upon the special execution, in favor
of Groves and against Bales, would be only a cloud upon Web-
ber's title, and chancery would have jurisdiction to prevent it.
The evidence is somewhat voluminous, but it appears, from
a clear preponderance of it, that Webber purchased, paid the
consideration and took a conveyance from Bales before the writ
of attachment issued, and without any notice that it was about
to issue. He had the deed in his possession several hours be-
fore he had any knowledge in reference to the writ of attach-
ment. Whatever might have been the purpose of Bales, the
evidence wholly fails to show any complicity on the part of
Webber in any fraudulent purpose.. We must, therefore,
regard him as a bona fide purchaser of these lands without
notice, before the writ of attachment was issued, and at the
time it was levied his deed was filed for record in Saline county,
where the lands were situate, but no certificate of levy under
the writ was filed until several days thereafter.
This was a writ of attachment, issued from the circuit court
of Franklin to the sheriff of Saline county. The statute de-
clares : " Where a writ of attachment or writ of execution is
issued from the circuit court of one county to any sheriff or
other officer of another county, and levied upon any real estate
in such county, it shall be the duty of the officer making such
levy to make a certificate thereof, and file the same in the re-
corder's office of the county where such real estate is situated;
and until the filing of such certificate, such levy shall not take
effect as to creditors or bona fide purchasers without notice."
We are of opinion that the errors assigned are none of them
sustainable, and that the decree of the court below should be
affirmed- Decree affirmed.
1874.] Carter v. Marshall. 609
Opinion of the Court.
John W. Carter
James P. Marshall.
1. Law and fact — whether testimony of a deceased witness, on a former
trial, is accurately stated. Where a witness who had testified on a former trial
of a case was dead at the time of a subsequent trial, and witnesses who heard
his testimony on the former trial gave the substance of it according to the
best of their recollection, it was improper for the court to instruct the jury
to treat the evidence of such witnesses as the testimony of the deceased wit-
ness, and to give it the same weight they would if he was living, and had
given the same state of facts in evidence before them. Such an instruction
assumes that the witnesses who undertook to state the former testimony
gave it accurately, whilst it was the province of the jury to determine that
fact.
2. Landlord and tenant — tenant can not deny landlord's title. Where
a party in possession of premises accepts a lease, and occupies under it, he
is estopped to deny his landlord's title, until the parties are placed in their
original positions, and it makes no difference that the tenant may have been
in possession as the tenant of a former landlord — he is precluded from
denying the title of either.
3. Same — when tenant may dispute landlord's title. The exception to the
general rule preventing a tenant from denying his landlord's title is, where
he has been induced by artifice, fraud or mistake to accept the lease. In
such case, he may show better title in himself, or in any third party under
whom he claims. He will be permitted to avoid the lease by proof of such
facts as would warrant relief in equity from any other obligation created by
deed.
Appeal from the Circuit Conrt of Alexander county; the
Hon. David J. Baker, Judge, presiding.
Messrs. Green & Gilbert, and Mr. Samuel P. "Wheeler,.
for the appellant.
Messrs. Linegar & Lansden, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
Appellee claims to be the landlord of appellant, and this
litigation is induced by an effort, on the part of the alleged
tenant, to resist the claim asserted, by showing that he is the
39— 72d III.
610 Carter v. Marshall. [June T.
Opinion of the Court.
tenant of the Emporium Eeal Estate and Manufacturing Com-
pany. The property in controversy is the Mound City Rail-
road, its rolling stock and franchises.
Appellee, as trustee for the bondholders, executed a lease on
this property to Hiram Boren, who, it is alleged, assigned it
to appellant. The principal controversy is, whether the assign-
ment on the lease was made with appellant's consent, or whether
he ever accepted it. He had previously been in possession of the
road under a verbal lease from the Emporium Company.
The evidence on this material point, viz: the assignment
and acceptance of the lease, is flatly contradictory. The orig-
inal lessee, Boren, has since died. He had given his testimony
on a former trial between the parties, on the question of the
assignment of the lease to appellant. That testimony was all-
important in the present trial. Witnesses who heard it, gave
the substance of his testimony according to the best of their
recollection.
The court, at the instance of appellee, instructed the jury,
that if they " believed, from the evidence, that Hiram Boren is
dead, and that he was a witness in this cause at a former trial,
then it is proper for the plaintiff to show, by a witness who
was present and heard his evidence at such former trial, what
that evidence was ; and the jury should consider the facts sworn
to by such witness as the evidence of Hiram Boren, and give
it the same weight that you would if he was living, and had
given the same state of facts in evidence before you."
This instruction is fatally erroneous in assuming that the
witnesses who undertook to state the former testimony of Bo-
ren gave it accurately. That was the province of the jury to
determine, and it was error in the court to interfere. If it
appeared, clearly, from the testimony, that the Boren lease had
been assigned to appellant, and had been accepted by him, we
might say the charge had worked appellant no injury. With-
out intending to intimate any opinion as to the weight of the
evidence, we may be permitted to say this instruction may
have misled the jury on this all-controlling point in the case.
The court, no doubt, intended only to say to the jury, that if
1874.] Carter v. Marshall. 611
Opinion of the Court.
they believed, from the evidence, that the witnesses had given
the substance of the testimony of Boren on the former trial
accurately, according to the best of their recollection, then it
was to be received and considered as other evidence in the case.
But the court did vastly more. It charged them that they
must " consider the facts sworn to * * as the evidence of
Hiram Boren." This it had no right to do.
It is insisted no recovery can be had, in any event, unless it
is shown that appellee or Boren had possession at the date of
the alleged assignment of the lease, and such possession was
transmitted to appellant.
It is an undeniable proposition, that where a party in pos-
session of premises accepts a lease and occupies under it, he is
estopped to deny his landlord's title. No dispute as to the
title will be tolerated, until the parties are placed in their orig-
inal positions. The exception to the general rule is, where the
tenant has been induced by fraud, artifice or mistake to accept
the lease. In such case, he may show better title in himself
or in any third party under whom he claims. He will be per-
mitted to avoid the lease by proof of such facts as would war-
rant relief in equity from any other obligation created by deed.
It makes no difference, the party may have been in possession
as the tenant of a former landlord — he is precluded from deny-
ing the title of either. Dunbar v. Bonesteel, 3 Scam. 32 ;
Isaac v. Clark, 2 Gill, (Ma.) 1; Magee v. The Society of U.
B. 20 Penn. 60; Miller v. Ronsodon, 9 Ala. (N. S.) 317.
The instructions given for appellee on this question, present
the law with sufficient accuracy, and may be given again on
another trial. Those asked by appellant on the same point
were properly refused.
The other errors complained of are of trivial importance,
and may be readily corrected without any suggestion from this
court.
For the error indicated, the judgment will be reversed and
the cause remanded.
Judgment reversed.
612 Ind. & St. L. E. E. Co. v. Hackethal. [June T.
Opinion of the Court.
Indianapolis and St. Louis Eailroad Co.
v.
Geoege Hackethal.
1. Allegation's and proof — as to joint liability of several in an action
for tort. In actions for tort, where a joint liability is averred in the dec-
laration against several defendants, it is not necessary to a recovery that
the proof should show such joint liability. It may fail to establish any of the
averments as against a portion of the defendants, yet, if the averments are
proved as against the other defendants, or any of them, a recovery can be
had against such as are shown to be guilty.
2. And this rule applies as well to a case where the tort is alleged to
have been committed by the defendants through the means of an article of
property which they jointly owned or were jointly using, as to a case where
the tort is alleged generally to have been committed by the defendants.
Appeal from the Circuit Court of Madison county; the
Hon. William H. Snyder, Judge, presiding.
Mr. B. W. Hanna, for the appellant.
Messrs. Irwin & Krome, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action of trespass, brought by the appellee
against the Eockford, Eock Island and St. Louis Eailroad
Company and the Indianapolis and St. Louis Eailroad Com-
pany, the first count of the declaration alleging that the com-
panies were the owners of a certain railroad, and of locomotives
and trains of cars in charge of their servants, and that the de-
fendants, by their servants having in charge said locomotives
and trains of cars running upon the track of the said Indiana-
polis and St. Louis Eailroad Company, negligently communi-
cated fire from the locomotives to certain corn of the plaintiff,
whereby the same was destroyed; the second and third counts
alleging that the track of the Indianapolis and St. Louis Eail-
road Company was used by the defendants, and that the
defendants, in manner aforesaid, communicated fire to other
1874.] Ind. & St. L. K. R. Co. v. Hackethal. 613
Opinion of the Court.
property of the plaintiff adjoining the track, and thereby the
property was destroyed.
Upon trial, under pleas of the general issue, the Indianapolis
and St. Louis Railroad Company was found guilty, and the
damages assessed, and the Rockford, Rock Island and St. Louis
Railroad Company was found not guilty. Judgment on the
verdict having been rendered against the former company, it
has brought the case here by appeal.
There is no evidence preserved in the record, and the only
point made in favor of the reversal of the judgment is, that
one defendant could not be properly found guilty and the other
not guilty; that, under the state of case made by the declara-
tion, it was not possible for one to be guilty and the other
innocent, it being maintained that if the injury complained of
was occasioned by the negligence or willfulness of the servants
jointly employed by the defendants, through the means of an
engine belonging jointly to them, then, in the nature of things,
it was impossible for one of the defendants, singly, to have
committed the act complained of.
We fail to appreciate the force of the position assumed. The
state of case charged in the declaration may not have been es-
tablished by the proof, nor was it necessary to have been, in an
action ex delicto. The proof may have failed to establish any
of the averments of the declaration in respect to the company
acquitted.
And whether impossible or not for one of the defendants,
singly, to commit the trespass, the tort was, in its nature, the
separate act of each, and for that reason it is familiar law, that
if several persons, jointly, commit a tort, the plaintiff in gen-
eral has his election to sue all or some of the parties jointly, or
one of them separately, and that part where several are sued
may be found guilty, and part not guilty.
In Frink et al. v. Potter, 17 111. 406, an action against four
defendants for an injury to a passenger in one of their stage
coaches, (the declaration having averred that the defendants
were proprietors of the coach, and that for want of proper care
on their part the coach was overturned, and plaintiff thereby
614 Ikd. & St. L. E. E. Co. v. Hackethal. [Tune T.
Opinion of the Court.
hurt,) it was claimed, that to maintain the action the plaintiff
must prove that all the defendants were joint owners of the
stage line; but it was held, that the plaintiff, to maintain his
action, was not compelled to prove all the defendants guilty,
or the alleged relation of all the defendants to each other ; that
if the defendants were joint owners of the stage line, and the
injury arose from the fault of either of them or their servants,
each and all were guilty, if but a portion of them were propri-
etors, then such portion and each of them were guilty; that
the allegata and probata were not required to correspond in
such case. And the rule was recognized, that the plaintiff
may recover against so many as he proves guilty of the alleged
wrong, although he may have alleged the wrong to have been
committed jointly by all of them.
This is an authority in opposition to the supposed distinc-
tion which appellant claims to exist between the case where a
tort is alleged, generally, to have been committed by defend-
ants, and the one where the allegation is that the tort was
committed by them through the means of an article of prop-
erty which they jointly owned and were jointly using, to-wit:
that in the former case the proof need not correspond with the
allegation, but that it must in the latter case. And we can
see no room for the distinction attempted to be made by ap-
pellant in argument, so far as affects the present question,
whether the averment be that the defendants themselves com-
mitted the trespass, or that they committed it by their servants.
See, also, Baker v. M. S. and JST. I. B. R. Co. 42 111. 73.
We find no ground for reversing the judgment, and it is
affirmed.
Judgment affirmed
1874.] Ruffin, Admx. v. Farmer, Admr. 615
Opinion of the Court.
Martha J. Ruffin, Admx. etc.
v.
William R. Farmer, Admr. etc.
1. Wills. The construction of a will is a matter for the court, and should
not be left to the jury.
2. Same — legacy payable to one at the age of twenty-one years, goes to his
administrator if he dies before he attains that age. "Where a legacy of a cer-
tain sum of money is, by will, given to a boy, to be paid to him at the age
of twenty-one years, and he dies before attaining that age, his administrator
is entitled to recover the same when the time at which he would have
attained that age, if living, arrives.
Appeal from the Circuit Court of Jackson county ; the Hon.
Monroe C. Crawford, Judge, presiding.
Mr. D. H. Brush, for the appellant.
Mr. Justice McAllister delivered the opinion of the Court:
Appellee, as administrator of John F. Plasters, deceased,
commenced these proceedings by petition in the county court
of Jackson county, against the estate of Jane Richarts, deceased,
to recover the amount of a legacy of $200 bequeathed to Plas-
ters by the last will and testament of Jane Richarts. The claim
was allowed, and the cause appealed to the circuit court of that
county, where it was tried before the court and a jury, with
the same result. Respondent appealed to this court.
It appears that Jane Richarts died testate in September,
1860, and, at the following December term of the county court,
her will was admitted to probate. It contained this provision:
" I give, devise and bequeath to John F. Plasters, son of Nancy
Forbes, the sum of two hundred dollars, to be paid to him at
the age of twenty-one years."
It is in evidence that Plasters was born in 1846, and died
intestate March 24, 1863, and, December 16, 1870, appellee,
being a half-brother, was appointed administrator of his estate.
616 Wilson v. Miller. [June T.
Syllabus.
The bequest is made in terms entirely free from ambiguity.
The regularity of appellee's appointment as administrator could
not be questioned collaterally. Duffin et al. v. Abbott et ail.
48 111. 17.
To the admission of evidence alleged to have been incom-
petent, no exception was taken.
The instructions asked on behalf of appellant, and refused
by the court, were none of them proper. They respectively
sought to have the jury construe the will, which was a matter
for the court.
Finding no error in the record, the judgment of the court
below will be affirmed.
Jxidgrnent affirmed.
Edward S. Wilson
v.
David Miller.
Fraud and circumvention. A party who was sued upon what purported
to be a promissory note, testified: "I never signed the note. Some one
came to my house, inquiring the way to Grove township, and asked me to
sign my name and post office address in a book. I did so. He said he would
send me a fork to show the farmers in Grove township, and would come
back in two weeks to take the fork, when he would pay me for my trouble.
He never came back. He did not ask me to buy the fork or give him my
note. I signed my name and post office address on a blank page of a book
produced for that purpose :" Held, these facts, uncontradicted, were sufficient
to show the execution of the note was procured by fraud.
Appeal from the Circuit Court of Jasper county; the Hon.
James C. Allen, Judge, presiding.
Messrs. Wilson & Hutchinson, for the appellant.
Mr. John H. Halley, for the appellee.
1874.] Wilson v. Miller. 617
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court:
Appellant urges a reversal of the judgment in this case, alone,
upon the ground that the verdict is contrary to the evidence.
The suit was brought to recover upon a promissory note, dated
June 18, 1868, due in one year, for $100, given by David Mil-
ler, appellee, to T. W. Barbour, and by him indorsed to appel-
lant, August 28, 1868.
The defense relied upon by appellee, in the circuit court,
was, that the making of the note was obtained by fraud.
The jury rendered a verdict in favor of appellee. The court
overruled a motion for a new trial, and rendered judgment
upon the verdict.
The only evidence before the jury, on the question of fraud
in obtaining the execution of the note, was that of appellee.
He testified as follows: "I never signed the note. Some one
came to my house, inquiring the way to Grove township, and
asked me to sign my name and post office address in a book.
I did so. He said he would send me a fork to show the farmers
in Grove township, and would come back in two weeks to take
the fork, when he would pay me for my trouble. He never
came back. He did not ask me to buy the fork or give him
my note. I signed my name and post office address on a blank
page of a book produced for that purpose."
This evidence was not contradicted or its truth questioned,
so far as we can learn from the record. It is true, appellant
testified, when he presented the note to appellee, he promised
to pay it if it was left with one Halley. This, appellee denies.
Crowley, a witness for appellant, was present at this interview.
He does not, however, sustain appellant. He testified plaintiff
told defendant that he would leave the note with Halley. and
defendant said he would see Halley. The evidence upon this
point in the case was conflicting, and it was for the jury to
determine which of the parties were entitled to the greater
degree of credit.
Upon the main question in the case, whether the execution
618 "Wilson v. Millek. [June T.
Opinion of the Court.
of the note was obtained by fraud, we are of opinion there was
evidence enough before the jury to sustain the verdict.
Where no questions of law are involved, it is the settled
doctrine of this court not to reverse unless the verdict is clearly
contrary to the weight of evidence. Such is not this case.
The judgment will therefore be affirmed.
Judgment affirmed.
CASES
IN THE
SUPREME COURT OF ILLINOIS.
NORTHERN GRAND DIVISION
SEPTEMBER TERM, 1874.
JOHET LoWMAN
V.
Margaret Aubery et al.9 Admrs.
1: Evidence— proof of the execution of note sued on. Where the defend-
ant admits, in open court, that his signature to the note sued on is genuine,
and no alteration appears upon its face, the note is properly admissible in
evidence, under a plea of non est factum, verified by affidavit, without fur-
ther proof.
2. Alteration — when not apparent, must he shown by the party alleging
it. Where the execution of a promissory note is put in issue by pica, veri-
fied by affidavit, and the defendant admits that the name signed thereto is
his signature, it is not incumbent on the plaintiff to show that the note has
not been altered, where no alteration is apparent on its face, to admit the
same in evidence, but the defendant must show that fact in defense.
3. Costs in Supreme Court — remittitur. Where judgment is taken
for too large a sum, and, on appeal by the defendant to this court, the appel-
lee, after the cause is submitted, enters a remittitur of the excess, if this is
the only error, the judgment will be affirmed at the costs of the appellee.
4. Witness — in suit by administrators. In a suit by administrators of
an estate, upon a note given to their intestate in his lifetime, neither of the
defendants is a competent witness on the question of an alleged alteration
of the note by the deceased, even though one of them is only a surety for
the other.
620 . Lowman v. Aubery et al, [Sept. T.
Opinion of the Court.
Appeal from the Circuit Court of Peoria county; the Hon.
J. W. Cochran, Judge, presiding.
This was an action of assumpsit, brought by Margaret Aubery
and Wesley B. Harvey, administrators of the estate of F. W.
Aubery, deceased, against John Lowman and Frederick Koozier,
upon a promissory note. The opinion of the court states the
facts of the case. Lowman, alone, appealed from the judgment
of the court below.
Messrs. Roberts & Green, for the appellant.
Messrs. Cooper & Bassett, for the appellees.
Mr. Chief Justice Walker delivered the opinion of the
Court:
Appellees, as administrators of the estate of F. W. Aubery,
deceased, brought an action of assumpsit, in the Peoria circuit
court, against John Lowman and Frederick Koozier, on a
promissory note purporting to have been executed by them to
deceased. The defendant Lowman pleaded non assumpsit,
and a plea of non est factum, sworn to by him. There was a
default as to Koozier. A jury was waived, and a trial had by
the court, who found the issues for the plaintiffs, and rendered
judgment for $784 and costs, from which this appeal is prose-
cuted.
It is first objected that the court erred in admitting the note
in evidence without proof of its execution. In the transcript
of the bill of exceptions, we find, after a recital that the
plaintiffs offered and read in evidence the note, this statement:
" To the reading of which in evidence, defendant Lowman then
and there objected, for the reason that the execution of said
note by said Lowman was not proven by plaintiffs; but the
court overruled the objection, and, upon admission by defend-
ant Lowman that the signature of the said Lowman to the
note was his signature, the court permitted the note to be read
in evidence, to which defendant Lowman then and there ex-
cepted." That portion of this quotation referring to Lowman's
1874.] Lowman v. Atibery et al. 621
Opinion of the Court.
admission to his signature does not appear in the abstract.
Such an admission, as all know, obviates the necessity of call-
ing witnesses to prove his signature, and he, in the stipulation
filed in the case, admitted that he signed the note.
It is urged that appellees should have proved there had been
no alteration of the note before it was offered in evidence. It
may be, as was said in Walters v. Short, 5 Gilm. 252, the
court below may have been satisfied, from an inspection of the
writing, that there was no alteration, and if so, the finding of
the court was correct, and authorized it to be received in evi-
dence, liable to be overcome by evidence on the part of appel-
lant. When the signature was admitted and the note offered,
and, on inspection, there was no appearance of alteration to
be discovered, the court could not do otherwise than admit it
in evidence, leaving defendant to prove an alteration. We
presume there was no appearance of an alteration, as three
witnesses afterwards, in rebuttal, swore none appeared.
The questions before the court below were, whether the
note, after its execution, was altered from $500 to $600, and
if altered, whether it had been ratified by Lowman after such
alteration. A number of witnesses testified, and there is per-
haps some slight contrariety in the evidence, but all con-
sidered, we are satisfied that appellant failed to prove the
alteration. Several witnesses examined by appellees, and one
of the appellees, testified that they had examined the note,
and did not believe it had been altered. The judge who tried
the case must have examined it, and had he believed it had
been altered, he would have found for defendant; and having
found for appellees, he undoubtedly, from inspection and the
evidence, believed it not to have been altered.
Two witnesses testify to having heard Aubery, in his life-
time, speak of holding a note on these makers, which had been
altered from $500 to $600, but they fail to identify this as the
note then referred to by Aubery. It may have been, and
probably is, true that he then held such a note, as one of the
witnesses says he went to see appellant in reference to that
note, and they conversed about the note and alteration; but if
622 Lowman v. Aubery et al. [Sept. T.
Opinion of the Court.
so, it must be that the note then held was given up, and this
one taken in lieu of the other. We can see no other rational
explanation, as this note manifestly, from the evidence, had
not been altered.
It is, again, urged that the court erred in not permitting
Koozier, the co-defendant, to testify for the defense. In this
there was no error. The second section of the act of 1867
expressly prohibits the adverse party to testify against a per-
son suing, or defending as an executor or administrator, unless
called by such adverse party.
Koozier was a party to the suit, even if he had no interest
in the issue being tried, but the statute prohibits a party, with-
out reference to his interest, from being thus called. The
language of the statute is: "~No party to any civil action, suit
or proceeding, or person directly interested in the event thereof,
shall be allowed to testify," etc. This changes any rule that
may have been announced by the court previous to its adoption,
and not in harmony with that provision of the statute. The
statute has spoken, and we must obey.
It is also urged that the sum found by the court was too
large, and a reversal was urged on that ground. Appellees,
heretofore, and during the term of court when this case was
submitted, entered a remittitur of $59.50, which is the amount
of the error claimed by appellant. This, under the 81st sec-
tion of the Practice Act of 1872, p. 351, cured the error; but
inasmuch as appellant failed to correct it until the cause was
brought to this court and submitted, the remittitur can only
be allowed at the costs of appellees, to be paid in due course
of administration.
The judgment of the court below is affirmed, at the costs of
appellees, as here indicated.
Judgment affirmed.
1874.] Loomis et al. v. Stave. 623
Opinion of the Court.
Edgar Loomis et al
Lewis Stave.
1. Pledge — right to sell the same after default. "Where a party deposited
certain township bonds as collateral security for the repayment of certain
sums of money borrowed, it was held, that the lender, with whom they were
deposited, had the right to sell the same on default of payment, without any
personal notice to the pledgor of an intention to do so, it being so stipulated
in the agreement.
2. Tiiover — when it lies. Where bonds, deposited as collateral security,
are sold in pursuance with the terms of the agreement of the parties at the
time they were deposited, trover will not lie against the depositary to recover
any surplus in his hands belonging to the depositor.
3. Tender — when too late. Where a tender is made of a debt after its
satisfaction by the sale, properly made, of collaterals deposited, the tender
will be too late.
4. Measure op damages — in trover to recover collaterals. In an action
of trover by a debtor for the recovery of bonds pledged by him as collateral
security for his debt, and which he claimed had been improperly sold, the
measure of damages is not the highest price which had been paid for such
bonds in a particular case — the true test is, their market value.
Appeal from the Superior Court of Cook county; the Hon.
Joseph E. Gary, Judge, presiding.
This was an action of trover, brought by Lewis Stave against
Edgar Loomis and Martin P. Follett. The opinion of the
court states the material facts of the case.
Messrs. Monroe, Bisbee & Gibbs, for the appellants.
Mr. S. Ashton, for the appellee.
Mr. Justice Breese delivered the opinion of the Court:
This was trover, in the Superior Court of Cook county, tried
by a jury, for certain township bonds, which resulted in a ver-
dict and judgment for the plaintiff.
These bonds were deposited by the plaintiff with defendants,
as collateral to notes executed by him to the defendants, given
624 Loomis et at. v. Stave. [Sept. T.
Opinion of the Court.
on two different occasions, for the loan of money. Making the
notes, and default in their payment, was not denied by the
plaintiff, but the complaint is, that defendants had agreed to
extend the time of payment, and afterwards, they, in violation
of the agreement, sold the collaterals, greatly to the loss and
injury of the plaintiff. This is the gravamen of the action.
On this point much testimony was heard, which we have read
and considered, and we are satisfied the verdict is greatly
against the weight of the evidence, and that it ought not to
stand. The agreement to extend the time rests wholly upon
the testimony of the plaintiff, and is distinctly denied by
Loomis, one of the defendants, with whom it is alleged the
agreement was made. The conversation detailed by the plaintiff,
which he had with Loomis on this subject, contains none of the
essentials of an agreement. The defendants could have brought
suit on the next day after this conversation, had they been so
disposed, and there was nothing to bar a recovery, had the
notes then matured. It was a mere street conversation. The
only conversation that could by possibility be construed into
an agreement, was when, on meeting the plaintiff on the street,
after the first note became due, on his complaining that he was
hard up, and wanted an extension, Loomis told him he would
extend the time at the same rate he paid before, and bring in
new papers, and pay the interest at once; that they would not
have any past due paper in their office. Plaintiff replied, he
would see Mr. Sinclair, the person who had negotiated the
loan, but no attention was paid to it.
This statement is corroborated by Mr. Sinclair. Lie testifies
he communicated all this to the plaintiff.
The matter remaining in this position, defendants had a clear
right to make sale of these bonds as by the agreement when
they were deposited, and without giving the plaintiff any notice
of their intention so to do. It is so stipulated in the agree-
ment.
The tender set up, after the sale of the bonds, was too
late.
It appears there was a surplus after the sale, which properly
1874.] Eureka Coal Co. v. Braidwood et al. 625
Syllabus.
belonged to the plaintiff, but it can not be recovered in this
action,
We look in vain in the record for grounds on which to sus-
tain this verdict.
The damages also are excessive. The jury seem to have
allowed the plaintiff the highest price which had been paid
for such bonds in a particular case, when the true test was their
market value, and to that the jury should have been confined.
For the reasons given, the judgment is reversed and the
cause remanded.
Judgment reversed.
The Eureka Coal Company
v.
James Braidwood et al.
1. Evidence — of the condition of work long after its completion. Upon the
question of the completion of a shaft in a coal mine in good condition, where
it appeared that the work was finished and tendered on the 20th of Novem-
ber, evidence was offered to show the condition of the shaft in the month
of January following, by the party for whom it was sunk, which the court
refused to admit : Held, that the proof was properly excluded.
2. Contract — acceptance of work done. Where a party engaged to sink
a shaft for the purpose of mining coal, upon the land^f another, and com-
pleted the work according to contract, he should not be prejudiced for the
want of a formaUacceptance by the party for whom the work was done.
Appeal from the Circuit Court of Will county; the Hon.
Josiah McRoberts, Judge, presiding.
This was an action of covenant, by James Braidwood, James
Roe and James Reuncie, against the Eureka Coal Company.
Messrs. Barber & Munn, for the appellant.
Messrs. Hill & Dibell, for the appellees.
40— 72d III.
626 Eureka Coal Co. v. Braidwood et al. [Sept. T.
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court:
This action is in covenant, on an agreement under seal.
Appellees undertook to sink a shaft, for the purposes of mining
coal, at a point to be selected by the company. Among other
things, appellant obligated itself to furnish certain machinery,
and to do it at such times as would not hinder the progress of
the work, using due diligence in that regard. The shaft was
to be sunk below the strata of coal, and to be left in good con-
dition for mining. A general performance of all the under-
takings, on the part of appellees, is averred. Several breaches
are then assigned, the principal one being, that in sinking the
shaft a steam pump became necessary to remove the water as
the work progressed, and the company failing to furnish it in
apt time, appellees were unnecessarily delayed, and thereby
sustained great damages. The cause was submitted to a jury,
who found the issues for appellees, and assessed their damages
at $3990. To reverse the judgment entered on the verdict, the
coal company prosecute this appeal. We see no reason for
reversing the judgment for any cause of error suggested.
The evidence is flatly contradictory, and in all such cases,
where the jury have been properly instructed, the verdict must
stand, unless it plainly appears it was the result of passion and
prejudice.
The controverted point in the case was, whether appellees
had completed the shaft according to the contract, and left it
in good condition for mining coal. On this question a great
number of witnesses were examined on both sides, all, or nearly
all, of them of large experience in this kind of work. The
evidence is totally irreconcilable. It would justify a verdict
either way. We can not undertake to say which set of wit-
nesses the jury should believe. This would be to invade the
province of the jury, which we have neither the right nor in-
clination to do.
Appellees gave notice, on the 20th of November, the shaft
was completed, but appellant did not then examine it with a
view of accepting or rejecting the work. One reason assigned
1874.] Eureka Coal Co. v. Braidwood et al. 627
Opinion of the Court.
is, it was full of water, and .the examination could not be made.
As to whose fault it was the shaft was filled with water, the
testimony is as conflicting as upon any other point. Appellees
attribute it to the company's superintendent, in removing the
suction pipe used with the steam pump. Without it they
could not keep the water down. There is evidence in the
record, if the jury gave credence to it, that tends to support
this theory of the case.
