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REPOKTS
CASES AT LAW AND IN CHANCERY
ARGUED AND DETERMINED IN THE
SUPREME COURT OF ILLINOIS.
1STOEMAN L. FEEEMAN,
REPORTER.
VOLUME LXXIY.
CONTAINING ADDITIONAL CASES SUBMITTED AT THE SEPTEMBER TERM, 1874
PRINTED FOR THE REPORTER.
SPRINGFIELD:
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.
WEED, PARSONS AND COMPANY,
PRINTERS AND STERE 0TTPER8,
ALBANY, N. Y.
JUSTICES OF THE SUPREME COURT
DURING THE TIME OF THESE REPORTS.
Hon. PINKNEY H. WALKER, Chief Justice.
Hon. SIDNEY BKEESE,
Hon. WILLIAM K. McALLISTER,
Hon. JOHN M. SCOTT,
) t\ TTSTTOT5S
Hon. BENJAMIN K. SHELDON,
Hon. JOHN SCHOLFIELD,
Hon. ALFKED M. CRAIG,
ATTORNEY-GENERAL,
JAMES K. EDSALL, Esq.
REPORTER,
NOBMAN L. EBEEMAN.
CLERK IN THE SOUTHERN GRAND DIVISION,
B. A. D. WILBANKS, Mt. Yernon.
CLERK IN THE CENTRAL GRAND DIVISION,
E. C. HAMBURGHER, Springfield.
CLERK IN THE NORTHERN GRAND DIVISION,
CAIRO D. TRIMBLE, Ottawa.
Digitized by the Internet Archive
in 2012 with funding from
State of Indiana through the Indiana State Library
http://archive.org/details/reportsofcasesatv74illi
TABLE OF OASES
REPORTED IN THIS VOLUME.
A. PAGE.
Adam ads. Young 480
Akhurst ads. Purington et al.. . . 490
Albee, Admx. v. Wachter 173
Allen v. Stenger 119
Ainbre v. Weisliaar 109
Ames ads. Hulett 253
Armstrong v. The People ex rel.
Rumsey 178
Ashley v. Johnson et al 392
Atkins ads. Huston et al 474
B
Bailey ads. Taylor 178
Baird v. Underwood 176
Baker et al. ads. Boskowitz. .... 264
Baldwin et al. v. Pool 97
Balenseifer ads. Forbes 183
Bank of Chicago v. Hull 106
Barbour ads. Bradley 475
Barnes v. Ehrman 402
Bartlett ads. Muiholland 58
Bauer et al. v. Bell 223
Beck ads. The Teutonia Life Ins. 476
Co. of Chicago 165
Bell ads. Bauer et al. 223
Bidwell ads. Fry 381
Biggs et al. v. Gapp et al 335
Blazey v. Delius et al 299
Blumle, The People ex rel. v.
Neill et al 68
Bock et al. ads. Boettcher 332
PAGE.
Boettcher v. Bock et al 332
Boskowitz v. Baker et al 264
Bowers v. The People 418
Bradley v. Barbour 475
Brady ads. Knox et al 476
Brown ads. Kendall 232
Bryson ads. Scott 420
3yrd ads. Jones 115
o
Carney v. Tully et al 375
Carrington et al. ads. Walker. . . 446
Catholic Bishop of Chicago v.
Chiniquy et al 317
Chicago, Burlington and Quincy
Railroad Co. v. Van Patten,
admx 91
Chicago and Iowa Railroad Co.
et al. v. Pinckney et al 277
Chicago and Northwestern Rail-
way Co. v. Dickinson et al. . . . 249
ads. Taylor 86
Chicago, Rock Island and Pacific
Railway Co. v. Riley 70
Chiniquy et al. ads. The Catholic
Bishop of Chicago 317
Clapp et al. ads. Biggs et al 335
Cleland v. Porter 76
Collins et al. v. Thayer 138
Cunningham v. Ferry et al 426
ads. Noble et <d 51
TABLE OF CASES REPORTED.
PAGE.
D
Daggett ads. Rupley et al 351
David M. Force Manf . Co. v. Hor-
ton et al 310
Delius et al. ads. Blazey et al . . . 299
Derrick v. Laniar Ins. Co 404
Dickinson et al. ads. Chicago and
Northwestern Railway Co. . . . 249
Dorr, Town of, v. Town of Sen-
eca 101
Drury v. Stolz et al , 107
D wight, Village of, v. Palmer. . . 295
E
Eames et al. v. The Germania
Turn Verein 54
Ebert ads. 111. Cent. R. R. Co. . . 399
Edwards v. Farmers' Ins. Co. . . . 84
Enrich v. White 481
Ehrman ads. Barnes 402
Elgin, City of, ads. Elgin Hy-
draulic Co 433
Elgin Hydraulic Co. v. City of
. Elgin 433
F
Farmers' Ins. Co. ads. Edwards. 84
Ferry et al. ads. Cunningham. . . 426
First National Bank of Morrison
ads. Guffin et al 259
First National Bank of Sioux
City ads. Missouri River Tele-
graph Co 217
Fisher ads. Whitman 147
Fonville et al. v. Monroe et al. . . 126
Forbes v. Balenseifer 183
Fournier et al. ads. Keller 489
Frazer v. Board of Supervisors
of Peoria County 282
Fry v. Bid well 381
Gc
Gage ads. Hough 257
Garrett et al. ads. Tuttle 444
Germania Turn Verein ads.
Eames et al 54
PAGE.
Gilsdorff^ al. ads. Taylor et al. 354
Gould et al. ads. Stinson 80
Graves ads. Kelly 423
Guffin et al. v. First National
Bank of Morrison 259
H
Hall v. Hamilton 437
Hamilton ads. Hall 437
Hansen et al. v. Rounsavell. . . 238
Harbaugh v. City of Monmouth. 36?
Hatch et al. v. Jordon 414
Hayes et al. v. Hayes et al 312
Hay ward v. Ramsey 372
Heiman v. Schroeder 158
Hollingsworth et al. ads. Stevens 202
Horton et al. ads. The David M.
Force Manuf. Co. 310
Hough v. Gage 257
Hulett v. Ames 253
Hull ads. Bank of Chicago 106
Hurlbut et al. v. Johnson et al. . . 64
ads. Knight 133
Huston et al. v. Atkins 474
Illinois Central R. R. Co. v. Ebert, 399
International Bank ads. Kassing
et al 16
Johnston ads. Toledo, Peoria &
Warsaw Ry, Co 83
Johnson et al. ads. Ashley 392
ads. Hurlbut et al 64
Jones v. Byrd 115
Jordon ads. Hatch et al 414
K
Kassing et al. v. International
Bank... 16
Kauff ads. Marsh 189
Keller v. Fournier et al 489
Kelley v. Graves 423
e. Trumble 428
Kendall v. Brown 232
TABLE OF CASES REPORTED.
PAGE.
Kirby ads. Miller et al 242
Knight v. Hurlbut et al 133
Knox et al. v. Brady 476
L
Lamar Ins. Co. ads. Derrick 404
Laparle et al. ads. Nispel et al. . 306
Lawlor v. The People 228
Lincoln v. McLaughlin 11
Lowe ads. Senichka 274
Lowitz ads. Parmelee 116
M
Manyx, The People ex rel. v.
Whitson 20
Marsh v. Kauff 189
Marshall v. Tracy 379
Mason et al. v. Patterson et al.. . 191
McBean ads. McLean 134
McClenahan ads. Peoria and
Rock Island Railway Co 435
McCord ads. Yoe 33
McKichan ads. Stuart . . 122
McLaughlin ads. Lincoln 11
McLean v. McBean 134
Meacham ads. The People 292
Milwaukee & St. Paul Railway
Co. v. Smith 197
Miller, People ex rel. v. Otis 384
Miller et al. v. Kirby 242
Missouri River Telegraph Co. v.
First National Bank of Sioux
City 217
Mitchell ads. Peoria and Rock
Island Railway Co 394
Mix et al. ads. Vail et al 127
Mohler et al. v. Wiltberger 163
Monmouth, City of, ads. Har-
baugh 367
Monroe et al. ads. Fonville et al. 126
Morehouse v. Moulding et al. . . . 322
Moulding et al. ads. Morehouse. 322
Mulholland v. Bartlett 58
N
Neill et al. ads. The People ex rel.
Blumle 68
PAGE.
Nispel v. Wolff 303
Nispel et al. v. Laparle et al. . . . 306
Noble et al. v. Cunningham .... 51
o
Olmstead ads. Richardson et al. 213
Otis ads. The People ex rel. Mil-
ler 384
P
Palmer ads. The Village of
Dwight 295
Parker et al. v. Piatt et al 430
Parmelee v. Lowitz 116
Patterson et al. ads. Mason et al. 191
People ads. Bowers 418
<ads. Lawlor 228
- — v. Meacham 292
ads. Plummer 361
ads. Smith 144
v. Tompkins 482
ads. Warriner 346
People ex rel. Blumle v. Neill
et al 68
ex rel. Manyx v. Whitson. . 20
ex rel. Miller, Collector, v.
Otis 384
ex rel. Rumsey ads. Arm-
strong 178
People for use Weller Township
ads. Sleight et al 47
Peoria County, Board of Super-
visors of, ads. Frazer 282
Peoria and Rock Island Railway
Co. v. McClenahan 435
v. Mitchell 394
Pierce et al. v. Plumb 326
Pinckney et al. ads. The Chicago
and Iowa Railroad Co. et al. . . 277
Pittsburg, Ft, Wayne and Chi-
cago Ry. Co. v. Powers 341
Piatt et al. ads. Parker et al 430
Plumb ads. Pierce et al 326
Plummer v. The People . . 361
Pool ads. Baldwin et al 97
Porter ads. Cleland 76
TABLE OF CASES REPORTED.
PAGE.
Powers ads. Pittsburg, Ft.
Wayne and Chicago Railway-
Co 341
Purington et al. v. Akhurst 490
:r
Raber ads. Zearing 409
Ramsey ads. Hay ward 372
Richardson et al. v. Olmstead. . . 213
Riley ads. The Chicago, Rock Is-
land and Pacific Railroad Co. . 70
Rounsavell ads. Hanson et al. . . 238
Rumsey, The People ex rel. ads.
Armstrong 178
Rupley et al. v. Daggett 351
S
Sawyer et al. ads. Wilson 473
Schroder ads. Heiman 158
Scott v. Bryson 420
Scranton, in re 161
Seneca, Town of, ads. Town of
Dorr 101
Senichka v. Lowe 274
Sleight et al. v. The People, use
of Weller Township 47
Smith ads. The Milwaukee and
St. Paul Railway Co 197
v. The People 144
Springfield and Illinois South-
eastern Railway Co. v. County
Clerk of Wayne Co. et al 27
Stenger ads. Allen . . 119
Stevens v. Hollings worth et al. . 202
Stinson v. Gould et al 80
Stolz et al. v. Drury 107
Stuart v. McKichan 122
T
Taylor v. Bailey 178
v. Chicago & Northwestern
Railway Co 86
Taylor et al. v. Gilsdorff et al. . . 354
Teutonia Life Ins. Co. of Chi-
cago v. Beck 165
Thayer ads. Collins et al 138
PAGE
Toledo, Peoria and Warsaw Rail-
way Co. v. Johnston 83
Tompkins et al. ads. The People. 482
Tracy ads. Marshall 379
Trumble ads. Kelly 428
Tally et al. ads. Carney 375
Tuttle v. Garrett et al 444
Tyler et al. ads. Western Union
Telegraph Co 168
tJ
Underwood ads. Baird 176
V
Vail et al. v. Mix et al 127
Van Patten, Admx. ads. Chicago,
Burlington and Quincy Rail-
road Co 91
w
Wachter ads. Albee, Admx 173
Walker v. Carrington et al 446
Warriner v. The People 346
Wayne County, Clerk of, et al.
ads. Springfield and South-
eastern Railway Co 27
Weishaar ads. Ambre 109
Weller Township, The People
for use of, ads. Sleight et al. . 47
Western Union Telegraph Co.
v. Tyler et al 168
White ads. Ehrich 481
Whitman v. Fisher 147
Whitson ads. The People ex rel.
Manyx 20
Wilson v. Sawyer et al 473
Wiltberger ads. Mohler et al 163
Wolff ads. Nispel.. 303
Y
Yoe v. McCord 33
Young v. Adam 480
z
Zearing v. Raber 409
CASES
SUPREME COURT OF ILLINOIS.
NORTHERN GRAND DIVISION.
SEPTEMBER TERM, 1874.
Lucius A. Lincoln
v.
Hannah E. McLaughlin.
1. Practice — leave to file additional pleas is discretionary with the
court. It is purely discretionary with the court, whether to allow a
defendant to file an additional plea or not, after he has pleaded in bar to
an action, unless it be a plea puis darrein continuance, and it is not only no
error for a court to refuse such leave after a jury has been impaneled to
try the cause, but it would be almost an abuse of discretion to grant it.
2. Pleading — de injuria sufficient replication to plea of justification in
trespass. In an action by a married woman for trespass to her separate
property, against an officer who levied upon it as the property of her hus-
band, and justifies under his writ, averring that the property belonged to
the husband, a replication de injuria is sufficient.
3. Pleading and evidence — abuse of authority cannot be shown under
replication deinjuria. Where a plea of justification to an action of trespass
sets up that the supposed trespass was committed under and by virtue of an
execution against one who owned an interest in the goods taken, if the de-
fendant in execution had in fact no interest in the goods, a replication d«
12 Lincoln v. McLaughlin. [Sept. T.
Opinion of the Court.
injuria is sufficient, but if lie had some interest and the plaintiff desires to
rely upon an abuse of authority in making the levy, he should reply speci-
ally setting up such abuse.
4. Where a defendant, in an action of trespass for levying on goods,
justifies under an execution against the husband of plaintiff, alleging that
he owned the goods or an interest in them, if the plaintiff replies de
injuria, she takes the hazard of proving title to the goods wholly in her
self, and if she does so she must recover.
5. Married woman. A husband out of debt, or when it does not injure
existing creditors, may settle property on his wife, either by having it con-
veyed directly to her, or to another in trust for her, and subsequent credi-
tors cannot reach it, and money realized from the sale of such property
will be hers.
Appeal from the Circuit Court of Whiteside county ; the
Hon. W. W. Heaton, Judge, presiding.
Messrs. Kilgour & Manahan, for the appellant.
Messrs. Sackett & Bennett, and Mr. C. L. Sheldon, for
the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
The first objection urged is, that the court erred in re-
fusing appellant leave to file an additional plea after the
jury were impaneled to try the cause. It has always been
regarded as purely discretionary with the judge, after a de-
fendant has pleaded in bar to an action, to file additional
pleas, unless it be a plea jpw/s darrein continuance. As a gen-
eral rule a defendant has ample time to prepare his pleadings
before the commencement of the term. But in this case not
only so, but there had been a trial, the verdict set aside, and
leave given to defendant to file additional pleas, which he had
done. Thus it is seen he had the entire vacation to prepare
such pleas. When a trial had been had developing all the
facts of the case — thus having several months to prepare
pleas that attorneys usually require but a few hours to do — it
1874.] Lincoln v. McLaughlin. 13
Opinion of the Court.
would almost have been an abuse of discretion for the court at
that stage of the proceedings to have delayed the case, the busi-
ness of the court, occasioning expense in that and other causes,
and inconvenience to other parties, witnesses and jurors,
when the plea would only have presented a defense already
made, and when we can see that no right would have been
protected.
It is next urged that when appellant pleaded a justification
and appellee replied de injuria, to be able to show an
abuse of authority appellee should have new assigned and
relied upon the abuse of authority as constituting a trespass
ab initio.
Chitty, in his work on Pleadings, p. 671, lays down the rule
thus : " There are some pleas which rather partake of the
nature of new assignments than are properly and strictly so.
As, where the defendant abused authority or license which the
law gives him, by which he became a trespasser ab initio. In
an action brought for a trespass thus committed, when the de-
fendant pleads the license as authority, the plaintiff may reply
the abuse. Such a replication, it will be observed, diners from
a new assignment, because it does not operate in any manner
as a waiver or abandonment of the trespass attempted to be
justified, but states matter in confession and avoidance of the
justification." And there is the further difference that the
pleadings all relate to one and the same trespass.
There is nothing in this case which requires such a replica-
tion. The question presented was, whether appellant wrong-
fully, and as a trespasser, levied on appellee's property to pay
the debt of her husband. If the property was hers, then he
became a trespasser, and liable for all damage she sustained
thereby. If it was her separate property, and the jury, we
think, have rightfully so found, the officer had no more right
to seize it than he had that of any other stranger to the execu-
tion. We also find that there is, in our opinion, no evidence
tending to prove that the husband and wife were joint owners
of the property, to justify a levy, upon which to predicate an
14 Lincoln v. McLaughlin. [Sept. T,
Opinion of the Court.
abuse of authority by selling the wife's interest, as well as that
of the husband. Had there been such evidence, then it may
probably be true that the abuse of the authority should have
been specially replied. The party, by failing to so reply, took
the hazard of proving title in appellee, and has rightfully suc-
ceeded, and hence such a replication is wholly unnecessary to
sustain the verdict.
In this case there was no claim or pretense that there was
not means of appellee appropriated to the purchase and im-
provement of the lot, and that a large portion thereof was
derived from other persons than her husband. It appears that
the amount thus furnished was more than equal to the value of
the property in controversy. If witnesses are to be believed,
and they, so far as we can see, stand unimpeached, she received
money from her father and brothers, that was applied to the
purchase of the lot and materials, and that they did much the
greater part of the work on the building. A small portion
only of the labor was paid for by the husband. And even if
he did perform labor on the house, and paid some small bills
for labor, and even if a portion of the earnings of the wife, to
which the husband was entitled, were thus appropriated, still
this was done, so far as we can see, when the husband owed
nothing, and before he owed the execution creditors any thing.
In the case of McLaurie v. Partlow, 53 111. 340, it was
held, that where a wife's money purchased property which was
conveyed to the husband, who afterward conveyed it, his
wife joining in the deed, to a third person, in trust for the wife,
it was held the wife could hold the property. And this,
too, although a portion of the money was so received from his
father's estate before, and part after the passage of the act of
1861, enabling married women to hold separate property. It
was there held, that in such a case she would be protected
under the act of 1861, so far as concerned that received after
the adoption of the act by force of its provisions, and as to all
previous to that time, it would, under such circumstances, be
tried upon the broad principles of equity and justice. It was
1874.] Lincoln v. McLaughlin. 15
Opinion of the Court.
again held in Haines v. Haines, 54 111. 74, that where a hus-
band purchased land with his own money, and without fraud
procured it to be conveyed to his wife, it thereby became as
much her separate property as if it had been purchased with
money belonging to her before marriage ; that on its sale the
purchase money received by her therefor will be regarded as
her separate property. Nor would she lose the legal right to
it or its avails, by placing it in the hands of her husband for
the purpose of building her a house.
But it is said that was a divorce case, and only involved
rights as between the husband and wife. The doctrine has
been long recognized and is undisputed, that a husband out of
debt, or when it does not injure existing creditors, may settle
property on his wife, either by having it conveyed directly to
her, or to another to hold in trust for her, and subsequent
creditors cannot reach it. So in this case, if the husband was
not in debt, and even by his labor purchased the lot and had it
conveyed to his wife, the lot became hers, and all the
improvements made upon it, with his and her means, alsc
vested in her. And property or money received on its being-
sold, would be hers. Then nothing appearing to show the
husband was indebted when the lot was purchased and im-
proved, no reason is perceived why appellee did not hold the
lot by an absolute title as her separate property, and when
sold, why the consideration paid for the lot was not hers.
But it is said the description in the deed is so defective that
the conveyance was void. This, we think, is a clear misap-
prehension. It is said that the survey will not close on the
last call. It calls for a line of a certain course to the place of
beginning. This court has held so often, that we can hardly
expect to be called on to repeat it, that both course and distance
must yield to monuments placed, or natural objects when
adopted as corners. And it is so plain that we need but state
the proposition, that to close the survey it is only necessary to
run from the last preceding corner to the place of beginning to
close the call. That is the object to which the surveyor is
16 Kassing et al. v. International Bank. [Sept. T.
Syllabus.
required to run, without reference to the course or distance,
unless a deflected line is called for and coincides with a line to
that corner. We do not see the semblance of an objection to
the validity of the deed.
But even if the deed was defective, we fail to see that it
could matter, as appellee, at any rate, had an equitable title,
and when that was given for the property in controversy it
manifestly formed a sufficient consideration given by her for
this property, to vest the title in appellee, as her sole and sepa-
rate property. So that, in any view the case can be presented,
the evidence clearly shows this was appellee's separate prop-
erty. And it is so manifest that we are not willing to disturb
the verdict, although there may be slight inaccuracies in one or
two of the instructions. Justice has been manifestly done by
the rinding of the jury, and the judgment of the court below
must be affirmed.
Judgment affirmed.
Cheistian; Kassing et al.
Intebnational Bank.
1. Pleading and evidence. Evidence tending to prove payment may
be introduced under the general issue.
2. Surety — his right under deed of trust given to indemnify him. Where
a surety on a note deposits with the holder a deed of trust executed by the
principal to indemnify him against his liability as surety, and afterward,
upon proceedings in bankruptcy against him, compromises with the holder
by giving other notes for a less amount, with personal security, or is dis-
charged from his liability on the original note, he will be entitled to have
the proceeds of a sale under the deed of trust applied to the payment of
the notes so given in discharge of the original note.
Appeal from the Superior Court of Cook county; the
Hon. Joseph E. G-ary. Judge, presiding.
1874.] Kassing- et ah v. International Bank. 17
Opinion of the Court.
Mr. George W. Parkes, for the appellants.
Messrs. Rosenthal & Pence, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
This was an action of assumpsit, brought to the Superior
Court of Cook county, by the International Bank against
Christian Kassing and John H. Kassing, on three promis-
sory notes executed by the defendants to the plaintiff.
The general issue and a release were pleaded, and the cause
submitted to the court for trial, who found for the plaintiff
and assessed the damages at eleven hundred and twenty-three
dollars and fifty cents, for which judgment was rendered.
The defendants bring the record here on appeal, and assign
for error that the finding is against the law and the evidence.
The facts are briefly these: One August Walbaum was
indebted to the International Bank in the sum of three thou-
sand five hundred dollars, for which, on March 1, 1871, he exe-
cuted his note, with Christian Kassing, one of the appellants,
security, without any consideration received by him, purely as
an act of friendship. To indemnify him, however, for this
act, a trust deed was executed by Walbaum on ten acres of
land, which he valued at one thousand dollars per acre. This
trust deed Christian Kassing deposited with the bank as col-
lateral to this note. After the great fire of October, 1871,
proceedings in bankruptcy were instituted against Christian
Kassing, and he compromised with his creditors, among whom
was this bank holding this note. The bank, with other credi
tors, signed an agreement, to accept of him forty per cent and
release him. It was a part of the agreement, for this satisfac-
tion and discharge, that Christian Kassing should execute his
notes at seven per cent, payable in nine, fifteen and eighteen
months, to bear date of June 1, 1872, each for one-third part
of this forty per cent, and be signed by John H. Kassing, a
brother of Christian, as joint maker thereof. It was agreed
and promised that, on the receipt of the notes, a full acquit-
3— 71th III.
18 Kassing et al. v. International Bank. [Sept. T.
Opinion of the Court.
tance and discharge of Christian's indebtedness should be given
to him by the creditors, this bank among them, and the pro-
ceedings in bankruptcy be set aside.
These notes are the three notes, the subject of this contro-
versy, and measure the forty per cent due from Christian
Kassing on his guaranty of the note for thirty-five hundred
dollars executed by Walbaum on the compromise. This was
all the indebtedness of Kassing to the bank. These notes in
suit represent the sum total of that indebtedness, and there was
paid on them by Kassing, before the commencement of this
suit, three hundred and thirty dollars and ninety cents, and
since its commencement the further sum of four hundred and
ninety-nine dollars.
The land conveyed by the trust deed so deposited by Kass-
ing with the bank was sold by the trustees at the instance of
the bank, and purchased by the president of the bank, as he
testifies, on his private account, for the sum of twenty-six
hundred and fifty-five dollars. After deducting the expenses
of the sale, the net proceeds amounted to twenty-five hundred
and eighty-three dollars, which the president of the bank testi-
fies was applied as a credit on Walbaum's note, of which Chris-
tian Kassing was a joint maker, as before stated.
Appellants contend such was an improper application of
those proceeds. They insist they should be applied first to
the extinguishment and satisfaction of the notes in suit, and
the balance applied on Walbaum's debt. And this is the
only important question in the case, as it appears to us, though
not fully presented by appellants in their brief.
It is in proof this deed of trust was designed and executed
as an indemnity to Christian Kassing, to secure him for signing
the note with Walbaum of thirty-five hundred dollars. By the
compromise and sealed agreement of the bank, the payee of
this note, and Kassing, he was released from all but forty per
cent of the note, which, leaving out the interest, amounted to
fourteen hundred dollars and no more. This was the total
1874.] Kassing et al. v. International Bank. 19
Opinion of the Court.
indebtedness of Kassing to the bank at the time of the com-
promise.
It was known to the bank Kassing was a mere security —
that he signed the note for the accommodation of Walbaum,
without any valuable consideration moving to him. If this
trust deed was executed for the benefit of Kassing, and that is
fully established by the testimony, then, clearly, Kassing was
entitled to the benefit of the proceeds of the sale under it.
The proceeds should, therefore, be applied to his indemnity,
the deed of trust being executed for that very purpose. If so
applied the notes in suit were largely overpaid. Payment of
a note can be given in evidence under the general issue. This
was the doctrine of the common law prior to the rules adopted
at Hilary term in the fourth year of the reign of William IV.
1 Oh. PL (9th Am. ed. 477 and 516) note f ; 1 Lord Kaym.
219; Baylies et al. v. Fettyplace, 7 Mass. 325. This court
said in Crews v. Bleakley, 16 111. 21, that evidence tending
to prove payment might be given in evidence under the gen-
eral issue. The only objection to this doctrine is that plaintiff
might be taken by surprise, but that could rarely be, as he is
presumed to know all the facts of his case. It appears to us
from the proofs, these notes have been fully paid by the sale
of the land which was specially conveyed in trust for the ben-
efit of Kassing, although it appears to have been made to
secure the payment of a note by Walbaum, payable to himself
for the same sum of thirty-five hundred dollars, which was
merely collateral to the first note of that amount. Why the
transaction assumes that form we are not advised, but the fact is
incontestible that the deed of trust was for the benefit of Kassing.
The plea of release interposed was not a proper plea in the
case, for the notes in suit were the consideration of a release
from sixty per cent of the original indebtedness. They are
the offspring of the compromise and have been fully paid.
The finding of the court, therefore, was erroneous, and the
judgment must be reversed.
Judgment reversed.
20 The People ex rel. v. Whitson. [Sept. T.
Opinion of the Court.
The People ex rel. Michael Manyx
v.
Geokge T. Whitson.
1. Habeas corpus — prisoner not discharged for mere <error in order of
commitment. If the judgment upon which a prisoner is held in custody is
merely erroneous and subject to be reversed on writ of error, he will not
be discharged upon habeas corpus. But if the court had no power or juris-
diction to render such judgment, the prisoner should be discharged on
habeas corpus.
2. Amendments — of record at a subsequent term of court. Courts have
no power or jurisdiction to amend their record of a judgment in a criminal
case, at a subsequent term of court.
3. Where a defendant in a criminal case has suffered punishment accord-
ing to a legal sentence, a second judgment in the same case, even if ren-
dered at the same term of court, is void.
4. Criminal law — verdict of guilty as to part is an acquittal as to bal-
ance of the counts in the indictment. A verdict of guilty as to a part of the
counts in the indictment is an acquittal as to the other counts, and in such
case it is necessary that the verdict should specify upon which of the
counts the defendant is guilty.
5. It would be error to sentence a prisoner upon counts other than those
upon which he is found guilty.
This was an application to this court for a writ of habeas
corjpus.
Mr. Edgar Anderson, and Mr. John C. Bagby, for the
relator.
Mr. Edward P. Tail, for the defendant.
Mr. Justice McAllister delivered the opinion of the Court :
The questions for decision in this case arise upon habeas
corpus, awarded at a former day of this term upon the petition
of Michael Manyx, alleging that he was unlawfully imprisoned
by the sheriff of Schuyler county, by virtue of a supposed final
1874.] The People ex rel. v. Whitson. 21
Opinion of the Court.
judgment or sentence of the county court of that county. In
support of which allegation various matters were set forth, and
certified copies of the record of said court, so far as material to
the questions raised, were attached to the petition and made a
part thereof. By the return of the sheriff, which merely sets
forth a copy of the judgment as the cause of the caption and
detention of relator, and a stipulation between his counsel and
the State's attorney, the record of proceedings in the county
court is before us, with the same effect as if it had been sent
up in return to a writ of certiorari accompanying that of ha-
beas corpus.
The case before us is this : At the March term, 1874, of
the county court of Schuyler county, the State's attorney, upon
affidavits filed, and by leave of the court, filed an information
against Manyx for alleged violations of the act approved Jan-
uary 13, 1872, entitled " An act to provide against the evils
resulting from the sale of intoxicating liquors," etc., the infor-
mation containing more than one hundred counts. The case
was tried upon a plea of not guilty, and a verdict returned of
guilty, as charged in the complaint, upon forty counts. Where-
upon, at that same term, as appears by the record, the court
sentenced the prisoner to ten days' imprisonment upon each
count. On this judgment relator was, on the 26th day of
March, 1874, committed to the county jail of that county, and
there confined until the 26th day of June, when he was dis-
charged upon a writ of habeas corpus, issued upon the pris-
oner's petition, by Chief Justice Walker, at chambers,
on the ground that, by the terms of the sentence entered of
record, the prisoner had undergone the punishment to which
he was sentenced, all of the terms having commenced and ended
simultaneously.
It is conceded by the State's attorney that there was no judg-
ment entered for any fine or costs, and he does not question
the propriety of the ruling of the chief justice in discharging
the prisoner for the reason stated. And we may add, that,
although neither the county court nor this court have any right
22 The People ex ret. v. Whitson. [Sept. T.
Opinion of the Court.
to review that decision, yet in our opinion, it was, upon well-
settled legal principles, entirely correct.
That decision did not involve the question whether it was
competent for the court to have entered consecutive judgments,
of so many days' imprisonment on each count, when no partic-
ular counts of the one hundred and five contained in the infor-
mation were specified as comprising the forty on which he was
found guilty, or whether consecutive judgments can be entered
without a statute authorizing it. It was sufficient that, so far
as appeared by the record, there was no attempt to enter con-
secutive judgments. The judgment was entire. The several
sentences of imprisonment, if they could be called several, were
concurrent in point of time, and when one had run, they had
all expired. 1 Bishop's Cr. Proc, § 1129 ; Miller, Warden,
etc., v. Allen, 11 Ind. 389 ; James v. Ward, 2 Mete. (Ky.)
271 ; Buck v. The State, 1 Ohio St. 61.
After the prisoner was so discharged upon habeas corpus,
and at the August term, 1874, of the county court, at the
March term whereof he had been convicted and sentenced, as
above stated, said court, upon the petition of the State's attor-
ney, and ten days' notice to the prisoner, entered an order amend-
ing the judgment of the March term, and directing the same
to be entered nunc pro tunc, to the effect that defendant,
Michael Manyx, be imprisoned in the county jail for the term
of ten days, and fined in the sum of $20, on each of the forty
offenses or counts, of which the jury in their verdict found him
guilty. The term of imprisonment on each subsequent count
after the first to begin on the termination of the term of im-
prisonment on the one next preceding, and that he be impris-
oned until such fine and costs of prosecution herein are paid
And therefore it is considered and ordered by the court that
the People of the State of Illinois recover of the said defend-
ant, Michael Manyx, the sum of $20 fine for each of the several
forty counts of the information of which the jury found him
guilty, being in the aggregate the sum of $800, and also theii
costs herein, and may have execution therefor.
1874. j The People ex rel. v. Whitson. 23
Opinion of the Court.
Upon a certified copy of this last-mentioned order of judg-
ment, Manyx was re-arrested by the sheriff, and committed to
the county jail of Schuyler county, and which the sheriff, in
his return to the writ of habeas corpus issued by this court, has
set up as the cause of the prisoner's caption and detention.
If the entry at the August term of the order amending the
judgment of the March term was a mere error, which would
subject it to reversal upon writ of error, then we have no au-
thority to discharge upon habeas corpus. But if, on the other
hand, the county court had no power or jurisdiction to make
it, then it is absolutely void, and we not only have authority,
but it is our duty, to discharge the prisoner from that unjust,
because unlawful, imprisonment.
Amendments in criminal cases are entirely excepted out of
the operation of the statute of amendments and jeofails, and
the question of the power of the court to alter or amend its
judgments at a subsequent term is therefore to be determined
by the common law.
The rule, 'as laid down by Starkie, in his work on Criminal
Pleading, is, that during the term, assizes or session, in which
judgment is given, it remains in the breast of the court, and
he states that the line imposed, or any other discretionary pun-
ishment, may be varied, but he adds, that after the term it
becomes matter of record and admits of no alteration. 1 Stark.
Cr. PL 262.
Chitty says : " In case of misdemeanors, it is clear the court
may vacate the judgment passed, before it becomes matter of
record, and may mitigate or pass another, even when the latter
is more severe. And the justices at sessions have the same
power during the sessions, because it is regarded as only one
day ; but they cannot do it at any subsequent period, unless an
adjournment be entered on the roll, and no court can make
any alteration when once the judgment is solemnly entered on
the record." 1 Chit. Cr. Law, 721.
So Archbold says: "A judgment pronounced by a court of
oyer and terminer, or jail delivery, may be altered or amended
24: The People ex rel. v. Whitson. [Sept. T.
Opinion of the Court.
by the judge at any time during the same assizes ; a judgment
by a court of quarter sessions may be altered at any time dur-
ing the same sessions, and a judgment of the court of Queen's
Bench, at any time during the same term ; provided the sen-
• tence be not actually entered of record." 1 Arch. Cr. Pr. &
PI. (Am. ed.) 186.
In The State v. Harrison, 10 Yerg. (Tenn.) 542, the
court observed, that the judge, during the term, is a living
record ; and, therefore, during that period of time, he may
alter and supply, from his own memory, any order, judgment
and decree- which has been pronounced, and this, because hav-
ing made them himself, he is presumed to retain them in his
recollection. But at common law, after the term had elapsed,
the judge had no such power, because it was supposed that
there would be a period at which a judge would cease to retain
in his memory the things which had been ordered and ad-
judged ; and that period, it was well conceived, might be the
end of term, as he would be apt to dismiss from his
thoughts the things which had been previously passing in
them. It is, however, a very delicate power and might be sub-
ject to much abuse, especially in criminal cases, if the extent
' to which it might be carried was not well defined, and prop
erly checked, by law.
By analogy to this principle, it has been held that in criminal
cases before a justice of the peace, the power of that magistrate
is completely exhausted when the record of conviction has
been made and signed, and final commitment made. The
People v. Duffy, 5 Barb. 205 ; The People v. Brown, 23
Wend. 47.
In the recent and very interesting case, Ex parte Lange, 18
Wall. 163, the power of the court, in criminal cases, to alter
its judgment, after the prisoner has suffered part of the punish-
ment under it, received a very exhaustive discussion in the
Supreme Court of the United States. Lange had been indicted
in the United States circuit court, under the act of congress,
for stealing, etc., certain mail bags belonging to the post-office
1874.] The People ex rel. v. Whitson. 25
Opinion of the Court.
'department. Upon trial he was found guilty, and the value
of the bags appropriated was found to have been less than $25.
In that case the punishment provided by the act is imprison-
ment for not more than one year or a fine of not less than ten
nor more than two hundred dollars. The court sentenced the
prisoner upon that verdict to one year's imprisonment and to
pay a fine of $200 ; on which he was committed to jail in
execution of the sentence. The next day after his commitment
he paid the fine to the clerk, who turned it over to the United
States treasurer. Some five days afterward, the prisoner was
brought before the court, at the same term, and an order was
entered vacating the former judgment and the prisoner was €
again sentenced to imprisonment for one year from that date.
Having been committed on this latter sentence, 'he applied to#
the Supreme Court for the writ of habeas corpus and certiorari,
and return having been made of the proceedings in the circuit
court, it was held that the second sentence was a' nullity, on i
the ground that, while the first sentence was irregular in tkat-it
included both imprisonment and fine, while the law affixed but
one, still it was not void, and the prisoner having suffered part
of the imprisonment and paid the fine, which had gone into
the treasury, and that being one of the punishments prescribed
for the offense of which he was found guilty, the second sen-
tence was, in effect, to punish the prisoner twice for the same
offense, and prohibited by both the common law and bill of
rights ; that the second sentence was therefore void, and the
prisoner entitled to be discharged.
That case is not so clear as the case at bar. There, the court,
in the first sentence of Lange, added to his punishment more
than the law permitted. Fine and imprisonment were both
imposed when the statute required that it might be one or the
other, but did not authorize both. In the case in hand the
statute required both fine and imprisonment, and the court
imposed only the latter. The people could not have sued out
a writ of error for the omission to add the fine, and the error
being in the prisoner's favor he could not have taken advan-
4 — 74th III.
26 The People ex rel. v. Whitson. [Sept. T.
Opinion of the Court.
tage of it. So that, if the first sentence was not void in Lange's"
case, it certainly was not in the case at bar. The sentence
being legal and the prisoner having suffered the punishment
according to the legal effect of that sentence, the second judg-
ment was void according to the ruling of Lange's case, without
reference to the question of the want of power to enter it at a
subsequent term.
The State's attorney takes a very singular position. He says
the clerk did not enter the sentence which the court pro-
nounced, and therefore there was no judgment at the March
term, and it was entirely competent for that reason to enter
one at the subsequent August term, nunc pro tunc / that this
is not the amendment of a judgment but the entry of one
where there had been none before.