Conceding the fact as found by the jury, that appellees really
completed the shaft and left it in good condition for mining coal,
they could not be prejudiced by the fact there was no formal ac-
ceptance by the company. Many witnesses of large experience,
whose judgment on such a question was entitled to respect, say
the shaft was a good one, and was capable of being worked;
if so, it was the duty of the company to accept and pay for it.
The court excluded testimony offered, to prove the condition
of the shaft in the month of January following. We see no
error in this. Its condition at that time would not show what
its condition was at the time appellees claim to have finished
and tendered it to appellant. The company ought to have
caused the examination to be made at once. There is evidence
that tends to show it could have been made then, had not the
suction pipe been- removed. Appellees insist they had no
means of keeping the water down after its removal.
Inquiry as to its condition in the month of January would
have involved an extended investigation whether permitting
water to stand in the shaft would not tend to injure or destroy
it. The examination should have been made when appellees
tendered the work to the company, or within a reasonable time
thereafter, and the evidence was properly confined to its con-
dition at that time.
We have carefully examined this entire record, and we fail
to perceive any satisfactory reason for reversing the judgment.
The case was fairly presented to the jury, and we can not say
their conclusion is not warranted by the evidence, nor that the
verdict does not do justice between the parties.
The judgment must be affirmed. T 7 . ,« 7
J & Judgment affirmed.
INDEX.
ACCESSORY. See CRIMINAL LAW, 2.
ACTIONS.
Only against pakty contracting.
1. Where a party contracts to build a house for another, and to fur-
nish the materials therefor, an action will lie in favor of the seller of
the materials to the contractor, against the latter alone, not against him
for whom the house is built. Peers v. Board of Education, etc. 508.
For fraud and deceit. See FRAUD, 3, 5, 8, 9, 10.
ADMINISTRATION OF ESTATES.
Widow's award.
1. Effect of ante-nuptial contract. The special allowance made by-
statute for the widow of the deceased person is as much for the advan-
tage of the children of the deceased as for his widow, and where there
are such children residing with the widow she has no power to release
it, and it can not, in such case, be affected by an ante-nuptial contract.
Phelps v. Phelps, 545.
2. An ante-nuptial contract provided that the property of the husband
and wife should be kept separate, and held and enjoyed by each sepa-
rately, in the same manner as if they had remained unmarried, and
upon the death of either party, his or her real estate and personal prop-
erty should pass to his or her heirs, executors and administrators, free
from all claims of the survivor : Held, that the effect was to debar the
wife of dower in her husband's real estate, and prevent her from taking
any portion as heir under the statute, but that it did not deprive her of
the right to the specific articles of property allowed by the statute in
all cases for the benefit of the widow and family of a deceased person.
Ibid. 545.
Liability of administrator.
3. For fraudulent act of agent. Where the agent of an administra-
tor, in his name, made an illegal and fraudulent sale of property under
630 INDEX.
ADMINISTRATION OF ESTATES.
Liability of administrator. Continued.
a chattel mortgage given to his intestate, it was held, that he was liable
to the mortgagor for the difference between the mortgage debt and the
value of the property so illegally sold, notwithstanding he was himself
not guilty of any wilful default or fraud. Hungate et al. v. Reynolds,
425.
4. For fraudulent sale under chattel mortgage to intestate. Where
property is fraudulently sold by an administrator, under a chattel mort-
gage given to his intestate, for less than its value, the mortgagor not
only has a remedy against the administrator personally, for the value
of the property over and above the mortgage debt, but he is entitled to
have the value of the property applied to the extinguishment of the debt
to the estate. Ibid. 425.
Sale of land to pay debts.
5. By whom to be made. The authority given to an administrator to
sell real estate for the payment of debts, is a personal trust, which he
can not delegate to another ; and whilst a sale by an auctioneer em-
ployed by the administrator for that purpose, made whilst the adminis-
trator is present, is the sale of the administrator, such a sale, made
without the administrator being present, will not meet judicial sanction.
See Chambers et al. v. Jones, ante. p. 275. Sebastian v. Johnson, 282.
6. Sale must be subject to incumbrances. An administrator has no
interest in the real estate of his intestate ; he has but a power, and must
take the estate as he finds it, and if incumbered, his plain duty is to sell
it subject to the incumbrance. Ibid. 282.
7. Where a deed is tendered to a purchaser of real estate at an ad-
ministrator's sale, upon which there is an incumbrance, and he refuses
to take it and comply with the terms of sale, he will not be entitled to a
deed upon a tender of the amount of his bid, after the incumbrance has
been removed without aid from him. Ibid. 282.
Power of administrator.
8. Has none over possession of land sold by him. An administrator
has no right to deal with the possession of land sold by him, and a party
taking possession of such land by the consent of the administrator can
not be considered as put in possession by any one authorized to do so.
Such an act by the administrator is a violation of trust, from which no
one privy thereto can take any benefit. Ibid. 282.
Allowance of claims.
Presumption in favor of judgment. See COUNTY COURT, 3, 4.
ADMISSIONS.
By the pleadings. See PLEADING, 16.
Generally. See EVIDENCE, 4.
INDEX. 631
AGENCY.
Agent can not purchase.
1. An agent for the owner of real estate has no right to speculate in
property committed to his care, nor has he any right to put himself in
a position adverse to the interest of his principal. Hughes v. Washing-
ton et al. 84.
2. So, where an agent for the owner of real estate conducted a nego-
tiation for the sale of the same on behalf of the owner on the one hand,
and was really, on the other hand, purchasing for himself, jointly, with
the ostensible purchaser, although the transaction purported to be en-
tirely between the owner and such ostensible purchaser, it was held, that
the transaction was a constructive fraud upon the owner, and that the
purchase thus made could not be sustained. Ibid. 84.
Compensation of agent.
3. Where a principal authorized his agent to sell machines for him,
and to make certain representations in regard thereto, and the agent
was to receive a per cent out of the proceeds of sales made by him,
and the agent makes sales, but the machines were all returned, because
of their not coming up to the representation made in regard to them
by the authority of the principal, it was held, that the agent could
recover the amount of his per cent upon the sales so made by him, he
having done all the contract required of him, and failed to get his pay
through the fault of his principal. Garnhart v. Rentchler, 535.
4. Under a contract to pay an agent a commission on sales made by
him, he can only recover for sales made, and not upon contracts to sell.
Ibid. 535.
Fraud by agent.
Liability of principal. See ADMINISTRATION OF ESTATES, 3;
FRAUD, 6.
Liability of agent.
For taxes on principal's property listed by him. See TAXES AND
TAXATION, 11.
ALTERATION.
Of note sued on.
1. When not apparent, must be shown by the party alleging it. Where
the execution of a promissory note is put in issue by plea, verified by
affidavit, and the defendant admits that the name signed thereto is his
signature, it is not incumbent on the plaintiff to show that the note has
not been altered, where no alteration is apparent on its face, to admit
the same in evidence, but the defendant must show that fact in defense.
Lowman v. Aubery et al. 619.
AMENDMENTS.
Amendment of summons.
1. Without terms. The Practice Act of 1872 allows amendments at
anytime before final judgment, either in form or substance, on proper
632 INDEX.
AMENDMENTS. Amendment of summons. Continued.
terms, and where a merely formal amendment of a summons is made,
it is discretionary with the court, and proper not to impose terms. Ches-
ter and Tamaroa Coal and Railroad Co. v. Lickiss et al. 521.
2. Where a summons fails to name the form of action, an amend-
ment by inserting the words "in an action of assumpsit," is properly
allowed, and is merely formal. Ibid. 521.
OP RECORD — AT SUBSEQUENT TERM.
3. After the expiration of a term of court at which a judgment has
been rendered, the same court that rendered the judgment has no super-
visory power over it at a subsequent term, except to correct it in mere
matter of. form, on notice to the opposite party. Lill v. Stookey, 495.
4. The fact that the court, at the time of dismissing a replevin suit,
has the right to award a writ of retorno habendo, but fails to do so,
docs not authorize it to sit in review of its own judgment at a subse-
quent term, and then enter a judgment, which should have been entered
in the first instance, finding the property in the defendant and award-
ing a writ for its return to him. Ibid. 495.
5. If the court, by order, sets a particular day for the assessment of
damages upon a default, and afterwards, whilst such order is still in
force, assesses the damages on a day prior to the one set by such order,
the defendant is entitled to have the record made up in accordance with
the facts, and if the record is not so made up, he is entitled to have it
amended at a subsequent term of the court, if the minutes of the judge
made at the time are such as to show, with reasonable certainty, that
the court did, in fact, make an order fixing a day for the assessment of
damages, and that the damages were assessed before that day arrived.
Cairo and St. Louis Railroad Co. v. Holbrook, 419.
6. The power of a court over its records after the expiration of the
term, unless the cause is still pending, is confined to errors and mis-
takes of its officers ; and these may, at any time, upon notice to the par-
ties in interest, and saving such rights as, in the interval of time, may
have accrued to third parties, be corrected so as to make the record con-
form to the action or judgment of the court. Ibid. 419.
7. It is requisite to the power of a court to amend its record at a
subsequent term, first, that there should appear to have been some
action of the court in the cause, which might properly and should have
become a part of the record of that cause; and, secondly, that its omis.
sion from the record was through the fault or mistake of the clerk.
Ibid. 419.
Amendment by judge's minutes.
8. Interpolation in judge's minutes not a part thereof, though made
by the clerk. It is not error for the court to refuse to amend the record
in a cause to conform to minutes on the judge's docket not made by
himself or by his authority, and with no evidence as to when they were
INDEX. 633
AMENDMENTS. Amendment by judge's minutes. Continued.
made, even though they are shown to be in the handwriting of the
clerk. Cairo and St. Louis Railroad Co. v. Holbrook, 419.
Amendment op bill in chancery.
To make new parties. See PARTIES, 3, 4.
AMERICAN BIBLE SOCIETY.
Can not acquire real estate by devise. See CORPORATIONS,
9, 10.
ANTE-NUPTIAL CONTRACT.
Effect on rights of widow. See ADMINISTRATION OF ES-
TATES, 1, 2.
APPEALS.
When appeal will lie.
1. From circuit to Supreme Court. Where an appeal is taken from
the county court to the circuit court, an appeal lies from the judgment
of the circuit court to the Supreme Court. United States Express Co.
v. Ileints, 293.
See WRITS OF ERROR, 1.
Who may appeal.
2. Defendant, against whom there is no judgment, has no right. A
defendant to a bill in chancery, against whom no decree or judgment
is rendered, can not appeal or prosecute a writ of error from a decree
dismissing complainant's bill. Hedges et al. v. Mace et al. 472.
Appeals from justices.
3. Waiver of all informalities. When a defendant files an appeal
bond in the circuit court, he thereby enters his appearance and waives
all defects in the process, the want of process, and in the service or want
of service before the justice of the peace, and the circuit court can not
dismiss the suit unless, upon hearing the evidence, it appears the jus-
tice had no jurisdiction. Village of Coulterville v. Gillen, 599.
4. Appellant can not dismiss suit for want of papers. Where a de-
fendant in a replevin suit appeared at the trial thereof before the jus-
tice of the peace, and, after being found guilty, appealed to the county
court, it was his duty, as appellant, to tile the papers, and he could not
properly move the court to dismiss plaintiff's suit, because of the omis-
sion of the replevin bond from the papers filed with the transcript.
Mc Arthur v. Howett, 358.
From county to circuit court.
5. Trial de novo. Under the act to increase the jurisdiction of
county courts (Laws of 1871-2), an appeal from the county court to the
circuit court only brings in review the decision of the county court, and
does not entitle the parties to a trial de novo. Orimshaw v. Scoggan,
103.
634 INDEX.
APPEALS. From county to circuit court. Continued.
6. Judgment on affirmance. The circuit court, in cases of appeal or
writ of error from the county court, has power to reverse, affirm, or
enter final judgment and award execution. Coffey v. Fosselman, 69.
7. Writing opinions. See PRACTICE.
APPEAL BOND.
Pleadings in suit on. See PLEADING, 15.
Estoppel by recitals in. See ESTOPPEL, 1.
APPEARANCE.
Effect of.
1. Waiver of service. A defendant, by appearing and pleading in
bar, waives all defects in the service of process, or even the want of
service. Filkins v. Byrne, 101.
Plea to jurisdiction.
2. 7s not a fall appearance. See GARNISHMENT, 6.
APPROPRIATIONS.
When they end. See CONSTITUTIONAL LAW, 1, 2.
ARBITRATION AND AWARD.
Submission controls.
1. Award on matters outside, void. Where arbitrators consider and
pass upon matters not embraced in the submission, and of which they
have no jurisdiction, their award can have no binding force. Arbitra-
tors must be governed by the submission, and all things which they
may do outside of and beyond the authority thus conferred are void.
Sherfy v. Graham, 158.
Arbitrators judges of law and fact.
2. Arbitrators, by the submission, become the judges, by the choice
of the parties, both of the law and the fact, and there is no appeal or
review from or of any decision made by them within the scope of their
powers, except for fraud, partiality or misconduct. Ibid. 158.
Setting aside award.
3. Not for mistake. A mistake, either of law or of fact, by arbi-
trators, is not ground for setting aside their award, but a mistake in the
draft of the award may be reformed so as to conform to the award
actually made by the arbitrators. Ibid. 158.
4. When set aside. When the arbitrators refuse to hear, act upon
and decide such matters as are embraced in the submission, or go "be-
yond it and exceed their jurisdiction, the award may be set aside.
Ibid. 158.
5. But where the arbitrators have not gone beyond their jurisdic-
tion, and there is no evidence tending to prove fraud, misconduct or
INDEX. 635
ARBITRATION" AND AWARD. Setting aside award. Continued.
partiality on their part, even if they have taken a mistaken view as to
the legal liability of the parties upon the facts before them, the award
can not be disturbed. Bherfy v. Graham, 158.
ARREST.
Under warrant issued in blank.
Illegal. See WARRANT, 1.
Killing officer making.
Whether murder or manslaughter. See CRIMINAL LAW, 5, 6, 7.
ARREST OF JUDGMENT.
For what allowed.
Not for variance between pleading and proof. See NEW TRIALS, 5.
ASSESSMENT OF DAMAGES.
On default.
1. Defendant not entitled to notice. Where a default for want of a
plea is entered against a defendant, and a writ of inquiry to assess dam-
ages is ordered, the defendant is not entitled to notice of the execu-
tion of the writ, and if there is no time fixed for its execution by
order of the court, the defendant, if he would contest the amount of
damages, must keep watch and be ready whenever the plaintiff, with
the consent of the court, chooses to have them assessed. Cairo and St.
Louis Railroad Co. v. Holbrook, 419.
2. Bight of defendant on assessment of damages. Whilst a default
admits every material allegation of the declaration, it does not admit
the amount of damages, and the defendant, on the execution of the writ
of inquiry, has the right to cross-examine plaintiff's witnesses, to intro-
duce witnesses on his part on the question of damages, ask instructions
as to the proper measure of damages, and preserve the rulings of the
court by bill of exceptions. Ibid. 419.
3. When by the clerk. On a default, where the assessment rests in
computation, it may be made by the clerk, but in all cases where the
promise is not in writing, for a specific sum of money, the damages
must be assessed by the court or a jury. Meyers v. Phillips, 460.
On dissolution of injunction. See INJUNCTIONS, 4,
ASSIGNMENT.
Certificate of purchase.
1. Of undivided interest, not regular. An assignment, by the holder
of a master's certificate of sale of land, of an undivided interest therein,
though it may be valid as between the parties, is not such an assign-
ment as is recognized by the statute, and it seems the officer making
636 INDEX.
ASSIGNMENT. Certificate op purchase. Continued.
the sale is not bound to recognize such an assignment. Groves et at. v.
Maghee et al. 526.
2. But if the officer making the sale chooses to recognize such assign-
ment, and convey the land to the assignee in accordance therewith, and
report the fact to the court, no reason is perceived why it should not he
approved. Ibid. 526.
Op note without indorsement.
Guts off no defense. See PROMISSORY NOTE, 3.
ATTACHMENT.
What subject to levy.
1. Promissory note is not. A promissory note belonging to a defend,
ant in an attachment suit is not liable to levy and sale under a writ of
attachment. The proper way to reach promissory notes in attachment
proceedings is by garnishee process. Prout et al. v. Grout et al. 456.
Rights op attaching creditor.
As against purchaser of debtor. See PURCHASERS, 1.
Whether an abuse op process. See PROCESS, 3.
BANKRUPTCY.
Discharge op guardian.
1. Releases surety from liability on guardian's bond. The liability
of a surety on a guardian's bond, before breach in the condition of the
bond, is a conditional liability, within the meaning of the second clause
of section 19 of the Bankrupt Law of March 2d, 1867, and a discharge
in bankruptcy releases the surety from such liability. Reitz v. The
People, 435.
2. Liability of a surety not a debt created in a fiduciary capacity.
The liability of a surety upon a guardian's bond is not a debt created
by him whilst acting in a fiduciary character, within the meaning of
the exception in the Bankrupt Act, which provides that no debt created
by the fraud or embezzlement of the bankrupt, or by his defalcation in
a public office, or while acting in a fiduciary capacity, shall be dis-
charged under the act. Ibid. 435.
BASTARDY.
Pleadings.
1. Formal not necessary. Where there is a sworn complaint before
the court in a bastardy case, which shows the complete character of the
charge against the defendant, and the record shows a plea of not guilty,
the issue ^hus made up, though not as formal as it might be, is suffi-
cient. The People v. Woodside, 407.
Weight op the testimony op prosecutrix.
2. Jury must determine from all the evidence. Whether the evidence
of the prosecutrix in a bastardy case is entitled to greater or less weight
INDEX. 637
BASTARDY. Weight of the testimony of prosecutrix. Continued.
on any point in the case than other witnesses, depends upon the degree
of fidelity with which she and they adhere to the truth, and must be
determined by the jury, from all the evidence in the case. McFar-
land v. The People, 368.
Of the proof necessary to a recovery.
3. The plaintiff must make out a case by preponderance of the evi-
dence. It is incumbent upon the plaintiff in a bastardy case, as in all
other civil cases, to make out a case by a preponderance of evidence.
Ibid. 368.
4. Where the mother of a bastard child swears that the defendant is
its father, and the defendant swears that he is not, and they are of equal
credibility, the one onsets the other, and, unless there is other testimony
given or circumstances proved which gives the preponderance to the
plaintiff, the defendant should be acquitted. Ibid. 368.
Jurisdiction of county court. See COUNTY COURT, 1, 2.
BILLS OF EXCEPTIONS. See EXCEPTIONS AND BILLS OF EX-
CEPTIONS, 1, 2, 3.
BILLS OF EXCHANGE. See DRAFT, 1, 2.
BILL OF LADING.
As evidence.
Of good condition of goods. See CARRIERS, 1.
BOUNDARY LINES.
Settled by parol agreement.
1. Although the title to real estate can not -be transferred by parol,
yet it is well established that the owners of adjoining tracts of land
may, by parol agreement, settle and permanently establish a boundary
line between their lands, which, when followed by possession accord-
ing to the line so agreed on, is binding and conclusive, not only upon
them, but upon their grantees. Cutler v. Callison, 113.
BURDEN OF PROOF.
Of negligence.
Is on party charging. See NEGLIGENCE, 13.
CARRIERS.
Bill of lading.
1. As evidence that goods were in good condition, if so described
therein. Where a common carrier receives goods for shipment, and
gives the consignor a bill of lading, in which the goods are described
to be in apparent good order, the bill of lading is- prima facie evidence,
in a suit against the carrier, that the goods were in good condition.
Illinois Central Railroad Co. v. Cobb, Blaisdell & Co. 148.
638 INDEX.
CARRIERS. Continued.
Delivering to otiier carriers.
2. Duty of first carrier. A common carrier of goods is not required,
in transferring goods to a second carrier, to ship them otherwise than
as directed by the shipper, and where the directions given by the ship-
per as to the shipment omits to give the name of the consignor, the car-
rier will be guilty of no negligence because it fails to give the name of
the consignor, upon delivering the goods to the second carrier. In-
dianapolis, Bloomington and Western Railway Co. v. Murray et al. 128.
3. A contract between a shipper and a railroad company obligated
the company to transport a lot of hogs to a given point, ready to be de-
livered to the agent of a connecting line, "consigned, numbered and
marked as per margin," to be by the connecting company carried to
their place of destination, upon condition that the liability of the con-
tracting company as a common carrier should cease when the hogs ar-
rived at the point named, ready to be delivered to the next carrier. The
name of the consignor was not given in the margin. The hogs were
delivered by the company to the connecting company, marked to the
consignee, as indicated on the margin of the contract, and were duly
delivered to the consignee. Another shipper of hogs, on the same train,
from the same point, and to the same destination, accompanied his hogs,
and received the pay from the consignee for both lots: Held, that the
company, having shipped the hogs marked as indicated on the margin of
the contract, discharged their whole duty in that regard, and there being
no consignor named on the margin referred to, the company was guilty
of no negligence which led or" tended to induce the consignee to pay
the wrong person for the hogs, and were not liable to the owner of the
hogs on account thereof. Ibid. 128.
Transportation op live stock.
4. Duty of carrier. The common law liability of a common carrier
to deliver live animals is not different from that where the delivery of
merchandise or other matter is concerned. Cars of sufficient strength
for such purpose should always be provided, and the want of them is
negligence, for which the carrier will be responsible in case of any loss
occasioned thereby. St. Louis and Southeastern Railway Co. v. Dor-
man, 504.
Delay in transportation.
5. Extent of proof required of plaintiff in suit for loss on grain by
reason of delay in its transportation. In a suit against a railroad com-
pany for unreasonable delay in the transportation of grain, it is not
sufficient for the plaintiff to prove that, when the grain arrived after the
time it should have arrived, he realized a specific sum for the grain,
and then stop; but he should prove, clearly, what disposition was made
of it, how long, if at all, it was stored, and at what expense, and, if
sold, the price it brought, and the expense of sale. Illinois Central
Railroad Co. v. Cobb, Blaisdell & Co. 148.
INDEX. 639
CARRIERS. Delay in transportation. Continued.
6. Measure of damages. See MEASURE OF DAMAGES, 14, 15.
7. Evidence on question of damages. See EVIDENCE, 6.
CERTIFICATE OF EVIDENCE.
Recitals in not treated as a decree. See CHANCERY, 25.
CERTIFICATE OF PURCHASE.
Undivided interest not assignable. See ASSIGNMENT, 1, 2.
CHANCERY.
Of the bill.
1. Its sufficiency. Although a case is so defectively made by a bill
in chancery that the court can not fully comprehend it, and pronounce
upon it with confidence, still, if the court can see, from what is stated,
that there is equity in the bill, it is error to sustain a demurrer to the
whole bill, for want of equity. Westcott v. Wicks et al. 524.
2. Charge of fraudulent combination in a bill in equity should be
supported by facts disclosed in the bill. The mere charge in a bill to set
aside a sheriff's sale, that there was a fraudulent combination and con-
federation between the sheriff and the purchaser to wrong complainant,
is not sufficient. Such a charge should be based on facts disclosed in
the bill tending to implicate them in such practices, and if such facts
are not disclosed, and there is no other ground' for the interposition of
a court of equity shown, a demurrer should be sustained. Davis v.
Pickett, 483.
Plea not sworn to.
3. Where a motion is made in the court below to strike out a plea to
a bill for an account, on the ground that it presents-no bar to the relief
prayed for, and that it does not fully answer the bill, but no objection is
made on the ground that it is not sworn to, that objection can not be
taken advantage of at the hearing as to the sufficiency of the plea, such
defect being one of form only. Craig v. McKinney, 305.
Want op replication.
4. An answer to a bill in equity, which is not sworn to, is not, for
any purpose, evidence in the case, but performs the office of pleading
merely, and the mere want of a replication is not a sufficient cause for
reversing a decree, where the parties have submitted the case for decis-
ion upon pleadings and proof, and the court heard proof without objec-
tion. In such a case, the filing of a replication will be deemed to have
been waived. Jones v. Neely, 449.
Matters of account.
5. Jurisdiction. A court of chancery has jurisdiction in matters of
account; but it is not every account which will entitle a court of equity
to interfere. It must be such an account as can not be taken justly and
fairly in a court of equity. Craig v. McKinney, 305.
640
INDEX.
CHANCERY. Matters of account. Continued.
6. Final accounting and a new arrangement. Where a bill for an
account filed by a party against his attorney in fact, alleges that the pro-
perty and money of which an account is sought, came into the hands
of the defendant as the attorney in fact of the complainant, and there is
no mention that the defendant ever received anything under or by
virtue of any other power or authority, a plea which states an account-
ing and final settlement of all matters under the power of attorney, and
a new arrangement by deed, whereby the defendant was created a trus-
tee for the complainant, and held whatever was in his hands as such
trustee, presents a sufficient defense to the case made by the bill.
Craig v. McKinney, 305.
Specific performance.
7. When should be enforced. A written contract described certain
town lots in a town, encumbered by a deed of trust for a certain amount,
and no more ; that the property was rented at a certain monthly rent,
etc., and then provided that, if the lots were as represented, the parties
were to exchange property, the owner of the lots to convey to the
other party the lots described, and the latter to convey to him certain
other property ; the owner of the lots took possession of the property
to be conveyed to him, and the other party, after seeing the lots, refused
to comply with the contract : Held, that the owner of the lots, it ap-
pearing that they were as represented, was entitled to a specific perform-
ance of the contract, and that, there being nothing in the contract as to
the value of the lots, the question as to their value was not involved in
the case. Warren v. Daniels, 272.
8. Barred by laches. A party purchased a tract of land in 1856, to
be paid for in three annual installments, put his contract on record, and
took possession of the land. He paid the first and part of the second
note during the first two years, and, after the third one became clue, his
vendor moved to another State, and took the notes with him. The pur-
chaser made no effort to find him, to pay the notes. About-the time the
last one became due, the vendor confessed a judgment in favor of his
creditor. An execution was issued on the judgment, the land sold
under it, and the creditor became the purchaser, and acquired a sheriff's
deed in 1860, and thereupon turned the vendee out of possession, and,
on the 22d of February, 1861, the judgment creditor filed a bill against
his debtor and the vendee of such debtor, to remove the contract of sale
between them, as a cloud on his title. The vendee, in September, 1866,
filed a cross-bill, to which a demurrer was sustained, and thereupon the
complainant in the cross-bill dismissed it, and the complainant in the
original bill dismissed that. In October, 1867, the vendee filed his bill
against the various parties in interest, for a specific performance of his
contract of purchase : Held, that there was such delay, unexplained by
equitable grounds of excuse, as indicated an abandonment of the pur-
chase, and that he was barred by his laches. McLaurie v. Barnes et
ah 73.
INDEX. 641
CHANCERY. Continued.
Matters of fraud.
9. When equity will interpose. Courts of equity, in cases of fraud,
have concurrent jurisdiction with courts of law. Jones v. Neely, 449.
10. So, where a bill to set aside a deed alleged that the grantor had
executed and delivered it to the grantee in consideration or the execu-
tion by the grantee of his four promissory notes for the purchase money,
and a bond obligating himself to support the grantor so long as the
notes remained unpaid ; that the grantor in the deed and payee of the
notes placed the notes and bond in the hands of the grantee in the deed
and maker of the notes, for safe keeping, the latter promising to return
them to the former; that the grantee had neglected and refused to return
the notes and bond, although frequently requested to do so, and had
wholly failed and neglected to support the grantor; that, by fraud and
deceit, the grantee had obtained the deed from the grantor, without
paying or giving any consideration, and had conveyed the land to an-
other without any consideration, it was held, that the circumstances jus-
tified the inference of an abandonment of the contract by the grantee,
and a presumption of fraudulent intent in entering into it, and that a
court of chancery should entertain the bill on the ground of fraud.
Ibid. 449.
Fraudulent action of municipal authorities.
11. Equity will relieve against fraudulent disposition of property by
municipal authorities. Courts of chancery will interfere to prevent
municipal councils from abusing powers relating to property and funds
intrusted to them, to be exercised in conformity with law, for the bene-
fit of the incorporated place or its inhabitants, and will relieve against
fraudulent dispositions of property. Jackson ex rel. v. N orris et at. 364.
12. The powers conferred upon municipal corporation officers, in
respect to the corporation property, are public trusts, and the property
owned by the corporation is held by them in trust, and, hence, if these
powers are abused, as, if corporate property is collusively alienated,
there is a breach of trust of which equity will take cognizance. Ibid.
364.
13. A court of equity will entertain a bill, on behalf of tax-payers,
for relief against an act of misappropriation of public corporate funds,
after it has been committed, as well as to enjoin the commission of such
act when meditated. Ibid. 364.
14. Where the authorities of a municipal corporation misappropria-
ted funds of the corporation, by way of donation, to pay the debts of a
private corporation to a bank, and the bank collusively received the
funds so misappropriated, and the conduct of the officers of the muni-
cipal corporation was such as to preclude the idea that they would vol-
untarily bring suit in the name of the municipal corporation for the
recovery of the money, it was held, that equity would grant relief on a
bill filed by the State's Attorney on the relation of a tax-payer of the
41— 72d III.
642 INDEX.
CHAKCERY.
Fraudulent action of municipal authorities. Continued.
municipality, against the bank, the municipal corporation and the offi-
cers thereof, to compel the refunding of the money and to enjoin the
payment of it to the bank, on the order for the donation thereof. Jack-
son ex rel. v. Norris et al. 364.