This attempt to argue about a matter which admits of no
argument necessarily runs into absurdity. The record of the
proceedings in the cause shows that there was a verdict ren-
dered upon an information containing one hundred and five
separate counts, of guilty upon forty counts, without any speci-
fication of which counts they were. This was necessarily a
verdict of acquittal upon sixty -five counts, but which ones they
were nobody can tell. It is a rule founded in good sense, that
where there are numerous counts in an indictment, and the
jury find the defendant guilty of some of the charges, and not
guilty of others, it is necessary that they should point out with
certainty upon what charges they find guilty and of what they
acquit, and it would be error to sentence the prisoner upon
counts other than those upon which he is found guilty. Wood-
ford v. The State, 1 Ohio St. 427.
Here, the prisoner was tried on an information containing
one hundred and five distinct charges or counts. The jury
return a verdict of guilty upon forty counts, without pointing
out in any manner which they were, and the court and State's
attorney fail to have the verdict corrected and made more
specific. In that form it becomes a part of the record. Now
what judgment can the court pronounce ? Upon what counts
1874] S. & III. S. E. Ky. Co. v. Co. Clerk et al. 27
Syllabus.
of the information will he give judgment % If he declared con-
secutive judgments, as the State's attorney says he did, where
would he begin ? Upon the first count ? How did the court
know but the prisoner was acquitted upon that % So it will
readily be seen that the judgment which was entered of record
by the clerk, was the only safe and proper one which could
have been entered upon that verdict. But however that may
be, a judgment was in fact entered that the prisoner be im-
prisoned ten days upon each count, the legal effect of which
was that the time began concurrently upon each. When the
term elapsed, that entry became conclusive evidence of what
the judgment was, and to say that the supposed judgment,
entered at the subsequent term, which comprised forty consecu-
tive sentences, is not an alteration of that former judgment, is
sheer nonsense. If valid, it would be a serious alteration.
But the court had no power or jurisdiction at a subsequent
term to make it. Hence it is void, and the prisoner must be
discharged from imprisonment under it.
Relator discharged.
Springfield & Illinois Southeastern Railway Co.
v.
The County Clerk of Wayne County et al.
1. Mandamus — will not be awarded in doubtful cases. The writ of man-
damus is one of the extraordinary remedies provided by law, and should
never be awarded unless the party applying for it shows a clear right to
have the thing sought by it done and by the person or body sought to be
coerced. In doubtful cases it should not be granted.
2. The petitioner in an application for a mandamus, like a plaintiff in an
ordinary case, is bound to state a case prima facie good.
3. Taxation to pay donation to railroad — certificate of election — by lohom.
When the law requires the trustees of a township to certify the result
of an election on the question of a donation to a railroad company, to the
county clerk, a petition for a mandamus to compel the county clerk tc
548 S. & III. S. E. Ry. Co. v. Co. Clerk et al. [Sept. T.
Opinion of the Court.
extend a tax to pay such donation, which alleges that a majority of the
votes cast were in favor of such donation, and that that fact was certified
by the town clerk to the county clerk, and that the town clerk was the
proper officer to so certify, is bad on demurrer.
4. Election in respect to donation — identity of proposition voted upon.
And where the petition shows that two propositions were submitted
to the people of a town upon the question of a donation to a railroad com-
pany, one for the levying of a tax, and the other for issuing bonds to pay
such donation if made, and that a majority of the votes cast were in favor
of " said proposition," a mandamus to compel the county clerk to extend
the tax mentioned in the first proposition will not be awarded.
This was a petition presented in this court for a mandamus.
Mr. Thomas W. Ewart, and Mr. H. Tompkins, for the peti-
tioner.
Mr. James McCartney, for the respondents.
Mr. Justice Scott delivered the opinion of the Court :
This is an original proceeding in this court, commenced by
the Springfield and Illinois Southeastern Railway Co., for a man-
damus to compel the county clerk of Wayne county to extend
a tax on all the taxable property in Barnhill township in that
county, to raise a sum sufficient in the aggregate to pay the
amount of a donation alleged to have been made by a vote of
the inhabitants, on the 10th day of November, 1868, to the
"Illinois Southeastern Railway Company." The petitioners
bring this suit for the use of Cutler, Dodge & Co.
By the act of the general assembly, approved February 25,
186V, certain persons therein named were created an incorpo-
ration by the name of " The Illinois Southeastern Railway
Company," and authorized to construct a railroad from some
suitable point on the Chicago branch of the Illinois Central
Railroad, running thence by the way of Fairfield, in Wayne
county, to the Ohio river.
It was further provided that any town in any county, under
township organization, was authorized to make a donation to
1874.] S. & III. S. E. Ey. Co. v. Co. Clerk et al. 29
Opinion of the Court.
said company, not to exceed in amount the sum of $30,000, if
a majority of all the votes cast by the legal voters of such
township at an election called for that purpose be in favor of
the proposition.
In pursuance of the provisions of the act of incorporation,
the directors of the company submitted to the legal voters of
Barnhill township, "Wayne county, a county under township
organization, a proposition to be voted upon at an election to
be held on the 10th day of November, 1868, in substance as
follows :
First. That the town of Barnhill donate to the Illinois
Southeastern Railway Company the sum of $20,000, to be paid
in three equal installments, by a tax levied upon all the taxable
property in the township, respectively in the years 1869, 1870
and 1871, but not to be paid over to the railway company until
it had complied with certain conditions therein specified, and
in case the company never complied with the conditions, the
funds so raised were to be paid over to the proper authorities
of the town of Barnhill, to be disposed of as other township
funds.
Second. That if the necessary legislation could be obtained
from the State legislature at the next session, authorizing and
empowering the town of Barnhill to issue township bonds pay-
able in five years, or at any time thereafter, not exceeding
twenty years, at the option of the town, bearing interest at the
rate of ten per cent per annum, the company would receive
such bonds in lieu of the amount to be raised by taxation, as
provided in the first clause of this proposition, and in that
event the tax was not to be levied.
The proposition was published in a newspaper published in
the county of Wayne, as required by law, and the town clerk
of the town of Barnhill gave the requisite notice of the election.
It is averred a majority of all the votes cast at the election was
in favor of accepting the proposition, and that the result of
such election was certified to the county clerk by the town clerk
of Barnhill township.
30 S. & III. S. E. Ey. Co. v. Co. Clerk et al. [Sept. T.
Opinion of the Court.
It is further represented, the legislature at its next session
after the election passed an amendatory act to the company's
original charter, approved February 21, 1869, in and by which,
among other things, the donation voted by the inhabitants of
the town of Barnhill was declared legalized, and the town wTas
authorized to issue bonds for the amount of the donation corre-
sponding in sums, time of payment and interest with the propo-
sition submitted at the election, without submitting the
question of paying the donation in bonds to a vote at an elec-
tion to be called for that purpose. But it is alleged, the ques-
tion of paying the donation in bonds was subsequently sub-
mitted to the inhabitants of the town, and that the vote was
against the proposition, and thereby the donation became pay-
able in money, as specified in the first clause of the propo-
sition originally submitted, the whole line of the road having
been completed and the cars running thereon through the town
of Barnhill, and within the corporate limits of the town of
Fairfield on the 1st day of June, 1870.
It is further represented, that by virtue of the powers vested
in the corporations by their respective charters and the general
railroad law of 1849, the " Illinois Southeastern Railway Com-
pany," and the " Northwestern Railroad Company," both at
the time in process of construction, in the month of February,
1870, by their mutual agreement, consolidated, making one con-
tinuous line of railroad from Shawneetown, through Barnhill
township and within the limits of the incorporated town of
Fairfield, to Edgewood, on the Chicago branch of the Illinois
Central Railroad, and thence in a northwesterly direction,
through the city of Springfield, to Beardstown, on the Illinois
river, adopting as the name of the consolidated company " The
Springfield and Illinois Southeastern Railway Company," and
by the agreement of consolidation and the laws of the State
authorizing the same, all the franchises, rights, property, real,
personal and mixed, choses in action and claims of whatever
nature belonging to the constituent companies, became and
were vested in the consolidated company.
1874.] S. & 111. S. E. Ky. Co. v. Co. Clerk et al. 31
Opinion of the Cpurt.
It is also represented the several installments of the dona-
tion have long since become due, according to the terms of the
proposition submitted, yet the county clerk of Wayne county,
although requested by petitioner, through its officers, has re-
fused to extend the tax upon the property of Barnhill town-
ship, to raise a sum sufficient to pay the amount of the alleged
donation.
These constitute the substance of the material allegations of
the petition, to which the respondents have tiled a demurrer,
upon which the cause has been submitted for decision.
The writ of mandamus is one of the extraordinary remedies
provided by law, and should never be awarded unless the party
applying for it shall show a clear right to have the thing sought
by it done, and by the person or body sought to be coerced.
In doubtful cases it should not be granted. The People v.
Hatch, 33 111. 9 ; The People v. The Mayor of Chicago, 51
id. 17.
The petitioner is bound, like a plaintiff in an ordinary case,
to state a case prima facie good, and the question is, has it
been done in this case 1 We think some of the objections
taken by the demurrants must be sustained.
It was certainly not the duty of the county clerk to extend
the tax on the property in Barnhill township, until there was
legitimate evidence on file in his office that a vote had been
taken in the town, authorizing the tax to be levied for the pur-
poses demanded. The law under which the vote was taken
provided the result of the election upon the proposition to make
the donation should be certified by the " trustees of said town,"
to the county clerk in the county in which the town is situated,
before he is authorized to extend the tax to pay the donation.
The certificate required by law to be made by the " trustees of
said town," has not and cannot be made, for the reasons there are
no such officers in towns organized under the general township or-
ganization law. The allegation is, the result of the election in this
case was certified by the town clerk of the town of Barnhill.
who, it is alleged, was the proper officer to make such certificate
32 S. & III. S. E. Ky. Co. v. Co. Clebk at al. [Sept. T.
Opinion of the Court.
The answer is, the town clerk was not authorized, by the law
under which the vote* was taken, to certify the result, nor was
it his duty by any general law to make any such certification.
Being without authority of law, the certificate of the result of
the election made by him was an absolute nullity. Hence it
cannot be said there was any legitimate evidence in the county
clerk's office that an election had been held in Barnhill town-
ship on the 10th day of November, 1868, or at any other time,
for the purpose of voting on a proposition to make a donation
to the railway company. How could the county clerk know
that a majority of the votes cast at that election was in favor
of the proposition submitted. The certificate of the town
clerk was no evidence of that fact, and it is not claimed there
was any other evidence on file when petitioner made the de-
mand on the county clerk to extend the tax. This view of the
law is not answered by the suggestion, the demurrer admits the
allegation in the petition, that a majority of the votes cast at
the election was in favor of the proposition submitted ? That
fact was not known to the county clerk officially, when the de-
mand was made upon him to extend the tax. Hence he was
not authorized to act. The right to do the act sought to be
coerced must exist at the time the party is called upon to per-
form it. The writ, if awarded, could confer no new authority.
The People v. Hatch, supra.
There is, however, an ambiguity in the statement of petition-
er's cause which would constitute a technical ground for sus-
taining the demurrer. The proposition submitted to the voters
of Barnhill township, at the election called to be held on the
10th day of November, 1868, was twofold : first, to donate
$20,000 in money to be paid in three equal installments, by
taxes to be levied and collected respectively, in the years 1869,
1870 and 1871 ; and second, to pay the amount of the donation
by the issuing of township bonds, and in that event the tax was
not to be levied.
It is alleged a majority of the votes cast at the election was
" for said proposition." What proposition did the people ac-
1874.] Yoe v. McCord. 33
Syllabus.
cept ? There were two propositions submitted. If the latter
was accepted, the tax which petitioner now seeks to have levied
was not to be levied at all. It is not distinctly alleged, nor does
it clearly appear, the inhabitants of the town of Barnhill ever
consented by any vote that any tax should be levied upon the
property of the township to pay a donation to the railway com-
pany, and without such consent none could be levied.
The petitioner has not shown that clear right, nor indeed
any right at all to the relief sought, and hence the demurrer
must be sustained. Judgment will be rendered for the respond-
ents.
Judgment affirmed.
Peter L. Yoe
Andrew McCord.
1. Will — what proof necessary to admit to prolate. The statute requires
a party producing a will for admission to probate in the county court to
prove nothing but its formal execution and that the testator was of sound
mind and memory at the time of its execution,
2. The statute does not require that a will should be signed iu the pres-
ence of two or more credible witnesses. It is sufficient if two attesting
witnesses heard the testator acknowledge that he signed it.
3. An instruction that signing and acknowledging a will is not suffi-
cient to entitle it to probate, but that it must further appear that it was
the actual deed of the testator, requires more than the statute, and is for
that reason wrong.
4. Same — testimony of subscribing witness need not be in icords of the
statute. It is not necessary that a subscribing witness to a will should
state on oath in so many words that he believed the testator to be of sound
mind and memory. It is sufficient if he so declares in legal effect.
5. Same — meaning of sound mind and memory. If the testator's mind
is sound, although his memory may be impaired, he is of sound mind and
memory in the sense in which the phrase is used in law, and, in order to
destroy the capacity of a person to make a will on account of failure of
5 — 74th III.
34 Toe v. McCord. [Sept. T.
Opinion of the Court.
memory, the failure must be total or extend to his immediate family and
property.
6. If the mind and memory of a testator are sufficiently sound to enable
him to know and understand the business in which he is engaged at the
time of executing his will, then he is of sound mind and memory within
the meaning of the law.
7. On the trial of the question as to whether a will shall be admitted to
probate, an instruction that if the jury believe, from the testimony of the
subscribing witnesses, that the testator was of unsound mind or memory,
they should find against the will, makes an unwarrantable distinction
between " sound mind " and " sound memory," calculated to mislead the
jury, and should not be given.
8. Same — what facts will invalidate a will is a question of law, and not to
be left to a jury. What acts of fraud or improper conduct in procuring the
execution of a will, will invalidate it, is a question of law, and a jury should
not by an instruction be left at liberty to invalidate a will for what accord-
ing to their own notions may be improper conduct sufficient for that pur-
pose.
9. Same — question of capacity to make a will left to a jury most be general.
The question as to the capacity of a testator, when submitted to a jury,
should be, had he the capacity to make a will, not had he the capacity to
make the will produced.
10. Same — undue influence over testator implies something wrongful. It is
not unlawful for one by honest advice or persuasion to induce a testator to
make a will or influence the disposition of his property by will. To viti-
ate a will on account of undue influence it must appear that there was
something wrongful, a species of fraud perpetrated.
Appeal from the Circuit Court of Cook county ; the Hon.
E. S.Williams, Judge, presiding.
Messrs. Ayer & Kales, for the appellant.
Mr. Melville "W. Fuller, and Messrs. Holden & Moore,
for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court : \
This was a proceeding, commenced in the county court of
Cook county, on the 6th of March, 1873, by Peter L. Yoe, the
appellant, as executor, for the probate of the will of John Mc-
Cord, deceased. The will was admitted to probate by the
1874] Yoe v. McCord. 35
Opinion of the Court.
county court. Andrew McCord, one of the heirs, took an ap-
peal from this order of the county court to the circuit court
of Cook county, where, upon trial had, the verdict of the jury
was against the will, and judgment was entered accordingly.
From which judgment the executor has taken this appeal.
At the trial below, the probate of the will was resisted on
two grounds : First, that the testator was not of sound mind
and memory at the time of signing or acknowledging the will ;
and, second, that its execution was procured by undue influ-
ence. Some of the attendant circumstances it may be proper
to consider, as bearing upon the legal points to be discussed.
John McCord died on the 1st of March, 1873, at the age
of sixty-nine. The will was executed on the 6th of August,
1872. At the time of his death the decedent resided at the
village of Blue Island, in Cook county, where he had lived
since about April 1, 1871, having at that time removed thither
from a farm upon which he had ever before lived, he being a
farmer by occupation.
On the 28th of November, 1870, his brother, Jason McCord,
a resident of Chicago, died intestate, leaving an estate, consist-
ing principally of improved real property, situated in the busi-
ness portion of Chicago, said to have been worth upwards of
seven hundred thousand dollars. John McCord was the only
heir of his brother Jason, and succeeded to the ownership of
this estate by inheritance. Peter L. Yoe, the appellant, had
been for many years the intimate friend and confidant of Jason
McCord, and employed to some extent in the management of
his business affairs, and John McCord united with him in taking
out letters of administration upon his brother's estate. Yoe
became in fact the acting administrator, transacting pretty
much all the business. On the 23d of December, 1870, soon
after his appointment as administrator, John McCord gave
him a power of attorney to manage all his real estate in Cook
county, Mr. McCord at that time residing on his farm at Ho-
mer, in Will county. In October, 1871, by the disastrous fire
of that month, every building belonging to the Jason McCord
36 Yoe v. McCord. [Sept. T.
Opinion of the Court.
estate in the city of Chicago was totally consumed, there be-
ing among them six large and costly stores. \
On the 27th of November, after the fire, Mr. McCord gave to
Yoe another power of attorney for the management of his real
estate in Chicago, with authority to build upon and improve the
same. At the time of the making of the will only two of the
stores had been rebuilt.
Some time in June, 1872, when Mr. McCord was in Chicago,
he called upon his attorney, Mr. Hosmer, and consulted him
professionally about making a will, and explained to him fully
how he wished to make his will, which agreed substantially
with the one afterward drawn and now in question. About
the last of July Mr. McCord sent for Mr. Yoe, with the view
of making some disposition of his property. Mr. Yoe called
upon Mr. Hosmer, and took the latter with him down to Mr.
McCord's. Mr. McCord told Yoe he had sent for him for the
purpose of dividing and deeding his property to his children,
but on their consultation together, it was decided to make a will.
Mr. Hosmer took down from Mr. McCord, on paper, his di-
rections for the making of the will. The former returned to
Chicago, and drew the will. On the 6th of August, 1872, he,
with Mr. Yoe, went down to Blue Island, taking with them
the draft of the will, and on that day Mr. McCord executed it.
The will, after giving to the widow the homestead and an
annuity of $1,000 a year, divided the property equally among
the children, share and share alike, placing it in the hands of
Mr. Yoe, the executor, as trustee, to manage and pay over the
income, until the youngest child should attain the age of twenty-
one, which will be on the 9th of November, 1883. The value
of the property devised is supposed to be from seven to eight
hundred thousand dollars ; the personal property being worth
not far from $200,000. The testator's children at the time the
will was made were eight in number, three of whom were
minors.
The statute of this State in relation to the execution and
proof of wills, provides as follows :
1874.] Yoe v. McCoed. 37
Opinion of the Court.
k' All wills, testaments and codicils by which any lands, tene-
ments, hereditaments, annuities, rents, or goods and chattels
are devised, shall be reduced to writing, and signed by the
testator or testatrix, or by some person in his or her presence,
and by his or her direction, and attested in the presence of the
testator or testatrix, by two or more credible witnesses, two of
whom declaring on oath or affirmation before the county court
of the proper county, that they were present and saw the testa-
tor or testatrix sign said will, testament or codicil in their pres-
ence, or acknowledged the same to be his or her act and deed,
and that they believed the testator or testatrix to be of sound
mind and memory at the time of signing or acknowledging
the same, shall be sufficient proof of the execution of said will,
testament or codicil, to admit the same to record : Provided,
that no proof of fraud, compulsion, or other improper conduct
be exhibited, which, in the opinion of said county court, shall be
deemed sufficient to invalidate or destroy the same."
By the first clause of contestant's first instruction given to
the jury, they were instructed : " That in all cases the party
propounding a will is bound to prove that the paper in ques-
tion does declare the will of the deceased."
It is to be borne in mind what the nature of this proceeding
is, that it is the exhibition of a will for probate, not a case of
contesting the validity of the will under section seven of the
statute of wills. The probate of the will is not conclusive, but
such section of the present statute provides, that within three
years thereafter (the former one five years), any person inter-
ested, may, by bill in chancery, contest the validity of the will,
when an issue at law shall be made up and tried by a jury
whether the writing produced be the will of the testator or not.
The statute contemplates the proceeding for admission to pro-
bate as summary, requires no notice to be given, and declares
it, in express terms, the duty of the county court to receive
probate of the will without delay.
The statute defines what shall be sufficient proof to admit a
will to probate.
Yoe v. McCord. [Sept. T.
Opinion of the Court.
It requires the party propounding a will to prove nothing
but its formal execution, and that the testator was of sound
mind and memory at the time ; and does not require him to go
further, as the instruction implies, and make proof in addi-
tion, " that the paper in question does declare the will of the
deceased."
The second instruction was, in part, as follows, that the jury
must be satisfied " that said John McOord signed it (the instru-
ment propounded), and that ' he attested it in the presence of
two or more credible witnesses; and it is also necessary that
said two witnesses, if the jury find from the evidence there
were but two, must have declared on oath, on this trial, that
they were present and saw the said John McCord sign said
will in their presence or acknowledge the same to be his act
and deed, and also that they believed the said McCord to be of
sound mind and memory at the time of signing or acknowledg-
ing the same ; and it is also necessary that no proof of fraud,
compulsion or other improper conduct shall have been exhibi-
ted on this trial which the jury shall deem sufficient to invali-
date or destroy the said instrument as the will of said John
McCord, deceased."
The first clause of this instruction requires that the instru-
ment should be signed in the presence of two or more credible
witnesses.
This the statute does not require. If it is acknowledged in
the presence of the witnesses it is sufficient, although they did
not see the testator sign it, or though it was not signed in
their presence. Neither of the attesting witnesses in this case
remembers to have seen the deceased sign the will, but they
both heard him acknowledge it.
By the second clause of this instruction, the jury would natu-
rally be led to infer that it wras essential to the admission of the
will to probate, that the two attesting witnesses should have de-
clared, on oath, in so many words, and according to this particular
formula, " That they believed the said McCord to be of sound
mind and memory at the time of signing or acknowledging
1874.] Yoe v. McCord. 39
Opinion of the Court.
the same." In obedience to such an instruction, the jury could
not well have found a verdict for the proponent. One of the
subscribing witnesses, Roche, after testifying that " Mr. Mc-
Cord's mind was all right as regards sanity," said, he did not
think he had a sound memory ; " that is, I don't think he had
a good memory."
Now, here the witness could not declare, on oath, in so many
words, that he believed the testator to be of sound mind and
memory, and yet he did declare so in legal effect, which was
sufficient. He testified that he thought the testator knew
what property he owned, believed he knew the number of his
children, that he understood about his property, and the natu-
ral objects of his bounty.
If the testator was of sound mind, but of poor or impaired
memory, he was of sound mind and memory, as the phrase is
known in the law. The failure of memory is not sufficient to
create the incapacity, unless it be quite total, or extend to his
immediate family and property. Turner v. Cheesman, 15 N.
J. Eq. R. 243. It was evidently the witness' mistaken idea
that a sound mind was incompatible with a poor memory,
and hence, in his testimony, could not come up to the require-
ment of the instruction, as the jury would naturally take it to
be ; and the tenth instruction is liable to a similar objection.
The last clause of the instruction which we are considering
declared it to be necessary to the admission of the will to pro-
bate, that no proof of fraud, compulsion, or other improper
conduct, shall have been exhibited, " which the jury shall deem
sufficient to invalidate or destroy the said instrument." It is
a question of law what is such improper conduct as will invali-
date a will, and it is only to be avoided by such conduct as the
law deems sufficient for that purpose, not a jury ; and a jury
should not, by an instruction, be left at liberty to invalidate a
will for what, according to their own notions, may be improper
conduct sufficient for that purpose.
The following further instructions were given for the con
testant :
40 Yoe v. McCord. [Sept. T.~
Opinion of the Court.
" 4. The jury are instructed, as matter of law, that if the testi-
mony of the two witnesses subscribing the alleged will of John
McCord, deceased, taken together, satisfies the jury that said
McCord, at the time of the making and execution of the alleged
will, had not a sound memory, nor sufficient mind, nor a mind
in a proper state for disposing of his estate with reason, or
according to any fixed judgment or settled purpose of his own,
then said will should not be admitted to probate, and the jury
should find accordingly."
We regard such an instruction as improper, and calculated
to mislead a jury.
If the testator's mind was sound, that was enough, without
requiring it also to be in a suitable state. A man's mind, his
temper, his disposition, his feelings, may be in an improper
state, without impairing his legal capacity to make a deed or
will.
The jury are also told that the testator's mind must be in a
proper state for disposing of his property according to some
fixed judgment and settled purpose of his own. This is not
the language of the law ; it does not go any way to the enlight-
enment of the jury, and its natural effect is to confuse and
mislead a jury.
" 9. The jury are instructed that if they find, from the evi-
dence given by the two witnesses who subscribed the alleged
will of John McCord, deceased, that said alleged will was made
and executed by him at a time when said McCord was of un-
sound mind or memory, then the jury must find the instrument
in question is not the will of said John McCord."
The expression used in the statute is, "sound mind and
memory." By substituting the disjunctive conjunction " or "
for the copulative " and," as is done in this instruction, an un-
warrantable distinction, as we regard, is attempted to be marked
between " sound mind " and " sound memory."
The expression " sound mind and memory," as used in the
statute, we conceive means nothing more than the words
" sound and disposing mind," frequently employed in reference
1874.] Yoe v. McCord. 41
Opinion of the Court.
to this subject. Here, as elsewhere, the phrase has been treated
by the court as equivalent to the term " sanity." Dickie v.
Carter, 42 111. 377 ; Andrews v. Black, 43 id. 256.
Littleton makes the terms " of non-sane memory," " non
compos mentis," and "not of sound memory," convertible
terms. 2 Co. Litt, § 405. And Coke, in his note, defines one
non coinpos mentis (aside from natural idiots, lunatics and
drunken men), as one that " by sickness, grief, or other acci-
dent, wholly loseth his memory and understanding." Comyn
in his digest, Bacon in his abridgement (title Idiots), employ
the terms in the same way. The statute of wills, 34 and 35
Henry YIII, does the same by providing that no will of lands
shall be valid if made by any idiot or by any person of " non-
sane memory." So that, as known in the law, " sound mem-
ory " is something quite different from good or unimpaired
memory, in which latter sense the subscribing witness, Roche,
evidently understood it. Failure of memory does not consti-
tute unsoundness of memory.
Much testimony in the case consisted of instances of defect
of memory in the deceased, and in view of the evidence, the
variation from the language of the statute, by the use of the
language sound mind or memory, was highly calculated to mis -
lead the jury, in bringing in undue prominence before them
the mistaken notion of the subscribing witness as to what con-
stituted sound memory, and leading them to think it had the
sanction of the court.
"11. It is essential to the sound memory required by the stat-
ute, for the making of a valid will, that the testator should possess
something more than mere passive memory. He must un-
doubtedly retain sufficient active memory to collect in his mind
without prompting, particulars or elements of the business to
be transacted, and to hold them in his mind a sufficient length
of time to perceive, at least their more obvious relation to each
other, and be able to form some rational judgment in relation
to them. And the elements of such a judgment include the
number of his children, their deserts with reference to conduct
6 — 74th III.
42 Yoe v. McCoed. [Sept. T.
Opinion of the Court.
and capacity as well as need, and what he had before done for
them relating to each other, and the amount and condition of
his property.
" And if in this case the jury believe, from the evidence of
the subscribing witnesses to the will in question, taken together,
that John McCord, at the time the said will was made and
executed, did not retain sufficient active memory to collect in
his mind, without prompting, the elements of the business to
be transacted, and to hold them in his mind a sufficient length
of time to perceive their more obvious relations to each other,
and to form a rational judgment in relation to them, that he
did not possess" sufficient memory to realize the nature and
extent of his property, or the number, conduct, and capacity
of his children, then the jury would be justified in finding
that the alleged will is not entitled to be admitted to pro-
bate."
" 13. The jury are instructed that the mere fact of the sign-
ing and acknowledgment of the alleged will by the said John
McCord does not entitle it to be treated or considered as his
will, and that in addition thereto it must appear to the jury,
from the evidence, that it is his actual deed, and if they should
find, from the evidence, that he did not know each and all of
its provisions, then it is not his will."
The first of the two last above instructions was condemned by
this court in Trish et al. v. Newell et al. 62 111. 197, as requir-
ing, or as calculated to impress a jury that there was required
a greater amount of mental capacity and power of memory
than is possessed by, perhaps, the generality of men.
In any thing that might have there been said with reference
to the competency of mind to make the will which may be in
question, we would not wish to have it inferred that we admit
the idea that it is in general a proper question to submit to a
jury, whether the testator had sufficient capacity to make the
particular will produced.
One grossly ignorant, or of very limited mental capacity, if
otherwise of sane mind, may make any instrument, however
1874.] Yoe v. McCord. 43
Opinion of the Court.
complex it may be, and be bound thereby. Written instru-
ments would be very precarious securities of men's rights, if
they were subject to be thus invalidated, and have their validity
depend upon the result of an inquiry before a jury whether,
according to their belief, the maker had sufficient capacity to
make the particular instrument which might be in question.
We agree with the rule as held in Delajield v. Parish, 25
N. Y. 9, that the question is, had the testator, as compos mentis,
capacity to make a will ; not, had he capacity to make the will
produced.
The last above instruction is erroneous in telling the jury
that the signing and acknowledgment of the alleged will was not
sufficient, but that in addition thereto it must appear that it
was the actual deed of the testator. The statute requires no
such thing. The instruction was further wrong in saying that
if the testator " did not know each and all of its provisions,"
then the instrument was not his will.
Most written instruments probably would fail to stand the
test of any such rule.
Writings are constantly passing from one to another in the
every day transactions of business, where the makers are more
or less ignorant of their entire contents, executed often without
reading or hearing them read, in trust upon some other person
for their being correct, where there may be, in fact, no actual
knowledge of what they do contain. A written instrument is not
to be defeated by evidence that the maker did not know each
and all of its provisions. The idea is inadmissible. Where the
testator is shown to have executed an instrument as his will,
being in his right mind, and there is nothing of fraud or impo-
sition, it will be presumed that he was aware of its contents.
The general rule is, that proof of the testator's signature to
the will is prima facie evidence of his having understanding^
executed the same. Weigel v. Weigel, 5 Watts, 486 ; Beall v.
Mann, 5 Ga. 456.
" 20. The jury are instructed, as matter of law, that although
they may believe, from the evidence, that the deceased, John
44 Yoe v. McCord. [Sept. T.
Opinion of the Court.
McCord, was possessed, at the time of the making and execu-
tion of the alleged will in question, of a mind of sufficient
sanity to general purposes, and of sufficient soundness and dis-
cretion to regulate his affairs in general ; yet, if they further
believe, from the evidence, that the proponent, P. L. Yoe,
acquired such dominion and influence over said McCord in rela-
tion to his property as to prevent the exercise of a sound dis-
cretion on his part in relation thereto, and that said Yoe
exerted such dominion and influence over said McCord, in refer-
ence to the making and execution of the alleged will in ques
tion, to such an extent as to substitute for the will said McCord
designed and desired to make, and would have made, if he had
been left in the exercise of mental free agency, a will accord-
ing to the views of said Yoe, then such latter instrument would
not be entitled to probate, and the jury should find accord-
ingly."
We regard this instruction as erroneous, in that it does
not embrace the element of fraud or wrong in the dominion
and influence mentioned in the instruction. It is not unlawful
for a man by honest advice, or persuasion, to induce a testator
to make a will, or to influence the disposition of his property
by will.
Such advice or persuasion will not vitiate a will made freely
and from conviction of its propriety, though such will might
never have been made but for such advice or persuasion. This
does not amount to fraud, compulsion or other improper con-
duct. To avoid a will, the influence which is exercised must
be tmdue, and this, in the legal sense, is something wrongful,
a species of fraud. Dickie et al. v. Garter, 42 111. 376 ; Roe v.
Taylor, 45 id. 485 ; 1 Eedf. on Wills, 514. The instruction
might have been refused, too, as inapplicable, there being no evi-
dence to base it upon.
For the reasons indicated we regard the foregoing instruc-
tions as erroneous.
To define the exact degree of mental capacity requisite to the
making of a valid will is confessedly a difficult task.
1874] Yoe v. McCokd.
Opinion of the Court.
"Where it is attempted, in a multiplicity of instructions to a
jury, it is quite apt to bring error into a record. Observa-
tions made use of in judicial opinions, in illustration of views
upon a point decided, are to be found, which may be well in
reference to the case in hand, and as understood by the profes-
sional mind, but when extracted and embodied in instructions,
as rules for the guidance of a jury in perhaps some entirely
different case, they not infrequently may be inapposite, and
from their vague generality, or metaphysical cast, be of no
practical use to a jury in leading them to a right conclusion,
but, on the contrary, tend to mislead them.
In Home v. Home, 9 Ired. 99, with reference to the
amount of testamentary capacity necessary, it is said it is suffi-
cient if the testator knew what he was doing, and to whom he
was giving his property, and in the note to its citation, in 1
Redfield on "Wills, 125-127, it is said, this is about as accurate
and brief a definition as can be given. Other courts have
declared it in a similar plain form, as, in 7 Serg. & Rawle, 90,
as to making a will, it is said, " There is no standard by which
the understanding is to be weighed, but one : has the party
such a portion of understanding as would enable him to do any
binding act ? " In Kinne v. Kinne, 9 Conn. 104, " Had he an
understanding of the nature of the business he was engaged
in, a recollection of the property he meant to dispose of, and
of the persons to whom he meant to convey it, and the manner
he meant to distribute it between them? or, as was said by
Washington, J., in Stevens v. Vancleve, 4 Wash. C. C. E. 267,
" To sum up the whole in the most simple and intelligible form,
were his mind and memory sufficiently sound to enable him to
know and to understand the business in which he was engaged
at the time when he executed his will ? "
Such plain definitions may be of service to a jury in inform-
ing them as to the legal meaning of sound mind and memory.
In 1 Hedfield on Wills, 123-124, the author states that
" the result of the best considered cases upon the subject seems
to put the quantum of understanding requisite to the valid
4:6 Yoe v. McCokd. [Sept. T.
Opinion of the Court.
execution of a will upon the basis of knowing and compre-
hending the transaction, or in popular phrase, that the testator
should, at the time of executing the will, know and under-
stand what he was about." This last mode of expression of
the doctrine is intelligible to a jury, and embodies about the
whole rule upon the subject, so far as it can be profitably given
to a jury. And whether the testator did thus know and under-
' stand, is a question of fact for the jury, for them to judge of
and determine from all the evidence before them. When a
court undertakes to, inform them what amount of ■ mental
capacity a man must have to know and understand what he is
about, it is futile, and tends rather to mislead than to afford
any practical aid to a jury.
As to the evidence in the case, without entering upon the
review of it in detail, we will remark that, from a full ex-
amination thereof, we see no sufficient reason why the will
should have been refused admission to probate. As before
intimated, we find no proof whatever of undue influence.
The will, in all its parts, was an eminently proper one to be
made, under the circumstances of the testator's property and
family. No doubt the testator's mind had become somewhat
impaired by age, and many instances of defect of memory
appear in evidence. But the deficiency of mind or memory
disclosed falls quite short of amounting to unsoundness oi
mind and memory.
There was clearly testamentary capacity.
If wills are liable to be set aside upon such testimony as is
exhibited in this record, the privilege of disposition of prop
erty by will is an uncertain one indeed.
The judgment of the court below must be reversed.
Judgment reversed.
1874.] Sleight et al. v. The People. 47
Opinion of the Court.
Holmes O. Sleight et al.
The People, etc., for use Weller Township.
1. Taxation — by municipal corporations — constitutional limitations.
Under the constitution of 1848, as well as that of 1870, the legislature is
prohibited from authorizing the corporate authorities of counties, town-
ships, school districts, cities, towns and villages to assess and collect taxes
for any other than corporate purposes ; and it is indTspensable to the valid-
ity of all taxes levied and collected for corporate purposes, that they shall
be uniform in respect to persons and property within the jurisdiction of
the body imposing the same.
2. Same — what is a "corporate purpose.'" A tax imposed for the pay-
• ment of a debt not incurred by the authority imposing the tax, and for the
payment of which it is in nowise responsible, is not for a corporate pur-
pose.
3. Constitutional law — devoting county taxes and township taxes to
the payment of debt of a particular town. A section in a railway charter
provided that the taxes to be collected from the company for county and
township purposes by the several counties and townships through which
the railroad ran, should be set apart by the county treasurer as a sinking
fund to redeem the principal of the bonds issued by any township or
townships in such county. It was claimed that the county taxes and the
township taxes levied upon the railroad by two townships, which had issued
no bonds, should have been set apart to create a sinking fund for two town-
ships which had issued railroad bonds, but the court held that this could
not be constitutionally done, as its effect was to devote taxes levied for
county and township purposes to the payment of the debt of the town-
ships which had issued their bonds, and to that extent increased the taxes
in the county and the other two townships to make up the deficiency thus
caused in their revenue, and therefore the law was unconstitutional and
void.
Appeal from the Circuit Court of Henry county ; the Hon.
George W. Pleasants, Judge, presiding.
Mr. C. Dunham, and Mr. T. E. Milohkist, for the appellants
Mr. T. G. Atres, and Mr. H. Bigelow, for the appellee.
48 Sleight et al. v. The People. [Sept. T.
Opinion of the Court.
Mr. Justice Scholfield delivered the opinion of the Court :
This is an action of debt against the treasurer of Henry
county and his sureties, on his official bond, and the breach of
duty charged is in refusing to set apart, as a sinking fund,
and account to the town of Weller for certain taxes collected
from the American Central Railway Company, for county and
township purposes, in the years 1869, 1870, and 1871. The
road of that company runs through the towns of Oxford, Clover,
Weller, and a portion of G-alva, in Henry county. Of these,
Weller and Galva alone subscribed to the capital stock of the
company, and issued their bonds in payment of the subscrip-
tions. By the tenth section of an amendment to the company's
charter, approved February 21st, 1859 (Laws of 1859, p. 529),
it is enacted that " the taxes to be collected from said railroacb
company for county and township purposes, by the several
counties and townships through which said railroad runs, shall
be paid to and set apart by the county treasurer as a sinking
fund, to redeem the principal of the bonds issued by any town-
ship or townships in such county."