Cloud upon title.
15. Power to restrain sale which would create cloud upon title. A
court of chancery has jurisdiction to prevent the creation of a cloud
upon title, as well as to remove such cloud, and where it appears that a
deed acquired at a sale about to be made by a sheriff on execution,
would only be a cloud upon the title of the complainant, such sale will
be enjoined. Groves et al. v. Webber, 606.
16. The owner of land sold and conveyed the same to a bona fide
purchaser, who filed his deed for record on the day of its execution.
On the same day, and after the deed was filed for record, an attachment
was issued in aid of a suit then pending, against the vendor, in another
county, directed to the sheriff of the county where the land was situa-
ted, and on the same day was levied by the sheriff on the land, but no
certificate thereof filed until several days afterwards ; the attachment
suit was prosecuted to judgment, and a special execution issued
thereon against the land : Held, that a sale under execution would
only create a cloud upon the title of the purchaser from the defendant
in the attachment, and that a court of chancery had jurisdiction to and
should restrain the sale. Ibid. 606.
Converting real estate into money.
17. To enable a corporation to take under a devise. Where real
estate is devised to a corporation incapable of acquiring title in that
way, a court of chancery has no power to convert such real estate into
money, and direct the payment thereof to such devisee. Starkweather
et al. v. American Bible Society, 50.
Trusts.
18. Distribution of trust fund. Where contractors with a city to
make certain improvements, to be paid for in its bonds, borrow money
of a party with which to prosecute the work, and deliver to such party
the bonds when received, as collateral security, the lender to be repaid
the money advanced, with interest, and to have one-third of the profits
realized, and no time is fixed for repayment to him, or within which
the collaterals may be sold, or a division of profits made, and the lender,
nearly four years after, attempts to dispose of the bonds, they are so far
in the nature of a trust fund as to give a court of chancery jurisdic-
tion, on bill by one of the contractors to take an account, convert the
securities, and distribute the fund. Stokes et al. v. Frazier et al. 428.
19. Executory trusts not enforced in equity. See TRUSTS, 8.
INDEX. 643
CHANCERY. Continued.
Mistake.
20. Reforming bond taken in judicial 'proceeding. A bill to reform
a replevin bond on the ground of the omission to insert the name of
the defendant in the body of the instrument, which contains no distinct
allegation it was the intention to fill the blank in the bond with the
name of the defendant, and that the omission to do so was the result of
mutual mistake, is not sufficient to warrant the interposition of a court
of chancery. Arter v. Cairo Democrat Co. et al. 434. •
Cross-bill.
21. Hearing while cross-bill remains undisposed of. Where it ap-
pears from the record that a cross-bill was filed, but no steps whatever
taken under it, and the parties voluntarily go to a hearing, the cross-
bill may be regarded as having been abandoned. Hungate et al. v. Rey-
nolds, 425.
Taking account by masteii.
22. Parties entitled to notice. The general rule, that all persons
having an interest in the result of the proceedings should have notice
of the attendance before the master, extends to cases in which a defend-
ant, after appearance, has allowed the bill to be taken against him pro
confesso, and a decree to be made for want of an answer. Craig v.
, Mc Kinney, 305.
23. Where an account is stated, the items sJiould appear. A master's
report, where a cause is referred to him to state an account, should in
some way show the items of the account as stated by him. He should
state facts, and not general results. Ibid. 305.
24. Where the master reports upon accounts, the usual way is, to
state results in the body of his report, and refer to schedules as to the
particular items, wherein sufficient of the details should appear to show
the ground of his decision as to the results stated. Ibid. 305.
Recitals in certificate of evidence.
25. Of their effect. A recital in a certificate of evidence, that a bill
was dismissed, is not a decree, nor can it be treated as such, and this
court will not act on it. Terry et al. v. Trustees Hamilton Primary
School, 476.
Finding of facts in decree.
26. Where it appears, from the record, that the court heard proof,
and the decree recites that certain facts appeared to the court, but the
evidence is not preserved in the record, the presumption is, that the
court found such facts from the evidence. Jones v. Neely, 449.
New trial at law.
27. When granted. Courts of equity never decree a new trial in a
suit at law, where the complainant has been guilty of laches in defend-
ing. He must use all reasonable efforts to make his defense at law,
and must be prevented by accident, mistake or fraud. If he is guilty
644 INDEX
CHANCERY. New trial at law. Continued.
of negligence in making his defense at law, he has no claim to equit-
able relief. Allen v. Smith et al. 331.
Improper sale under chattel mortgage.
28. Jurisdiction in chancery. See MORTGAGES, 6.
CHATTEL MORTGAGES. See MORTGAGES.
CIRCUIT COURT.
Jurisdiction.
1. Can not be affected by legislation when conferred by the constitution.
The fact that a statute declares that a party may be indicted or sued
before a justice of the peace for obstructing a public highway, can not
in anywise deprive the circuit court of jurisdiction in such case, as that
is conferred by section 12, article 6, of the constitution. The People v.
Young, 411.
CLOUD UPON TITLE. See CHANCERY, 15, 16.
CONSIDERATION.
Whether sufficient.
1. To support a promise to pay damages. If a servant, in the per-
formance of his master's work, is guilty of negligence, whereby another
is injured, the master will be liable, and such liability is a sufficient
consideration to support a promise made by the master to pay the dam-
ages occasioned thereby, if made with the purpose of preventing a
resort by the party damaged to legal proceedings. Hund v. Geier, 393.
2. And even if it is doubtful whether the act of the servant whereby
the injury was inflicted was negligence, still, if the master promises to
pay the damages with a view to prevent a resort to legal proceedings,
and the damaged part}' accepts and acts upon it as a compromise, the
consideration is sufficient. Ibid. 393.
3. For a subscription. Where a subscription to an educational soci-
ety is made upon condition that a certain amount shall be obtained in
cash, or promissory notes given, for the same purpose, the labor and
expense necessary to obtain such amount, if it is obtained, is a good
consideration for the subscription. Baptist Educational Society v. Car-
ter, 247.
New consideration.
4. Whether necessary. The time of performance of a contract may
be extended by a subsequent parol agreement, and no new consideration
is necessary. North v. Kizer et al. 172.
Failure of consideration.
5. When it may be availed of. Where a will directed that all the
real estate of the testator should be sold by his executors, and a deed or
deeds executed by them to the purchaser or purchasers, a deed executed
INDEX. 645
CONSIDERATION. Failure of consideration. Continued.
by such executors which purports to convey their own interest only,
whilst it might, for that reason, be defective, would still convey an
equitable estate in the land, which the purchaser would be bound to
re-convey before he could make a defense of failure of consideration
against a note given for the purchase money of the property so conveyed.
Bond et al. v. Ramsey et al. 550.
CONSTITUTIONAL LAW.
Standing appropriations.
1. Fiscal quarter. The first fiscal quarter contemplated by the pro-
visions of section 18, article 4, of the constitution of 1870, did not end
until the adjournment of the session of the General Assembly whose
members were elected at the regular election in 1872, that being the next
regular session after the adoption of the constitution. The People ex rel.
v. Lippincott, 578.
2. Sections 3 and 4 of the act of February 12, 1849 (Sess. Laws 1849,
p. 77), are in the nature of standing appropriations for the purposes
therein specified, and they did not expire by constitutional limitation
until the end of the first fiscal quarter after the adjournment of the reg-
ular session of the General Assembly which commenced in January,
1873. Ibid. 578.
Jurisdiction of circuit court.
What can not be taken away. See CIRCUIT COURT, 1.
CONTINUANCE.
ABSENCE OF WITNESS.
1. Affidavit as to probability of procuring. An affidavit for a con-
tinuance, in a criminal case, on account of the absence of a witness who
resides in another State, should state the facts upon which the affiant
bases his belief that the attendance of such witness can be procured at a
subsequent term of court, so that the court may see the reasonableness
of the grounds for such belief. Wilhelm v. The People, 468.
2. Affidavit as to truth of facts to be proved, etc. An affidavit which
does not state that the facts expected to be proved by the absent witness
are true, nor that the witness was present at the time of the transaction
about which he is expected to testify, and an observer thereof, is not
sufficient to entitle a defendant in a criminal case to a continuance.
Ibid. 468.
3. Diligence. Where an affidavit shows that the witness whose tes-
timony is required resides in an adjoining county, and it appears that
no effort has been made to procure his testimony by deposition, or his
appearance in court by subpoena, a motion for a continuance on account
of the absence of such witness should be overruled. Coffey v. Fossel-
man, 69.
64:6 INDEX.
CONTINUANCE. Continued.
Setting aside without objection.
4. The plaintiff took leave to amend his declaration, and thereupon
an order of continuance was entered. On the next day the order of con-
tinuance was set aside, the defendant filed a demurrer, and also a plea
of the general issue, and the parties went to trial before the court with-
out a jury; no exception was taken to the order setting aside the con-
tinuance: Held, there was no error. Oridley v. Capen et al. 11.
CONTRACTS.
Of contracts executed on Sunday.
1. The execution of a promissory note is not complete until it is de
livered to the payee, or some one for him, and it will not be void, though
signed on Sunday, if delivered on another day. King v. Fleming, 21.
2. It is not sufficient, to avoid a contract, that it may have grown out
of a transaction on Sunday. It must have been finally closed on that
day to avoid it. Ibid. 21.
3. Executed on Sunday, valid if ratified afterwards. Although 'a
contract may be entirely closed on Sunday, yet, if ratified by the parties
upon a subsequent clay when it is lawful to make contracts, it is valid.
■ Ibid. 21.
4. Where a promissory note made by two, one of whom signed it on
Sunday, was, on a subsequent day, delivered by one of the makers to
the payee, who was ignorant of the fact that it had been signed on Sun-
day, it was held, that such delivery was a subsequent ratification of the
note, and made it valid. Ibid. 21.
5. A promissory note was signed by one of two makers on Sunday,
in a State where the statute made a note executed on Sunday void. It
appeared that the note was written on another day and signed by one
maker on Sunday, and on Monday the other maker delivered it to the
payee, who had no knowledge of its having been signed on Sunday
Held, that, in such case, the note was within the control of the makers
until delivered, the possession of one being the possession of both, and
that the delivery of the note on Monday was a ratification of it, and
rendered it valid. Ibid. 21.
In restraint of competition in trade.
6. Strictly construed. Contracts which are, to a greater or less de-
gree, in restraint of competition in trade, will be strictly interpreted as
against the party complaining of their infraction, and will not be en-
larged beyond what is written. Wiggins Ferry Co. v. Ohio and Missis-
sippi Railway Co. 360.
TO PAY THE DEBT OF ANOTHER.
7. When binding. Where a creditor, in consideration of the indorse-
ment to him, by his debtor, of certain notes belonging to the debtor,
and of an order given by the debtor to the creditor for money which
INDEX. 647
CONTRACTS. To pay the debt of another. Continued.
was collected by him, released the debtor from his indebtedness, and
also undertook and promised to pay certain indebtedness which the
debtor owed to a third party, it was held, that, if he failed to pay such
indebtedness to the third party, he was liable for such breach of con-
tract, and the debtor could recover from him all damages sustained by
reason thereof. Meyer v. Hartman, 442.
Acceptance op work done.
8. Whether necessary. Where a party engaged to sink a shaft for
the purpose of mining coal, upon the land of another, and completed
the work according to contract, he should not be prejudiced for the
want of a formal acceptance by the party for whom the work was done.
Eureka Goal Go. v. Braidwood et al. 625.
Promise to pay expenses of cure.
9. Of one injured by servant of promisor. A defendant, having
obtained permission to haul earth oyer the ground and alleyway of the
plaintiff, sent his son for that purpose, and whilst in the alleyway, one
of the horses kicked and severely injured a little son of the plaintiff.
The plaintiff employed a physician, and the next day the defendant
called on the plaintiff and inquired what doctor he had, and, on being
informed, told the plaintiff to get another, and he, the defendant, would
pay all expenses of the cure: Held, that the defendant did not thereby
become liable for the bill of the then attending physician, whatever it
might be, but that he only intended to express his willingness to pay a
reasonable bill, such as other physicians charged, and that he could in
no event be held beyond that extent of liability. Hund v. Geier, 393.
For exchange of property.
10. Party, to maintain a suit on a contract to exchange -property,
must show performance on his part. A party took corn to a mill to
exohange for meal, where the custom was to weigh the corn and require
the owner to put it in a crib near the mill, and then deliver meal to
him in exchange. In putting the corn in the crib, the owner let a por-
tion of it fall on the ground, and the employees at the mill told him he
must put the corn in the crib, or be docked in the amount of meal.
He declined to put the corn in the crib, and left without demanding
either his corn or meal: Held, on a suit brought by the owner of the
corn, that he could not recover on the ground of a breach of contract
to deliver meal, because he had not performed his part by delivering
the corn in the crib, nor for a conversion of his corn, because, having
put it into the miller's possession, a demand and refusal would be
necessary before he could claim that there was any conversion. Songer
v. Lynch, 498.
Contracts construed.
11. To build bridge over railroad. A contract of a railroad company
to build a bridge over its road at a given point, within one year aftei
648 INDEX.
CONTRACTS. Contracts construed. Continued.
the completion of the road, imposes no obligation on the company to
complete its road within any given period, or within a reasonable time,
and the other party to the contract can not recover upon it for a failure
of the company so to do. St. Louis, Jacksonville and Chicago Railroad
Co. v. Lurton el al. 118.
12. To construct a railroad. A contract for grading and laying the
track of a railroad, provided that the track was to be laid with a good
even surface; that the contractor should fill in, after the track was laid,
with earth from the nearest point on the side of the track, and to do all
necessary grading to finish the road, to be measured in the earth work
aforesaid, and that the contractor should receive twenty cents per cubic
yard for earth work done under the contract: Held, that the work of
filling in between the ties with earth, after the track was laid, should
be taken and measured as earth work, to be paid for at the rate of
twenty cents per cubic yard, and was not embraced in the work of lay-
ing the track. Snell et al. v. Cottingham et al. 161.
13. A contract was entered into between a contractor and a railroad
company, by which the contractor undertook to grade the road at a
certain price per cubic yard for the earth work, and a certain price per
mile for laying the track, the track to be laid with a good even surface.
A portion of the track had previously been graded, and, at the solicita-
tion of the company, the contractor laid the track on the old graded
work in the winter time, when it was impossible to do the grading that
should have been done, but afterwards graded it properly, filling in and
raising the track two and a half feet : Held, that it was immaterial
whether this grading was done before or after the track was laid ; it
was none the less grading, and should be paid for, as such, at the agreed
price per cubic yard. Ibid. 161.
14. As to exclusive right of ferry company to carry freight and pas-
sengers for railway company. A contract between a railway company
and a ferry company bound the railway company to employ the ferry
company to transport for it across the Mississippi river, at St. Louis, all
persons and property which should be taken across the river either way
by the railway company, to or from Bloody Island, either for the pur-
pose of being transported on the road eastward, or which had been
brought to the river over the road, destined to St. Louis or points be-
yond : Held, that the operation of the contract was confined to the ter-
ritorial limits of Bloody Island, and that the railway company was not
prohibited from extending their track to another point on the river, and
then employing another ferry to transport passengers and freight across
the river, from such point to St. Louis and from St. Louis to such point.
Wiggins Ferry Co. v. Ohio and Mississippi Railway Co. 360.
Contract between principal and agent.
15. As to compensation. See AGENCY, 3, 4.
INDEX. 649
CONTRACTS. Continued.
Rescission op contract.
16. For fraud. See FRAUD, 1, 2, 3.
Drunkenness — to avoid contract. See DRUNKENNESS, 1.
CONVEYANCES.
Of the habendum clause.
1. Its proper office and effect. The habendum clause in a deed can
not perform the office of divesting the estate already vested by the deed,
and is void if it is repugnant to the estate granted. Biggin ei al. v.
Love et al. 553.
2. But where no estate is mentioned in the granting clause, then the
habendum becomes efficient to declare the intention, and it will rebut
any implication which would otherwise arise from the omission in this
respect in the preceding clause. Ibid. 553.
3. Where the granting clause in a deed merely describes the prop,
erty, and does not define the nature or character of the estate granted,
and is not followed by language assuming to supply what is thus omit-
ted, it results, by legal implication under the statute relating to Convey
ances, that the estate conveyed is a fee ; but where the habendum des-
cribes what estate is conveyed, it does not contradict the language of the
granting clause, but simply supplies what is omitted therefrom, and
removes all necessity for resorting to implication to ascertain the inten-
tion of the parties. Ibid. 553.
What character of estate passes.
4. A deed whereby certain land is granted to one without defining
the estate, but in the habendum clause the estate is limited to her during
her natural life, with a remainder to her husband, naming him, and in
case of his death before the death of his wife, then to his heirs at law,
creates a life estate in the wife, with remainder in the husband in fee
simple absolute. Ibid. 553.
Tenancy by the entirety.
5. Where land is conveyed to a wife for life with remainder to her
husband, and, in case of his not surviving her, to his heirs, the wife can
not, on the husband's death, take the whole by right of survivorship, as
in the cases of Mariner v. Saunders, 5 Gilm. 124, Lux v. Hoff, 47 111.
425, and Strawn v. Strawn, 50 111. 33, for the reason that those cases
only apply where the fee has vested in the husband and wife jointly.
Ibid. 553.
Reservation op street.
6. What is equivalent to. Where the owner of property which is
platted in lots and streets sells a lot, and reserves the right to vacate the
streets, it is equivalent to a reservation of all his title thereto, and the
purchaser of the lot will not acquire title to any part of the street on
which it abuts, in case it is afterwards vacated. St. John v. Quitzow,
334.
650 INDEX.
CONVEYANCES. Continued.
Marshal's sale.
7. Successor may make deed. See JUDICIAL SALE, 10.
CORPORATIONS.
HOW CHEATED.
1. Only be created by legislative enactment. A corporation can not
be constituted by agreement of parties. It can only be created by legis-
lative enactment. Stowe v. Flagg et al. 397.
2. Under law of 1857. The signers of the certificate described in
the first section of the act in relation to the formation of corporations
(Laws 1857, page 161) do not become a body politic and corporate, under
the statute, by making the certificate. It is only upon the reception of
the license issued by the clerk of the court, as provided for by the act,
that they can have a corporate existence. Ibid. 397.
3. Stock is essential to the existence of a manufacturing corporation,
under the act for the formation of such corporations. The integral
parts of such a corporation are at least three stockholders. Ibid. 397.
Agreement to subscribe for stock.
4. Is not a subscription. An executory agreement between individ-
uals to take stock in a manufacturing corporation to be formed under
the statute of 1857, made at the time of filing the certificate of incorpo-
ration provided for by that act, but before the license required is issued,
is not a subscription of stock, and does not make the parties thereto
stockholders in the corporation when completed. Ibid. 397.
Prior contracts.
5. When not binding on corporation. An agreement between parties
about to form a corporation for manufacturing purposes, under the act
of 1857, which provides for each of them putting in property, at a fixed
value, as stock in the proposed corporation, and also provides who shall
be officers of the corporation, and what compensation they shall receive,
is not binding on the corporation when formed. Ibid. 397.
6. Parties, about to form a corporation for manufacturing purposes,
filed a certificate of incorporation, and on the same day entered into an
agreement by which they each agreed to put into the corporation, when
formed, certain property, as stock, at a fixed price. Afterwards, a license
was issued, as required by law, to complete the incorporation, but no
books were opened, and no action taken with regard to stock, nor was
the property conveyed to the corporation, but the parties to the agree-
ment carried on their business in the name of the corporation, using
the property so agreed to be put in as stock therein. After carrying on
the business in this way for a time, misunderstandings arose between
the parties, and one of them filed a bill in chancery for a settlement of
their affairs: Held, that the property never became corporate property,
INDEX. 651
( ORPt)RATIONS. Prior contracts. Continued.
but belonged to the parties, as an association of individuals, under their
written agreement. Stowe v. Flagg et al. 397.
Liability for debts before organization.
7. Express promise necessary. A corporation, after its organization,
is not liable for the payment of debts contracted previously thereto,
without an express promise to pay them after acceptance and receipt of
the benefit of that for which they were incurred. Western Screw and
Manufacturing Go. v. Cousley, 531.
8. An attempt was made to organize an incorporation under the gen-
eral law of the State, with a capital stock of $100,000. After a part of the
stock was subscribed, the stockholders held a meeting and employed a
superintendent to attend to work being done for the proposed corpora-
tion, which he commenced doing, but afterwards, when it was ascer-
tained that the requisite subscription of stock could not be obtained, he
quit work. Most of the stockholders afterwards formed another com-
pany, with a capital stock of $50,000, for the same purpose of the first one,
and completed their organization and incorporation : Held, that, even if
the first company had completed its organization, the superintendent
could not have recovered against it for his services, much less against
the new company. Ibid. 531.
Foreign corporations.
9. Power to acquire title to real estate. "A corporation created by the
laws of another State, which, by the laws of such State, can not there
acquire and hold title to real estate by devise, is incapable of acquiring
title to real estate, by devise, in this State. Starkweather et al. v. Amer-
ican Bible Society, 50.
10. The American Bible Society being incapable, under the laws of
the State of New York, where it was incorporated, of acquiring title to
real estate by devise, can not acquire title to real estate in this State by
devise ; and real estate devised to it in this State is intestate estate, and
descends to and vests in the heirs of the testator. Ibid. 50.
Through what agencies corporations act.
11. A corporation can only act through its officers, or by expressly
delegating its power to others. A stockholder, even though he may own
a majority of the stock, can not, as such, sell the property of the corpo
ration. Hopkins et al. v. Roseclare Lead Co. 373.
Municipal corporations.
12. Special charter will govern. The provisions of the charter of a
town, passed subsequent to the passage of a general law, must, as to
such town, prevail over any inconsistent provision of the general law.
Brackett v. The People ex rel. 593.
13. Execution can not be awarded against. An execution can not be
rightfully issued against a municipal corporation on a judgment for
debt or damages, or costs, rendered against it. City of Kinmiindy v.
Mahan et al. 462.
652 INDEX.
CORPORATIONS. Municipal corporations. Continued.
14. Addition to town — when apart of it. See TOWNS, 1.
15. Exclusive right to grant license. See INTOXICATING LI
QUORS, 1, 2, 3.
COSTS.
HOW QUESTIONED.
1. After taxation. It is the duty of the clerk to tax the costs ad.
judged against the unsuccessful party, and when the fee bill is made up
by the proper officer, it will be regarded as prima facie correct, and the
cost debtor can challenge its correctness only in a direct proceeding,
either by replevying the fee bill or by a motion to retax costs. It is
impracticable to do so in a suit upon an appeal bond. Parisher et al.
v. Waldo et al. 71.
Apportionment on appeal from justices of the peace.
2. Discretionary. The apportionment of the costs by the circuit
court on an appeal from the decision of a justice of the peace, is the
exercise of a discretion with which this court can not interfere. Wick-
ersham v. Hurd, 464.
In chancery.
3. Discretionary. In chancery causes the question of costs is in the
discretion of the court. Carpenter et al. v. Davis et al. 14.
4. It is discretionary with the court to decree all the costs against
the complainant, on the dissolution of an injunction in part, and mak-
ing it perpetual as to part of the subject matter, and where the com-
plainant has attempted to enjoin the collection of several judgments on
the ground of payment, some of which he knew he had never paid,
the discretion will be properly exercised in decreeing all the costs
against him. Howard v. Bennett et al. 297.
In Supreme Court.
5. Error cured by remittitur. Where judgment is taken for too
large a sum, and, on appeal by the defendant to this court, the appellee,
after the cause is submitted, enters a remittitur of the excess, if this is
the only error, the judgment will be affirmed at the costs of the appellee.
Lowman v. Aubery et al. 619.
Garnishee.
6. When liable for costs. See GARNISHMENT, 5.
COUNTY CLERK.
Only ministerial officer.
In extending taxes under order of county board. See TAXES AND
TAXATION, 6.
INDEX. 653
COUNTY COURT.
Jurisdiction.
1. In bastardy cases. By the bastardy act of 1872, (Laws 1872, p.199,)
county courts are vested with full power and jurisdiction to hear and
determine a case of bastardy, and this is in addition to the jurisdiction
conferred by the county court act, nor is any section of the county court
act in conflict with, or repugnant to the bastardy act. The People v.
Woodside, 407.
2. The act of April 25, 1873, (Laws 1873, p. 87,) requiring the county
court to transfer certain cases to the circuit court, only refers to cases
where special jurisdiction had been conferred upon county courts prior
to the adoption of the constitution of 1870, and has no reference to
bastardy cases, whatever. Ibid. 407.
Allowance op claim.
3. Presumption m favor of. When the county court is adjudicating
upon the administration of estates, over which it has a general juris-
diction, as liberal intendments will be granted in its favor as would be
extended to the proceedings of the circuit court, and it is not necessary
that all the facts and circumstances which justify its action shall
affirmatively appear upon the face of its proceedings. The People v.
Gray, 343.
4. When a judgment rendered by a county court for the payment, in
due course of administration, of a claim exhibited against an estate,
does not provide for its payment from assets of the estate not then in-
ventoried, the presumption is, the claim was exhibited within two years
from the time of granting letters of administration. Ibid. 343.
COURTS.
Presumption.
1. That the judge authorized by law to preside does so. Although the
record may show an agreement that an attorney named may try a case,
yet if it nowhere appears that he in fact did try it, and the concluding
part of the record shows that the court heard and overruled a motion
for a new trial and rendered judgment, this court will presume that the
trial was had before the judge authorized by the constitution and laws
to preside. The People v. Woodside, 407.
COVENANT.
Against whom it lies.
1. Only to one who executes a deed. An action of covenant will not
lie against the grantee in a deed executed by the plaintiff, for a failure
by the grantee, after accepting the deed and taking possession under it,
to perform the conditions upon which the deed, as therein expressed,
was executed. Rockford, Rock Island and St. Louis Railroad Go. v.
Beckemei&Tj 267.
654 INDEX.
CRIMINAL LAW.
Indictment for murder.
1. That several struck the blow with the same weapon. It is not a
physical impossibility for three persons to have the same stick in their
several right hands at the time a blow is struck with it, and an indict
ment for murder which so charges is good, and a plea of guilty to such
an indictment admits the fact to be as charged. Goates v. The People,
303.
2. As to accessories. Where an indictment charges that three per-
sons, named, with a stick of wood which each severally had and held
in their several right hands, inflicted a mortal wound, causing death,
proof that either one of them struck the fatal blow with the weapon
described, and that the others were accessory to the fact, will be sum
cient to sustain a conviction of all three as principals. There would be
no variance in such a case between the proof and the allegations in the
indictment. Ibid. 303.
Identity of person killed.
3. Must be shown. On the trial of one for murder, the party killed
must be proved to be the same person named in the indictment — the
identity must be established. Shepherd v. The People, 480.
4. But this may be done by the man's occupation as well as by his
christian name ; thus, where the christian name of the party killed was
given in the indictment, and he was spoken of by the witnesses by his
surname only, but was also spoken of as the barber, and the evidence
was that he was a barber, and the only one in the place of that surname,
it was held that the identity was sufficiently established. Ibid. 480.
Killing officer making illegal arrest.
5. Not murder, but manslaughter, unless there be previous or express
malice. If a public officer be resisted and killed by a person whom he
is attempting to illegally arrest without color of authority of law, the
killing will be manslaughter only, unless the evidence shows previous
or express malice. Rafferty v. The People, 37.
6. If an officer be resisted and killed by one whom he is illegally
attempting to arrest, and it appears that the party who does the killing
was actuated by previous or express malice in so doing, such killing is
murder, notwithstanding the illegality of the attempted arrest. Ibid. 37.
7. When act may be referred to malice. Where a party procures a
weapon for the express purpose of resisting an arrest, whether legal or
illegal, by a particular officer or by one of a particular class of officers,
and such officer attempts to arrest him, and before any violence is clone
or offered to him, he kills such officer with the weapon thus provided,
the jury will be justified in finding that he was actuated by previous or
express malice, and the killing is murder, notwithstanding the at-
tempted arrest was illegal. Ibid. 37.
INDEX. 655
CRIMINAL LAW. Continued.
Plea op guilty of manslaughter.
8. Power of the court. Where a defendant pleads guilty to the crime
of manslaughter, the court has the same power to fix the punishment
that a jury have when they find the defendant guilty on a trial. Goates
v. The People, 303.
Judge communicating with jury.
9. When the court adjourns, the judge carries no powers with him
to his lodgings, and he has no more authority over the jury than any
other person, and any direction to them, from him, either verbal or in
writing, is improper. Bafferty v. The People, 37.
10. If the judge sends from his lodgings a message to the jury, of
a character to probably operate to the prejudice of the accused, the fact
that his counsel, in his absence, consented to it, would not, in a capital
case, cure the error. Yet, if, by no possibility, it could work an injury
to the prisoner, it ought not to vitiate the verdict. Ibid. 37.
CROSS-BILL. See CHANCERY, 21.
CUSTOM.
Contract in reference to.
1. When presumed. Where it is the general and long established
custom of a railroad company, in delivering freight to connecting lines,
to deliver as consignors, a shipper who has been in the habit of ship-
ping over such road, will be presumed to be familiar with that custom,
and to contract with reference to it. Indianapolis, Bloomington and
Western Railway Go. v. Murray et al. 128.
DAMAGES.
Assessment on default.
When by the clerk. See ASSESSMENT OF DAMAGES, 3.
Exemplary damages. See MEASURE OF DAMAGES, 16, 17.
Measure op damages. Same title.