The claim is made, and the court below held, that the entire
tax collected from the railway company for county and town-
ship purposes, in the several towns through which the roaf
runs, should be paid to and set apart by the county treasurer
as a sinking fund, to be applied pro rata in redeeming the
principal of the bonds issued by the towns of Weller and
G-alva.
By § 5, art. 9, Const. 1848, it is provided: "The corpor-
ate authorities of counties, townships, school districts, cities,
towns, and villages, may be vested with power to assess and
collect taxes for corporate purposes ; such taxes to be uniform
in respect to persons and property within the jurisdiction of
the body imposing the same. And the General Assembly shall
require that all the property within the limits of municipal
corporations, belonging to individuals, shall be taxed for the
payment of debts contracted under authority of law." And
by § 2 of the same article, it is required " that all taxes shall
1874.] Sleight et al. v. The People. 49
Opinion of the Court.
be levied by valuation, so that every person and corporation
shall pay a tax in proportion to the value of his, her or its
property." Corresponding provisions will be found in §§ 1, 9,
and 10, in art. 9 of the present constitution.
These are limitations upon the legislative department, pro-
hibiting the enacting of laws conferring upon the corporate
authorities of counties, townships, school districts, cities, towns,
and villages, power to assess and collect taxes for any other
than corporate purposes, and requiring, as an indispensable con-
dition to the validity of all taxes levied and collected for
corporate purposes, that they shall be uniform in respect to
persons and property within the jurisdiction of the body im-
posing the same. Harward v. St. Clair Drainage Co., 51
111. 130 ; Primm v. City of Belleville, 59 id. 142 ; Trustees,
*eto., v. The People, 63 id. 300.
A tax cannot be levied for county or township purposes on
property which is not subject to the jurisdiction of the authority
levying the tax ; and the property of the railway company in
the county, and in each township, must be subject to the same
taxation as other taxable property there situated, for county
and township purposes ; and no property can be held for the
payment of a county or township tax which is not levied for a
corporate purpose.
Without undertaking to define what is a corporate purpose,
it is very certain that a tax imposed for the payment of a debt
not incurred by the authority imposing the tax, and for the
payment of which it is in nowise responsible, is not for a
corporate purpose.
Neither Henry county, nor the towns of Oxford or Clover,
made any subscription to the capital stock of this railway com-
pany, or incurred any indebtedness, by issuing bonds or other-
wise, on account thereof. Nor are they either indebted to the
towns of Weller and Galva.
Neither Henry county, nor the town of Oxford or Clover
could, therefore, levy and collect a tax in excess of the amounts
needed for their respective corporate purposes, and equal to
7— 74th III.
50 Sleight et al. v. The People. [Sept. T.
Opinion of the Court.
the amount claimed for this sinking fund, because such a tax
would not be for a corporate purpose.
But the claim here made is for taxes actually levied and col-
lected for county and township purposes, from the railway com-
pany, in the towns of Oxford and Clover. If this amount shall
be taken, then there must necessarily be a deficiency, to that
extent, in the county and township revenues, which will have
to be supplied by additional taxation. The property liable to
taxation in one municipality will thus be compelled to bear a
burden of taxation imposed by the corporate authority of a
different municipality, and this, too, without its consent, and in
the absence of any presumptive corresponding benefits. The
principle upon which alone this can be sustained is, that the
legislature may, in its pleasure, impose debts upon counties and
townships and require their payment, without regard to the
wishes of the inhabitants and tax payers of such counties and
townships ; for it is evident that the practical result is precisely
the same, whether it is said the taxes levied for county and
township purposes on the property of the railway company,
in the towns of Oxford and Clover, shall be set apart for the
payment of the bonds issued by the towns of "Weller and Galva,
or that the county and these townships shall pay a sum equal
to that amount, out of their revenues, for the same purpose.
In either event, it is taking so much of the revenues of the
county, and of the towns of Oxford and Clover, to pay the
debts of the towns of "Weller and Galva. But it has been
repeatedly held by this court that the legislature is power-
less to impose a debt upon a municipality without its con-
sent ; and those cases must be deemed conclusive on the ques-
tion involved here. The People, etc., v. The Mayor, etc., 51
111. 18; People v. Salomon, id. 38 ; People v. Chicago, id. 58 ;
Madison Co. v. The People, 58 id. 463 ; Messier v. The
Drainage Corners, 53 id. 105 ; Lovingston v. Wider, id. 302.
The judgment is reversed and the cause remanded.
Judgment reversed.
1874. ] Noble et al. v. Cunningham. 51
Opinion of the Court.
John T. Noble et al.
John Cunningham.
1. Agent and principal — when principal liable for tort of agent. If
a tort is committed by an agent in the course of his employment while
pursuing the business of his principal, and is not a willful departure from
such employment and business, the principal is liable although done with-
out his knowledge*
2. Negligence — putting car in motion without means of stopping it.
It is negligence for persons engaged in loading cars on a railroad track to
put a car in motion without making any provision for stopping it, or ex-
amining to see whether the brakes are in £rder, or examining to see
whether any person is on or about other cars on the same track with which
the one put in motion will necessarily collide, and if injury results to one
who is guilty of no negligence himself, the parties putting the car in motion
will be liable.
Appeal from the Superior Court of Cook county ; the Hon.
John Burns, Judge, presiding.
Mr. John Yan Arman, for the appellants.
Messrs. Hervey, Anthony & G-alt, and Mr. John C. Rich-
berg, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action on the case, brought by John Cunning-
ham, in the Superior Court of Cook county, against appellants,
John T. Noble and Francis B. Little, to recover for an injury
received, resulting in the loss of a hand, caused by the moving
of a car on the side track of the Illinois Central Railroad Com-
pany, in the city of Chicago, by the servants of appellants.
A trial of the cause was had before a jury, which resulted
in a verdict and judgment in favor of appellee for $3,000.
The appellants insist first, that the verdict is unsupported by
the evidence.
We have carefully considered the testimony contained in the
52 Noble et al. v. Cunningham. [Sept. T.
Opinion of the Court.
record, and find it ample upon which to base the verdict of the
At the time appellee was injured, he wras a laborer in the
employ of the Illinois Central Railroad Company ; two cars
were standing together on a side track of the company ; he went
under one of them for the purpose of making some repairs ;
before doing this, however, he placed a man by the side of the
car to keep watch and notify him should any other car or
engine approach ; several feet north of the car to be repaired,
upon the same track, stood a number of cars, also three cars
were standing some distance south.
Appellants, who kept a lumber yard in Chicago, on the morn-
ing of the accident sent three of their hired men with lumber
to the railroad to be carred and shipped. The car to be loaded was
one of the number standing on the track, north of where ap-
pellee was at work. The servants of appellants, in order to facili-
tate the loading of the car, undertook to move the cars between
the one they desired to load and the car where appellee was
at work, further south in the direction of appellee. They
hitched a span of horses to the first car to be moved and started
it, but when in motion they were unable to control it, and be-
fore appellee had any notice of the approach of the car, it struck
the one adjoining the car appellee was repairing, which moved
it forward and crushed appellee's hand.
The railroad company had, in its employ, a man, provided
with an engine, whose duty and business it was to move all
cars when necessary to accommodate its patrons.
It is claimed application was made to the agent to move the
car, and the engine provided for that purpose was then in use,
and the three servants of appellants were directed by the agent
to move the cars themselves ; this, however, was denied by the
agent.
But independent of this fact, if the servants of appellants
undertook to move the car, they were bound to exercise proper
care and caution, and if they failed to observe this duty, and
appellee was injured, when in the exercise of due care, through
1874.] Noble et ah. v. Cunningham. 53
Opinion of the Court.
the neglect and want of ordinary care on the part of the ser-
vants of appellants, the damages sustained by appellee must
be visited upon appellants.
There is no pretense that appellee failed to observe due care
and caution at the time of the accident. The controverted ques-
tion is whether appellants' employees were guilty of negligence.
They set in motion the car without making any provision
whatever for stopping it ; the brake upon it was out of order
and could not be used. This they failed to examine. No blocks
were permitted to be used in stopping the car ; no examination
was made to see if any person was under or about the cars the
one moved was bound to come in collision with. In fact no pre-
cautions were taken to guard against danger. Under such
circumstances the facts before the jury were sufficient to justify
them in arriving at the conclusion that the negligence of ap-
pellants' servants was the cause of the injury.
It is, however, urged that appellants are not liable for the
negligence of their servants in moving the car.
The general 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 them. If the. tort is committed by the
agent in the course of his employment while pursuing the busi-
ness of his principal, and is not a willful departure from such
employment and business, the principal is liable, although done
without his knowledge.
The three men who moved the car were in the employ of
appellants. They were sent to the railroad to load a car with
lumber ; for the purpose of doing the act they were sent and
directed to do, they undertook • to move the car. The act of
moving the car was a part and parcel of loading the other ; it
was not only no departure from the employment but will be
regarded in the direct course of. the employment.
It is insisted that it was error for the court to permit proof
that an agent of the railroad company said to the servants of
appellants, after the accident, that they should never load a car
54 Eames et al. v. The Germania Turn Yereest. [Sept. T.
Syllabus.
in the yard again. Even if the evidence was improper, its
admission had no tendency to prejudice the appellants. The
same may be said in regard to the declaration of the witness
Remsey, to which objection was made.
It is also urged by the counsel of appellants, in a very elab-
orate and ingenious argument, that the instructions given for
appellee were improper, and that the court erred in refusing
certain instructions asked by appellants.
While some of the instructions given may be liable to slight
technical objections, yet we fail to perceive any substantial
error in the law as given by the court to the jury.
The instructions placed the case fairly before the jury.
They contained nothing calculated to mislead, and after a care-
ful consideration of the whole record we are satisfied it contains
no substantial error. The judgment will therefore be affirmed.
Judgment affirmed.
Henry F. Eames et al.
v.
The Germania Turn Verein.
1. Lien of a money decree. Where a decree finds a specific sum of
money due from one party to another, and orders a sale of specific prop-
erty, and in case not enough is realized from such sale to pay the amount
that an execution issue, such decree is a money decree, within the mean-
ing of the fourteenth section of the chapter entitled Chancery, of the
Revised Statutes of 1845, and becomes a lien upon the real estate of the
party against whom it is rendered, the same as a judgment at law.
2. The lien of a money decree, like that of a judgment at law, only con-
tinues for one year after it is rendered, unless an execution is issued
within that time.
Appeal from the Circuit Court of Cook county ; the Hon
John G-. Rogers, Judge, presiding.
1874.] Eames et al. v. The Germania Turn Yereest. 55
Opinion of the Court.
Messrs. Sleeper & Whiton, for the appellant.
Mr. Adolph Moses, for the appellees.
Mr. Chief Justice Walker delivered the opinion of the
Court :
Appellees, being desirous of erecting a hall for the use of their
society, and of purchasing a suitable site for the same, entered
into negotiations with the agents of appellants for the purchase
of certain real estate in the city of Chicago. A written agree-
ment was entered into, by which appellees were to pay $33,000,
in installments, the deferred payments to draw eight per cent
interest. Five hundred dollars was paid when the writing was
executed, and was to be part of a $9,000 payment in cash.
The purchasers were to have ten days for the examination and
approval of title, after being furnished with an abstract. If it
proved not to be good, the $500 thus paid was to be refunded,
but in case no valid objections were found, and the first pay-
ment not made, the sellers were to hold the deposit, as liqui-
dated damages, and the contract to become null and void.
Time was made of the essence of the contract. Appellees to
receive a good and sufficient warranty deed, and to give notes
and trust deed as security for the deferred payments. The
contract was dated June the 8th, 1870, and the abstract of
title was soon after furnished.
An attorney was consulted, and he pronounced the title good.
Thereupon appellees paid at various times the aggregate sum
of $2,500 on the purchase. The time for the first payment
was extended. But a member of the organization not being
satisfied with the title, had it examined by Rosenthal & Pence,
who decided that the property was subject to the lien of a de-
cree of over $51,000. The vendors were informed of the fact,
and promised to have it removed, or to have it made right.
Notice was given to Rosenthal & Pence by Eames, that, unless
payments were made according to the terms of the agreement,
he would resell, and in case of loss would hold the company
56 Eames et al. v. The Germania Turn Yerein. [Sept. T.
Opinion of the Court.
liable for the difference. He also stated that he was prepared
to convey a perfect title in fee, on appellees complying with
their contract. And appellees gave notice that they declared
the contract ended on account of the lien of the decree.
An action was brought by the company to recover back the
money paid on the purchase. A trial was had before the court,
resulting in a judgment in favor of plaintiffs, from which de-
fendants have appealed to this court.
The decree against Gage was rendered on the 17th day of
June, 186S, when he was the owner of this property sold by
Eames and wife to appellees. Eames and wife subsequently ac-
quired Gage's title to the portion of the property which they
sold to appellees. And to this portion of the property no
other objection is interposed to the title, but the supposed lien
of the decree against Gage. It finds that Gage and others were
indebted to Lawrence in the sum of $51,288.99, and they were
ordered to pay it in ten days, or in default thereof that the
property involved in that suit should be sold by the master,
and if it failed to produce a sum sufficient to pay the decree,
that then an execution should issue for the balance. This was
strictly in accordance with the act of 1865 (Sess. Laws, p. 36).
Was this decree a lien on the property of Eames and wife at
the time of the sale ? The fourteenth section of the chapter
entitled " Chancery " R. S., 1845, declares that " a decree for
money shall be a lien on the lands and tenements of the party
against whom it is entered, to the same extent and under the
same limitations as a judgment at law." That this was, either
in whole or in part, a money decree, we think cannot be con-
troverted. It finds a specific sum to be due, decrees its pay-
ment, orders specific property to be sold, and if the proceeds
of the sale are not sufficient to pay the decree, it awards a gen-
eral execution. Although the specific property is ordered to
be sold, it is none the less a money decree. It is for the pay-
ment of money, and for the performance of no other act.
The sale of the specific property is but a mode of having execu-
tion from property upon which there was a lien. And the de-
1874.] Eames et al. v. The Germania Turn Yerein. 57
Opinion of the Court.
eree became a lien on the property of the defendants, precisely
as it would had the decree been a judgment at taw rendered
by the same court. Under our attachment laws, when there
is service or appearance the judgment is in personam, and a
special execution first issues, and if the sale is insufficient to
discharge the judgment, a general execution may issue for
the balance. In such a case no one would doubt that the
judgment would be a lien on real estate, as in other cases.
This decree is in all essential features the same as such a judg-
ment.
We are clearly of opinion that under this section this de-
cree became a lien, and was such under the first section of the
chapter entitled " Judgments and Executions," of the same re-
vision. Bat it only continued to be a lien for one year after
the decree became such, unless an execution was sued out
within that time, under the decree. This record fails to
show that such an execution was ever issued. It will be ob-
served that the decree was rendered on the 17th day of June,
1868, and affirmed at the September term of this court, of the
same year. So that more than one year had elapsed, as the
execution could have issued at any time after the decree was
affirmed, and more than a year before the contract was entered
into by Eames for the sale of the land, which bears date on the
8th of June, 1870, and the refusal by appellees to proceed un-
der the agreement was some time later.
The fourteenth section of the chancery code imposes the
same restrictions on the lien of a money decree that are im-
posed on a judgment at law. The lien of a judgment only
continues one year unless execution is sued out before the ex-
piration of that time. Such a decree as this, by the terms
of the statute, is under the same limitations.
We are referred to the act of 1865, in appellees' argument,
but the title of the act, its date, or the page of the volume
where found, is not given. We have turned to the laws of
that session, and find the act of February 16, 1865, page 36,
which, we presume, is the one to which reference is made. It
8— 74th III.
58 Mulholland v. Bartlett. [Sept. T.
Syllabus.
provides, that in foreclosing mortgages, the court may render a
decree for the balance above what shall be paid by sale of the
mortgaged property, conditionally at the rendition thereof, or
absolutely after the sale of the property, and the balance is
ascertained, and award execution for the collection of the same.
This section undoubtedly authorized a money decree in the
case, but it in nowise has any bearing on the lien such a de-
cree should be on other property than the mortgaged premises.
As what is not shown is presumed not to exist, we must con-
clude that no execution was ever issued on the decree, and if
not, then it was not a lien on this property of Eames and wife
when sold. And that is the only objection urged against their
title, and none is urged against Lanin's. It thus follows that
appellees had no right to refuse to proceed with the fulfill
ment of their agreement to purchase. And as appellants were
not in default on their part, appellees had no right to rescind
and recover back the purchase money they had paid. Having
failed to show that this decree was a subsisting lien at the time
of sale, on the portion of the property sold by Eames, ap-
pellees have failed to show a right to recover, and the judg-
ment of the court below is reversed, and the cause remanded.
Judgment reversed.
Heney Mulhollakd
Moses Baetlett.
1. Consideration — forbearance to sue. To make forbearance to sue a
good consideration for a promise to pay, there must be a well-founded claim
in law or in equity forborne, or there must be a compromise of a doubtful
right.
2. When a person in a strange city, on being threatened with suit upon
the acceptance of a draft by a firm as a partner therein, when in fact he
was not a partner, and had no connection with such firm, and so informed
1874.] Mulholland v. Bartlett. 59
Opinion of the Court.
the holder of the draft, to avoid suit and to gain time gave the holder his
written promise to pay the draft, it was held that there was no valid con-
sideration for the promise.
Appeal from the Circuit Court of Winnebago county ; the
Hon. William Brown, Judge, presiding.
This was an action of assumpsit, brought by Henry Mulhol-
land against Moses Bartlett, upon the written promise set out
in the opinion. A trial was had, resulting in a verdict and
judgment for the defendant.
Messrs. Crawford & Marshall, for the appellant.
Mr. William Lathrop, and Mr. C. M. Brazee, for the ap-
pellee.
Mr. Justice Breese delivered the opinion of the Court :
This was an action of assumpsit, in the Winnebago circuit
court, resulting in a verdict and judgment for the defendant.
The question presented is, the liability of the defendant tc
the plaintiff, growing out of the following transaction, and
which is the foundation of plaintiff's claim.
" Montreal, 10th October, 1857.
" £147.13.9, cy.
" Four months /if ter date, please pay to our own order at the
agency of the City Bank, Toronto, one hundred and forty-
seven pounds 13-9, currency, for value received.
" Brewster, Mulholland & Co.
" To Messrs. Pringle, Daniels & Co.,
"Uxbridge, C. W.
" Accepted, Pringle, Daniels & Co."
" Montreal, 20 Jan., 1859.
" Messrs. Brewster, Mulholland & Co.:
" Dear Sirs — The above is a copy of an acceptance of the
late firm of Pringle, Daniels & Co., for one hundred and forty-
60 Mulholland v. Bartlett. [Sept. T.
Opinion of the Court.
seven pounds 13-9 currency, which became due and payable
on the 10th — 13th February, 1858, and is now in your hands
unpaid. Without in any manner acknowledging, either di-
rectly or indirectly, to be in any way liable for the above debt,
still to avoid the trouble and annoyance of defending myself
at law, from being made liable as a partner in the said firm of
Pringle, Daniels & Co., which allegation I now deoy, I hereby
bind myself and agree to pay to Brewster, Mulholland & Co.,
or their order, in twelve months from this date, the above sum
of one hundred and forty-seven pounds 13-9, with interest at
the rate of seven per cent per annum, from its maturity till
actual payment be made, should they not collect it from the
estate of Pringle, Daniels & Co., in the meantime.
"Moses Bartlett."
The plea was the general issue. This instrument was writ-
ten by Mulholland under the circumstances detailed in the
record. The plaintiff in the action sought to show that defend-
ant was a member of the firm of the drawees and acceptors of
this bill, Pringle, Daniels & Co., which, if so, established his
legal liability, and was a sufficient consideration for his promise.
On this question there is some conflict in the testimony, but
the great preponderance, we think, is that defendant never was
at any time a member of that firm, or under any obligations to
answer for their contracts, or pay their debts. He was a mem-
ber of the firm of " H. Daniels & Co.," a firm which had been
doing business many years prior to this transaction, at a place
called " Brookline," distant eighteen miles from " Uxbridge," the
place of business of Pringle, Daniels & Co., the acceptors of
the bill. This firm of H. Daniels & Co. was, as late as March
5, 1857, composed of Henry Daniels and George W. Coulston,
in the proportion of two-thirds interest in Daniels and one-
third in Coulston. In May following the defendant purchased
of Daniels one-half of his interest in the firm, and thereby
became a partner on an equal footing with Daniels and Coulston.
The name of the firm was not changed. On the 8th of March,
1874.] Mulholland v. Bartlett. 61
Opinion of the Court.
1857, W. A. Pringle, H. Daniels and George W. Coulston
formed a co-partnership under the name and style of Pringle,
Daniels & Co., at Uxbridge. There was some talk of defend-
ant's taking an interest in this firm, but, after examining into
its condition, he declined. The business of the two firms was
separate and distinct, Pringle managing the business of Pringle,
Daniels & Co., and Coulston that of H. Daniels & Co.
In November, 1857, soon after the acceptance of the bill by
the firm of Pringle, Daniels & Co., they made an assignment
for the benefit of their creditors, which was signed by Pringle,
Daniels and Coulston, and simultaneously with this H. Daniels
individually made an assignment. The firm did not make an
assignment, but ceased to do business, and defendant, still a
member of the firm, was appointed agent to manage its affairs
and wind up the business, which he did satisfactorily by pay-
ing the debts in full.
Brookline was the residence of the defendant, and the place
of business of the firm of H. Daniels & Co. This place is dis-
tant from Montreal three hundred and fifty miles or more.
When on a visit to that city for the purpose of getting an
extension from the creditors of H. Daniels & Co., of whom
the firm of Brewster, Mulholland & Co. represented here by
the plaintiff, were one, the defendant was successful, and when
he had accomplished this object, Mulholland presented to de-
fendant this bill of exchange, and threatened immediate suit
on it, against defendant, as a member of the firm of Pringle,
Daniels & Co., the drawees and acceptors, unless he arranged
it. This threat produced the writing on which this action was
brought, and set out supra. These facts appear from the tes-
timony in the record.
The defense is, there was no valid consideration for the in-
strument and none is expressed in it. If this be so, then the
finding of the jury was right and the judgment should stand,
and this is the important question in the case.
Forbearing to sue is admitted on all sides to be a good con-
sideration, for which assumpsit will lie. 1 Ch. PL 101. Ap-
62 Mulholland v. Bartlett. [Sept. T,
Opinion of the Court.
pellant's counsel has presented an able review of the British
and American cases bearing upon this subject, by which it will
be seen the earlier cases held the law to be, that the forbear-
ance of a suit threatened upon an unfounded claim, was not
a valid consideration for a contract, and the more modern cases
to which we are referred do not seem to be entirely harmo-
nious. Among the references to the latter is McKinley v.
Watkins, 13 111. 140, where it was held, if a party threatens
to sue, honestly supposing he has a good cause of action, it will
uphold a contract fairly entered into in order to avoid the suit.
And it was further said, the compromise of a doubtful right is
a sufficient consideration for a promise, and that it is immate-
rial on whose side the right ultimately turns out to be, but in
order to support the promise there must be such a claim as to
lay a reasonable ground for the defendant making the promise,
and then it is immaterial on which side the right may ulti-
mately lie, referring to Edwards v. Baugh, 11 Mees. & Wels.
641, and Perkins v. Yay, 3 Serg. & Rawle, 331. Knotts
et al. v. Preble, 50 111. 226, is also cited.
We understand appellant as insisting that the cases cited,
those of this court included, hold that if a person, in good
faith, believing he has a good cause of action against another,
has made inquiries, heard of testimony by which he could
sustain it, and is about to sue, and the other party does not
desire a suit, that a written promise to pay the claim at a future
day, given to avoid the suit and accepted by the threatening
party who forbears his suit, has all the elements of a binding
contract which can be enforced at law.
We do not think the cases from this court cited above go to
that extent, and the only English case cited most approvingly
{Cook v. Wright, Langdell's Sel. Cases on Contracts, 333), would
seem to go that far. The case in 13 111. holds, in order to
support the promise there must be such a claim as to lay a
reasonable ground for the defendant making the promise.
What reasonable ground for defendant's promise is shown in
this case ? He never saw or heard of the bill drawn on Pringle,
1874.] Mulhollakd v. Bartlett. 63
Opinion of the Court.
Daniels & Co., until this visit to Montreal in January, 1859, a
long time after it had been accepted by that house. He had no
interest in knowing any thing about it, as he never had been
connected with that firm as a member, and he distinctly
declared to the plaintiff, who drew the instrument, that he was
not a partner in that firm, and denied all liability, directly or
indirectly, on that bill.
The case from 50 111. does not sustain appellant, for there it
was held, notwithstanding it was shown the maker of the note
was impressed with the belief he was in some measure respon-
sible for the loss of payee by the fire, that in fact the payee
had no claim upon the maker of the note, and there was no
consideration for the note.
In the elementary treatises on this subject, the doctrine will
be found to be, that an agreement to forbear legal proceedings
to enforce a well founded claim, is a valid consideration for a
promise. 1 Pars, on Con. 365 ; Chitty on Con. 33. The
last mentioned author further says, in order to render the
agreement to forbear and the forbearance of a claim a sufficient
consideration, it is essential such claim should be sustainable
at law or in equity, and the consideration will fail if it appear
the demand was utterly without foundation.
The result of the authorities, as we are inclined to think, is,
to make forbearance a good consideration, there must be a well
founded claim in law or equity forborne, or there must be a
compromise of a doubtful right. A compromise implies the
yielding of a part of a claim. There is nothing of that kind
in this case. The claim was, that appellee was a partner of
the acceptors of the bill, and a demand made for instant pay-
ment or a suit to enforce the collection. Appellee might well
have been surprised at such a demand, it being for the first
time made known to him such a paper existed. He knew and
so told appellant he was not liable on the paper as a partner.
What was he to do ? He was at Montreal for the first time in
his life, nearly four hundred miles from his home and his friends,
the demandant in the midst of both, giving him a most decided
64: Huklbut et al. v. Johnson et al. [Sept. T.
Syllabus.
advantage in any law suit lie might commence, and who would
most probably hold the defendant by a capias and incarcerate
him unless some satisfaction was given, dictated the writing
which appellant drew up, and is now the subject of this con-
troversy. It seems to us quite clear here was no compromise
of a doubtful claim, but a wrongful assertion of a 'claim, which
appellant, when the instrument was executed, had strong rea-
sons for believing had no valid existence as against the appel-
lee. Circumstances very much affect cases. Appellee was
among strangers, threatened by a mercantile house of high
standing, who, to relieve himself from the embarrassment of
his position, executed this writing, there being at the time no
ground whatever in law or equity to charge him with this
debt. We cannot say, forbearing to prosecute an action to
recover this demand, should, under the circumstances, be held
as a valid consideration for this promise, and the court below
took a correct view of the case. We cannot see how the jury
could have found otherwise than they did. The instructions
were as favorable to appellant as he could ask, and on a careful
examination of the whole record, we are satisfied justice has
been done, and we affirm the judgment.
Judgment affirmed.
Hoeace A. Hurlbut et al.
V.
Seville F. Johnson et al.
1. Partnership property must first be applied to payment of firm debts.
Where a merchant sells an interest in his stock of goods to another
who becomes a partner in the business, debts contracted by the new firm
must first be paid out of goods afterward purchased before any portion of
them can be taken for debts of the former, and only his interest in such of
the old stock as remains on hand until levied upon, can be appropriated to
the payment of his prior debts.
1874.] Hurlbut et at. v. Johnson et al. 65
Opinion of the Court.
2. On a bill to subject partnership funds to the payment of partnership
debts, if it appears that any portion of the property on hand had belonged
to one of the partners before the formation of the partnership, and was
at that time put into the partnership business by him, his individual prior
creditors will be entitled to have his interest in such property as is still on
hand, and can be identified, appropriated to the payment of executions
against him, which have been levied on the entire stock before the filing of
the bill, but nothing more.
Appeal from the Circuit Court of Knox county ; the Hon.
Arthur A. Smith, Judge, presiding.
Mr. F. S. Murphy, for the appellants.
Messrs. Williams, McKenzie & Calkins, for the appellees.
Mr. Justice Scott delivered the opinion of the Court :
This bill was to enjoin the sale of a stock of goods under
executions and have the same appropriated to the payment of
the several claims of the creditors of defendant Krone or
Krone & Wineberg. The facts upon which relief is sought
may be shortly stated : On the 20th of April, 1872, Krone
purchased of Christopher Wineberg, who is also made a de-
fendant to the bill, an interest in a stock of drugs and such
other goods as are usually kept in a retail drug store, for which
he conveyed to him eighty acres of land situated in IoAva, esti-
mated to be worth about $5 per acre. The value of the stock
on hand was estimated by the witnesses, from $200 to $600.
On the 29th day of April, 1872, appellees Colburn, Burke &
Co., and Simeon & Colburn, respectively, recovered judgments
before justices of the peace, against Christopher Wineberg, and
afterward executions were issued upon such judgments and
placed in the hands of Constable Johnson, who levied the same
on the goods in controversy as the property of Wineberg.
Upon filing the bill the court granted a temporary injunction
and appointed a receiver. Some of the goods being of a perish-
able character, the receiver, under the direction of the court,
9— 74th 111.
66 Huklbut et at. v. Johnson et al. [Sept. T.
Opinion of the Court.
sold the entire stock, and has now on hand the proceeds sub-
ject to the order of the court.
The execution creditors insist the sale of the stock of goods
to Krone was not in good faith, but made with a purpose to
hinder and delay the creditors of Wineberg in the collection of
their just claims. On the contrary, appellants, who are the
bona fide creditors of Krone for goods sold to him to replenish
the stock, insist they are entitled to have their claims first paid,
no matter what view may be taken of the relations subsisting
between Krone and Wineberg. The circuit court, on the hear-
ing, divided the funds in the hands of the receiver equally
between the contesting claimants. Appellants bring the cause
to this court, and seek a reversal of the decree on the ground
they are entitled to be first paid out of the funds in the hands
of the receiver.
There is some conflict in the testimony as to the relations
which existed between Krone and Wineberg after the sale of
the 20th of April, but when construed in connection with the
written instrument executed by the parties at the time, we
think there can be no doubt, Krone purchased an undivided
one-half of the stock belonging to the firm of Wineberg &
Bro. It is equally clear the purchase was in good faith, for a
valuable consideration. The land conveyed to Wineberg was
worth much more than one-half interest in the stock of drugs.
There were then no judgments or executions against Wineberg
& Bro., or either of them, and no reason is shown why Krone
did not acquire by the purchase a clear title to one undivided
half interest in the entire stock on hand in the store, the other
half remaining in Christopher Wineberg.
There is no doubt an arrangement was made, the business
thereafter should be conducted in the name of Krone, and that
Wineberg, although interested in the store as a partner, was
not to be known as such. It is immaterial, so far as the ques-
tions arising on this record are concerned, whether he was a
silent or an active partner in the business thereafter to be con-
ducted. Whatever debts might be contracted for goods to
1874.] Huelbut et al. v. Johnson et at. 67
Opinion of the Court.
replenish the stock would, in any event, take precedence over
any mere private indebtedness previously contracted by Wine-
berg. The claims of appellants were for goods sold to Krone,
and undoubtedly went into the store to increase the common
stock. "Whatever might be the interest of Wineberg in the
goods in the store, the debts contracted for the purpose of con-
ducting the business must be first paid, and all the individual
creditors could rightfully subject to the payment of their claims
would be the interest of Wineberg remaining after the firm
debts had been fully paid. The credit was given to Krone on
the faith of the stock of goods then in his possession, and as we
have seen, it makes no difference whether he owned them in
his own right, or whether they were the property of Krone &
Wineberg.
The sale of the stock by Wineberg & Bro. to Krone and
Wineberg, was in good faith. It was certainly made for an
adequate consideration, and the evidence shows the land taken
in payment was appropriated to the payment of the debts of
Wineberg.
There can be no question the undivided one-half interest in
the stock passed by the sale to Krone. All the previous credi-
tors of Wineberg could in any event be entitled to recover,
would be the interest Wineberg had in the stock of goods after
the sale to Krone & Wineberg by Wineberg & Bro., prior to
any new purchases. All the interest subsequently acquired
by the firm by new purchases should first be appropriated to
the payment of the creditors of Krone, or of Krone & Wine-
berg, if they shall be held to have been partners in the busi-
ness, as well as all the interest of Krone in the goods.
The executions against the property of Wineberg under
which appellees claim were issued on the 29th day of April,
1872, but no levies were made until the 29th day of June next
following. Whether any portion of the original stock formerly
owned by Wineberg & Bro. remained at that date is not shown
by any thing in the record. The interest of Wineberg in the
original stock that remained until the levies were made, if the
68 The People ex rel. Blumle v. JSTeill et al. [Sept. T.
Opinion of the Court.
same can be ascertained, can alone be appropriated to the pay-
ment of the prior creditors of Wineberg, but the debts of
Krone, or Krone & "Wineberg, contracted for goods for the
common business must first be satisfied out of the subsequently
acquired goods.
The decree of the court below will be reversed and the cause
remanded for further proceedings consistent with this opinion.
Decree reversed.
The People ex rel. Mathias Blumle
v.
Stewart JNTeill et al.
1. Contempt — retaking property replevied. A party from whose posses-
sion personal property has been taken by an officer by virtue of a writ of
replevin, is guilty of a contempt of court if he forcibly retakes the posses-
sion thereof after the goods have been by the officer delivered to the plain-
tiff in replevin.
2. Same — appeal or writ of error will not lie from an order of discharge.
Proceedings for a contempt of court are on behalf of the people, and in the
nature of a criminal proceeding, and an appeal or writ of error on the part
of the people will not lie in such case.
"Writ of Error to the Circuit Court of Peoria county ; the
Hon. Joseph W. Cochran, Judge, presiding.
Mr. H. W. Wells, for the plaintiff in error.
Messrs. McCullooh, Stevens & Wilson, for the defendants
in error.
Mr. Justice Sheldon delivered the opinion of the Court :
Mathias Blumle, on October 1, 18T3, sued out frcm the cir-
cuit court of Peoria county, a writ of replevin against Stewart
Neill, for about two thousand pounds of hops. On the same day
the sheriff served and executed the writ and returned the same,
1874.] The People ex rel. Blumle v. Neill et al. 69
Opinion of the Court.
with his indorsement of service, that he had executed the writ
by replevying the property, and had placed the same in the
possession of the plaintiff, and by reading the writ to the
defendant as he was therein commanded, on the 1st day of
October, 1873. On October 2, 1873, Blumle made his affidavit
that defendant Neill and one Latham A. Wood, a few hours
after the said service and replevy of said property, in the night-
time of the same day, October 1, forcibly broke into the build-
ing where the hops were in his, Blumle' s, possession, and retook
the same and carried them away. Thereupon an attachment
was issued against E"eill and Wood for a contempt of court,
who afterward, upon making their answers to the interroga-
tories filed, were discharged. From which order of discharge
this writ of error is prosecuted.
The doing of the acts charged does not appear to be denied
by the answers, and is attempted to be excused by averring
that the property had been previously sold to Wood and be-
longed to him.
We fail to see why Neill, at least, should not have been
adjudged guilty of a contempt, and have been so mulcted as
to have made his law-defying act unprofitable, and have effect
to deter from the repetition of a like offense.
It is due to the maintenance of the supremacy of the law,
the respect which should be yielded to the authority of judicial
mandates, and to the importance of upholding the process of
courts in full vigor, that writs should not be suffered to be
thus thwarted in their effect, with impunity.
But this is a prosecution in behalf of the people, and the
proceeding for a contempt is in the nature of a criminal proceed-
ing. Stuart v. The People, 3 Scam. 395. The people are not
allowed an appeal or writ of error in a criminal case. Besides,
it is the general rule, that the sole adjudication for contempt,
and the punishment thereof, belong exclusively and without
interference, to each respective court. *
We are of opinion the acquittal of the defendants by the
court below must be held to be conclusive. The judgment
must be affirmed. Judgment affirmed.
70 The Chic, K. I. & P. K. R. Co. v. Riley. [Sept. T.
Opinion of the Court.
The Chicago, Rock Island and Pacific Raileoad
Company
v.
Silvanian Riley.
Excessive damages — expulsion of passenger from cars. In trespass
against a railway company for ejecting the plaintiff from a passenger
coach near a station, where no extreme violence was used, and no malic-
iousness or wanton recklessness was manifested, and the plaintiff was
not seriously and permanently injured, it was held that $2,500 damages
were excessive and a new trial was awarded.
Appeal from the Circuit Court of La Salle county ; the
Hon. Edwin S. Leland, Judge, presiding.
This was an action of trespass, by the appellee against the
appellant, brought in the circuit court of Bureau county, and
taken by change of venue to La Salle county. The material
facts of the case are fully stated in the opinion of the court.
Mr. G. S. Eldridge, and Mr. Thomas F. Withrow, for the
appellant.
Mr. J. I. Taylor, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court :
This action was prosecuted to recover for injuries received
by the plaintiff in consequence of being violently ejected from
a passenger car on the defendant's road, by its servants, at or
near a station called Mineral, in Bureau county.
The verdict of the jury was for the plaintiff, assessing his
damages at $2,500, upon which the court gave judgment.
The plaintiff entered the car, which was one of a regular
passenger train on the defendant's road, at Mineral, intending
to go to Burlington Crossing, and thence by the C. B. & Q. R.
H. to Princeton, where he had been subpoenaed to attend as a
witness in a case to be tried on that day. He was accompanied
1874.] The Chic, K. I. & P. K. E. Co. v. Riley. 71
Opinion of the Court.
by several others, on a like errand, among whom was Kepler,
who sat in the same seat in the car with him, on the side next
the aisle which extends between the rows of seats. The fare
charged by the defendant for passengers from Mineral to Bur-
lington Crossing was fifty cents; but at 2-J- cents per mile,
which was claimed by Kepler and others of the party to be
" legal fare," it would have been only thirty-five cents. Soon
after the train started from Mineral, the conductor came to the
seat in which were the plaintiff and Kepler, collecting fare.