Excessive damages. See NEW TRIALS, 6
DEBTOR AND CREDITOR.
Whether relation created.
1. A brother of the owner of property sold it to a third party with-
out authority so to do, and the owner reclaimed the property and then
sold it to the same purchaser, treating the amount paid to his brother
on the first purchase as so much paid to himself on the sale made by
him. On a suit brought by the purchaser against the first seller, to
recover the purchase money paid to him, it was held, that the defendant
was not debtor to the plaintiff" in that amount, nor did he hold money
belong to the plaintiff. Varnell v. McGinnis% 445.
656 INDEX.
DECREE.
On constructive service.
1. When it becomes final. Under the Chancery Act of 1845, a decree ren-
dered against a defendant not personally served is merely interlocutory,
and does not become final until the expiration of three years from the date
of its rendition, and all rights acquired under such decree are subject
to the action of the court in relation to such decree during the three
years allowed to such defendant within which to open the same, and
make his defense. Martin v. Gilmore et al. 193.
2. Effect of vacating a decree against party not served, upon rights
acquired under it. A deed made by the master in chancery in pursuance
of, and which recites a decree rendered against a party not personally
served, is notice to all persons claiming under it that such decree is not
final, but is liable to be vacated and set aside within three years from
the time it was rendered, and if such decree is so vacated and set aside
within the time limited, all rights obtained under it, and all acts per-
formed in executing it, are also annulled. Ibid. 193
Of foreclosure.
In respect to redemption. See MORTGAGES, 3.
What is a decree.
Recitals in certificate of evidence, is not. See CHANCERY, 25.
DEFAULT.
Effect of.
Admits facts alleged. See SCIRE FACIAS, 1.
Assessment of damages.
Defendant not entitled to notice. See ASSESSMENT OF DAM-
AGES, 1.
Bights of defendant after. Same title, 2.
How far an admission. Same title, 2.
Rights of defendant after. See PRACTICE, 7.
DISCRETION.
As to dismissal of suit by plaintiff.
On plea of set-off, after close of testimony. See PRACTICE, 9.
Instructing to find special verdict. Same title, 12.
Costs in chancery. See COSTS, 3, 4.
As to apportioning costs.
In appeal suits. See COSTS, 2.
DISMISSAL.
Of suit on appeal by defendant.
Not allowable, for want of papers. See APPEALS, 4.
In replevin.
Evidence on assessment of damages. See REPLEVIN, 1.
INDEX. 657
DISMISSAL. Continued.
Of suit where there is set-off, matter of discretion. See PRAC-
TICE, 9.
DRAFT.
Liability of drawer.
1. When he appropriates the fund drawn upon. An intestate, in his
lifetime, caused his agent to draw a draft against funds which he had
provided for the purpose of meeting such draft, and afterwards, havi r-
occasion to use such funds for other purposes, induced the holder of tht,
draft not to present it for payment, and then appropriated all the funds
in the hands of the drawee: Held, that this was an appropriation of the
money of the holder to the amount of the draft, and that the holder was
entitled to recover against his estate the amount of the draft, with legal
interest from the time the money was appropriated by the intestate.
North v. Campbell et al. 380.
2. In such a case, the recovery is not upon the draft, but for money
of the claimant had and received and appropriated to his own use by
the intestate, which, in equity and good conscience, his estate ought to
repay. Ibid. 380.
DRUNKENNESS.
Contract entered into during.
1. Degree of, to avoid. To render a transaction voidable on account
of drunkenness of a party to it, it should appear that he was so drunk
as to have drowned reason, memory and judgment, and impaired his
mental faculties to an extent that would render him non compos mentis
for the time being, especially when the other parties connected with the
transaction have not aided in or procured his drunkenness. Bales v.
Ball et al. 108.
DURESS.
Evidence to disprove. See TROVER, 2.
ELECTIONS.
As to number of votes cast.
1. Presumption. The presumption is, that the vote cast at an elec-
tion held according to law, is the vote of the whole number of legal
voters, and this presumption can not be rebutted by proof of the number
of votes cast at an election held in the preceding year. Melmn et al. v.
Lisenby et al. 63.
ESTOPPEL.
By recitals in bond.
1. To deny judgment. In a suit upon a bond given upon an appeal
to the Supreme Court, it is unnecessary to introduce a copy of the record
42— 72d III.
658 INDEX.
ESTOPPEL. By recitals in bond. Continued.
of the judgment appealed from, when it is recited in the condition of
the bond, as the defendant is estopped from denying its existence. Her-
rick et al. v. Swartwout, 340.
Of ward to claim land.
By taking money, and gross laches. See GUARDIAN AND "WARD, 2.
Op tenant to deny landlord's title. See LANDLORD AND TEN-
ANT, 1, 2, 3.
TO OBJECT TO ORAL INSTRUCTIONS.
When given by consent. See INSTRUCTIONS, 1.
EVIDENCE.
Parol evidence.
1. To explain an apparent variance. In a suit against one for ob.
structing a public highway, where there is an apparent variance between
the description of the road in the notice to the defendant to remove ob-
structions, and in the declaration, it is competent to prove by parol that
such variance is only apparent, and that the description is, in fact, the
same. The People v. Young, 411.
Secondary.
2. To establish lost record of election. Where the record or written
evidence of the fact that a notice of an election to vote on the question
of the county subscribing to a railroad and issuing bonds thereto, and
of the result of such election, is lost, it is competent to prove such facts
by parol. Maxcy et al. v. Williamson County et al. 407.
Whether affirmative or negative.
3. Where witnesses who, at the time of an accident at a railroad
crossing, were within thirty yards of it, testify that they were in a situ-
ation to have heard a bell ring or whistle sound, if there had been any
rung or sounded, and that they did not hear any, such testimony can
not be regarded as negative testimony. Rockford, Rock Island and St.
Louis Railroad Co. v. Hillmer, 235.
Admissions and statements.
4. Competent evidence against party, though involving admission of
written contract not produced. In a suit on a contract, where the ques-
tion at issue is, whether certain payments made by the defendant to the
plaintiff should be applied upon the contract sued on or not, any state-
ments of the defendant tending to show that the payments were not
made upon that contract, would be admissible in evidence, although
they involved the admission that there was another contract in writing
between the parties, without producing such other contract. Snell et
al. v. Cottingham et al. 124.
Correspondence of party.
5. Not admissible in his behalf. The correspondence between the
plaintiffs in a suit, and their correspondents, with whom the defendants
INDEX. 659
EVIDENCE. Correspondence op party. Continued.
are in no way connected, is not competent evidence as against the de-
fendants. Illinois Central Railroad Co. v. Cobb, Blaisdell & Co. 148.
AS TO MARKET PRICE OF GRAIN.
6. What competent to show. In a suit against a railroad company
for unreasonable delay in the transportation of grain, where the plain-
tiff has proved the market price of grain at the point to which it was
consigned at the time when, if there had been no unreasonable delay,
it would have arrived, it is competent for the defendant to prove that
the plaintiff sold grain at that point, during the time the grain was act-
ually arriving there, at a certain price, as a fact tending to establish the
market price at that place at that time. Ibid. 148.
AS TO APPLICATION OP PAYMENTS.
7. How shown. The application of a payment by either party may
be proved as well by circumstances as by express declarations. Snell
et al. v. Cottingham et al. 124.
Admissibility, generally.
8. Must be received even if unsatisfactory, and acted upon, token there
is no other. When grading is done for a railroad company upon a
road that has already been partially graded, and the only evidence be-
fore the jury as to the amount of the new grading is the estimates made
by the engineer of the contractor, and the company refuses to have any
estimate made by its engineer, and offers no evidence on the subject,
the jury' must be guided by the evidence before them, and the fact that
it may be difficult for the engineer to distinguish between the old work
and the new, can not be ground for disregarding his testimony. If the
company fails to produce any testimony on the subject, and the jury are
compelled to act on that offered by the contractor alone, although unre-
liable, it is the result of its own neglect, against which no relief can be
had. Snell et al. v. Cottingham et al. 161.
Giving ordinance in evidence.
9. When authority must be shown. In a suit brought by a city to re-
cover a penalty for the violation of a city ordinance, it is proper to ex.
elude the ordinance, when offered in evidence, unless the plaintiff shows
or offers to show that the city had the authority to pass the ordinance,
and if such evidence is not offered, and there is no evidence except the
ordinance itself, it is proper for the court to exclude it, and unless the
plaintiff submits to a non-suit, to instruct the jury to return a verdict for
the defendant. City of Alton v. Hartford Insurance Co. 328.
What pacts a jury may infer.
10. From those proved. Where the evidence in a suit against a rail-
road company for killing stock, showed that the stock was not killed
within a corporation nor near a crossing, the jury might infer that it
was not killed within the limits rof a town, city or village. St. Louis
and Southeastern Railway Co. v. Casner, 384.
660 INDEX.
EVIDENCE. Continued.
OF WANT OF TITLE.
11. Recovery in ejectment. A judgment of recovery in ejectment, in
favor of a stranger against a defendant in possession, is not of itself
proof of want of title in the grantor of such defendant, in a suit by the
grantor upon a note given by the defendant for the purchase money of
the premises. Bond et al. v. Ramsey et al. 550.
Condition of work.
12. Long after its completion. Upon the question of the completion
of a shaft in a coal mine in good condition, where it appeared that the
work was finished and tendered on the 20th of November, evidence was
offered to show the condition of the shaft in the month of January fol-
lowing, by the party for whom it was sunk, which the court refused
to admit : Held, that the proof was properly excluded. Eureka Goal Co.
v. Braidwood et al. 625.
When relevancy must appear.
13. Though it may be a party is not to be controlled in the order of
his testimony, yet if he offers evidence which is not competent without
other connecting evidence, and it is objected to on that ground, and he
does not state that he will show the connecting link in his chain of evi-
dence, and does not show it, the evidence offered should be excluded.
City of Alton v. Hartford Fire Insurance Co. 328.
Burden of proof.
14. As to payment of a judgment. It is a well established principle
that a party affirming a fact is bound to furnish proof of the existence
of that fact; hence a defendant in a judgment, who affirms that it has
been paid, is bound to show it by a preponderance of evidence. How-
ard v. Bennett et al. 297.
Of want of probable cause. See MALICIOUS PROSECUTION, 2.
As to negligence. See NEGLIGENCE, 13, 19.
Bill of lading.
Prima facie evidence of good condition of goods. See CARRIERS, 1,
Suit on lost instrument.
Proof must be clear. See LOST INSTRUMENT, 1.
Upon question of duress. See TROVER, 2.
In suit for fraud in sale.
Of other sales and complaints proper. See FRAUD, 7.
Assessment of damages on dismissal of replevin suit.
To show defendant a pledgee. See REPLEVIN, 1.
Official character.
When proof of necessary. See OFFICER, 1.
Justification under process.
Proof of judgment not necessary. See OFFICER, 2.
INDEX. 661
EVIDENCE. Continued.
In suit for malicious prosecution.
Proof of plaintiff's motives. See MALICIOUS PROSECUTION, 5.
EXCEPTIONS AND BILLS OF EXCEPTIONS.
When necessary.
1. Where there is no bill of exceptions, and it does not appear in
the record that exceptions were taken to the ruling of the court be-
low in dismissing an appeal for want of a sufficient amended appeal
bond, such ruling will not be reviewed in this court. Neely v. Wright,
292.
2. A bill of exceptions is only necessary to make some matter a
part of the record, which otherwise would be no part thereof, and, as
the filing of the transcript of the county court in the circuit court, upon
an appeal, makes such transcript a part of the record of the circuit
court, and the judgment of the circuit court thereon is a part of the
record, no bill of exceptions in the circuit court is necessary to enable
the Supreme Court to look into the record sent up from the county to
the circuit court and the judgment of the circuit court thereon. United
States Express Co. v. Meints, 293.
3. Where the evidence is not preserved in the record by a bill of
exceptions, the presumption is, that it was sufficient to justify the judg-
ment. Prout et al. v. Grout et al. 456.
EXECUTION.
What is subject to levy and sale.
1. Interest of vendor of land subject to levy and sale under execu-
tion. McLaurie v. Barnes et al. 73.
Satisfaction by levy.
2. Not satisfied by levy on personal property which is afterwards
returned to the debtor and appropriated by him. If property is levied
upon, and afterwards comes back into the hands of the debtor in the
execution under which the levy is made, and is by him sold, and the
proceeds appropriated to his own use, the execution is not thereby satis-
fied. Howards. Bennett et al. 297.
3. If a sheriff, having an execution, actually levies on personal
property, and takes possession thereof, and then, without authority,
returns it to the debtor, such action, though it might render the sheriff
and his sureties on his bond liable, can in no degree affect the rights
of the plaintiff in the execution nor prohibit him from thereafter suing
out another execution. Ibid. 297.
4. Levy on real estate is not such as to prevent collection in some other
manner. The levy of an execution upon real estate of sufficient value
to satisfy it, does not, like the levy of an execution on. personal prop-
erty, while the levy is undisposed of, act as such a satisfaction of the
662 INDEX.
EXECUTION". Satisfaction by levy. Continued.
judgment as will bar an attempt to enforce its collection in any other
manner. Herrick v. Swartwout, 340.
Issued more than a year after judgment.
5. Voidable, but not void. A first special execution issued upon a
judgment in an attachment suit more than a year after the rendition of
such judgment, is voidable only, and not void. Morgan et al. v. Evans
et al. 586.
Does not lie against city. See CORPORATIONS, 13.
EXEMPLARY DAMAGES. See MEASURE OF DAMAGES, 16, 17
FAILURE OF CONSIDERATION. See CONSIDERATION, 5.
FEDERAL COURTS
Practice in.
1. Process and proceedings of State courts adopted. The act of Con-
gress of 1828 adopted the mesne process and modes of proceedings in
suits at common law, then existing under the State laws of the State
where the court was heid, including writs of execution and final pro-
cess, and the proceedings thereunder, and the act of 1842 extended the
provisions of the act of 1828 to all State laws on the subject in force at
the time of the enactment of 1842. Hence a sale on execution, and all
proceedings thereunder, by a United States Marshal, after that time,
would be governed by the State law in force at the time of such sale
and proceedings. Martin v. Gilmore et al. 193.
FOREIGN CORPORATION.
Powers in this state. See CORPORATIONS, 9, 10.
FRAUD.
False representations.
1. When cause for rescinding contract. Any wilful misrepresentation
of a material fact made with a design to deceive another, and to induce
him to enter into a negotiation he would not otherwise do, will enable
the party who has been overreached to annul the contract. Allen et al.
v. Hart, 104.
2. But it is not indispensable to the right to rescind that the party
making the misrepresentation knows it is false, or whether he is ignor-
ant of the fact stated, provided it is material, and the other party has a
right to rely upon it, and does so and is deceived. Ibid. 104.
3. The vendor of a patent matdi box, and of territory covered by the
patent, represented to the vendee, who had himself no knowledge on the
subject, and no means of obtaining it, that the territory proposed to be
sold was very valuable ; that other parties had made purchases, and all
INDEX. 663
FKAUD. False representations. Continued.
had clone well and realized large profits : Held, that the vendee had the
right to rely on these statements, and having done so, and the state-
ments having proved to be false, he had a right of action to recover
back the money paid for such patent right. Allen et al. v. Hart, 104.
4. Expression of opinion is not a fraud. A party may express his
opinions freely as to the merits of any article he may have to sell, and
can not be held responsible in an action for the truth or falsity of such
expressions. A simple recommendation of goods, however unwarranted,
is not, of itself, sufficient to vitiate a sale. Ibid. 104.
5. By vendor of a patent right. Where the vendor of «a new inven-
tion and patent right represents to one about to purchase territory that
other parties who have purchased territory are selling the same, and
are doing well with it, and have made thousands of dollars, and that
he had just received a letter to that effect, from one of such parties, such
representations are material, and likely to influence the purchaser, and
he has a right to rely upon them, and if he does so, and is thereby in-
duced to purchase, and such representations prove to be false, the pur-
chaser has an action against the vendor for fraud and deceit. Allin et al.
v. Millison, 201.
6. Of agent regarded as those of principal. Where an agent is em-
ployed by the owner of a patent right, to induce parties to make pur-
chases, and he, by representations to a party as to the quality and value
of the patent, gets him to the negotiating point, and then turns him over
to his principal, who closes the trade with him, the representations
made by such agent are to be taken as those of the principal. Ibid.
201.
7. Evidence as to transactions between one party to the suit and stran-
gers. In an action against the vendor of a patent right, for fraud and
deceit in the contract of sale, where it appears that the vendor had repre-
sented that other parties had purchased territory, and were doing well
with it, evidence in regard to the transactions between the defendant
and such other parties, and that they had made complaints of the worth -
lessness of the patent, to the defendant, is proper for the purpose of
showing that the defendant knew the patent was without value, and
that his representations to the plaintiff, in relation thereto, were made
with knowledge of their falsity. Ibid. 201.
8. lender of article purchased not necessary before suit for fraud and
deceit in the sale of it. A purchaser has a right to maintain a suit
against his vendor for fraud and deceit in a contract of sale, without-
tendering back the thing purchased. Ibid. 201.
9. As to value of property sold, no cause of action. A purchaser can
not maintain an action against his vendor for false statements in regard
to the value of the property purchased, or its good qualities, or the price
he has been offered for it. Ncetling v. Wright, 390.
664: INDEX.
FRAUD. False representations. Continued
10. Where a party, capable of taking care of his own interests, makes
a bad or losing bargain, the law will not assist him, unless deceit has
been practiced against which ordinary care could not protect him.
Nestling v. Wright, 390.
AS AGAINST CREDITORS.
11. Fraudulent disposition of property by debtor. If a debtor, for
the purpose of covering up his property to keep it from the reach of
creditors, puts it into improvements on the land of his minor step-chil-
dren, who are in no way parties to his fraudulent purpose, the improve-
ments will become the property of such step-children, as a part of the
land, and can not be reached either by such debtor or his creditors.
Matties et al. v. Dobschuetz, 438.
IN OBTAINING ISSUE OF MUNICIPAL BONDS.
As against bona fide holder. See MUNICIPAL SUBSCRIPTION
AND BONDS, 7.
In use of process. See PROCESS, 2, 3.
FRAUDS, STATUTE OF. See STATUTE OF FRAUDS.
FRAUD AND CIRCUMVENTION. .
In procuring execution of note.
1. Either one a defense. The statute does not require fraud and cir-
cumvention to be used in obtaining the making of a note, before the
defense can be interposed, but when fraud or circumvention is practiced
in obtaining the execution of the instrument, in either event the defense
can be made availing. Hewett v. Johnson, 513.
2. Defense as against assignee. In a suit by the assignee against the
maker of a promissory note, the fact that the execution of the note was
procured by fraud or circumvention, is a good defense, and it is imma-
terial whether the assignee took the note with or without notice of such
defense. Hewitt v. Jones, 218.
3. Facts held to show. A party who was sued upon what purported
to be a promissory note, testified : " I never signed the note. Some one
came to my house, inquiring the way to Grove township, and asked me
to sign my name and. post office address in a book. I did so. He said
he would send me a fork to show the farmers in Grove township, and
would come back in two weeks to take the fork, when he would pay
me for my trouble. He never came back. He did not ask me to buy
the fork or give him my note. I signed my name and post office ad-
dress on a blank page of a book produced for that purpose :" Held,
these facts, uncontradicted, were sufficient to show the execution of the
note was procured by fraud. Wilson v. Miller, 616.
INDEX. 665
GARNISHMENT.
Who and what subject thereto.
1. Judgment debtor. Under the Revised Statutes of 1845, which pro-
vide that, where any person is indebted, or has any effects or estate of
the defendant in his hands, the same may he the subject of garnish-
ment, it makes no difference whether such person is a judgment or a
simple contract debtor. In either case, the effects or estate in his hands
may be taken to pay his creditor's claim, in the mode provided by the
statute. Luton v. Hoehn, 81.
2. A judgment debtor, in the circuit court, may be garftsheed, on
process issued by a justice of the peace. Ibid. 81.
3. Promissory note. See ATTACHMENT, 1.
Sending process to another county.
4. Where a judgment is rendered in the circuit court, process of
garnishment can be sent to any county in the State where the garnishee
may be found, and in this respect there is no difference between natural
persons and corporations. Either may be served as garnishee. Toledo,
Wabash and Western Railway Go. v. Reynolds, 487.
Whether garnishee liable for costs.
5. Garnishees can only be held liable for costs where they fail to
disclose the true amount of indebtedness by their answer, and an issue
formed and a trial had, and the issue is found against the garnishees.
Where judgment is taken for the amount of indebtedness as disclosed
by the answer, it is error to render judgment against the garnishee for
costs. Prout et al. v. Grout et al. 456.
Final judgment against garnishee.
6. On plea to jurisdiction, error. Where a garnishee flies a plea to
the jurisdiction of the court, to which a demurrer is sustained, and the
garnishee stands by his plea, this does not constitute a full appearance
on the part of the garnishee, and it is error to render final judgment
against him. In such case, the judgment should be a conditional one,
as upon a default, and a scire facias ordered returnable to the next
term. Toledo, Wabash and Western Railway Go. v. Reynolds, 487.
GUARANTY.
Of promissory note.
1. Extent of the liability. A guarantor of. a promissory note is one
who engages that the note shall be paid, but is not an indorser or surety,
and he is regarded as an original promisor, and he is liable as well for
the payment of any damages stipulated for in the note as for the amount
of the note itself. Gridley v. Gapen et al. 11.
2. Guarantor bound for liquidated damages. Where a promissory
note provided for the payment of twenty per cent per annum, if not
paid at maturity, as liquidated and agreed damages, and the guaranty
was, " for value received, we guarantee the payment of the within note
666 INDEX.
GUARANTY. Of promissory note. Continued.
when due," it was held, that the guarantor was liable for the stipulated
damages as well as for the amount specified in the note. Oridley v.
Gapen et al. 11.
GUARDIAN AND WARD.
Land taken by guardian for debt due ward.
1. Ward's right of election. Where a guardian recovers a judgment
as such, and takes a conveyance of land to himself, in satisfaction
thereof, his ward may, on attaining his majority, take the land or charge
his guardian with the amount of the judgment and accruing interest,
at his election, and if, within a reasonable time after coming of age, he
elects to take the land, a court of equity will enforce a conveyance of
the legal title to him. Padfield v. Pierce, 500.
2. When ward estopped to claim land conveyed in satisfaction of
judgment. Where a guardian, who had taken a conveyance of land to
himself, in satisfaction of a judgment in his favor as guardian, and,
upon his ward arriving of age, settled with him, and charged him-
self, in said settlement, with the amount of the judgment, and
the ward was, at the time of such settlement, apprised of his rights
in the land, and made no attempt to enforce his claim, but accepted the
balance found to be due him upon such settlement, and never made any
claim to the land for seventeen years afterwards, it was held, that the
ward was estopped from asserting his claim to the land, both because
of his election to take the proceeds of the judgment with full knowl-
edge of his rights, and of his gross laches in making his claim. Ibid.
500.
Suit against, for board and clothing of ward.
3. By stepfather. A testator gave to his widow, by his will, money
and the rents and profits of land, in lieu of dower, incumbered with the
provision that she should maintain and support his children. She re-
nounced the provisions of the will, and had dower assigned, married
again, and, with her second husband, resided upon the land set off
to her for her dower : Held, in a suit by the second husband against
the guardian of the children, for their board and clothing, that he was
in no way bound or affected by the will or the relinquishment of the
widow, and was not thereby precluded from maintaining his suit.
Meyer v. Temme, 574.
4. May set off labor of ward against claim for board and clothing.
In a suit against a guardian for board and clothing furnished his wards,
he may prove that the wards have worked for the plaintiff, and the
value thereof, and set it off against his claim, but the jury can not take
into consideration any labor that such wards may do for the plaintiff in
the future, and for the court to instruct them that they may, is error.
Ibid. 574.
Discharge of guardian in bankruptcy.
Discharges his surety. See BANKRUPTCY, 1, 2.
INDEX. 667
HIGHWAYS.
Offenses relating to.
1. Building, and refusing to remove obstructions, are different and dis*
tinct offenses. Obstructing a public highway by building a fence
therein, is one offense, and refusing to remove a fence which was in the
road when it was laid out, is a different and distinct offense. The People
v. Young, 411.
Refusal to remove obstruction.
2. No offense in counties not under township organization. There is
no law, in relation to counties .not under township organization, which
makes it an offense for a person to fail or refuse to remove obstructions
that may be in the line of a road at the time it is located and estab-
lished. Ibid. 411.
HOMESTEAD.
Right of widow.
1. As against children and heirs. The widow of one who died prior
to the time when the acts of 1872 and 1873, exempting the homestead
from the laws of descent and devise, went into effect, is not entitled to
the right of a homestead in addition to a right of dower, as against the
children and heirs. Eggleston v. Eggleston et al. 24.
HUSBAND AND WIFE.
Suit between, respecting personalty.
1. What proof must show. As between husband and wife, in order
to the maintenance of a suit by the one against the other for a recovery
as to personal property, the evidence should show, by facts proved, that
the property is brought clearly within the operation of the Married
Woman's Act of 1861. Johnson v. Johnson, 489.
2. The supposition of the parties, or their general statement, of the
property being or having been the separate property of the wife, is not
sufficient proof of the fact to maintain a suit in relation thereto between
the husband and wife. In such case, the facts should be stated from
which it would appear whether or not the property is the separate pro-
perty of the wife within the act of 1861, and not the conclusion of the
witnesses from the facts. Ibid. 489.
ILLINOIS CENTRAL RAILROAD.
Compelling sale of their lands.
1. By the act of the General Assembly in force February 27, lbo4,
the charter of the Illinois Central Railroad Company was so altered
and amended as to authorize a sale of its lands upon a credit, and a
new contract was thereby entered into between it and the State, which
the State has no authority to change without the consent of the com-
pany. The People v. Ketchum et al. 212.
INDEX.
ILLINOIS CENTRAL RAILROAD.
Compelling sale op their lands. Continued.
2. The act of February 27, 1854, conferred upon the Illinois Central
Railroad Company the option of selling their lands for cash, or on such
credit as they might deem expedient, and the State has no authority to
compel them to sell their lands at a price fixed by law, thus interfering
with the right Of the company to sell for a larger price upon credit.
• The People v. Ketchum et al. 212.
3. Duty of State not to endanger or lessen value of the bonds. The
State having vested the company with power to issue bonds, and with
authority to pledge its lands as security for their final redemption, and
the company having so pledged them, the State is bound in justice to
take no steps which shall in any way endanger the validity of the
bonds, or lessen their value. Ibid. 212.
4. Courts of chancery can prevent collusion between company and
purchasers of its lands, to continue exemption from taxation. If the
Illinois Central Railroad Company has, by collusion with purchasers of
its lands, permitted a small portion of the purchase money to be with-
held, and no conveyance made, so as to continue the exemption from
taxation, it has acted in bad faith toward the State, and a bill in chan-
cery, properly framed, on behalf of the State, would bring all such
transactions to light, and full power would be exercised by a court of
chancery to prevent them in the future. Ibid. 212.
Exemption from taxation.
5. What property embraced tlievein. The taxes from which the legis-
lature intended to relieve the Illinois Central Railroad Company, by
the 22d section of the act incorporating it, are only such taxes as it, as
a railroad corporation, would be otherwise liable to pay upon its pro-
perty, acquired in the prosecution of its business in constructing and
operating the lines of road authorized by said act to be constructed and
operated. Illinois Central Railroad Co. v. Iroi?i, 452.
6. Steamboats are not railroad property, and are not, although
owned and used by a railroad company, exempt from taxation as such,
under a charter which exempts such railroad company from taxation.
Ibid. 452.
7. Where the charter of a railroad company exempts the corpora-
tion from taxation, its property which is necessary and indispensable to
the construction and use of the road will, alone, be within the exemp-
tion— all other property will be liable to taxation. Ibid. 452.
IMPRISONMENT.
For violation of ordinance.
1. Illegal. In an action of debt for violation of a city ordinance, it
being a civil suit, it is error to adjudge imprisonment against the de-
fendant. City of Kinmundy v. Mahan et al. 462.
INDEX. 669
IMPROVEMENTS.
On land.
When become part of realty. See REAL ESTATE.
INFANTS.
Appearance of guardian ad litem.
Will not confer jurisdiction. See JURISDICTION, 1.
Infant can not give consent.
For improvements to be made on his land. See REAL ESTATE, 2.
INFORMATION.
In school law for fine.
Means complaint in writing. See SCHOOLS, 4.
INJUNCTION.
Property of one levied on for taxes of another.
1. When the collector of taxes levies upon the property of one for
the taxes of another, and the collector is insolvent, and not able to re-
spond in damages, a court of equity will enjoin the sale of such property.
Deming et al. v. James, 78.
To RESTRAIN collection of taxes.
2. Railroad property. See TAXES AND TAXATION, 7.
Sale of land on execution.
3. As creating cloud on title. See CHANCERY, 15, 16.
Assessment of damages on dissolution.
4. Error if bill is not dismissed. Where the only prayer of a bill is
for an injunction, and a temporary injunction is granted, which, upon
the coming in of the answer, is dissolved, but no decree rendered dis-
missing the bill or disposing of the case upon its merits, it is improper
to assess damages, Terry et al. v. Trustees of Hamilton Primwy School,
476.
Costs on dissolution. See COSTS, 4.
INJUNCTION BOND.
Liability of obligors.
1. Executed by a stranger, conditioned to pay the debt of another.
The mortgagee in a chattel mortgage took possession of the mortgaged
property before the debt secured thereby became due, and a third party
brought a suit in chancery to restrain the mortgagee from selling the
property before the maturity of the note, and in compliance with the
requirement made by the court as a condition to granting the injunc-
tion, entered into a bond, containing an absolute covenant to pay the
mortgage debt to the mortgagee, upon maturity. In a suit upon the
bond, there was nothing in the record showing that the defendant occu-
pied the relation of surety to the debtor in the chattel mortgage, or that
his position was other than a mere stranger entering into the bond to
670 INDEX.
INJUNCTION" BOND. Liability of obligors. Continued.
pay the debt of the mortgagor debtor, without even so much as a request,
on the part of the debtor, to do so : Held, that there was no available
defense to the suit on the bond under such a state of facts, except per-
formance of the covenants, or such legal defense as would overthrow
the instrument itself. Lewis v. City National Bank of Cair- ~ '"
INSTRUCTIONS.
Oral instructions.
1. May be given by consent of parties. Whilst the statute requires
that the instructions given to the jury shall be in writing, there is no
doubt that the parties may waive that provision of the law, and when
they do so, and consent that the court may instruct the jury orally, they
are estopped from afterwards objecting. Bates v. Ball etal. 108.
Of their requisites, generally.
2. Should be plain and explicit. In a case where there is doubt in
regard to an important question, instructions should be plain and ex-
plicit, free from all doubt, and announce legal principles, so that there
shall be no question as to what the law is. Illinois Central Railroad
Co. v. Hammer, 347.
3. Should not caution jury against giving credence to the evidence of
a designated witness. It is not proper for the court, in a criminal case,
to designate the evidence of a witness who is not an acknowledged ac-
complice, and caution the jury against giving credence to it. Casting
the influence of the court against the testimony of a particular witness,
or the character of the evidence he gives, is not the usual way of either
affecting the credibility of witnesses or the weight of testimony. Baf-
ferty v. The People, 37.
4. Should not make improper intimations. Where the weight of the
evidence in a case shows such a contract as is insisted upon by one of
the parties, the court should not instruct the jury that any loose talk on
the subject between the parties could have no bearing against the party
asking the instruction, as to do so would be intimating to them that the
evidence on the subject was mere loose talk. Cutler v. Callison, 113.
5. May direct the attention of the jury to the circumstances to be con-
sidered in determining upon a given fact. In a suit on a contract, where
the only question is as to the application of certain payments made by
defendant to plaintiff, and it appears that at the time of making such
payments there were two separate contracts existing between the parties,
it is proper to instruct the jury to take into consideration all the evi-
dence in regard to the payments, how they were to be applied, and what
the parties were talking about when the payments were made, in deter-
mining upon which one of the contracts the payments were made, if
made specially on either. Snell et al. v. Cottingham et al. 124.
INDEX. 671
INSTRUCTIONS. Of their requisites, generally. Continued.
6. Must be applicable to the issues. It is not error to refuse an in-
struction which is foreign to any issue in the case. Hewett v. Johnson,
513.
7. Should not give prominence to isolated fact. It is not proper to
single out an isolated fact and give it prominence in an instruction, as
such a course would have a tendency to mislead the jury. Ibid. 513.
8. Must state all facts necessary to be proved. An instruction which"
assumes to be, in itself, a complete statement of a case which, under
the law, entitles a party to recover, must state fully all that need be
proved, so that, if there were no other evidence, there could be no ques-
tion as to the rights of the parties. St. Louis and Southeastern Railway
Go. v. Britz, 256.
9. Should be based on the evidence. Instructions upon questions not
in the case, as made by the evidence, and which have no connection
with it, should not be given. Shepherd v. The People, 480.
10. Need not be repeated. Where the court has given an instruction
to the jury at the instance of the plaintiff, it need not repeat it at the
instance of the defendant. Illinois Central Railroad Co. v. Goddard,
Admx. 567.
11. Objections to one may be obviated by others. Even if there be
doubt as to the proper construction of an instruction given on behalf
of one party, yet, if the instruction given on behalf of the other party
entirely remove such doubt, there is no error Latham et al. v. Roach,
179.
INTEREST.
When recoverable.
1. Only when provided for by statute. The recovery of interest de-
pends entirely upon the statute, and unless authorized by the statute it
can not be recovered. Illinois Central Railroad Co. v. Cobb, Blaisdell
&Co. 148.
2. In trespass and trover. Where property has been wrongfully
taken, or converted into money, and an action of trespass or trover may
be maintained, interest may properly be recovered. Ibid. 148.
Rate allowed.
3. On decree. A greater rate of interest than six per cent can not be
allowed, unless it is under a contract to pay more, not exceeding ten
per cent, by a court of equity, upon a bill for an accounting. Stokes et
al. v. Frazier et al. 428.
INTOXICATING LIQUORS.
By whom license granted.
1. Where the legislature has declared that incorporated towns shall
have the exclusive privilege to grant license within the incorporated
672
INDEX.
INTOXICATING LIQUORS. By whom license granted. Continued.
limits of the town, the county authorities have no right or power to in-
terfere in any manner whatever with the granting of license. Village
of Goultermlle v. Gillen, 599.
2. Incorporated towns have the power to declare the sale of spiritu-
ous liquors within their limits shall be declared a nuisance, and pun-
ished as such ; they have the exclusive privilege of granting license to
sell such liquors, and to prescribe the terms upon which they maybe sold.
Ibid. 599.
3. The fact that an incorporated town sees proper not to grant a
license for the sale of spirituous liquors within its limits, does not con-
fer power upon the county authorities to act in the matter, and a license
issued by them is void. Ibid. 599.
4. Power to license can not be delegated. See LICENSE, 1.
Statute relating to sale.
5. Should be strictly construed. The act in force July 1, 1872, enti-
tled "An act to provide against the evils resulting from the sale of in-
toxicating liquors in the State of Illinois," is of a character highly
penal, providing a right of action unknown to the common law, in
which the party prosecuting has a decided advantage, and the act should
receive a strict construction. Fentz v. Meadows, 540.
Suit by wife for sale to her husband.
6. Bight of recovery, generally. The statute in relation to the sale
of intoxicating liquors, gives the wife a right of action only in cases
where, by the selling of liquors to a drunken husband, she has been in-
jured in person or property or means of support; and where no injury
in either of these respects is proved, no recovery can be had. Fentz v.
Meadows, 540/ Keedy v. Howe et al. 133.
7. Master liable for damage occasioned by sale by his clerk. In a
civil action by a wife against one for selling liquor to her husband, it is
not proper to instruct the jury, that if the defendant had given orders
to his clerks and agents, whose employment was to sell intoxicating
liquors, not to let the plaintiff's husband have liquor, and that the de-
fendant did not, in person, let him have liquor, but refused to do so, then
the defendant would not be liable for the acts of his clerks in violation
of such instructions, and without his knowledge and consent. Keedy
v. Howe et al. 133.
8. Such an instruction might be proper in a criminal prosecution to
recover the penalty. And if the defendant had, in good faith, forbidden
his clerk or bar-tender to let the husband of the plaintiff have liquor,
and the clerk wilfully disobeyed him, without the connivance of de-
fendant, it seems that, in a civil action, this fact should go in mitigation,
not of the actual damages, but of the vindictive damages claimed.
Ibid. 133.
INDEX. 673
INTOXICATING LIQUORS.
Suit by wife for sale to her husband. Continued.
9. The fact that sale was made by servant in violation of mastery's or-
ders, may be considered in mitigation of exemplary damages. In a suit
by a wife against one for selling intoxicating liquors to her husband, if
the defendant, in good faith, had forbidden his bar-tender to sell or
give liquors to the husband of plaintiff, and the bar-tender wilfully dis-
obeyed him, without defendant's connivance, such fact would be proper
to be considered in mitigation, not of the actual damages which may
have been caused, but of exemplary damages claimed. Fentz v. Mead-
ows, 540.
10. Exemplary damages. A party suing under the statute to provide
against the evils resulting from the sale of intoxicating liquors, can not
recover exemplary damages, without first proving, to the satisfaction of
the jury, that she has sustained actual damages. Fentz v. Meadows,
540; Keedy v. Howe et al. 133.
JUDGMENTS.
In debt.
1. On appeal bond. In an action of debt on an appeal bond, it is
error to render a judgment for the sum named in the bond, and also for
a further sum as damages. The judgment in such case should be, that
the debt found should be discharged on the payment of the damages.
Parisher et al. v. Waldo et al. 71.
Against garnishee.
When should be conditional. See GARNISHMENT, 6.
Of county court, allowing claim.
Presumption in favor of See COUNTY COURT, 3, 4.
On appeal or error from county court.
Of the proper judgment. See APPEALS, 6.
JUDICIAL SALES.
By whom to be made.
1. By agent of commissioner, voidable. Where a sale under a decree
of court is conducted by an agent of a commissioner authorized by the
decree to make the sale, and in his absence, and a deed is made by the
commissioner, this is an irregularity that would vitiate the sale, and
authorize the parties interested to have it set aside, if the rights of no
innocent purchaser intervened, but it does not go to the jurisdiction of
the court. Chambers et al. v. Jones, 275.
On execution issued more than one year after judgment.
2. Passes title. A sheriff's deed upon a sale under a special execu-
tion issued more than a year after the date of the judgment upon which
it was issued, and which execution is not set aside, conveys good title
to the grantee. Morgan et al. v Evans et al. 58G.
43— 72d III.
674 INDEX.
JUDICIAL SALES. On execution issued more than one year after
judgment. Continued.
3. Former decision. The rule above announced is not in conflict
with the decision in The People v. Peck, 3 Scam. 118. Morgan et al. v.
Evans et al. 586.
Inadequacy of price.
4. No ground for setting aside. Mere inadequacy of price, no mat-
ter how great, is not sufficient of itself to set aside a sheriff's sale, where
the right of redemption is given, unless there are some indications of
fraudulent practices, or some advantage against the debtor not war-
ranted by law. Dams v. Pickett, 483.
Setting aside in equity.
5. Refunding purchase money. Where infant defendants to a parti-
tion suit seek to set aside a sale of their land, made under a decree ren-
dered in such suit by a court having no jurisdiction of their persons,
and for an account of rents and profits against the purchaser at such
sale, they will be required, as a condition to granting them the relief
sought, to refund to such purchaser whatever of the purchase money
paid by him may have come into their hands. Chambers et al. v. Jones,
275.
6. Repayment of taxes. So, also, where the purchaser has paid taxes
upon the land, in the belief that he was the bona fide owner, the owners
seeking to set aside the sale will be required to refund such taxes, as a
condition to the relief sought by them. Ibid. 275.
Liability of bidders.
7. Where a constable, having a junior execution issued upon a senior
judgment, acting by authority of the plaintiff in his execution, bids on
property of the defendant at a sale by another constable under a senior
execution, the party for whom the bid is made will have to pay it, not-
withstanding both he and the constable making the bid for him under-
stood, at the time, that the proceeds of the sale would have to be first
applied to the payment of his execution. Dewey v. Willoughby, 250.
8. Where one bids on property at a constable's sale, for and in the
name of another, the question as to his authority to make the bid, wliere
the evidence on the question is conflicting, is one eminently for the jury,
and if they find the authority existed, then the party for whom the bid
was made will be liable for the amount of the bid. Ibid. 250.
Conditional bids.
9. A constable is not authorized to accept a conditional bid at a
sale made by him under execution. Ibid. 250.
Who may execute deed.
10. Successor of United States Marshal. A deed executed by a Uni-
ted States Marshal in 1858, in pursuance of a certificate of purchase,
executed by his predecessor in office, upon a sale on execution made in
1856, is sufficient to pass the title of the execution debtor, without any
INDEX. 675
JUDICIAL SALES. Who may execute deed. Continued.
order of the court from which the execution issued for the marshal to
make such deed as was required by the act of Congress of May 7, 18Q0.
Martin v. Oilmore et at. 193.
Assignment of certificate of purchase.
As to undivided interest. See ASSIGNMENT, 1, 2.
Purchaser under decree.
Row far protected. See PURCHASERS, 5.
Effect of vacating decree on constructive service.
On rights of purcMser. See DECREE, 2.
JURISDICTION.
Of person of infant defendant.
1. Can not be acquired by entry of appearance by guardian ad litem.
Where the defendant in a partition suit was a minor at the time of ren-
dering a decree of sale, and there was no service of process, and the
record shows that the appearance of the minor was entered by a guard-
ian ad litem, appointed by the court to defend for her, it was held, that
the court had no jurisdiction, and the whole proceedings were coram
non judice, and the decree and sale thereunder were absolutely null and
void, and could be attacked by the owner of the fee, either directly or
collaterally. Chambers et al. v. Jones, 275.
Of circuit court.
Legislature can not affect that conferred by constitution. See CIR-
CUIT COURT, 1.
County court.
Of bastardy cases. See COUNTY COURT, 1, 2.
JURY.
Challenge to the array.
1. Waived by swearing a jury. After a jury for the trial of a cause
has been called, impanneled and sworn from the regular list of jurors
in attendance, a challenge to the array comes too late. It is waived by
the previous calling and swearing of the jury. St. Louis and South-
eastern Railway Co. v. Casner, 384.
2. Must be a full jury. The practice is, that there can be no chal-
lenge of the array till first there is a full jury. St. Louis and South-
eastern Railway Co. v. Wheelis, 538.
3. Lrregularity working no injury. A mere irregularity in drawing
the jury, where no positive injury is shown to have been done the
accused, is not sufficient cause to sustain a challenge to the array. Wil-
helm v. The People, 468.
Charge of, during trial.
4. Withdrawal in charge of an officer not specially sworn, during
progress of trial, not error. Where, during the progress of a trial of a
676 INDEX.
JURY. Charge of, during trial. Continued.
criminal case, and before the evidence is all heard, the jury withdraw
for a short time, for a necessary purpose, in charge of an officer of the
court, but who is not specially sworn for that purpose, no objection
being made by the defendant, and the jury are not tampered with, nor
subjected to any improper influences, the defendant has no cause of
complaint. Wilhelm v. The People, 468.
JUSTICE OF THE PEACE.
Warrants issued in blank, void. See WARRANT, 1.
LACHES.
When ear to equitable relief. See CHANCERY, 8.
LANDLORD AND TENANT.
Tenant disputing landlord's title.
1. As a general proposition, a tenant can not dispute his landlord's
title, but he may show it has terminated either by its own limitation or
by his own conveyance. St. John v. Quitzow, 334.
2. Where a party in possession of premises accepts a lease, and
occupies under it, he is estopped to deny his landlord's title, until the
parties are placed in their original positions, and it makes no difference
that the tenant may have been in possession as the tenant of a former
landlord — he is precluded from denying the title of either. Carter v.
Marshall, 609.
3. The exception to the general rule preventing a tenant from deny-
ing his landlord's title is, where he has been induced by artifice, fraud
or mistake, to accept the lease. In such case, he may show better title
in himself, or in any third party under whom he claims. He will be
permitted to avoid the lease by proof of such facts as would warrant
relief in equity from any other obligation created by deed. Ibid. 609.
LAW AND FACT.
Construction of a will.
1. The construction of a will is a matter for the court, and should
not be left to the jury. Buffin v. Farmer, 615.
As to testimony of deceased witness.
2. Where a witness who had testified on a former trial of a case was
dead at the time of a subsequent trial, and witnesses who heard his tes-
timony on the former trial gave the substance of it according to the
best of their recollection, it was improper for the court to instruct the
jury to treat the evidence of such witnesses as the testimony of the
deceased witness, and to give it the same weight they would if he was
living, and had given the same state of facts in evidence before them.
Such an instruction assumes that the witnesses who undertook to. state
INDEX.
677
LAW AND FACT. As to testimony of deceased witness. Continued.
the former testimony gave it accurately, whilst it was the province of
the jury to determine that fact. Garter v. Marshall, 609.
Fair — in what right held.
3. Whether a fair held in the name of a society is held by such
society or by individuals, is a question of fact to be determined by the
jury. Latham et al. v. Roach, 179.
Contributory negligence.
4. Permitting cattle to run at large contrary to law. In a suit against
a railroad company for stock killed or injured in consequence of the
neglect of the company to fence its road, where it appears that such
stock was permitted to run at large in violation of law, the question
whether the owner of the stock has been guilty of contributory negli-
gence in permitting them to run at large is one of fact, to be determined
•by the jury from the circumstances of the case. Ewing v. Chicago and
Alton Railroad Co. 25; Rockford, Rock Island and St. Louis Railroad
Co. v. Irish, 404.
LEGACY.
When goes to administrator of legatee. See WILLS, 1.
LEVY.
Of execution.
When a satisfaction. See EXECUTIONS, 2, 3, 4.
LICENSE.
TO SELL INTOXICATING LIQUORS.
1. Power to grant, can not be delegated. Where the power to license
the traffic in spirituous liquors is, by the charter of a city, expressly
conferred on the city council, this power can not be delegated to the
mayor of the city by ordinance. City of Kinmundy v. Mahan et
al. 462.
2. When vested in town authorities. See INTOXICATING LI-
QUORS, 1, 2, 3.
LIENS.
Mechanic's lien.
1. Who entitled thereto. The Mechanic's Lien Law of 1869 does not
extend to a sub-contractor of a sub-contractor. Smith Bridge Co. v.
Louisville, New Albany and St. Louis Air Line Ry. Co. 506.
LOST INSTRUMENT.
Suit on.
1. Of the proof In a suit on a bond alleged to be lost, the proof of
loss must be clear and satisfactory. McCart v. Wakefield et al. 101.
678
INDEX.
MALICIOUS PROSECUTION.
Probable cause.
1. Defined. Probable cause is defined to be a reasonable ground of
suspicion, supported by circumstances sufficiently strong in themselves
to warrant a cautious man in the belief that the person accused is guilty
of the offense charged. Davie v. Wisher, 262.
2. Burden of proof. In an action for malicious prosecution, the
burden of proof is on the plaintiff to show clearly that the defendant
did not have probable cause to institute the prosecution complained
of. Ibid. 262.
3. In an action for malicious prosecution, the question is not
whether the plaintiff was guilty of the offense for which he was prose-
cuted; he may have been entirely innocent, and yet have no ground
upon which to sustain his action. Ibid. 262.
Acting on advice op counsel. •
4. In an action for malicious prosecution, in order to enable the de-
fendant to base a defense upon the advice of counsel given, he should,
in perfect good faith, obtain the advice of a competent and reliable
attorney, upon a full and accurate statement of all the facts. Ibid. 262.
Motives op plaintiff.
5. On the trial of a suit for malicious prosecution of the plaintiff
upon a charge of forgery in making a copy of a canceled contract, and
placing it on record as an original, whilst the motive that actuated him
in making the copy is not a fact directly in issue, yet it is a circum-
stance which is proper, in connection with the other facts in the case, to
go to the jury. Ibid. 262.
MANDAMUS.
Not a writ of right.
1. The writ of mandamus is not a writ of right demandable by the
State acting through the law officers, but its issue is discretionary with
the courts, acting upon existing facts, and viewing the whole case with
due regard to the consequences of its action. The People v. Ketchum
et al. 212.
MASLAUGHTER.
Killing officer making illegal arrest. See CRIMINAL LAW, 5.
MARRIAGE CONTRACT.
Effect on widow's right. See ADMINISTRATION OF ESTATES,
1, 2.
MARRIED WOMEN.
Of their separate property.
1. Title to crops grown on land rented. Where wheat is raised on
land rented by a married woman, with her teams, by hands employed
by her, and from seed procured by her with means derived from sources
INDEX. 679
MARRIED WOMEN". Of their separate property. Continued.
other than her husband, it is her property, and the fact that her husband
may have done some work about raising the crop gratuitously, or for
compensation, does not affect her title. Garvin v. Gosbe, 447.
Suit between husband and wife.
2. Respecting separate property. See HUSBAND AND WIFE, 1, 2.
MARSHAL'S SALE.
Successor may execute deed. See JUDICIAL SALES, 10.
MASTER IN CHANCERY.
Taking account by, and report. See CHANCERY, 22, 23, 24.
MASTER AND SERVANT.
Who are co-servants.
1. As to liability of common employer. The engineer, brakeman ana
shovelers employed on a construction train are all co-servants, engaged
in the same branch of service, and a shoveler who is injured through
the negligence of the engineer or brakeman can not recover from their
common employer for such injury, if the employer has used clue dili-
gence in their selection. St. Louis and Southeastern Railway Co. v.
Britz, 256. See NEGLIGENCE.
Injury from defective machinery.
2. Liability of master to servant. Where an employee, after having
the opportunity of becoming acquainted with the risks of his situation,
accepts them, he can not complain if he is subsequently injured by such
exposures ; hence, an employee on a construction train, who is aware
that the brakes on the cars are defective, or who has had an opportunity
to know it, and still continues in such employment, can not recover, in
a suit against his employer, for injuries sustained by reason of such de-
fective brakes. Ibid. 256.
Liability of master for servant's acts.
In sale of intoxicating liquors. See INTOXICATING LIQUORS,
7, 8, 9.
MEASURE OF DAMAGES.
Construction of railroad along public street.
1. Of injury to adjacent property. Where a railroad company built
its road along the street of a town, under an ordinance granting the
right of way upon condition that the company should pay all damages
that might accrue to the property owners on such street, by reason of
the construction of the road, it was held, that the company was liable to
a property owner for whatever deterioration in value his real estate may
have undergone in consequence of laying the railroad track, and for
damages for interruption to his business during such time as it would
680 INDEX
MEASURE OF DAMAGES.
Construction of railroad along public street. Continued.
necessarily require to provide another equally eligible place, aud re-
move thereto, and that the damage to his business during such time
should be ascertained by proof of the probable reasonable profits which
might have been made had there been no interruption to the business.
St. Louis, Vandalia and Terre Haute Railroad Go. v. Capps, 188.
2. In a case where a railroad company was liable to a property owner,
by reason of interruption to his business, for the expense of finding and
removing to another place of business, and for reasonable probable pro-
fits during the time occupied in finding and removing to such other
place which he could have made had there been no interruption, it was
held, that the property owner, if he chose to remain and submit to the
interruption and loss of profits, was, nevertheless, entitled to recover
from the company, as damages, the necessary cost of avoiding such loss
by a removal. Ibid. 188.
3. Where the ordinance of a town granted the right of way to a rail-
road over a street of the town, on condition that the company should
pay all damages which might accrue to property owners by reason of
the construction of the road, the company was held liable for all damage
done to property owners during the time the construction of the road
was progressing, as well as for such as were caused by the construction
thereof when completed. Ibid. 188.
4. In such case the railroad company is liable to the property owner
for damage done to the premises of the latter, by turning waste and
surface water and mud upon them, in the construction of the railway.
Ibid. 188.
5. In a case where a railroad company, by accepting the terms of a
town ordinance granting the right of way over one of its streets, be-
came liable to pay to the property owners all damages they might
sustain by the construction of the railroad, it was held, in a suit by a
property owner, that it was, under the ordinance, competent for him to
prove that his store was situated on the corner of the street along which
the road ran and another street; that dirt was thrown up at the corner,
so that for a time travel was entirely interrupted ; that, by reason of the
occupation of the street by the road, there was but a narrow passage left
for travel, and there was not room enough for teams to turn into the
street; that teams could not approach the store, on account of the run-
ning of cars ; that there was no place to hitch teams or unload conve-
niently, and, on account of the frequent passage of trains, it was dan-
gerous for teams to be left standing or to pass along the street in front
of the store — as tending to show in what manner the property was
injuriously affected and damaged by the construction of the road.
Ibid. 188.
INDEX. 681
MEASURE OF DAMAGES. Continued.
Failure to complete railroad in proper time.
6. The measure of damages upon the failure of a contractor to finish
a railroad within the time fixed by the contract, is the value of the use
of the road from the time it should have been completed, under the
contract, to the time when it is in fact completed. Snell et al. v. Cot-
tingham et al. 161.
7. Not affected by contracts between other parties. A contractor who
fails to finish a railroad by the time limited in his contract, can not be
held for the loss occasioned to the owner of the road by reason of an-
other contract between him and a third party, for the use of the road
after the time it should have been completed, even though he may have
known of the existence and the terms of such other contract at the time
of entering into his own, unless he expressly agrees to such a rule of
damages. Ibid. 161.
8. The private agreement between a railroad company and a third
party, for the use of the company's road, provided it is finished by a
given time, is not competent evidence as to the value of the use of the
road, as against a contractor, in a suit for damages occasioned by his
failure to finish the road by the time fixed in his contract. Ibid. 161.
Failure op railway company to build a bridge.
9. Suit by adjacent owner. In a suit against a railroad company for
a failure to build a bridge over its road at a given point, in pursuance
of a contract so to do, the measure of damages is not the difference in
the value of property to be affected by the bridge, or the want of it, but
it is the cost of building such a bridge, together with reasonable com-
pensation to the other party to the contract, for his time and labor in
procuring and managing its construction, and perhaps such damage as
may be sustained during the time required to build it. St. Louis, Jack-
sonville and Chicago Railroad Co. v. burton et al. 118.
10. A railroad company contracted with the owner of land over
which its road ran, to build a bridge over its track at a specified point
on said land, within twelve months after the completion of the road.
The road was not completed for several years, and the bridge was never
built: Held, in a suit on the contract by the owner of the land, he was
not entitled to recover any damages on account of the delay in building
the road. Ibid. 118.
For failure to pence road and erect depot.
11. In a suit against a railroad company for a failure to erect a depot
building upon the plaintiff's land, and also to erect a sufficient fence
on each side of a strip of land conveyed by plaintiff, which it had un-
dertaken to do in consideration of such conveyance to it, the value of
such strip of land, and the damage occasioned to the balance of the
farm by the failure to fence it, would be the natural and proximate
damage which the plaintiff would be entitled to recover. Rockford,
Rock Island and St. Louis Railroad Co. v. Beckemeier, 267.
682 INDEX.
MEASURE OF DAMAGES.
For failure to fence road and erect depot. Continued.
12. But any supposed damage to the farm on account of the failure
to build the depot, growing out of anticipated increased value, is too
remote to be considered a necessary consequence of the failure to build
the depot, and for such damages no recovery can be had. Rockford,
Rock Island and St. Louis Railroad Co. v. Beckemeier, 267.
In trover to recover collaterals.
13. In an action of trover by a debtor for the recovery of bonds
pledged by him as collateral security for his debt, and which he claimed
had been improperly sold, the measure of damages is not the highest
price which had been paid for such bonds in a particular case — the true
test is, their market value. Loomis et al. v. Stave, 623.
Action against carrier.
14. For delay in transportation of grain. If a railroad company
fails to transport grain delivered to it for that purpose to its point of
destination within a reasonable time, and the price of grain declines in
the market at the point to which it is consigned, the owner of the grain
is entitled to recover the difference between the market price at that
point when it should have arrived and the time when it actually does
arrive. Illinois Central Railroad Co. v. Cobb, Blaisdell & Co. 148.
15. If, in consequence of unreasonable delay on the part of a railroad
company in the transportation of grain, there ceases to be a market for
the grain at the point to which it is consigned, the owner may, without
unreasonable delay, ship the grain to some point where it can be sold
for the most advantageous price, dispose of it to the best advantage, and
hold the railroad company for the loss. Ibid. 148.
Exemplary damages.
16. Private corporations not liable to, for mere negligence of servants.
A private corporation can not be liable to punitive damages merely for
gross negligence of its servants. If a company employs incompetent,
drunken or reckless servants, knowing them to be such, or, having em-
ployed them without such knowledge, retains them after learning the
fact, or after full opportunity to learn it, the company would be liable
to punitive damages; or if the servants of a company, whilst engaged
in its business, should wilfully or wantonly produce injury to others,
the company would be liable to such damages. Illinois Central Rail-
road Co. v. Hammer, 347.
17. In suit by wife, for sale of liquor to Tier husband. See INTOXI-
CATING LIQUORS, 8, 9, 10.
MINISTERIAL OFFICER.
County clerk in extending taxes. See TAXES AND TAXA-
TION, 6
INDEX. 683
MISJOINDER OF COUNTS. See PLEADING, 8.
MISTAKE.
In award. See ARBITRATION AND AWARD, 3.
In replevin bond. See CHANCERY, 20.
MONEY HAD AND RECEIVED. See DRAFT, 2.
MORTGAGES.
Rights of wife of mortgagor.
1. How affected by diverting payments. A husband and wife execu-
ted a mortgage upon their homestead to secure an indebtedness of the
husband, and the wife released her dower and homestead. A portion
of the debt was subsequently paid, and the amount indorsed on the note.
Afterwards, the husband, by an arrangement with the mortgagee,
agreed that the payment made on the mortgage debt should be applied
on another indebtedness, and the note with a credit on it was given up,
and another note, of the same date and amount, executed and delivered,
with the agreement that the mortgage should stand as security for it:
Held, that, on a bill to foreclose, the wife was entitled to have the
amount of the payments credited on the mortgage debt, and that, as
against her, the mortgage could only be foreclosed for the balance due
after deducting the payments, but that, as against the husband, the
complainant was entitled to foreclose for the whole amount of the orig-
inal debt in accordance with the last agreement. Brockschmidt v. Hage-
busch et al. 562.
Mistake in description.