Kepler handed him thirty -five cents, after informing him where
he was going. This the conductor returned to him, telling
him he must either pay fifty cents or leave the car. Upon his
refusing to comply, the train was checked, run back some dis-
tance toward the station and he was removed.
There is a conflict in the evidence as to what occurred
between the plaintiff and conductor in regard to his fare. He
says the conductor did not demand his fare, but, after having
removed Kepler, ordered him to be seized and removed,
although he notified him he was willing to pay the regular
fare; while the conductor and several other witnesses say he
expressly refused to pay more than what he called " legal fare,"
thirty-five cents. Inasmuch, however, as the case must go
before another jury for error unconnected with this question,
we deem it inexpedient to comment on the evidence in this
respect.
A fair and dispassionate consideration of all the evidence, to
our minds, relieves the conduct of the defendant's servants
from the charge of that degree of wanton recklessness or
maliciousness which is essential to justify so large a verdict,
unless it has been proved, as the plaintiff claims it has, that he
was seriously and permanently injured.
The injuries plaintiff claims to have received of this charac-
ter, were, what the medical witnesses call " painful crepitation,"
on the right side near the lower angle of the right shoulder
blade; and "hepatization" of the middle lobe of the right
72 The Chic, K. I. & P. R. R Co. v. Riley. [Sept. T.
Opinion of the Court.
lung, caused, as is argued, by being forced against the door, or
the side of the door, as he was put out of the car.
The evidence of the medical witnesses, considered with ref-
erence to apparent intelligence, experience and skill in the pro-
fession, as well as to numbers, in our opinion, clearly and
decidedly preponderates that a blow of sufficient violence to
cause " hepatization" of the lungs would be immediately fol-
lowed by prostration, chill, and fever ; that the first effect upon
the lungs would be inflammation, after which would follow the
" hepatization ; " that although "crepitation" of the muscles
may be produced by a violent blow, it may also be the result
of rheumatism, or of other causes.
The plaintiff says, after he was put out of the car he imme-
diately returned, entering at the opposite end. He seems to
have engaged with much warmth in a verbal altercation with
the conductor, which was kept up until he left the train at the
Burlington Crossing, and until that time he makes no complaint
of having suffered physical pain in consequence of his expul-
sion; then, however, he says he "felt considerable sore from
the effects of it." When he reached Princeton he did not feel
under the necessity of calling upon a physician until after he
had visited his attorney. He says : "It runs in my mind I
went to Lawyer Taylor's office before I went to Latimer's. I
am pretty sure I did. I think Taylor told me I ought to have
something done for it."
When he consulted Latimer, he says Latimer gave him a lin-
iment and advised him to put on a blister. He was at the
hotel, but feeling pain, and thinking he would rest better in a
private house, went home with a friend residing in Princeton,
and staid all night with him. This friend says, when the
plaintiff retired for the night he requested him to rub some of
the liniment on his back. He examined his back, and discov-
ered that " a little along the lower point of the right shoulder
blade seemed to be a little red and swollen, and he rubbed the
liniment on it," upon which plaintiff made complaint that the
1874.] The Chic, R. I. & P. R. R. Co. v. Riley. 73
Opinion of the Court.
pressure gave him pain. The next morning the plaintiff got
up, ate his breakfast and departed.
In addition to being at his lawyer's office, the physician's
office and the hotel, after he arrived at Princeton, he was at the
courthouse; and. in the evening, he was sitting in company
with others, who were talking, at the hotel, until about nine
o'clock, when he went home with his friend, and after reaching
his house he sat talking with him and family about matters at
Mineral some little time before going to bed. From this it is
apparent he exhibited none of that evidence of recent severe
violence which the medical evidence shows would have been
manifested had the blow or jam he received been sufficient to
have produced the consequences which he seeks to attribute to
it. The grating noise or " crepitation," he says, he first ob-
served two or three months after he was put out of the car.
No witness sustains him, so far as we have been able to ascer-
tain from the evidence, in the fact that he was violently pushed
or pulled against the door or the side of the door, and he does
not claim that he was otherwise seriously or permanently injured
by the expulsion.
His evidence on this point, as found in the abstract, is this :
" They both had hold of me, and rushed me right into the
aisle, and got about to the door, with my back against the door
like. The door, or the side of the door like, struck at my
shoulder. I was ahead, my face partly turned round south ;
my feet were kind of sideways. The men were angry, I think.
They went about as fast as they could do it, I thought. The
big man had hold of my right arm. They jammed me, I
think, against the door or the side of the door, I can't say
which it was, but my shoulder struck against something, either
the side of the door or the door, and with that I went right off
the top step, about ten feet, I should judge, down the grade."
Wheeler, the conductor, Kintz, the baggage-master, Alexan-
der, road-master on the eastern end of the road, Bernett, road-
master on the western end of the road, and O'Brien, who was
attending to waterworks on the road, all swear that he was put
10 — 74:TH III.
74 The Chic, E. I. & P. R. R. Co. v. Riley. [Sept. T.
Opinion of the Court.
out by Kintz, the baggage-master, alone, and that Kintz used
no violence. Kintz positively denies that plaintiff struck
against the door, and the others say they were in a position if he
had struck the door to have observed it, but they saw nothing of
the kind, and they all describe him as going out face-fore-
most.
Buswell, who was a passenger on the train, and lived in the
same county, at no very great distance from Mineral, says, he
can't say that Wheeler, the conductor, took hold of plaintiff;
he thinks Kintz is the man who put him off. He uses this
language : " I don't think Riley (the plaintiff) resisted par-
ticularly ; I am certain he didn't as far as I could see ; there
was quite a little movement there ; I didn't see him jammed
at all ; if there had been a tussle between them I could not
have failed to have seen it, but I saw him go out just as you
might take any man out that offered no resistance."
McCulloch, a witness for plaintiff, who is a farmer residing
at Albion, in Henry county, was a passenger on the train, and
says, he saw the plaintiff put off. He says, in cross-examination :
" The man took hold of Riley (the plaintiff) by the collar ;
Riley made no resistance ; he walked right along ; he was
turned round at the door ; I might be mistaken as to this ; I
did not see any violence — no harsh means, but to take him
along, turn him around, and put him out."
Thompson, another witness for plaintiff, in his cross-exami-
nation, says he saw Wheeler have hold of plaintiff. " Don't know
whether Kintz or Wheeler took hold first ; there was* not much
difference ; plaintiff was facing north-east ; he was on the south
side of the car; Wheeler went in behind plaintiff ; Kintz took
hold of him by the arm in front ; I am not mistaken that
Wheeler had hold of him ; Kintz took hold of him by the
arms and led him out ; he did not jerk him out very viciously ;
* * ** I can't swear Riley (plaintiff) was jammed against
the door; he went off, face foremost."
Williams, also a witness for the plaintiff, who claims to have
been an eye-witness to the entire scene, says, he does not think
1874.] The Chic, E. I. & P. E. E. Co. v. Eiley. 75
Opinion of the Court.
there was any thing very violent about the manner of getting
the plaintiff out of the slip, and that he did not notice that
plaintiff came in contact with any thing at the door.
That plaintiff was complaining of being unwell with cold
and rheumatism in the morning before getting on the train is
not contested. That was given as a reason why he did not
propose to go with the others, getting on at Mineral, at that
time on " legal fare."
Brainerd, who professes to be an intimate friend of his, and
who was one of his witnesses, furnished the exact change at
his store, so they all could pay on the train. He says, he asked
plaintiff if he was going on "legal fare? " He said, no, he
was unwell ; " I remember he had been complaining for a week
before."
Other witnesses on behalf of the plaintiff also testify to his
being unwell, and complaining of having rheumatism. Wit-
nesses, introduced on behalf of defendant, testify to hearing him
complain of ill health, and especially of rheumatism, for a con-
siderable period before this occurrence. The plaintiff himself
also admits to having been slightly troubled wilh rheumatism
since his return from California, which we infer to have been
a few years previous to his receipt of the injury in question.
He says : " When I had a bad cold I would feel bad ; it makes
me feel unwell, and stiffens me up ; I couldn't tell how many
attacks I had had before this occasion ; it may be more than one ;
that morning I felt stiff in the joints, not more in the shoulder
than in the legs ; I did not feel well for some days before ; did
not consult a physician," etc.
We have endeavored to give a careful consideration to all
the evidence, and we feel convinced injustice is done the de-
fendant, though no doubt unintentionally, by this verdict. It
is thereby made responsible for disease and suffering, resulting
from causes with which, unless we have unwittingly overlooked
important countervailing evidence, its servants have had no
connection.
Cleland v. Porter. [Sept. T.
Opinion of the Court.
For the reason that, in our opinion, the damages assessed by
the verdict are excessive, the judgment is reversed and the
cause remanded.
Judgment reversed.
John H. Cleland
v.
Samuel R. Portee.
Election — closing polls before time does not of itself render votes cast
invalid. If an election lias been in other respects fairly and properly con-
ducted, the votes cast will not be rejected simply because the judges closed
the polls an hour before the time prescribed by law, when it does not
appear that any voter offered to vote after the polls were closed and before
the lawful time for closing them, or was prevented from voting by reason
thereof.
Writ of Error to the County Court of Rock Island county ;
the Hon. Samuel S. Gtuyer, Judge, presiding.
Mr. William H. Gest, and Messrs. Connelly & MoNeal,
for the plaintiff in error.
Mr. Charles M. Osborn, and Messrs. Kenworthy & Beards-
ley, for the defendant in error.
Mr. Justice Craig- delivered the opinion of the Court :
At the general election held on the fourth day of November,
1873, the defendant in error was declared elected to the office
of treasurer of Rock Island county.
The plaintiff in error, who was the opposing candidate for the
office, on the third day of December, 1873, filed a petition in
the county court of Rock Island county to contest the elec-
tion.
It is averred in the petition that no votes were cast in the
1874.] Cleland v. Porter. 77
Opinion of the Court.
county for any person for the office of treasurer except peti-
tioner and the defendant in error ; that in the entire county
the defendant in error received fifteen hundred and ninety-
two votes, and that the petitioner received fifteen hundred
and seventy-nine votes, making a majority of thirteen votes in
favor of defendant in error.
That in Buffe Prairie township there were registered and
entitled to vote two hundred and fifty persons ; that the entire
vote cast in that township was only one hundred and thirteen,
seventy-nine of which were for defendant in error, and thirty-
four for petitioner ; that the judges of election in that town-
ship did neglect and fail to continue open the polls until seven
o'clock in the afternoon of the day on which the election was
held, but did knowingly and willfully close the same before the
hour of six o'clock in the afternoon, and, for the purpose of
giving their illegal proceedings the semblance of regularity,
did knowingly and willfully run forward the hands of the clock
used to indicate the time of closing the polls.-
On account of this irregularity of the judges, the petitioner
asks that the entire vote of the township may be rejected and
not counted.
To this petition a general demurrer was filed, which the court
sustained, and it was dismissed.
The petitioner brings the record here, and assigns as error the
decision of the court in sustaining the demurrer and dismissing
the petition.
Section forty-eight, Revised Laws of 1874, page 458, which
was in force at the time the election was held, declares the
polls shall be opened at the hour of eight o'clock in the morn-
ing, and continued open until seven o'clock in the afternoon of
the same day, at which time the polls shall be closed.
Section eighty-six of the same act declares if any judge of
any election shall willfully neglect to perform any of the duties
required of him by the act, he shall, on conviction thereof, be
fined in a sum not exceeding $1,000, or imprisoned in the
county jail one year, or both, at the discretion of the court
78 Cleland v. Porter. [Sept. T.
Opinion of the Court.
It was clearly the duty of the judges of election to keep the
polls open until seven o'clock on the day the election was held,
and the legislature, by the act cited supra, has imposed a
severe penalty upon the judges of the election for a willful dis-
regard of duty.
But the question presented by this record is, what effect shall
a duty imposed upon the officers, disregarded, have upon the
result of the election, when it does not appear that a single
legal voter was deprived of the elective franchise ?
The substance of the complaint made by the petitioner
is this, that the law required the judges of election to keep
open the polls until seven o'clock, and they closed at six
o'clock.
It is nowhere alleged that a single voter appeared at the
polls, after adjournment, for the purpose of voting, or that any
voter was deprived of the right to vote for the reason the polls
were closed one hour earlier than required by law.
No fraud is shown on the part of the officers in conducting
the election. There seems to have been a fair expression of
the will of the voters of the township at the polls ; it is not pre-
tended that the defendant in error, or any candidate for any
office, had any knowledge of the act of the judges, or were in
any manner connected therewith or advised the closing of the
polls at an earlier hour than the law required.
Under these circumstances we are not prepared to hold that
the voters of the township who appeared and ca'st their votes
shall be disfranchised by a rejection of the entire poll ; in the
absence of fraud, and where it does not appear that a single
voter was deprived of the right of suffrage, we think justice
requires that those who honestly expressed their will at the
ballot-box should be protected, and if the officers of the election
have violated the law, let the penalty attached be imposed upon
them. This view seems to be just, and it is in harmony with
the former decisions of this court when similar questions have
arisen. In Piatt v. The People, 29 111. 54, this court held ;
" The rules prescribed by the law for conducting an election
1874.] Cleland v. Porter. 79
Opinion of the Court.
are chiefly to afford an opportunity for the free and fair exer-
cise of the elective franchise, to prevent illegal votes, and to
ascertain, with certainty, the result. Such rules are directory,
merely, not jurisdictional or imperative. If an irregularity ^
of which complaint is made, is shown to have deprived no legal
voter of his right, or admitted a disqualified person to vote, if it
casts no uncertainty on the result, and has not been occasioned
by the agency of a par>ty seeking to derive a benefit from it,
it may well be overlooked in a case of this kind, when the
only question is, which vote was the greatest ? "
A question, not unlike the one involved in this case, arose
in case of The People ex rel. Wetland Scott v. The Board of
Supervisors of Du Page County, 65 111. 360. The question
there was, whether the entire poll of one township should be
rejected because the judges of election closed the polls for one
hour at noon, when it did not appear that there had been any
fraud, or that any voter had been prevented from voting. On
the authority of Piatt v. The People, supra, it was held that
the circuit court erred in rejecting the entire poll.
h\ that case the question was, whether the entire vote of the
township should be rejected, for the reason alone that the polls
were, in violation of the statute, closed for one hour in the
middle of the day ; here, the question is, shall the entire vote
of a township be disregarded, for the reason alone that the
judges of election closed the polls one hour, from six o'clock
until seven ; there can be no difference in principle between
the questions involved in the two cases. Had this petition con-
tained an averment that voters appeared at the polls for the
purpose of voting after the polls were closed and before seven
o'clock, and were deprived of the right, that would have pre-
sented a question not raised by this record, and upon which
we decline to express an opinion.
The averments in the petition being insufficient, the demur-
rer was properly sustained. The judgment of the court below
will be affirmed.
Judgment affirmed.
80 Stinson v. Gould et al. [Sept. T.
Opinion of the Court.
James Stijstson
John S. Gould et al.
1. Set-off — of claim against factor in suit for goods bought of him.
Where a factor or agent has the property of another in his possession, and
a person not having notice or chargeable with notice purchases the prop-
erty, supposing it to belong to the factor, the purchaser may set off a claim
he has against the agent.
2. But where the property sold is not in the possession of the agent
when sold, or if the purchaser has notice or is chargeable with notice that
the person selling is not the owner of the property, then he cannot set off
any claim he may have against the agent.
3. Same — of joint claim against factor and others in suit for goods
sold by factor. Although a purchaser of property in the hands of a factor,
supposed by the purchaser to be the owner, may set off any claim he may
have against such factor, in a suit by the owner of the goods for the pur
chase money, yet he cannot set off any claim he may have against such
factor and other parties jointly.
Appeal from the Superior Court of Cook county ; the Hon.
Josiah McRoberts, Judge, presiding.
Mr. B. Walsh, for the appellant.
Mr. B. D. Mag-ruder, for the appellees.
Mr. Chief Justice Walker delivered thp opinion of the
Court :
Appellees brought this suit in the Superior Court of Cook
county, against appellant, to recover the value of eight iron
lamp posts and fixtures. On the trial, in the court below, a
jury was waived by consent of parties and a trial was had by
the judge, who found the issues for the plaintiffs, and ren-
dered judgment in their favor for $494 and costs, from which
this appeal is prosecuted.
The controversy in the case turns upon the question whether
appellant should have been allowed a set-off of $350, as a
credit on appellees' account. This is the only question pre-
1874.] Stinson v. Gould et at. 81
Opinion of the Court.
sented by the record, as there is no dispute that appellant had
the goods, as charged. The grounds for claiming the set-off
are, that appellant, in the summer of 1872, purchased of
Crawford, Chamberlain & Co. a fountain, which was placed in
his yard, but not being satisfactory to appellant, it was agreed
that they should take it back and furnish him with vases or
other goods in its stead.
It appears that appellant examined and perhaps selected two
posts at the business house of Crawford, Chamberlain & Co.,
and saw drawings of others that were satisfactory, and six of
that pattern were ordered for him. After this had all occurred,
about from the 18th to the 21st of March, 1873, Crawford,
Chamberlain & Co. sold out their stock or made an assignment
of it to Brown, and he about the same time sold it to appellees
without reservation, or any notice that appellees had given any
order or claimed any of the goods embraced in the stock, so
far as this record discloses. About the 22d of April, 1873,
Crawford, one of the members of the firm of Crawford,
Chamberlain & Co., called on appellees and stated that he had
an order from appellant for the two lamp posts and six Boule-
vard lamp posts, and if appellees would pay him a commission
he would fill the order at their store, otherwise he would send
for them to Philadelphia. This seems to have been the first
time they had seen Crawford. They accepted and filled the
order, and delivered the posts to appellant ; and on the next
day Crawford had the fountain removed, and by permission
of appellees it was stored at their business house.
It is claimed that Crawford was the agent of appellees, but
dealt with these goods as his own, and from that fact appellant
had the right to set off any claim held against Crawford as
though the posts had been his property. It is a rule, that
where a factor or agent has the property of another in his posses-
sion, and a person not having notice, or chargeable with notice,
purchases the property, supposing it to belong to the factor,
the purchaser may set off a claim he has against the agent, or
any claim he holds against the true owner. But he cannot, as
11 — 74th III.
82 Stinson v. Gould et al. [Sept. T.
Opinion of the Court.
against the agent, if lie knows the facts, or is chargeable with
notice. In this case, however, Crawford was not in the posses-
sion of the goods, but they were in the possession of appellees,
who had purchased them free from any claim of Crawford,
Chamberlain & Co., and of appellant. The goods were legally
theirs and they sold them.