2. Rights of purc7iaser. A man who owned two tracts of land, one
being his homestead and the other a piece of timber, sold the timbered
land, but, by mistake, conveyed the homestead. The purchaser took
possession of the timbered land, and sold it to a third party, but con-
ve}^ed by the description in the deed to him, being the homestead of the
original owner, upon which such owner was still residing. The second
purchaser executed a mortgage upon the same land conveyed to him,
which mortgage contained a powder of sale. After the execution of this
mortgage, the mistake in the various conveyances was, for the first
time, discovered. On the maturity of the mortgage debt, the mortgagee
gave notice of sale under the mortgage, and, at the sale, the original
owner of both tracts of land became the purchaser, and, as part of the
purchase price, conveyed to the mortgagee the timber land which was
originally sold and intended to be conveyed by him : Held, on a bill
by the mortgagor to set aside the sale, that whatever might be his rights
as to the timber land, he had no grounds for equitable relief as to the
land sold under the mortgage. Johnson v. Visnuskki, 591.
Redemption.
3. Of the form of decree on foreclosure. The more formal mode of
decreeing a foreclosure of a mortgage is, to direct that the mortgagor
684 INDEX.
MORTGAGES. Redemption. Continued.
pay the amount due, and, in default of payment, that the master sell the
land, and if not redeemed, then all the rights of the defendants be fore-
closed; but the right of redemption provided by the statute will not be
considered as denied by a decree, although it may declare a foreclosure
without reference to the subject of redemption. Bmter v. Byrne, 4G6.
Chattel mortgages.
4. Failure of mortgagee to exercise his rigid of election to declare a
forfeiture, does not release the lien. Where a chattel mortgage provides
for the property remaining in the possession of the mortgagor until the
maturity of the mortgage debt, unless such property shall be in danger
of being levied on, etc., in which case the mortgagee shall be entitled
to and may take possession, etc., the right thus conferred upon the
mortgagee is a mere right of election, and his failure to exercise it can
not, in the least, affect other parties, or release the lien of the mortgage.
Wilson et al. v. Rountree, 570.
5. Permitting possession to remain with mortgagor — when fraudulent
and when not. Where the mortgagee of personal property permits the
possession to remain with the mortgagor after his failure to comply
with the express terms of the mortgage, it has been held to be a fraud
per se, and not subject to explanation; but such is not the case where
the mortgagee suffers the property to remain in the hands of the mort-
gagor when he has a mere election to declare a forfeiture. In the one
case the forfeiture is absolute, in the other it depends upon the pleasure
of the mortgagee. Ibid. 570.
6. Sale of property in parcels, or separately — remedy in equity. At
a sale under a chattel mortgage, ten head of horses were offered and
sold in one lot, to the agent of the mortgagee, for less than the mort-
gage debt, there being other persons present who wished to purchase a
portion only of the horses, some of whom suggested that they be sold
separately. Upon a bill filed by the mortgagor to have the note and
mortgage surrendered and canceled, and that the mortgagee pay to
complainant the difference between the amount remaining due upon the
mortgage debt after deducting the amount for which the horses sold, and
the reasonable value of the horses, or what they would have sold for
if sold separately, it was held, that the case was properly cognizable in
equity, and that complainant was entitled to the relief prayed for.
Hungate et al. v. Reynolds, 425.
MUNICIPAL SUBSCRIPTION AND BONDS.
Conditions as to election.
1. Whether complied with. The notice of an election upon the ques-
tion of issuing bonds of a township in aid of a railroad contained a
condition that neither the principal nor interest of the bonds should be
payable unless they should first be registered in the Auditor's office,
according to the provisions of an act entitled uAn act to fund and pro-
INDEX. 685
MUNICIPAL SUBSCRIPTION AND BONDS.
Conditions as to election. Continued.
vide for the payment of the railroad debts of counties, townships, cities
and towns," in force April 16, 1869, which act provided that none of its
benefits, advantages or provisions should apply to any debt unless the
subscription or donation creating the debt was first submitted to the
legal voters of the township, etc., and a majority of the legal voters
living in said township, etc., were in favor of such aid. There was not
a majority of the legal voters living in the township in favor of the aid
proposed : Held, that the meaning of the condition in the notice of
election was, that the vote should so result that the bonds might be
legally registered, or that they should not issue, and the vote not hav-
ing so resulted, there was no power to compel their issue. Springfield
and Southeastern Railway Go. v. Gold Spring Township, 603.
2. As to the required majority — presumption. Under a law authori-
zing a county to subscribe to the stock of a railroad company, upon
condition that a majority of the votes cast at an election on the question
should be in favor of it, an election was held resulting in a majority in
favor of the subscription, and the subscription was made and bonds
issued : Held, that the bonds were rightfully registered in the Auditor's
office under the Funding Act of April 16, 1869, which requires that the
subscription upon which bonds sought to be registered were issued,
should have been voted for a majority of the legal voters living in the
county, it being the presumption that the vote cast at the election on
the question of subscription, was that of all the voters of the county.
Melvin et al. v. Lisenby et al. 63.
Defective execution of bonds.
3. Where bonds of a county are legally authorized to be issued by a
vote of the people, and by the law authorizing the vote it is provided
that the bonds shall be executed by certain officers, and countersigned
by the treasurer of the county, it was held, that the omission of the treas-
urer to countersign the bonds is a mere defect in the execution of them,
which a court of equity would, in the absence of a remedy at law, or-
dinarily supply, and that an injunction restraining the collection of
taxes for the payment of such bonds should not be allowed. Ibid. 63.
Irregularities in issuing bonds.
4. Where county bonds upon subscription to a railroad have been
issued and got into circulation, all reasonable presumptions will be
indulged in favor of their regularity, until overcome and rebutted; and
even if irregularities are shown, they will not invalidate the bonds,
unless they go to the power of the county court to issue them. Maxcy et
al. v. Williamson County et al. 207.
5. Presumption in favor of. It will be presumed, when such bonds
are found in circulation, that the legal steps have been taken to author-
ize their issue. Ibid. 207.
686
INDEX.
MUNICIPAL SUBSCRIPTION AND BONDS.
Irregularities in issuing bonds. Continued.
6. Where the county court was empowered, by law, to issue the bonds
of the county, upon a vote to be taken upon the subject in the manner
prescribed by the law authorizing such vote and the issue of bonds, and
such bonds were issued, the fact that the evidence of the compliance
with the law in calling and conducting the election, giving notice
thereof, etc., may be lost or destroyed, does not affect the validity of the
bonds, if, in fact, the law was complied with. Afaxcy et al. v. William-
son County et al. 207.
Fraud in obtaining their issue.
7. As against bona fide holders. Where there is fraud in obtaining
the issuing of bonds before the completion of a railroad to a given point,
when, by the terms of the agreement, they were not to be issued until
the completion to that point, such fraud does not affect the considera-
tion of the bonds or their validity in the hands of bona fide holders.
Ibid. 207.
In aid op private enterprise.
8. Law must be strictly complied with. Where a municipal corpora-
tion is empowered to enter into trade or enterprises of a private nature,
there are no presumptions in favor of its acts in respect thereto, but, in
their performance, it must appear that the law has been strictly com-
plied with, before the performance of such acts will be enforced by law.
Springfield and Southeastern Railway Co. v. Cold Spring Township, 603.
MURDER.
Killing officer making illegal arrest. See CRIMINAL LAW, 6.
NEGLIGENCE.
Negligence in railroads.
1. Passing over depot grounds — mutual duties. Railroad depot
grounds and passenger houses are quasi public, and a person going to
such houses and passing over such depot grounds in a proper manner,
is not a trespasser, but where persons go upon or pass over the grounds
connected with railroad depots, they are presumed to know that the
place is dangerous, and hence are required to use care and prudence
commensurate with the known danger of the place. Illinois Central
Railroad Co. v. Hammer, 347.
2. On the other hand, the servants of a railroad company, knowing
the enhanced danger at depot grounds on account of persons constantly
passing and repassing, are required to exercise a greater degree of caution
and prudence for the preservation of life and limb, than at other places
where persons have no right to be and the employees of the company
have no right to expect to find them. Ibid. 347.
INDEX. 687
NEGLIGENCE. Negligence in railroads. Continued.
3. It is negligence for a person to travel on the track of a railroad
at its depot grounds, where all must know that cars are constantly pass-
ing, and engines switching cars, and it is also negligence on the part
of the company to have flying switches passing on a track without an
engine attached, or a bell ringing, or a whistle sounding ; and where
both parties are at fault in these respects, it is for the jury to determine,
from all the circumstances, whether the negligence of the plaintiff is
slight, and that of the defendant gross, and if it is not, the plaintiff can
not recover. Illinois Central Railroad Co. v. Hammer, 347.
4. Person walking on or crossing a track. It is negligence for a per-
son to walk upon the track of a railroad, whether laid in a street or
upon an open field, and he who deliberately does so will be presumed
to assume the risk of the peril he may encounter. Illinois Central
Railroad Co. v. Hall, 222.
5. As a general rule, it is culpable negligence for any one to cross
the track of a railroad without looking in every direction that the rails
run to make sure that the road is clear. Illinois Central Railroad Co.
v. Goddard, Admx. 567.
6. As to fencing track — injury to stock. "Where stock is killed by a
railroad company at a place where the law does not require the com-
pany to fence its road, the party seeking a recovery must prove that the
killing of the stock was caused through the negligence of the company;
and where the proof shows that the stock was killed within the limits
of a city, and there is no evidence of negligence on the part of the rail-
road company, no recovery can be had against it. Illinois Central
Railroad Co. v. Bull, 537.
7. A railroad company is not required to fence its track within the
limits of a village, but when an animal is killed near a village by a
train of cars of the company, the presumption is, that the houses com-
pose the village, and if the place where the animal is killed is beyond
them, it is beyond the village, and if the town extends beyond the
houses, the railroad company must prove it in order to relieve itself of
the necessity of fencing its road at such point. Ewing v. Chicago and
Alton Railroad Co. 25.
8. Where a railroad company fails to fence its track, as required by
law, it is sufficient to fix its liability, if the plaintiff's stock, in conse-
quence thereof, and without any contributory negligence on his part,
goes upon the track of the railroad, and is there killed or injured by
the company's locomotive or train. Ibid. 25.
9. The fact that the owner of stock permits it to run at large, in vio-
lation of the act prohibiting domestic animals from running at large,
does not relieve railroad companies from their duty to fence their roads,
or their liability for stock injured in consequence of their failure to do
so. Ibid. 25.
6S8 INDEX.
NEGLIGENCE. Negligence in railhoads. Continued.
10. Evidence that a cow was found killed within a mile and a quar-
ter of the plaintiff's house is sufficient proofHhat she was killed within
five miles of a settlement ; and evidence that a colt which was killed
was kept up, and only ran out to water, is sufficient from which a jury
might infer that it was killed within five miles of a settlement. St,
Louis and Southeastern Railway Co. v. Casner, 384.
11. In a suit against a railroad company for killing stock, where
the evidence is that the road was not fenced at the place where the stock
was killed, it is but a fair inference that the stock got upon the road at
the place where it was killed. Ibid. 384.
12. Failure to ring bell or sound whistle does not, of itself, create a
liability. It is not enough, to create a liability for stock killed by arail-
• road train, to prove the bell was not rung or the whistle sounded. It
must be made to appear, by facts and circumstances proved, the acci-
dent was caused by reason of such neglect. Quincy, Alton and St.
Louis Railroad Co. v. Wellhoener, 60.
13. Burden of proof on the party charging. The burden of proving
negligence rests on the party alleging it ; and when the plaintiff charges
negligence on the part of the defendant, and the evidence is equally
balanced, the law is for the defendant, and no recovery can be had.
Ibid. 60.
AS BETWEEN MASTER AND SERVANT.
14. Engine-driver carrying more steam than rules of company allow
can not recover damages caused by explosion. In a suit by the represen-
tative of an engine-driver against the owner of the engine, to recover
for the killing of the driver by the explosion of an engine in his charge,
the plaintiff can not recover if it appears that the explosion was the
result of the carelessness of the engine-driver in not keeping sufficient
water in the boiler, and in carrying more steam than, by the rules pre-
scribed by the owner, he was allowed to carry. Illinois Central Rail-
road Co. v. Houck, Admr. 285.
15. Duty of servant in using machinery provided by railroad com
pany. It is the duty of the servant of a railroad company to see that
the machinery which he uses is in repair, and when it is not, to report
the fact to the company, and it is negligence on his part to fail to do so ;
and the company will not be liable for any injury sustained by him, oc-
casioned by such machinery being out of repair. Toledo, Wabash and
Western Railway Co. v. Eddy, 138.
16. Liability of master to fellow-servant in same branch of employ-
ment. A railroad company is not liable for an injury occasioned to a
brakeman on one of its trains, caused by the carelessness of the en-
gineer on the same train. Illinois Central Railroad Co. v. Keen, 512.
Sec, also, MASTER AND SERVANT, 1.
INDEX.
NEGLIGENCE. Continued.
In constructing structures of fair ground.
17. Liability for injury. Individuals who hold a fair, and erect
structures for the use of their patrons, are liable for any injury such
patrons may receive by the breaking down or falling of such struc-
tures, if caused by the negligent or unskillful manner of their construc-
tion, and their liability can not, in any manner, be affected by their
giving to such fair the name of an old society. Latham et al v. Roach,
179.
Diligence required of party injured.
18. Party injured must use diligence to have himself cured. A party
claiming damages for an injury caused by the negligence of another,
must, after the injury is received, act as a prudent man would under
the circumstances, and use due diligence to know whether medical aid
is required, and to have himself cured. He has no right to act reck-
lessly in this regard, and then charge the defendant for the effect of
such conduct; and it should be left to the jury whether the party in-
jured has used due diligence to have himself cured or not. Toledo,
Wabash and Western Railway Co. v. Eddy, 138.
Explosion of boiler on locomotive.
19. Presumption, and burden of proof to rebut. Although the prima
facie presumption from an explosion of the boiler of a locomotive is,
that there was negligence, either in testing or putting the materials
together, when constructed into a boiler, or that it has been negligently
used by subjecting it to too high a degree of pressure of steam, yet,
when suit is brought by the engine-driver who had charge of the en-
gine, or his representative, against the person owning the engine, there
is no presumption in his favor that the explosion was caused by defects
in the boiler rather than from its negligent use, and the burden is on
the plaintiff to show that the engine-driver was not himself guilty of
negligence which caused the explosion, or, if guiity, that his negligence
was slight and that of the defendant gross. Illinois Central Railroad
Co. v. Houck, Admr. 285.
Contributory and comparative negligence.
20. General rule. In a suit for damages occasioned by the negli-
gence of the defendant, where the plaintiff has been guilty of some
degree of negligence, yet, if it was slight in comparison with that of
the defendant, which was gross, it will be no bar to a recovery. Rock-
ford, Rock Island and St. Louis Railroad Co. v. Hillmer, 235.
21. Although the mere fact that a plaintiff was guilty of contribu-
tory negligence in reference to the matter involved in his suit, will not,
of itself, prevent him from recovering for injuries caused by the negli-
gence of the defendant, yet he can not recover in such case unless his
negligence, as compared with defendant's, was slight, and that of the
defendant was gross. Grand Tower Manufacturing and T vansportation
Co. v. Hawkins, 38G.
44— 72d III.
690 INDEX.
NEGLIGENCE.
Contributory and comparative negligence. Continued.
22. In a suit against a railroad company for damages occasioned by
the negligence of its servants, where it appears the plaintiff's own neg-
ligence was the cause of the injury complained of, or where the negli-
gence of the parties is equal, or nearly so, there can be no recovery. It
is only where the negligence of the plaintiff is slight, in comparison,
and that of the party causing the injury is gross, that a recovery is
warranted, except in cases where the injury is wilfully inflicted. Illi-
nois Central Railroad Co. v. II&U, 222.
23. Although the defendant's negligence may have been the prime
cause of the injury to the plaintiff, yet, if the plaintiff, by the exercise
of due care, might have avoided receiving the injurj^, and his negli-
gence is slight and that of defendant gross, when compared with each
other, the plaintiff can not recover. St. Louis and Southeastern Rail-
way Co. v. Britz, 256.
24. A plaintiff, free from all negligence, may recover from a defend-
ant who has failed to use such care as ordinarily prudent men generally
employ; or a plaintiff, who is even guilty of slight negligence, may
recover of a defendant who has been grossly negligent, or whose con-
duct has been wanton or willful. Illinois Central Railroad Co. v.
Hammer, 347.
25. In a suit against a railroad company for causing the death of a
person through negligence, where there is a question as to whether the
deceased was guilty of negligence or not, an instruction which directs
the jury, if they believe certain facts, to find absolutely for the plaintiff,
without containing the requirement of any degree of care whatever on
the part of the deceased, is erroneous. Chicago and Alton Railroad
Co. v. Meek, 141.
26. In a suit for damages caused by the negligence of the defendant,
the plaintiff can not recover if he has been guilty of contributory neg-
ligence, unless the negligence of the plaintiff was slight and that of
the defendant gross, and it is error to instruct the jury that the plaintiff
can recover if the negligence of defendant was of a higher degree than
that of the plaintiff. Illinois Central Railroad Co. v. Goddard, Admx.
567.
27. When parent sues for injury to child. Where a father sues for
an injury to his child, his conduct must be free from blame, or his neg-
ligence at least should be slight and that of the defendant gross, to
entitle him to recover. The rule is different where the child is the
plaintiff in a suit to recover for the injury, as the same degree of care
and diligence is not required of a child as of an adult. Ilund v. Q-eier,
393.
28. Party building a reasonably safe distance from railroad track
not guilty Whilst a party who erects his buildings on or near a rail.
INDEX. 691
NEGLIGENCE.
Contributory and comparative negligence. Continued.
road track is presumed to know the dangers incident to the use of
steam as a motive power, and assumes some of the hazards to which
his property is exposed, yet, where a party erects his building at a rea-
sonably safe distance from the railroad track, he can not be held guilty
of negligence because his building is so situated as to be liable to be
set on fire by another subsequently erected in a dangerous proximity
to the track. Toledo, Wabash and Western Railway Co. v. Maxfield, 95.
29. Stock running at large. It is not sufficient, to charge a plaintiff
with contributory negligence, in a suit against a railroad for injury to
stock, 1o show simply that the owner permitted the stock to run at large
in violation of law ; but it must appear that he did so under such cir-
cumstances that the natural and probable consequence of so doing was,
that the stock would go upon the railroad track and be injured. Ewing
v. Chicago and Alton Railroad Co. 25.
30. Whether permitting male animals to run at large is contributory
or not, in suit for injury. Whether permitting male animals to run at
large, which are subsequently injured by locomotives or trains, is con-
tributory negligence, depends, first, upon whether permitting them to
run at large was a proximate or only a remote cause of the injury; and
if it was a proximate cause, then, secondly, whether such negligence
of the owner was slight and that of the company gross, in comparison
with each other. Rockford, Rock Island and St. Louis Railroad Co. v.
Irish, 404.
31. Degree of care required of railroads where owners of animals are
guilty of negligence. Although a plaintiff may be guilty of negligence
in permitting his animals to get upon a railroad track, it is still the
duty of the railroad company to use ordinary skill and prudence to
avoid doing them injury, and failing in this, it is liable. Ibid. 404.
32. Mere preponderance, on tlie part of defendant, does not entitle
plaintiff bo recover. Where there is evidence of contributory negli-
gence on the part of the plaintiff, it is improper to give an instruction
which assumes that a mere preponderance of negligence on the part of
the defendant will entitle the plaintiff to recover. Ibid. 404.
NEW TKIALS.
Verdict against the evidence.
1. Although the evidence may not be entirely satisfactory, still, if it
tends to sustain the issue, and the circuit judge, who saw the witnesses
on the stand and had facilities for determining the weight of the evi-
dence which this court does not possess, is satisfied with the verdict,
and refuses to set it aside, this court will not disturb it. Wiggins Ferry
Co. v. Higgins, 517.
2. Verdict not decisive of any fact when directly conflicting instruc-
tions are given. When the jury are told, in an instruction given on
692 INDEX
NEW TRIALS. Verdict against the evidence. Continued.
behalf of the plaintiff, that he is entitled to recover, and, in one given
for the defendant, that the plaintiff is not entitled to recover, their ver-
dict can not be regarded as settling any fact in the case, and no verdict
they could render, under such circumstances, would be entitled to
weight in the decision of the case. Toledo, Wabash and Western Ry.
Co. v. Morgan, 155.
3. In criminal cases. If, when the evidence is all carefully consid-
ered and weighed, in a criminal case, it appears that it is wholly want-
ing in respect to some necessary element of the crime, or if there is a
conflict of evidence, and there is such a clear preponderance against the
verdict as to suspend the judicial mind in serious doubt as to the guilt
of the accused, then, in either case, a new trial should be granted.
Bafferty v. The People, 37.
4. Where a conviction rests solely upon the evidence of an accom-
plice, if the jury choose to believe him, the court could not reverse,
where that fact was the only one affecting his credibility, although it
might believe that faith should not be reposed in such a witness. But,
where a verdict rests solely upon the evidence of a single witness, and
direct evidence of impeachment is introduced to such an extent as to
lead to the conclusion that the jury were actuated by passion or preju
dice in disregarding such impeaching evidence, then the court ought to
set the verdict aside, and direct a new trial. Ibid. 37.
Variance between allegations and proofs.
5. A variance between the allegations in the declaration and the
proofs, may constitute cause for a new trial, but it seems it can not be
considered on a motion in arrest of judgment. Snell et al. v. Cotting-
ham et al. 161.
Excessive damages.
6. In an action of trespass. In an action of trespass for assault and
battery, where the assault is wanton and cruel, and the circumstances
peculiarly aggravated, and the conduct of the defendant shows cool,
deliberate malice, and there is nothing which palliates it in the slight-
est degree, a verdict for $1000 damages is not excessive. Mitchell v.
Robinson, 382.
On ground of surprise.
7. Where party is negligent. Where a party has within his own
power evidence to contradict testimony which is claimed to have been
a surprise, and fails to produce that evidence, or show some sufficient
reason for not doing so, the failure must be attributed to his own neg-
lect, and a new trial will not be granted on the ground of surprise.
Roclcford, Rock Island and St. Louis Railroad Co. v. Rose, 183.
8. Where a bill of particulars is filed by the plaintiff, the defendant
can not be heard to say that he is surprised that evidence was offered to
sustain anything embraced in such bill, even though on a former trial
of the cause no such evidence was offered. Ibid. 183.
INDEX. 693
NEW TRIALS. Continued.
When granted in equity. See CHANCERY, 27.
NOTICE.
Of assessment op damages on default
Defendant not entitled to notice. See ASSESSMENT OF DAM-
AGES, 1.
Of sale of collaterals pledged. See PLEDGE, 5.
Dissolution of firm. See PARTNERSHIP, 2, 3, 4.
NUL TIEL RECORD.
When proper plea. See PLEADING, 15.
OFFICER.
When his official character must be proved.
1. Justification under process. Where a defendant in a replevin suit
sets up the defense that he was a constable, and took the property under
an execution in his hands against the owner of the property, and the
direct question is raised as to whether he was a constable or not, he
must show that he was a constable dejure; evidence that he was an
acting constable is not sufficient. Outhouse v. Allen, 529.
Justifying under process.
2. Need not prove judgment. The general rule is, that an officer may
* justify his seizure of property under an execution if it is regular on its
face, and appears to have been issued by a court having competent ju-
risdiction, without making proof of the judgment on which it was
issued. Ibid. 529.
ORDINANCE.
As evidence.
When authority to pass must be proved. See EVIDENCE, 9.
Respecting licenses.
Delegating power to mayor, void. See LICENSE, 1.
Imprisonment for fine.
Illegal. See IMPRISONMENT, 1.
OYER AND DEMURRER. See PLEADING, 17.
PARENT AND CHILD.
Step-father's right to pay for supporting child. See STEP-
FATHER.
PARTIES.
In chancery.
1. In general. It is a rule in equity pleading that all persons who
have any substantial, legal or beneficial interest in the subject matter
of litigation, and who will be materially affected by the decree which
694
INDEX.
PARTIES. In chancery. Continued.
may be pronounced, must be made parties. Atkins et al. v. Billings,
597; Hopkins et al. v. Roseclare Lead Go. 373.
2. Bill to enjoin judgment at law, and to cancel contracts of sale. A
bill was filed to enjoin the collection of a judgment at law and to cancel
a contract of sale of land for the purchase money of which the judgment
was obtained. It appeared that another person than the grantor named
in the contract was interested in the subject matter of the sale and was
to receive one-half of the purchase money: Held, that such third per-
son was a necessary party to the bill. Atkins et al. v. Billings, 597.
3. Amending bill to make parties. In such a case, where a necessary
party had been omitted, it was held, if the complainant applied for leave
to amend his bill by making the necessary parties, it would have been
proper to allow him to do so, after the dissolution of the preliminary
injunction which had been granted. But in the absence of such an ap-
plication the bill should be dismissed. Ibid. 597.
4. Where the answer of a defendant to a bill in equity discloses the
fact that there are other pa/^-ws claiming, as his assignees, the interest
sough* +o we affected by the suit, and whose rights will be so affected by
the decree sought, if rendered, as to drive them to their bill in equity to
■protect their rights, the complainant should obtain leave to amend his
bill, and make such persons parties defendant. Hopkins et al. v. Rose-
clare Lead Go. 373.
5. Person having interest in subject matter of suit, not bowid to be-
come defendant on his own motion. Whilst there are cases in which per-
sons who have an interest may, by petition, become parties defendant,
on leave of the court, yet they are not concluded by the decree of the
court if they fail to thus become parties. Ibid. 373.
6. Effect of want of proper parties. It is the duty of a complainant
to see and know that he has before the court ail necessary parties, or
his decree will not be binding, and it is the policy of the lajv to prevent
a multiplicity of suits ; and where a complainant takes a decree without
making the necessary parties defendants to his bill, when the necessity
of their being made parties is disclosed to him by the answer of those
who are made parties and by the evidence in the case, the decree will
be reversed. Ibid. 373.
7. Who may file bill to prevent abuse of public trust. See CHAN-
CERY, 13, 14.
In suit for penalty.
8. In whose name to be brought. Where a statute does not, in terms,
declare in whose name a suit shall be conducted for the recovery of a
penalty for its violation, but declares that the offender may be indicted
or sued before a justice of the peace, as all indictments run in the name
of the people, it follows that the suit must be in the name of the people.
The People v. Young, 411.
INDEX. 695
PARTNERSHIP.
Dissolution.
1. Revokes all power of partners to contract in name of firm. A dis-
solution of partnership operates as a revocation of all power in each
partner to enter into contracts on behalf of the firm ; and none of the
partners afterwards can create any new contract or obligation binding
upon the partnership. Hicks v. Russell, 230.
2. Notice of when necessary. The power of each partner to contract
in the name of the firm, within the legitimate scope of their business,
and with persons accustomed to dealing with the partnership, continues
until such persons have actual notice of a dissolution ; but as to persons
not in the habit of dealing with such partnership, a newspaper notice
of dissolution is sufficient. Ibid. 230.
3. Notes after, not binding. Two firms were in the habit of dealing
with each other, and one becoming indebted to the other, the debtor
firm executed its note to the creditor firm, and one of the partners of the
debtor firm executed a deed of trust to one of the partners of the creditor
firm, on his individual property, to secure the debt. Both firms were
dissolved, the partner upon whose property the deed of trust was exe-
cuted assuming to pay the indebtedness of his firm. No further dealings
occurred between the firms for three years, at the end of which time the
partner of the debtor firm who had assumed the payment of its debts
executed, in the name of the firm, a new note, payable to one of the
partners of the creditor firm, and took a discharge from him, in the
name of his firm, of the original secured indebtedness: Held, that the
execution and taking of the new note in lieu of the secured indebtedness
were not within the legitimate scope of the business of either firm, nor
according to the ordinary course of trade, and were not binding on
either of the firms, even though neither the party taking the note nor
the firm he represented had ever received actual notice of the dissolu-
tion of the firm in whose name the note was executed. Ibid. 230.
4. Notice of dissolution as to assignee before maturity. Notice of
the dissolution of a partnership, by publication in a newspaper, is notice
to an assignee before maturity *f a promissory note executed by one of
the partners after the dissolution, in the name of the firm, to a person
who was chargeable with notice, such assignee having had no dealing
with the firm prior to its dissolution. Ibid. 230.
PAYMENT.
AS BETWEEN ORIGINAL PARTIES.
1. Notes given on purchase. The plaintiff in an action for fraud and
deceit in a contract of sale, had given his notes for the article purchased,
some of which he had paid, and one of which had been assigned, and
was in judgment: Held, that the note assigned and in judgment should
be regarded as paid, and that the plaintiff was entitled to recover as to
it as well as to those actually paid. Allin et al. v. Millison, 201.
696 INDEX.
PAYMENT. Continued.
Indorsed on note.
2. Presumed to be made by maker, and not by assignor. When a
general indorsement of a payment appears upon a note, the payment
will be presumed to have been made by the maker, who is primarily
liable, and not by the assignor upon the note, especially when the in-
dorsement is made by the assignor himself, who has the note in his
hands for collection against the maker. Shephard v. Calhoun, 337.
Application of payments.
How shown. See EVIDENCE, 7.
Change of application — not binding on the wife of mortgagor. See
MORTGAGES, 1.
PENALTY.
Who must sue. See PARTIES, 8.
PLEADING.
Op the declaration.
1. Action by indorsee of note. In declaring upon an indorsed prom-
issory note, an averment that the payee indorsed the note to the plain-
tiff is sufficient, without averring a delivery. The averment that the
payee indorsed the note to the plaintiff imports a delivery. Chester and
Tamaroa Coal and Railroad Co. v. Lickiss et al. 521.
2. An averment that the payee of a promissory note indorsed it, im-
ports that he put his name on it in writing, and delivered it to the in-
dorsee, as there can be no indorsement except by the legal holder's
name being on the instrument, and it can not be complete without a
delivery. Ibid. 521.
3. Count for money payable upon contingency, must aver the happen-
ing of the event. A declaration upon a contract to pay money, if at any
time the promisor becomes intoxicated or drunk, which does not con-
tain an averment that he had become intoxicated or drunk, is not suffi-
cient to sustain a judgment by default. Meyers v. Phillips, 460.
4. Whether in debt or assumpsit. In an action of assumpsit upon a
contract, which is set out in hmc verba in the declaration, the use of the
word "agreed," in an averment as to an extension of the time of per
formance of the contract, does not make the count one in debt. North
v. Kizer et al. 172.
5. A declaration in assumpsit which does not contain the word
"promised," may nevertheless be good, provided it sufficiently appears,
from the whole declaration, that what is equivalent to a promise has
taken place, and where a promise and a consideration are substantially
set forth, the count in this respect is sufficient on general demurrer
Ibid. 172.
INDEX. 697
PLEADING. Of the declaration. Continued.
6. When instrument is set out in Imc verba, its legal effect need not
be averred. In declaring upon a written contract, the pleader may do
so either by setting it out in haze verba, or according to its legal effect.
When the former mode is adopted, the court will construe the contract
for the pleader, and recognize what is its legal effect, and for the pleader,
after having set out the contract in its very words, to declare further
what is its legal effect, is superfluous. North v. Kizer et al. 172.
7. Must show that negligence averred contributed to injury complained
of. A declaration in an action on the case for injury sustained by the
plaintiff through the negligence of the defendant, which does not show
that the negligence averred contributed in some degree to the injury
complained of, is bad on demurrer. McGanahan v. East St. Louis and
Carondelet Railway Go. 557.
8. Two distinct causes of action can not be joined in the same count.
A count in which the plaintiff seeks to recover damages, in an action
on the case, for deceit, and also for a breach of contract, can not be sus-
tained. Noztling v. Wright, 390.
9. When misdescription treated as surplusage. In a suit for obstruct-
ing a public highway, any general description of the road, with a min-
ute description of the part obstructed, is sufficient, and any variance in
the general description of the road as given in the declaration from
that given in the notice to remove the obstruction, which only affects
the course of the road at some point other than the place where the ob-
struction is, is immaterial. It is sufficient if the description of the part
of the road obstructed is the same in the notice and declaration, and
any variance in the description as to some other part may be treated as
surplusage. The People v. Young, 411.
Pleas.
10. A plea setting up a partial failure of the consideration of a note,
by reason of the non-performance of an agreement by the plaintiff to
pay all persons who had done work, furnished materials or rendered
services, etc., under a certain contract in the agreement mentioned, with-
out setting out the contract referred to in the plea as mentioned in the
agreement, is defective. Cairo and Vincennes Railroad Co. v. Dodge
et al. 253.
11. A plea of set-off, alleging that the defendant had assumed and
become liable for the payment of certain claims against the plaintiff",
whereby the plaintiff was released from their payment, without stating
in what manner the defendant became liable, or how the plaintiff" be-
came released from their payment, is defective. Ibid. 253.
12. There is no sanction for a plea of set-off, or an indebitatus count
for money assumed to be paid, or for money paid and assumed to be paid.
Ibid. 253*
13. A plea of set-off* for money paid and assumed to be paid, in pur-
suance of a certain agreement, should set out what the agreement was,
698 INDEX.
PLEADING. Pleas. Continued.
in the respect referred to, and if it fails to do so, it is defective in that
respect. Cairo and Vincennes Railroad Co. v. Dodge et al. 253.
14. Satisfaction of execution by levy. In a suit upon an appeal bond
given on an appeal from a judgment against the defendant and in favor
of plaintiff, a plea that an execution issued on such judgment was
levied upon the lands, tenements, goods and chattels of the defendant
of sufficient value to satisfy the judgment, is bad on demurrer, as from
such averment the value of the goods and chattels by themselves must
be presumed to be insufficient to satisfy the judgment. Herrick v.
Swartwout, 340.
15. When nul tiel record is proper. Although the bond upon an
appeal from the circuit to the Supreme Court is required to be filed in
the office of the clerk of the court from which the appeal was taken,
the obligee in the bond has the right to bring suit on the bond, and it
is proper for him to so bring his suit and not on the record, and a plea
of nul tiel record is not a proper plea to such action. Ibid. 340.
Facts not denied — admission.
1G. All the material averments in a declaration, not denied or con-
troverted by plea, are admitted. People v. Gray, 343.
Defects on face of bond, how reached.
17. By oyer and demurrer. The tenor of the bond declared on, as it
appears upon oyer, is considered as forming part of the declaration, and
it is competent for the defendant to avail himself of any defect appa-
rent upon the face of the bond, or variance between its terms and the
allegations in the declaration, after oyer, by demurrer. Matthews et al.
v. Storms et al. 316.
Carrying demurrer back.
18. Where the general issue has been filed to the whole declaration,
a demurrer to a special plea will not be carried back to the declaration.
St. Louis, Jacksonville and Chicago Railroad Co. v. Lurton et al. 118.
19. An information in the nature of a quo warranto was filed to test
the right of respondent to hold an office claimed by the relator, to which
respondent filed five pleas, to four of which a demurrer was sustained,
and issue of fact joined on the other, which presented the question
of alienage and consequent ineligibility of the relator : Held, that there
was nothing in the issue of fact joined on the plea, or in the other pleas,
which were clearly bad, to prevent the demurrer being carried back to
the information. Brackett v. The People ex rel. 593.
PLEADING AND EVIDENCE.
Allegations and proofs.
1. The recovery should be confined to the negligence as charged in the
declaration. An instruction which allows a recovery for negligence in
general respects, without limitation to the particulars of negligence spe-
INDEX. 699
PLEADING AND EVIDENCE. Allegations and proofs. Continued.
cified in the declaration, is too broad. Chicago and Alton Railroad Co
v. Meek, 141.
2. As to origin of afire. If a party recovers in an action, it must
be on the case made by the pleadings, and when a declaration, in a suit
against a railroad company for damages caused by burning wheat stacks,
alleges that the stacks were set on fire by sparks from a locomotive be-
longing to the company, evidence that the stacks were destroyed by a
fire which originated in another field, even though such fire was occa-
sioned by sparks from the defendant's engine, will not sustain the aver-
ment in the declaration, and the plaintiff will not be entitled to recover.
Toledo, Wabash end Western Railway Co. v. Morgan, 155.
3. As to existence of a judgment against an estate. In a suit upon an
administrator's bond, for the failure of the administrator to pay a judg-
ment rendered against the estate, in due course of administration, a plea
that the plaintiff's claim was not exhibited within two years after the
granting of administration, does not put in issue the existence of the
judgment, and the plaintiff is not required to make proof of such judg-
ment. The People v. Gray, 343.
4. In suit on special contract. If any part of the contract proved
varies materially from that which is stated in the pleading, it will be
fatal, a contract being an entire thing, and indivisible ; and where a
plaintiff declares upon a special contract, the proof and the allegations
must correspond, not precisely, but substantially. Reiser v. Topping
et al. 226.
5. A variance is a substantial departure from the issue, in the evi-
dence adduced, and must be in some matter which, in point of law, is
essential to the charge or claim. Ibid. 226.
6. As to proof of consideration. Where a promise to pay money is
averred in the declaration to have been made for value received, it will
be sufficient proof of a consideration to show a written promise to pay
for value received. Meyers v. Phillips, 460.
7. Proof of execution of instrument. The plea of non est factum,
not sworn to, in a suit on an appeal bond, does not put the execution of
the bond in issue. Herrick et al. v. Swartwout, 340.
8. Where the defendant admits, in open court, that his signature to
the note sued on is genuine, and no alteration appears upon its face, the
note is properly admissible in evidence, under a plea of non est factum,
verified by affidavit, without further proof. Lowmari v. Aubery et al.
619.
9. As to joint liability of several in an action for tort. In actions for
tort, where a joint liability is averred in the declaration against several
defendants, it is not necessary to a recovery that the proof should show
such joint liability. It may fail to establish any of the averments as
against a portion of the defendants, yet, if the averments are proved as
700 INDEX.
PLEADING AND EVIDENCE. Allegations and proofs. Continued.
against the other defendants, or any of them, a recovery can be had
against such as are shown to be guilty. Indianapolis and St. Louis
Railroad Go. v. Hackethal, 612.
10. And this rule applies as well to a case where the tort is alleged
to have' been committed by the defendants through the means of an
article of property which they jointly owned or were jointly using, as
to a case where the tort is alleged generally to have been committed by
the defendants. Ibid. 612.
Evidence under common counts.
11. Instrument payable on contingency. Under the common counts
for money paid, for money loaned, and for money due on an account
stated, an instrument for the payment of money if the maker should at
any time become intoxicated, etc., is not admissible in evidence, nor is
any other instrument which is not for the unconditional payment of a
specific sum of money. Meyers v. Phillips, 460.
PLEDGE.
Delivery op possession.
1. Not necessary as between the parties. Where property is pledged
to a creditor to secure his claim, there is, as between the parties, no
necessity for an actual manual delivery of the property. The posses-
sion is, constructively, where the contract places it. Keiser v. Topping
et al. 226.
Presumption as to time op payment.
2. When no time is fixed. Where bonds are pledged to a party as
collateral security for money advanced by him to aid in doing the work
for which the bonds were issued, and also for a share of the profits
arising from such work, and no time is fixed for the payment of the
money, the law ^presumes that a reasonable time is intended. Stokes
et al. v. Frazier et al. 428.
Sale by pledgee.
3. Who may purchase, etc. The pledgee of bonds held by him as
collateral security for the repayment of money advanced by him, can
not become the purchaser of such bonds at a sale made by himself, in
default of the payment of the money to him. If he does so purchase,
the pledgor has a right to treat it as a valid sale, or to treat it as void;
and if he elects to treat the sale as void, then the title to the bonds re-
mains precisely as if no sale had been made, with the lien of the
pledgee still on them for the amount of his debt. Ibid. 428.
4. But if such sale is made by the pledgee fairly, in good faith and
without any fraud, and a disinterested party becomes the purchaser, the
title would pass to him, and the pledgee, on a settlement, would be
chargeable with the proceeds of such sale, to be applied as a credit on
the indebtedness for which the bonds were pledged as of the date of
the sale. Ibid. 428.
INDEX. 701
PLEDGE. Sale by pledgee. Continued.
5. Of the notice of sale of collaterals. Where municipal bonds are de-
livered as collateral security for money loaned, a notice of their sale by
the pledgee published in a newspaper printed in the city where the bonds
were issued, thirty clays before the sale, and also in a newspaper pub.
lishecl in Louisville, and they are sold in the latter city for more than
they could have been sold in the city where issued, and no fraud is
shown, the sale will be valid. Stokes et al. v. Frazier et al. 428.
6. Bight to sell after default. Where a party deposited certain town-
ship bonds as collateral security for the repayment of certain sums of
money borrowed, it was held, that the lender, with whom they were de-
posited, had the right to sell the same on default of payment, without
any personal notice to the pledgor of an intention to do so, it being so
stipulated in the agreement. Loomis et al. v. Stave, 623.
Property stolen prom pledgee.
7. Party coming into possession bound to surrender it to pledgee on
demand. Where property in possession of one as collateral security
for a debt due him from the owner is stolen from his possession, and
delivered to an express company, the possession by such company is
unlawful, and when a demand is made upon them for the property by
the lawfully authorized agent of the one from whose possession it was
stolen, they should surrender it up, and if they fail, to do so, they be-
come liable for the value of the property. United States Express Go. v.
Heints, 293.
POSSESSION.
When unlawful.
Of stolen chattels. See PLEDGE, 7.
Whether necessary. Same title, 1.
PRACTICE.
Time of taking certain objections.
1. As to the form of action. When a defendant fails to raise the
question in the court below as to the sufficiency of the form of action,
either by demurrer, or by motion in arrest of judgment, he will be
regarded as having waived the objection, and will not be permitted to
raise it for the first time in the Supreme Court. Rockford, Rock Island
and St. Louis Railroad Go. v, Beckemeier, 267.
2. Admission of evidence. If a party sits quietly by, and permits in-
competent evidence to be given to the jury, he can not, for the first
time, make objection in this court. Wilhelmv. The People, 468.
3. The objection that the record of a judgment of the county court,
offered in evidence, does not show a convening order of court, can not
be made for the first time in this court. The People v. Gray, 343.
702 INDEX.
PRACTICE. Continued.
Waiver of defects in declaration.
4. By pleading to merits. The objection that the declaration in a
suit on a bond given upon an appeal from the circuit court to the Su-
preme^ Court, does not show that the bond sued on was taken and ap-
proved as the appeal bond of the defendants in the circuit court, can
not be urged as error in the Supreme Court, if the defendant, instead
of demurring to the declaration, pleads to the merits. Merrick et al. v.
Swartwout, 340.
Waiver of right to assign error on demurrer.
5. By pleading over. When a demurrer is sustained to a special
plea, and the defendant afterwards asks and obtains leave of the court
to file a notice, under the statute, of special defenses, which notice, in
substance, contains the same matter and things as were contained in the
plea, it seems this would be a waiver of the right to assign as error the
decision of the court sustaining the demurrer. Snell et al. v. Cotting.
liam et al. 161.
When defendant abides by his demurrer.
6. Faulty counts. Where a general demurrer several to each count
in a declaration is overruled, and the defendant abides by his demurrer,
and plaintiff's damages are assessed, and judgment therefor rendered,
the judgment. will not be reversed, if one of the counts is good, and the
evidence heard on the assessment of damages is applicable to such good
count, notwithstanding the other counts may be faulty. North v. Kei-
zer et al. 172.
7. Rights of defendant after default. Where the defendant abides by
his demurrer to the plaintiff's declaration, he is at liberty to cross-ex-
amine the plaintiff's witnesses, and introduce evidence in reduction of
damages. Ibid. 172.
Striking plea from file.
8. Want of affidavit of merits. It is not error to strike a plea from
the files for want of an affidavit of merits, in a case where such affida-
vit is required by law to accompany the plea. Filkins v. Byrne, 101.
Dismissal of suit.
9. After trial, on plea of set-off. It is a matter of discretion with the
court, whether it will permit the plaintiff to dismiss his suit, where
there is a plea of set-off, after the evidence is all heard, and before the
jury retire. United States Savings Institution v. Brockschmidt et al.
870.
10. Dismissal of plaintiff's suit on motion of defendant appealing.
See APPEALS, 4.
Postponing case.
11. After commencement of trial. It is a matter in the discretion of
the court, to postpone a case after the trial has commenced, to enable a
party to procure the attendance of a witness who has not been sub-
INDEX. 703
PRACTICE. Postponing case. Continued.
poened, and it is not error for the court to refuse to do so. Farmer v.
Farmer, 32.
Of special verdicts.
12. Discretionary. Under the Practice Act of 1872, it is discretion-
ary with the court whether it will direct the jury to find a special ver-
dict, and no error can be assigned on the refusal of the court to give
such an instruction. Toledo, Wabash and Western Railway Co. v. Max-
field, 95.
13. When jury fail to return special verdict as requested. Where
the jury are instructed to return an answer directly to certain questions
of fact in the case, and fail to do so, hut return a general verdict, the
proper course is, to move the court to send the jury back to respond to
the questions, and if this is not done, and the general verdict is just
and right, the judgment will not be reversed in this court. St. Louis
and Southeastern Railway Co. v. Dorman, 504.
General and special verdict.
14. Which controls in case of conflict. See VERDICT, 1.
Appeal prom county court.
15. Writing opinion. In case of reversal of a judgment of the
county court, the circuit judge would, no doubt, in the order reversing
the judgment, or otherwise, indicate to the county judge the grounds
of reversal, but an opinion is not required to be filed by the circuit
judge in such case, and is wholly unnecessary in case of affirmance.
United States Express Co. v. Heints, 293.
Assessing damages on default. See ASSESSMENT OF DAMAGES,
1, 2, 3.
Variance.
How taken advantage of. See NEW TRIALS, 5.
PRACTICE IN SUPREME COURT.
Of the record.
1. Ground of error should appear. The presumption is always in
favor of the action of the court below, in a suit at law, and the party
alleging error must show it by the record; and where the record does
not show that any evidence was offered in support of a motion to quash
the panel of jurors, on a challenge of the array, the motion was prop-
erly denied. St. Louis and Southeastern Railway Co. v. Wheelis, 538.
2. Striking out improper matter in bill of exceptions. If any matter
is improperly embodied in a bill of exceptions, the party alleging it
should take the proper steps to have it stricken out before he assigns
errors, and if this is not done, the case must be decided on the record
as it is presented. Bates v. Ball et al. 108.
704: INDEX.
PRACTICE IN SUPREME COURT. Continued.
Assignment of errors.
3. Party not affected can not complain. A complainant in a bill to
impeach a former decree and sale, can not complain of an error com-
mitted by the court below against one who is a party defendant to his
bill, which in no manner affects the rights of such complainant. Hedges
et al. v. Mace et at. 472.
4. What may be assigned as error. When a case is appealed from
the county to the circuit court, and removed thence to this court, only
the errors assigned in the circuit court will be looked into, unless the
assignment of errors in this court questions the action of the circuit
court. A party will not be permitted to assign errors on the record of
the county court in the circuit court, and then assign other and differ-
ent errors thereon in the Supreme Court. Tfnited States Express Co. v.
Heints, 293.
Of the abstract.
5. Its requisites. The whole evidence, uncondensed, with the ques-
tions and answers just as they were taken down by the reporter, should
not be given in that form in the abstract filed in this court. Chicago
and Alton Railroad Co. v. Rockford, Rock Island and St. Louis Rail-
road Co. 34.
Error will not always reverse.
6. Improper instructions. A judgment will never be reversed simply
because an inaccurate instruction has been given, where the court can
see that it has resulted in no injury to the party complaining. Wiggins
Ferry Co. v. Higgins, 517.
7. Notwithstanding the statute authorizes the assignment of error
upon the refusal of a new trial, the circuit courts are clothed with a dis-
cretion, as at common law, to be exercised in such manner as will best
answer the ends of justice; hence, when it clearly appears that on an-
other trial the verdict must inevitably be the same, or that substantial
justice has been done, a new trial will not be granted, although the
court erred in some of its instructions. Hewitt v. Jones, 218.
8. Even if erroneous, will not ordinarily reverse, unless all given
appear in the record. This court will not ordinarily reverse on account
of erroneous instructions, unless the record contains all those given,
but where the instructions given contain errors that could not be cured
by others, it may be proper to reverse on account of erroneous instruc-
tions, although all that were given are not in the record. Meyer v.
Temme, 574.
What judgments not reviewable.
9. When a cause is reversed by this court, on the ground that a writ
of mandamus should have been awarded in the court below, and upon
a remandment of the cause the circuit court, without, any new testimony
being heard, awards the writ in conformity with the opinion of this
INDEX. 705
PRACTICE IN SUPREME COURT.
What judgments not reviewable. Continued.
court, such judgment of the circuit court will not be reviewed. Chicago
and Alton Railroad Co. v. The People ex rel. 82.
PRESUMPTIONS.
Of law and fact.
1. As to time of payment by pledgor. See PLEDGE, 2.
2. That decree was rendered on evidence from recitals. See CHAN-
CERY, 26.
3. As to correctness of judgment when evidence not preserved. See
EXCEPTIONS AND BILLS OF EXCEPTIONS, 3.
4. In favor of judgnent of county court. See COUNTY COURT,
3,4.
5. That the proper judge presided. See COURTS, 1.
6. In respect to an election — presumption that votes cast were all the
legal votes. See ELECTIONS, 1.
7. In favor of legality of corporate bonds. See MUNICIPAL SUB-
SCRIPTION AND BONDS, 5.
8. That explosion of boiler was caused by negligence. See NEGLI-
GENCE.
9. As to party making payment indorsed on note. See PAYMENT, 2.
PRINCIPAL AND AGENT. See AGENCY.
PRINCIPAL AND SURETY. See SURETY.
PROCESS.
Requisites of summons.
1. A summons which fails to name the form of action, but which
informs the defendant that he is sued, by whom, in what court, to what
term, and the amount of damage claimed, is as effectual as if it
named the form of action, and the fact of the amendment of such a
summons, after service, by inserting the name of the form of action,
would not be cause for quashing the summons on the ground of a
variance between it and the copy served on defendant. Chester and
Tamaroa Coal and Railroad Co. v. Lickiss et al. 521.
Abuse of process.
2. Not where it is to collect bona fide debt. A creditor who only takes
such steps for the collection of a bona fide debt as itself permits, how-
ever zealous and vigorous in so doing, can not be guilty of an abuse of
process or of obtaining the jurisdiction of the court for a fraudulent
and improper purpose. Mitchell v. Shook, 492.
3. Non-resident attaching property exempt in his State. A resident
of the State of Indiana commenced an attachment suit before a justice
45— 72d III.
706 INDEX,
PROCESS. Abuse op process. Continued.
of the peace in this State, against another resident of Indiana, who was
temporarily in this State, with property which, by the law of Indiana,
was exempt from attachment. The attachment writ was levied on that
property. It appeared that both plaintiff and defendant lived in the
same county in Indiana, and that the defendant could have been easily
found in the county and State where both parties resided. It further
appeared that the debt sued for was a just debt, and past due. Held,
that there was nothing in these facts to justify a finding that the plain-
tiff was guilty of any abuse of process, or that he had sought the juris-
diction of the courts of this State for a fraudulent purpose. Mitchell
v. Shook, 492.
Service upon railroad company.
4. Service of process on a railroad company, under the Practice Act
in force July 1, 1872, can only be by leaving a copy with the proper
person, and can not be by reading the same. Cairo and Vincennes
Railroad Co. v. Joiner, 520.
5. Must he on president of railroad company, if he can be found.
Where the return of the officer states that he read the process to a sta-
tion agent (naming him) of the defendant, the president and secretary
not being residents of the county, it is defective, both because it shows
attempted service by reading instead of by copy, and because it does
not show that the president could not be found in the county; the fact
that he was not a resident of the county, does not exclude the idea that
he might have been found therein at the time of service. Ibid. 520.
Service by special deputy.
6. Must be by copy as well as by reading. A special deputy, appointed
under the act of 1869, is required to serve a summons in a case at law
by reading the same to the defendant, and by delivering to him a copy.
Noleman v. Weil, 502.
7. When return of service is defective should be amended, or the cause
continued for service. Where the return of a special deputy upon a
summons in a case at law shows service only by reading, it should be
amended to show that a copy was delivered to the defendant, if such is
the fact, and if not, then the return should be quashed and the cause
continued, for the purpose of getting service. In such a case, the de-
fective service is no cause for dismissing the suit. Ibid. 502.
Sufficiency of return.
8. To show service. Where the statute requires the sheriff to deliver
to the defendants, if found, a copy of the summons, a return by the sher-
iff that he served each of the defendants with a true copy of the sum-
mons, is equivalent to a return that he delivered each of them a copy,
and is a substantial compliance with the statute. Hedges et al. v. Mace
et al. 472.
Garnishee process.
May issue to any county. See GARNISHMENT, 4.
INDEX. 707
PROMISSORY NOTE.
Delivery necessary.
1. A delivery to the payee, either actual or constructive, is necessary
to the validity of a promissory note. First National Bank of Gentralia
v. Strang et al. 559.
2. Where the makers of a promissory note, payable to a bank, place
it in the hands of their agent, for the purpose of getting it discounted
at the bank, and the bank refuses to take the note, it does not become
valid as a note, and a suit can not be maintained on it by the bank,
either for itself or for any other person. Ibid. 559.
When party takes subject to defenses.
3. When he takes without indorsement. A person receiving a promis-
sory note not payable to himself, without indorsement, or after due,
takes it subject to all legal and equitable defenses; and if it turns out
that it never was delivered to the payee, it can not be collected from the
maker. Ibid. 559.
Executed on Sunday. See CONTRACTS, 1 to 5.
PURCHASERS.
Rights as against attaching creditor.
1. A bona fide purchaser of land, whose deed is delivered to him and
filed for record in the county where the land lies, before the issuing of
an attachment against the vendor in another county, which is issued
and levied on the land on the same day of the execution, delivery and
recording of the deed, but no certificate of such levy filed until several
days afterwards, acquires the title to the land, whatever may have been
the purpose or intention of the vendor in making the sale. Groves et al.
v. Webber, 606.
Damage done by railroad.
2. Bights of purchaser. A railroad company is not liable to a party
who purchases land after the road is constructed across it, for any dam.
age done to the land in the construction of the road. If the owner of
the land, at the time of the construction of the road, does not complain
of the damage clone to the land, his grantee certainly can not. Toledo,
Wabash and Western Railway Go. v. Morgan, 155.
Purchaser of town lot.
3. When he takes interest in street. See STREETS, 1.
Of trust property.
4. When not protected. A purchaser of trust property, even if he
purchases it without notice of the trust and in good faith, can not hold
it as against the cestui que trust, unless he has paid the purchase money
or his notes have been negotiated. Carpenter et al. v. Davis et al. 14.
Under decree-.
5. H oio far protected. On a bill to impeach a decree and sale under
it, nothing can be urged as against purchasers under such decree that
708 INDEX.
PURCHASERS. Under decree. Continued.
does not go to the jurisdiction of the court. As to such purchasers, the
bill to impeach the decree and sale is a collateral proceeding, in which
mere matters of error in the former proceeding can not be considered.
Hedges et al. v. Mace et al. 472.
Under decree on constructive service.
Effect of vacating decree. See DECREE, 2.
At administrator's sale.
Eight to deed. See ADMINISTRATION OF ESTATES, 7.
Who may purchase property pledged. See PLEDGE, 3, 4.
RAILROADS.
Duty at public crossings.
1. Liability for neglecting. Railroad companies, in operating their cars
in crossing public highways, must so regulate the speed of their trains,
and give such signals to persons passing, that all may be apprised of
the danger of crossing the railroad track, and a failure in any of these
duties on their part will render them liable for injuries inflicted, and
for wrongs resulting from such omissions. Mockford, Mock Island and
St. Louis Railroad Go. v. Hillmer, 235.
2. Obstructions to the mew. A railroad company should not permit
obstructions upon its right of way, near a crossing, which will prevent
the public from observing the approach of trains on the track. Ibid.
235.
3. A railroad company is chargeable with notice of all the perilous
circumstances of a crossing constructed by itself. Ibid. 235.
4. Duty of drivers of trains at the crossing of two railroads. If the
driver of a railroad train who has the right to the road at the crossing
of another railroad, knows? or has good reason to believe, he will come
in collision with a train not entitled to the crossing if he attempts to
exercise his right, prudence requires him not to attempt the exercise of
his right, and he might be criminally culpable for so doing. Chicago
and Alton Railroad Co. v. Mockford, Mock Island and St. Louis Mail-
road Co. 34.
Law requiring them to fence track.
5. Not repealed by the law prohibiting domestic animals running at
large. The law prohibiting domestic animals from running at large, in
force October 1, 1872, does not, by implication, repeal or nullify any of
the provisions of the act of February 14, 1855, requiring railroad com-
panies to fence their roads, and the same is true with regard to the law
preventing male animals from running at large. Mockford, Mock Island
and St. Louis Mailroad Co. v. Irish, 404.
Negligence, generally. See NEGLIGENCE.
INDEX. 709
REAL ESTATE.
Improvements made thereon.
1. Without consent of the owner. Improvements made upon real
estate by one who has no title or interest in it, without the consent of
the owner of the fee, become a part and parcel of the land, and the title
thereto becomes vested in the owner of the fee. Mathes et al. v. Dob-
schuetz, 438.
2. Infants are incapable of consenting to the making of improve-
ments by a stranger on their real estate, so as to give him or his cred-
itors any interest or claim thereto. Ibid. 438.
RECOGNIZANCE.
In criminal case.
1. Proceedings upon forfeiture. Where the law in force at the time
a recognizance is entered into provides for issuing a scire facias, upon
the forfeiture of the recognizance, against the principal and his suret}r,
to show cause why judgment should not be entered, etc., and for ren-
dering a judgment by default upon the return of such scire facias that
the defendants can not be found, unless they appear and defend, it is
proper, when the writ of scire facias is returned not found, and the de-
fendants do not appear, to enter a judgment against them for the amount
of the recognizance. Such law is not in contravention of the letter or
spirit of the constitution. Reitzell v. The People, 416.
RECORDING LAW.
Effect of destruction of records.
1. Does not destroy notice. Where a mortgagee places his mortgage
upon record, his rights under it are fixed, and it is notice for all time,
and the destruction of the record books does not extinguish or destroy
such notice, nor affect the rights of the mortgagee injuriously. Shan-
non et al. v. Hall et al. 354.
2. Mortgagee not obliged to incur expense of restoring, under act for
restoring burnt records. The fact that the records have been destroyed
by fire, and an act of the General Assembly passed to restore them,
imposes no obligation upon a mortgagee, whose mortgage was duly re-
corded before such destruction, to incur the trouble and expense of the
restoration of his mortgage. Ibid. 354.
3. A mortgage w&s duly recorded, and afterwards the records were
destroyed by fire, and an act of the General Assembly passed providing
for the restoration of the lost records, but the mortgagee took no steps
to have the record of his mortgage restored. After the destruction of
the records, the mortgagor sold and conveyed the mortgaged premises
to one who had no knowledge or information of the existence of the
mortgage, and who took possession of the premises, claiming to have a
perfect title thereto, of which fact the mortgagee had notice six years
before a bill was filed to foreclose the mortgage, but such purchaser was
710 INDEX.
RECORDING LAW. Effect of destruction of records. Continued.
not induced to make such purchase by anything done or said by the
mortgagee : Held, on a bill to foreclose the mortgage, that although
there were equities on the side of the defendant, they were not superior
to those of the mortgagee, and that he was entitled to have his mort-
gage foreclosed to pay the mortgage indebtedness. Shannon et al. v.
Hall et al. 354.
RECOUPMENT.
When damages may be recouped.
1. For failure to perform contract, although the performance at a fixed
time has been waived. Where a contractor fails to perform his contract
within the time fixed for its performance, the other party majr permit
him to go on after the time limited, and finish the work, and then accept
it, without waiving anything, except the performance on the day fixed.
In such case, the contractor could recover for his work on the quantum
meruit, and the other party would have the right to insist upon and re-
coup such damages as he may have sustained by reason of the non-
compliance with the contract. Snell et al. v. Cottingham et al. 161.
REDEMPTION.
From sale on execution.
1. To whom money may be paid. Where the owner of land which
has been sold on execution, within the time allowed bylaw for redemp-
tion, leaves the redemption money, for the purpose of making redemp-
tion, with a person named by the officer who made the sale, and by his
direction, it is the same as if the money had been paid directly to such
officer, and operates as a redemption. Roan v. Rohrer, 582.
2. When redemption from sale on execution may be made. Where a
statute provides that redemption from sale may be made within twelve
months, and a sale is made on the ninth day of a month, a redemption
may be made on the ninth day of the same month of the next }rear.
Ibid. 582.
Of undivided interest.
3. When not allowed. Where the purchaser at a master's sale, of an
entire tract of land, afterwards assigns an undivided interest in such
purchase, there can be no legal redemption of such undivided interest
Groves et al. v. Maghee et al. 526.
On foreclosure.
Decree need not provide for. See MORTGAGES, 3.
REMOVAL OF CAUSES.
From State to Federal courts.
1. Sufficiency of petition. A petition by a plaintiff to remove a
cause from the State to the Federal court, which does not state that he
INDEX. 711
KEMOVAL OF CAUSE. From State to Federal courts. Continued.
was, at the time the suit was instituted, a citizen of a State other than
the one in which the suit was brought, is defective, and does not entitle
the party to the removal. United States Savings Institution v. Brock-
schmidt et al. 370.
2. If a party desires the removal of a cause from a State to a Fed-
eral court, it is his duty to present his petition before the cause is
reached for trial, and the court is under no obligation to delay a trial to
enable him to prepare a petition for that purpose. Ibid. 370.
REPLEVIN.
Assessment of damages on dismissal.
1. Evidence on question. When a replevin suit is dismissed, and the
court proceeds to assess the defendant's damages for the detention of
property, it is competent for the plaintiff to prove that the defendant is
the mere pledgee of the property to secure a debt from the plaintiff, as
in such case the defendant would not be entitled to recover anything
for the value of the use of the property. McArthur v. Howett, 358.
Judgment in favor of defendant for costs.
2. Awarding retorno at subsequent term. When a replevin suit is
dismissed for want of a declaration, and a judgment rendered against
the plaintiff for costs, the court rendering the judgment can not, at a
subsequent term, upon notice to the plaintiff that a writ of retorno lia-
bendo will be applied for, so amend the record as to find the property in
question in the defendant, and determine that he recover it from the
plaintiff, and order a writ for its return. Lill v. Stookey, 495.
REPLEVIN BOND.
When a nullity.
1. When defendant's name is not inserted. It is essential to the va-
lidity of a replevin bond, that the name of the defendant in the suit
appear therein, and if it is defective in this respect it is a nullity, and
the omission can not be supplied by averment or otherwise. Matthews
et al. v. Storms et al. 316.
RETURN ON PROCESS. See PROCESS, 7, 8.
RIGHT OF WAY.
Railroad along street.
Damages to property-holders. See MEASURE OF DAMAGES, 1
to 5.
SALES.
Under judicial proceedings. See JUDICIAL SALES.
Of property pledged.
Of the notice. See PLEDGE, 5.
712 INDEX.
SALES. Of property pledged. Continued.
Who may purch ise. Same title, 3, 4.
Rescission.
For fraud. See FRAUD, 1, 2, 3.
SATISFACTION.
Of execution.
By levy. See EXECUTION, 2, 3, 4.
Pleading. See PLEADING, 14.
SCHOOLS.
Powers of directors.
1. Limited to those specially defined by statute. A board of school
directors, though a corporation, are possessed of certain specially de-
fined powers, and can exercise no others, except such as result by fair
implication from the powers granted. Peers v. Board of Education,
etc., 508.
2. Have no pvwer to make acceptances. A board of school directors
have no power to make acceptances of orders or bills of exchange, so
as to bind the school district and create a right of action thereon
against them. Ibid. 508.
Suit to recover fine.
3. Information and process. In a suit under section 76 of the School
Law of 1872, to recover a fine imposed by that section, the information
required need not be in writing, nor is it necessary that it should run in
the name of the People of the State of Illinois. It is sufficient, if ihe
process which brings the defendant into court runs in the name of the
people. Newton et al. v. The People, 507.
4. Meaning of " information:'' The word " information," as used
in the 76th section of the School Law of 1872, means "complaint."
Ibid. 507.
SCIRE FACIAS.
Upon recognizance.
1. Performs office of both writ and declaration. A scire facias issued
upon a recognizance for the appearance of a defendant to answer to a
criminal charge, performs the office of a declaration as well as process,
and a default admits the facts alleged in the writ. Reitzell v. The Peo-
ple, 416.
SERVICE OF PROCESS. See PROCESS, 4, 5, 6.
SET-OFF.
Right of plaintiff to dismiss after plea. See PRACTICE, 9.
Plea of set-off. See PLEADING, 11, 12, 13.
INDEX. 713
SETTLEMENT.
Op accounts under contract.
1. What constitutes. Where the parties to a contract met, at night,
and one of them handed the other, through a car window, a receipt,
and requested him to sign it, which he did, and thereupon the one tak-
ing the receipt handed the one signing it a package of money contain-
ing a certain amount, and told him that was all he could pay, to which
the one receiving the money replied that he was not satisfied with the
amount and would bring suit the next day, it was held, that there was
no such final settlement made as would bar all further investigation
into the state of the accounts between the parties. Rockford, Rock
Island and St. Louis Railroad Go. v. Hose, 183
SHERIFF'S SALE. See JUDICIAL SALES.
SPECIAL DEPUTY.
Service of process by. See PROCESS, 6, 7.
SPECIAL VERDICT. See PRACTICE, 12, 13.
SPECIFIC PERFORMANCE. See CHANCERY, 7, 8.
SPIRITUOUS LIQUORS. See INTOXICATING LIQUORS.
STATE INDEBTEDNESS.
Right op creditor.
1. Entitled to Auditor's warrant. If the State has received the ser-
vices or property of an individual under a contract, there would seem
to be no doubt that it would be the duty of the Auditor to draw a war"
rant for the sum due, and of the Treasurer to countersign it and deliver
it to the person entitled to receive it, whether there be money in the
treasury or not. Hence it is not a sufficient answer to a petition for a
mandamus to compel the Auditor to Issue such warrant, to say that
there is no money in the treasury with which to pay it if issued. The
People ex rel. v. Lippincott, 578.
STATUTES.
Construction op statutes.
1. The act relating to the sale of intoxicating liquors — strictly con-
strued. See INTOXICATING LIQUORS, 5.
2. Provisions of town charter prevail over prior general law. See
CORPORATIONS, 12.
Statutes construed.
3. Relating to sale of lands of Illinois Central Railroad Company.
See ILLINOIS CENTRAL RAILROAD, 1 to 4.
4. Meaning of word '■'•information'''' in school law. See SCHOOLS, 4.
714 INDEX.
STATUTES. Continued.
Repeal of statute.
5. Requiring railroads to fence track, not repealed. See RAIL-
ROADS, 5.
STATUTE OF FRAUDS.
Promise to pay the debt of another.
1. Where a debtor transfers to one creditor certain notes and an order
for money, in payment of his indebtedness to such creditor, and also
in consideration of the undertaking and promise by such creditor to pay
a debt of the debtor to another creditor, such promise is not within the
Statute of Frauds, and is binding. Meyer v. Hartman, 4A2.
STEP-FATHER.
Right to pay for support of step-children.
1. Without contract. When a man marries a widow with children,
if he assumes the relation of father to the children, and, as such, pro-
vides them with board and clothing, and, in turn, has their labor, and
has no contract with their guardian, he can not recover for the support
thus furnished. Meyer v. Temme, 574.
2. But if, at any time, he had a contract with their guardian in re-
gard to the keeping of the wards, he would be entitled to recover on
that contract; or if, at any time, he should refuse longer to keep the
children without compensation, and should so notify their guardian,
and the guardian should neglect or refuse to provide a place for them,
or make a contract with the step-father in regard to compensation, then
he would be entitled to recover reasonable pay for the keeping after
such notice, deducting the value of their services. Ibid. 574.
STREET.
When purchaser of lot takes no title.
1. When vested in city. Where the law vests the fee of streets in the
municipality, the purchaser of a lot abutting on a street takes no inter-
est in the street, other than what he has in common with the public;
and if the street is afterwards vacated, the fee will return to the original
proprietor. St. John v. Quitzow, 334.
2. Reservation of, in deed. See CONVEYANCES, 6.
SUBROGATION.
When the doctrine applies.
1. When a third party enjoined the sale of property by the mortga-
gee under a chattel mortgage, being no surety for the mortgagor, and
in the suit gave an injunction bond conditioned for the payment of the
mortgage debt on dissolution of the injunction, it was held, in a suit on
the bond, that the doctrine of subrogation had no application to the
case. Lewis v. City National Rank of Cairo, 543.
INDEX. 715
SUBSCRIPTION.
AS A DONATION.
Consideration. See CONSIDERATION, 3.
SUNDAY.
Of contracts made on Sunday. See CONTRACTS, 1 to 5.
SURETY.
Extension of time to principal.
1. How availed of by surety. Where an action at law is upon a
specialty, a surety can not set up a parol agreement to enlarge the lime
of payment without his assent, as a defense. In such case, his remedy
must be sought in a court of equity. Wittmer v. Ellison, 301.
2. Consideration for extension. See CONSIDERATION.
Bankruptcy of principal.
3. Effect on liability of surety. See BANKRUPTCY, 1.
TAXES AND TAXATION.
Levy of county tax.
1. Sufficiency of order. An order of the board of supervisors which
shows that the committee on county taxes reported that they had exam-
ined the accounts of the county, and they recommended that a tax of
$25,000, for all purposes, be levied for the year, upon all taxable prop-
erty of the county, and that, on motion, the report was adopted, is, in
effect, an order that the tax be levied. Mix v. The People ex rel. 241.
2. Levy in excess of per cent allowed, does not vitiate whole tax. A
levy of taxeS in excess of the per cent allowed by the constitution, does
not render the whole tax void, but only so much of it as is in excess of
the constitutional limit, if the tax within the constitutional limit can
be separated from the portion that is in excess of that limit. Ibid. 241.
3. Exercise of power to levy, always carefully guarded. The levy of
a tax is, in its nature, despotic, and is liable to serious abuse, and hence
its exercise is always guarded with care. The power in the officers
making such levies being delegated by law, they must exercise it within
the limits of the law, and all their acts beyond the scope of the power
delegated are void. Ibid. 241.
4. So, where the authorities of towns, townships, districts, etc., are
by law required annually, on or before a day specified, to certify to the
county clerk the several amounts which they require to be raised by
taxation, such certificates must be filed within the time limited to
authorize the extension of the tax required, on the collector's books, by
the county clerk. Ibid. 241.
Equalization by board of supervisors.
5. An equalization by the board of supervisors, made by arbitrarily
fixing the value of improved lands in each town, at a uniform specified
716 INDEX.
TAXES AND TAXATION.
Equalization by board of supervisors. Continued.
valuation, is illegal, and hence, if the clerk disregards such equaliza-
tion, and extends the tax on the assessor's return, the tax is not thereby
vitiated or rendered illegal. Mix v. Tlie People ex rel. 241.
6. County clerk, only a ministerial officer, in extending taxes under
order of hoard of supervisors. The county clerk is a ministerial officer,
and has no discretion, in acting under the orders of the board of super-
visors, in extending taxes upon their equalization ; and if he refuses to
extend the tax on their equalization, he does so at his peril, and can
only justify such refusal on the ground that to do so would violate the
constitution of the State. Ibid. 241.
Of railroad property.
7. Assessment of right of way. Town lots used by a railroad com-
pany as right of way and assessed under the denomination of " railroad
track," are only liable for taxes as right of way, and can not be taxed
both as right of way and as town or city lots ; and where a tax is levied
on such property both as railroad track and as town and city lots, the
collection of the tax levied as upon town and city lots should be en
joined. Chicago and Northwestern Railway Co. v. Miller, 144.
8. Where town or city lots are used by a railroad company as right
of way, they fall under the denomination of " railroad track," under
the 42d section of the Revenue Act of 1872, and there is no authority to
assess them otherwise. Ibid. 144.
9. The exception in the 41st section of the act does not authorize
town and city lots to be excluded from the estimate of right of way.
Its only purpose is to release the company from giving the description
by the United States surveys of the property occupied as right of way,
when the right of way is located over town and city lots. Ibid. 144.
Exemption of property of railroad.
10. Charter construed. See ILLINOIS CENTRAL RAILROAD,
5, 6, 7.
On property listed by aoent, in principal's name.
11. Agent not liable. Whilst the statute requires an agent loaning
money for others, to list such money for taxation on behalf of the own-
ers, separately from his own, and to specify the names of the persons
to whom the money belongs, it does not result that his own property is
subject to be seized and sold for the payment of the taxes inposed upon
the money thus listed. JDeming et al. v. James, 78.
TENANT IN COMMON.
Account for rents and profits.
1. Against one appropriating whole property. Where one tenant in
common appropriates the entire property to his own use, the other ten-
ants may, jointly or severally, have an account taken, not only of the
INDEX. 717
TENANT IN COMMON.
Account for rents and profits. Continued.
rents and profits actually received, but such as the wrong-dper could
have realized by prudent management. Chambers et al. v. Jones, 275.
Improvements by one.
2. Others not liable for. One tenant in common can not make im-
provements on the common property, and charge his co-tenants even
ratably with their value. If he makes such improvements, he does so
at his peril. Ibid. 275. *
TENANCY BY THE ENTIRETY.
When created. See CONVEYANCES, 5.
TENDER.
After satisfaction by sale.
1. Where a tender is made of a debt after its satisfaction by the sale,
properly made, of collaterals deposited, the tender will be too late.
Loomis et al. v. Stave, 623.
In case of fraud upon purchaser.
2. Tender of goods not necessary before bringing suit. See FRAUD, 8.
TIME.
Rule for computing.
1. Act to be performed within a time. Where an act is required to be
performed within a specified time from a day named, the rule for com-
puting the time is to exclude the day from which the time commences
to run, and include the day on which the act is to be performed. Roan
v. Rohrer, 582.
2. As to redemption. See REDEMPTION.
TOWN.
Addition thereto.
1. When plat is recorded, becomes part of the town. When a plat of
an addition to a town has been duly acknowledged and recorded, the
addition becomes an integral part of the town, and lots in such addition
are included in a description of property as situated in the town.
Warren v. Daniels, 272.
TROVER.
When it lies.
1. Surplus on sale of collaterals. Where bonds, deposited as collat-
eral security are sold in pursuance with the terms of the agreement of
the parties at the time they were deposited, trover will not lie against
the depositary to recover any surplus in his hands belonging to the de-
positor. Loomis et al. v. Stave, 623.
718 INDEX.
TROVEE. Continued.
"Whether note obtained by duress.
2. Evidence as to arrest. In an action of trover, to recover the value
of a promissory note alleged to have been obtained from the plaintitf
under duress upon a capias ad respondendum issued at the suit of the
defendant, the constable to whom the capias had been delivered testified
that the plaintitf was not arrested under it, but under a bail piece,
wholly disconnected from the capias or the transaction upon which it
was issued, and that the plaintiff did not know of the existence of the
capias. The constable was permitted to refer to the recognizance, and
it was read in evidence against the objection of the plaintiff: Held,
that there was no error in permitting the recognizance to be read as a
basis for the evidence of the constable as to the fact that he arrested
the plaintiff under it. Bates v. Ball et al. 108.
For conversion op note.
3. Evidence to show judgment on, is unsatisfied. In an action of
trover to recover the value of a promissory note alleged to belong to the
plaintiff, and to have been converted by the defendant, where the plain,
tiff read in evidence the record of a judgment rendered upon the note
in favor of the defendant, it was proper to permit the defendant to read
in evidence the executions issued upon such judgment, and the return
of the sheriff thereon showing that the judgment was unsatisfied.
Ibid. 108.
TRUSTS.
When a trust arises.
1. By verbal agreement to buy land for the use of another. Where a
husband agreed, with his wife, that if she would sell land devised to
her by a former husband he would invest the proceeds in other land,
and have it conveyed to her for the use of her children by her first hus-
band, and she accordingly sold her land, and her husband used the
money in payment for land bought by him and conveyed to him, it was
held, that there was an express trust created in favor of the wife's child,
ren by her former husband in the land thus purchased, which could
only be avoided by invoking the Statute of Frauds, because it was not
declared in writing. Carpenter et al. v. Davis et al. 14.
2. Binding, although verbal, unless the Statute of Erauds is set up. A
defendant is always regarded as waiving the Statute of Frauds, unless
he, in some manner, relies on it in his pleading; and on a bill to have
a trust declared and enforced, where it appears that the trust was crea-
ted by verbal agreement, if the defendant fails to set up the statute, he
can only contest the fact that the trust was created by verbal agreement,
as charged. Ibid. 14.
3. Silence of wife not evidence of assent to violation of trvst by her
husband. Where a wife sold her separate land upon the agreement of
her husband to invest the proceeds in other land in her name, and the
INDEX. 719
TRUSTS. When a trust arises. Continued.
husband takes the deed to the other land purchased in his own name,
and gives the deed to his wife, her silence will not be regarded as an
implied assent to the deed being taken to her husband instead of to
herself. Carpenter et al. v. Davis et al. 14.
Rents and profits.
4. Chargeable to the trustee. Where a husband and wife convey the
land of the wife, and the husband agrees to invest the proceeds in land
for the use of the children of the wife by a former husband, the hus-
band has no curtesy in the land thus purchased, and if, in violation of
his agreement, he takes the title to himself, a court of equity will en-
force the trust in favor of his step-children, and will require him to
account for rents and profits, even during the lifetime of the wife.
Ibid. 14.
Whether executed or executory.
5. Intention governs. In determining whether a trust is an executed
or only an executory one, the intention of the parties at the time of
creating it, is an important and controlling element, and equity, dis-
carding unmeaning and useless forms, will look to the substance of the
act done, and the intention with which it was done, and carry out that
intention. Tadfield v. Padfield et al. 322.
Revocation of trust by will.
6. Where a party places property in the hands of a trustee for the
use of his children, to be disposed of as directed by a will executed by
him at the same time, the trust will be executed in accordance with such
will, notwithstanding the will may be revoked and another one executed.
The right of the party to make another will is not affected by such
trust, but the right to dispose of or change the terms of an executed
trust by will, does not exist. Ibid. 322.
7. A father transferred to his son a large amount of notes and other
securities, and took from him an agreement to pay $2000 per annum
for his father's support during his life, and to pay to certain parties
named two-thirds of the proceeds of such notes and securities, upon
the death of the father, for the use of 'a brother and sister named, which
amount, so paid to such trustees, they were to dispose of as directed by
the last will and testament of the father. At the same time, and as part
of the same transaction, the father executed his last will and testament,
and it and the son's agreement were all placed in the hands of one of
the trustees named, for safe keeping. It appeared, from oral testimony
that the intention of the father at the time was, to divide the notes and
securities equally between his three children: Held, that the trust
created by the agreement between the father and son was an executed
one, and that the two-thirds to be paid to the trustees named was to be
disposed of by them as directed by the will of the father made at that
time, and that he had no power to change or otherwise dispose of the
property by a subsequent will. Ibid. 322.
720
INDEX.
TRUSTS. Continued.
Enforcing executory trust in equity.
8. Although a court of chancery will not lend its aid to complete a
voluntary agreement establishing a trust, nor hold it binding and oblig-
atory while it is executory, yet, if it is executed, although voluntary
and without consideration, it will be sustained and enforced in all its
provisions. Padfield v. Padfield et al. 322.
Distribution op trust fund.
Equitable jurisdiction. See CHANCERY, 18.
USURY.
When it can not be relied upon.
1. Where the holder of a specialty for the payment of money agrees
to enlarge the time of payment in consideration of money paid to him,
he can not afterwards set up the usury, and allege the invalidity of his
agreement to enlarge the time of payment. Wittmer v. Ellison, 301.
VACATING STREET.
To whom the title passes. See STREET, 1.
VARIANCE. See PLEADING AND EVIDENCE.
VENUE.
Change of venue.
1. Matter of right, in a capital case. An application for a change
of venue by one indicted for murder, is not addressed to the discre-
tion of the court, but, upon a proper application being made, the pris-
oner is entitled to it as a matter of right. Rafferty v. The People, 37.
2. Motion for, must be made at earliest opportunity. A motion for a
change of venue must be made at the earliest opportunity, and if a
party fails to do so, his right will be barred. Toledo, Wabash and West-
em Railway Go. v. Maxfield, 95.
3. Application after first term of court. Where an application for a
change of venue is made at a term of court after the first, ten days' no-
tice of such application should be given to the other party, or the affi-
davit should show that the cause for the change came to the knowledge
of the applicant, for the first time, less than ten days before the time
of making the application. Toledo, Wabash and Western Railway Co.
v. Eddy, 138.
4. On account of prejudice of the judge. An affidavit for a change
of venue on account of the prejudice of the judge, which fails to show
against whom the judge is prejudiced, is insufficient. Ibid. 138.
VERDICT
General and special verdict.
1. Which shall prevail. When the general verdict of the jury is in-
consistent, and not reconcilable with the facts specially found in reply
INDEX, 721
VERDICT. General and special verdict. Continued.
to questions propounded to them by the court for special finding, the
general verdict should be set aside. St. Louis and Southeastern Mail,
way Go. v. Britz, 256.
Op special verdicts. See PRACTICE, 12, 13.
WARRANT.
"When void.
1. Issued in blank. Where a justice of the peace signs a number
of blank warrants, and, in his absence, a police sergeant fills out one
of them and inserts the name of a person, as a defendant, such warrant
is void, and will not afford even color of justification for the arrest of
such person. Bafferty v. The People, 37.
WHARF BOAT.
Liability op owner.
1. When not common carriers of passengers. The owner of a wharf
boat, who is not a common carrier of passengers, and who receives no
compensation from passengers for the use of his boat, whilst he is re-
quired to keep the passway safe which he permits the public to use, is
not bound to maintain passways for passengers over and around every
part of his wharf boat. Grand Tower Manufacturing and Transporta-
tion Go. v. Hawkins, 386.
2. A wharf boat, which was the only landing for boats at the point
where it was situated, belonged to a company which was not a common
carrier of passengers; it was used for the purpose of receiving and
transferring freight, and the public did business with the boats through
this wharf boat ; it was the custom of the owner of the wharf boat to
keep it closed of nights ; the passway for passengers was through, and
not around it. A party, having business with a boat approaching the
wharf boat, went on to it in the night, when it was closed, and, in pass-
ing around it, in a part not used or intended as a passway for passen-
gers, fell into a hole and was injured. He had made no application to
have the wharf boat opened. The steamboat had not landed when he
was injured, and the wharf boat was opened in time to transact business
with it when it landed : Held, that the owners of the wharf boat were
guilty of no negligence, and that the party injured did not exercise
ordinary care and caution, and was not entitled to recover. Ibid. 386.
WIDOW.
Effect op ante-nuptial contract.
On her rights. See ADMINISTRATION OF ESTATES, 1, 2.
WILLS.
In case of death op legatee.
1. Legacy goes to his administrator. Where a legacy of a certain
sum of monej- is, by will, given to a boy, to be paid to him at the age
46— 72d III.
722 INDEX.
WILLS. In case op death of legatee. Continued.
of twenty-one years, and he dies before attaining that age, his adminis-
trator is entitled to recover the same when the time at which he would
have attained that age, if living, arrives. HuffinY. Farmer, 615.
Effect of devise of land previously sold.
2. Passes the purchase money due on the land. Where a testator de-
vises land, the legal title to which is in him, but which he has sold and
given to the purchaser a bond for a deed therefor, the purchase money,
when paid by the purchaser, will belong to the devisee. Heirs of
Wright v. Minshell, 584.
Powers of executor.
3. To sell property. Under a will authorizing the executor to sell
property in such manner, and on such terms, and for such prices, as to
him may seem best for the interest of the children of the testator, and
to reinvest the proceeds arising from such sale in such other property
as he may think best for the testator's children, the executor has an
absolute discretionary power of sale, as a trustee, in the same manner
as he would have held the title if it had been specifically devised to
him. Hughes v. Washington et al. 84.
4. To make contracts in relation to real estate of testator. A party
living in Virginia owned real estate in Illinois, and a judgment was
rendered against him in the circuit court of the United States, for the
Northern District of Illinois, in 1860, from which he took an appeal to
the Supreme Court of the United States. There were also deeds of
trust on his property in Illinois. In 1861 he was killed in the confede-
rate army, having made a will, containing this clause: " I constitute
and appoint my brother, R. B. Washington, Wm. T. Alexander, and E.
C. Turner, executors of this my last will and testament ; and I hereby
empower them, or the survivor or survivors of them, to sell any prop-
erty of which I may die possessed, and which is beyond the limits of
Virginia, in such manner, and on such terms and for such price, as to
them or him may seem best for the interest of my children, and to re-
invest the proceeds arising from such sale in such other property as
they may think best for my children." The executor resided in Rich-
mond, Virginia, and had no means to provide for prosecuting the appeal
.in the Supreme Court of the United States, except the property in Illi-
nois : Held, that the executors were authorized, under the will and the
peculiar circumstances of the case, to make a contract to give to an
attorney an interest in the real estate in Illinois, in consideration of his
attending to and protecting the interest of the estate in relation thereto,
and also attending to the cause in the Supreme Court of the United
States, and that such a contract, if fairly made, should be enforced.
Ibid. 84.
Revocation op will by marriage.
5. Marriage, under our statute making husband and wife heirs to
each other where there are no children or descendants of a child, is, in
INDEX. 723
WILLS. Revocation op will by marriage. Continued.
the absence of facts arising subsequent to marriage showing an inten-
tion to die testate, a revocation of a will, made by the husband prior to
his marriage, by which he disposed of his whole estate without making
provision in contemplation of the relations arising out of it. The rule
in Tyler v. Tyler, 19 111. 151, adhered to. American Board of Commis-
sioners for Foreign Missions et al. v. Nelson, 564.
Revocation op executed trust by will. See TRUSTS, 6, 7.
WITNESSES.
Competency.
1. Of defendants not competent, in suit hy an administrator. In a
suit by the administrator of a mortgagee to foreclose a mortgage against
the mortgagor and subsequent purchasers from him, such subsequent pur-
chasers are not competent witnesses on behalf of the defendants to prove
payments on the mortgage. Bozster v. Byrne, 466.
2. And the fact that such subsequent purchasers hold under a war-
ranty deed, upon which they might have a remedy over against their
grantor in case of their suffering damage from the mortgage, would not
change the fact of their having a direct interest in the removal of the
incumbrance from their land, and therefore being incompetent wit-
nesses. Ibid. 466.
3. In a suit by administrators of an estate, upon a note given to their
intestate in his lifetime, neither of the defendants is a competent witness
on the question of an alleged alteration of the note by the deceased,
even though one of them is only a surety for the other. Lowman v.
Aubery et al. 619.
4. Wife for the husband. Where a debtor transf erred to his creditor
securities in payment of his own debt, the residue of the proceeds to be
applied to the payment of other debts owing by the debtor to third per-
sons, in a suit by the debtor against such creditor for a failure to make
proper application of the fund, the wife of the plaintiff is not a compe-
tent witness in his behalf, under the act of 1867. Meyer v. Hartman^
442.
Impeachment.
5. Proof of testimony on a former trial. Evidence as to what a
witness may have sworn to on a former trial, is only competent for the
purpose of affecting the credibility of such witness, and can not be
used to prove the facts previously sworn to. Bafferty v. The People, 37.
6. Where the defense, on an indictment for murder, is, that, at the
time of the killing, the deceased was assisting an officer in illegally
arresting the defendant, the burden of proving that fact is on the de-
fendant, and evidence that the officer, on a former trial of the case, testi-
fied that the deceased was so assisting him, is not competent to prove
the fact, but is only competent so far as it affects the credibility of the
724 INDEX.
WITNESSES. Impeachment. Continued.
officer, when, on anojher trial, he testifies that such was not the fact.
Bafferty v. The People, 37.
WRIT OF ERROR.
When it lies
1. To what judgment it will lie' Where there was a demurrer filed to
the first count of a declaration, and a plea of the general issue to the
second count, the judgment of the court sustaining the demurrer to the
first count leaves the cause pending upon the second count, and the
general issue filed thereto, and there is no final judgment to which a
writ of error will lie. Smith Bridge Co. v. Louisville, New Albany and
St. Louis Air Line Railway Co. 506.
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