But even if Crawford was the agent of appellees, which the
evidence, we think, fails to show, still Johnston, appellant's
book-keeper and business agent, had notice that the goods
belonged to appellees, as he was so notified at their interview
on the 22d of April. Crawford told the book-keeper that he
would see and let him know whether appellees would sell the
posts, and there seems to be no doubt that he called the same
day and informed him they would sell the posts. Here was
direct notice to the agent and business man of appellant, and no
rule is more uniformly recognized than that notice to an agent,
within the scope of the agency, is notice to the principal. So
in the case at bar, there was actual notice to appellant's agent,
which so operated on appellant, that appellees, and not Craw-
ford, were the owners of the goods. Appellees seem to have
been profoundly ignorant of all arrangements that existed
between appellant and Crawford, as to the exchange of the
fountain for vases or other goods. There is no evidence that
they knew of the arrangement, and hence there can be no
presumption that they intended to carry out the arrangement.
But if Crawford had been the agent of appellees, and appel-
lant had purchased the goods, supposing that they belonged
to him, still we fail to see how a claim not against him, but
against his late firm, could be set off in this case. It is not
claimed that he was acting for his late firm, but for himself, in
making the sale. An individual claim against an agent may,
but a joint claim against him and others cannot, be set off in
such a case. So that, in any view we have been able to take of
the case, we are unable to see that the court below erred in the
view he took of the law, and the evidence fully warrants the
finding. The judgment of the court below must be affirmed.
Judgment affirmed
1874.] The Tol., Peo. & Warsaw Ry. Co. v. Johnston. 83
Opinion of the Court.
The Toledo, Peoria and Warsaw Railway Company
v.
Robert Johnston.
1. Negligence — in suffering stock to be at large. In an action by the
owner of stock against a railway company for killing the same, no con-
tributory negligence is chargeable to the owner in letting the stock run at
large when it breaks out of its pasture without his fault.
2. Interest — on value of stock killed. The owner of stock killed by a
railway company on its track, for want of a fence, is not entitled to interest
on its value from the time of the killing.
3. Measure of damages — stock killed by negligence. The damages for
stock killed by a railway company through negligence merely, as, a neglect
to fence their track, is compensatory only. To authorize more, circum-
stances of aggravation must be shown.
Appeal from the Circuit Court of Iroquois county ; the
Hon. K. J. Pillsbury, Judge, presiding.
Messrs. Ingersoll & Puterbaugh, for the appellant.
Messrs. Blades & Kay, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
This is an appeal from the circuit court of Iroquois county.
The judgment was rendered in favor of Robert Johnston, in an
action on the case against the Toledo, Peoria and Warsaw Rail-
way Company, to recover damages for killing plaintiff's stock
upon the road. The negligence of the company was alleged
to be in failing to fence their track.
Appellants attempted to show contributory negligence on
the part of plaintiff, by suffering the stock killed to run at
large. The evidence is, that the animals broke out of the
owner's pasture, without his fault, consequently, he cannot be
chargeable with negligence.
Another point made by appellants is, giving this instruction
to the plaintiff: "If you shall, from the evidence, find the
84 Edwards v. Farmers' Insurance Co. [Sept. T.
Syllabus.
defendant guilty, you should assess and allow interest at six
per cent on what you shall, from the evidence, find to be the
value of the property killed and injured, from the date of the
killing to this time."
This instruction was wrong, and should not have been given.
The case referred to by appellee as sustaining this instruction
does not support it. In that case the point was made but was
not decided, the cause going off on another point. What
was said, therefore, must be regarded as dictum merely. Chi-
cago and JV. W. Railway Co. v. Shultz, 55 111. 421.
Another point is made, that the damages are excessive. The
value of the property, as estimated by disinterested witnesses,
Mr. Alexander and Mr. Parker, who appraised the animals,
was fixed, the highest at four hundred and fifty dollars. The
jury found four hundred and ninety-eight dollars and eighty-
eight cents as damages, and this, by the addition of interest,
under the direction of the court. In such cases the damages
must be compensatory only, unless circumstances of aggrava-
tion are shown, which is not pretended.
For the reasons given the judgment must be reversed, and
the cause remanded for a new trial, unless the plaintiff shall
remit all of the damages above four hundred and fifty dollars.
The remedy is statutory, and the limit of the recovery is, or-
dinarily, the value of the property.
Judgment reversed.
William Edwaeds
v.
Faemees' Insurance Company.
1. Insurance — description of property in policy. Where an application
is for insurance " on hay in the stack and in the field," and the policy
issued upon the application is upon " hay in stack within fifty feet of
1874.] Edwards v. Farmers' Insurance Co. 85
Opinion of the Court.
stable," the discrepancy is not such as to entitle the insured to rescind the
contract of insurance.
2. Same — construction of policy. Where a policy of insurance refers
to an application, and by apt words makes the application a part of the
policy, the two instruments will be construed together.
Appeal from the Circuit Court of Warren county ; the
Hon. Arthur A. Smith, Judge, presiding.
Messrs. Stewart, Phelps & Stewart, for the appellant.
Mr. Almon Kidder, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This suit was brought on a note given to the insurance com-
pany to secure the several annual premiums to become due on
a policy of insurance upon the property of appellant. He
insists the policy did not describe accurately all the property
embraced in his application, and therefore he had the right, for
that reason, to rescind the contract of insurance, which he
alleges he did as soon as the error was discovered.
The policy by its terms included appellant's dwelling house,
barn, granary, grain, hay, and other articles usually found on
a farm. The amount insured on the property enumerated was
$3,000, for a period of five years.
The variance between the policy and the application, it is
alleged, consists in a misdescription of the item of hay — in-
cluded in the policy. The application asked for insurance " on
hay in the stack and in the field, $200 ; " and the policy reads,
" $200 on his hay in stack within fifty feet of stable." All
other property enumerated in the application, it is conceded,
was accurately described in the policy.
The misdescription insisted upon is not material. The thing
to be insured was " hay in the stack," and in that particular
the policy follows the application. In either case, it was in the
field, and it is wholly immaterial whether it was " within fifty
feet of stable." That part of the description may be rejected
86 Taylor v. Chi. & Northwestern Ry. Co. [Sept. T.
Syllabus.
and the remainder is a substantial compliance with the appli-
cation, that it is described as " hay in tlie stack."
But, aside from this view, the policy refers to the application
for a " more particular description " of the property insured,
and by apt words makes it " a part of this contract " of insur-
ance. The application having thus been made a " part of the
policy," the two instruments must be construed together.
When this is done there is no difficulty in determining what
property was insured. There was no misdescription of any
item. All the property appellant contracted to have insured
was embraced by appropriate description in the policy, and
hence the right of rescission insisted upon did not exist.
* No error appearing, the judgment will be affirmed.
Judgment affirmed.
Amanda S. Tayloe
v.
Chicago and Northwestern Railway Company.
1. Agent — cannot bind principal beyond the scope of Ms agency. An
agent of a railroad company, appointed for the purpose of transacting some
limited or specified business for the company, cannot bind the company
outside of its legitimate business, or make contracts for it which the com-
pany never authorized any one to make.
2. Same — passenger agent cannot bind principal by contract to look after
freight. The agent of a railway company, who is employed for the sole
purpose of soliciting passengers to patronize the road of the company, and
who is not held out by the company as their agent for any other purpose,
has no power to bind the company by a contract to receive freight from
another road, and transport it to the depot of, and ship it on the road for
which he is such agent.
3. Carrier — duty as to freight beticeen connecting lines. A common
carrier by railroad is not bound by law to watch for and ascertain the arrival
of freight at the depots or wharves of other common carriers, and transport
the same to its own depot, and is not bound by any agreement to do so, made
by an agent employed by it for the sole purpose of soliciting passenger
business.
1874.] Taylor v. Chi. & .Northwestern Ry. Co. 87
Statement of the case.
Appeal from the Circuit Court of Whiteside county; the
Hon. W. W. Heaton, Judge, presiding.
Messrs. Kilgour & Manahan, for the appellant.
Mr. B. C. Cook, for the appellee.
This was an action, brought by Amanda S. Taylor against the
Chicago and Northwestern Railway Company, to recover for cer-
tain millinery goods which had been shipped from Danville,
Maine, to plaintiff, at Chicago.
The declaration contains one count against the defendant as
common carrier, and three special counts alleging an under-
taking on the part of the defendant to watch for the arrival
of the goods at Chicago, and, upon such arrival, to obtain them
and carry them to Sterling, in this State ; that the goods arrived
at Chicago, and defendant neglected to get and forward the
same, whereby they became lost to plaintiff.
A verdict and judgment were rendered in favor of the defend-
ant in the court below, and the plaintiff appealed.
The substance of the testimony, on the trial, was as follows :
The property in question was a large box and show case, con-
taining millinery goods worth about $2,000, of about 490 pounds
weight, which were shipped as freight from Danville, Maine,
to Chicago. The plaintiff and her husband came to Chicago by
the Grand Trunk and Michigan Central railroads.
At Chicago, Robert Taylor, the husband of plaintiff, pur-
chased two tickets for their passage from Chicago to Sterling,
over defendant's road, at the city office of the company, near
the court-house, and near where they stopped. Taylor then
went to the Wells street depot of defendant to check their
trunks to Sterling, and to see about getting the goods trans-
ferred. He went to the baggage-master of the defendant in
the depot, showed him his checks for trunks, and showed him
his bill of lading, or receipt for the goods, from the Grand
Trunk railway company. The baggage-master said that was
Orb's business. Taylor found Orb in the office in the same
88 Taylor v. Chi. & Northwestern Ky. Co. [Sept. T.
Opinion of the court.
ant. He showed Orb his bill of lading or receipt. The latter
said he would send the goods right along as soon as they came,
and in the centre of the bill of lading, or receipt, Orb wrote
the following :
" To be shipped to A. S. Hobbs, Sterling, Ills.
Edward Orb, Agt. C. & K W. K. W. Co."
This was September 20, 1871.
Taylor told Orb he came by the Grand Trunk road. His
checks showed he came by the Grand Trunk railroad and
Michigan Central to Chicago. The Grand Trunk depot is in
the Michigan Central depot. Orb went there eight or nine
times for the goods, and was told they had not come. They
were unloaded on the second of October, 1871, at A. S. Spen-
cer's dock on the Chicago river, at Chicago, and there remained
until they were burned in the fire of October 8th and 9th
of that year. The cars of the Grand Trunk road come across
to the United States shore at Sarnia, and in Michigan the
Grand Trunk railway makes a junction with the Michigan
Central railroad.
Orb was employed by the appellee to solicit passengers for
said company over its road, and for no other purpose whatever.
He never had any authority to solicit freight, or to make con-
tracts for the company. In addition to this employment, and
wholly independent of it, Orb ran an express wagon on his
own account, and engaged in the business of transferring light
goods, for which he received pay himself, and with which the
company had nothing to do.
Mr. Justice Sheldon delivered the opinion of the Court :
The railway company is here sought to be charged with the
duty to watch at the wharf, or at the depot of the Grand Trunk
railway, or its connecting lines in the city of Chicago, and to
ascertain the arrival of appellant's goods, and have them trans-
1874.] Taylor v. Chi. & North western Ky. Co. 89
Opinion of the Court.
ported by wagon to its own road, by reason of a contract made
by one Edward Orb. To maintain the suit it is necessary to
prove that Orb had authority from the company to make such
a contract on its behalf, or that he was held out by the com-
pany to the public as having such authority. He was an agent
of the company, but not an agent to watch for and ascertain
the arrival of freight or baggage of passengers at the depots or
wharves of other roads, and transport the same to appellee's
road. Such business was not within the scope and object of
appellee's charter. Appellee was a common carrier only by
railroad. It was not bound by law to transact such business as
the above, and never did transact such business. It was not
bound to have, and never did have, an agent for such purpose.
Orb was in the employment of the company merely as a
passenger agent, whose business consisted only in soliciting the
patronage of the traveling public for appellee's line of road, it
being no part of his employment to watch for the arrival of
freight or baggage at other depots, or to convey it across the
city in wagons to the company's own depot ; he was not pro-
vided by the company with the means for such purpose. Orb
was himself, on his own account, as an expressman, engaged in
the business of transferring light goods, and the contract which
he made with appellant was for himself, and not for the com-
pany. It cannot be that an agent of a railway company,
appointed for the purpose of transacting some limited and
specified business for the company, has a right to bind the com-
pany outside the legitimate business of the company, and to
make contracts for it which the company never authorized any
one to make.
It is clear from the testimony that Orb was never authorized
by the railroad company to make the contract which is declared
upon.
And we fail to discover, from the evidence, that the com-
pany held Orb out to the world, or permitted Orb to so hold
himself out, as the agent of the company authorized to make
such contracts. There is no pretense that Orb ever made a
12— 74th III.
90 Taylor v, Chi. & Northwestern Et. Co. [Sept. T.
Opinion of the Court.
contract on behalf of the company, which was known to or
recognized by the company, of the character of the one declared
upon ; or that any one ever made such a contract for the com-
pany, or that the company ever had any thing to do with such
business. Orb was known as the passenger agent, or emigrant
agent of the company, nothing more. What the baggage-
master of the company said when shown the bill of lading for
the goods, that u that was Orb's business," is what the proof
shows. The transfer of those goods was Orb's private busi-
ness, and did not pertain to the company. The signing by
Orb of his name in the way he did to the writing which he
made in the bill of lading from the Grand Trunk railway, did
not bind the company, because it was done in reference to a
matter in which Orb had no agency. And however he may
have so held himself out thereby, there is no evidence of its
being known to, or acquiesced in, by the company ; and the
company evidently could not be affected by that isolated in-
stance of the manner in which Orb held himself out.
There was an exclusion by the court below of certain testi-
mony offered by plaintiff as bearing upon this point, and it is
insisted there was error in this. The testimony offered was,
that the husband of appellant, after obtaining the two tickets
at Chicago for a passage over appellee's road to Sterling, asked
the person of whom he bought the tickets, about the transfer
of the goods in question, and was directed by such person to
Edward Orb, as age^t of the defendant, who attended to that
business, and who would be found at the Wells street depot of
defendant ; but on objection, the evidence was excluded, and
exception taken. The evidence shows that this ticket office,
where the tickets were bought, was in the central business por-
tion of the city, away from appellee's depot and place of gen-
eral business ; and there is nothing from which to infer that
this ticket seller had any other authority from the company
than merely to sell tickets. The company would not be bound
by the declarations of the person who was selling the tickets,
about a matter not within the line of his business. This seller
1874.] The C, B. & Q. E. K. Co. v. Yan Patten. 91
Syllabus.
of tickets, nor no one else connected with the company, is asked
by Taylor where the latter shall go to find an officer of the com-
pany authorized to make a contract on the part of the company
to transfer his goods across the city.
He had no reason to believe that the company was itself
doing any such business, or would make a contract to do it ; all
that he could have had reason to expect from application to and
inquiries of agents of the company, would be aid, in the way
of information, in the means of getting his freight transported
through the city to appellee's depot. We see no error in the
exclusion of the testimony.
We are of opinion the verdict is clearly sustained by the evi-
dence.
There are numerous instructions in respect to which excep-
tions are taken. But the case is so clearly one for the defendant
upon the evidence, that we deem it unnecessary to review the
instructions, as we do not see that the jury could have been
misled by them to appellant's injury. The judgment will be
affirmed.
Judgment affirmed.
The Chicago, Burlington and Quincy Railroad
Company
v.
Ruby Van Patten, Administratrix, etc.
1. Error will not always reverse. Where the right is so clearly
with the successful party that the result would have followed had the
jury been properly instructed, the judgment will not be reversed, but where
the right of the party is not clear, and there is error in the instructions
which may have influenced the jury, a reversal will be had, and the cause
remanded.
2. Negligence — what is, on the part of one killed by a locomotive.
Where a person is riding in a wagon drawn by a team under his control, and
is familiar with a railroad crossing, and from the point where the wagon road
92 The C, B. & Q. E. K. Co. v. Yan Patten. [Sept. T.
Opinion of the Court.
turns to cross the track, distant about four rods, an approaching train is
plainly visible for a distance sufficient to enable him to check his team be-
fore crossing, and he does not look in the direction of the approaching train,
but keeps his head averted to an opposite direction, and drives upon the
track, where he is killed, he will be guilty of contributory negligence.
3. Same — right of recovery in case of mutual negligence. Where a
party killed was guilty of contributory negligence, his personal representa-
tive cannot recover unless the negligence of the defendant contributing
to cause the death, was gross, in comparison with which the negligence
of the intestate was slight.
4. Same — presumption as to negligence of plaintiff's intestate. In an
action against a railway for causing the death of a person through negli
gence, where the proof clearly shows negligence on the part of the deceased,
it is error to instruct the jury that the law presumes that he exercised
proper care and caution on the occasion. If there was no proof of his negli-
gence, such an instruction might be proper.
5. Presumption — not indulged against proofs. Where there is clear
proof of a fact, no presumptions can be indulged except such as arise upon
the proof.
6. Special verdict — instructions in respect to. If the court exercises
its discretion in instructing the jury to find specially in answer to certain
interrogatories, its power is exhausted, and it is error to say to them that
if they are unable to answer the interrogatories because of the uncertainty
of the evidence, they can so report.
Appeal from the Circuit Court of Peoria county ; the Hon.
J. "W. Cochrane, Judge, presiding.
This was an action on the case by Ruby Yan Patten, ad-
ministratrix of the estate of Matthew B. Yan Patten, deceased,
against the appellant. The material facts of the case are stated
in the opinion of the court. The jury found for the plaintiff,
and assessed her damages at $5,000, upon which judgment was
rendered, the court refusing to grant a new trial.
Messrs. McCullooh, Stevens & Wilson, for the appellant.
Mr. Justice Scholfield delivered the opinion of the Court :
This case was before us at a former term, and will be found
reported in 64 111. 512, to which we refer for a statement of
the grounds of the action.
1 874.] The C., B. & Q. K. K. Co. v. Van Patten. 93
Opinion of the Court.
The last trial in the court below, like the first, resulted in a
verdict and judgment in favor of the plaintiff.
When we can see, from all the evidence, the right is so
clearly with the successful party that the same verdict must
necessarily have been rendered had the jury been correctly
instructed on the law, our practice is to decline to reverse and
remand for error in the instructions alone ; but when the right
of the successful party is not clear, and we are of opinion there
is error in the instructions which may have influenced the jury
in determining their verdict, there must be a reversal that
another jury may pass on the issues under proper instructions.
In the record before us there is evidence showing that the
plaintiff's intestate was guilty of negligence contributing to
the injury which resulted in his death, and on account of which
the suit is brought. He was, at the time, riding in a wagon,
drawn by a pair of mules which seem to have been entirely
under his control. He was familiar with the crossing, and the
train was on regular time. The wagon road on which he was
traveling, after running parallel and not far distant from the
railroad track, turns, at a point about four rods distant from
the track, and crosses it nearly at right angles. At and from
the point where the wagon road turns to cross the railroad
track, a train can be plainly seen for a distance sufficient to
enable a person to check an ordinary team before passing on
the track. The intestate did not look in the direction from
which the train was coming, but kept his head averted, look-
ing in an opposite direction, apparently at some persons who
were driving hogs, and, without checking or attempting to
check his team, and thus drove on the track and was struck by
the advancing engine. So far as we have been able to discover,
there was no controversy in this respect. His conduct, there-
fore, was clearly and unquestionably negligent. Ch. c& A. R.
R. Co. v. Jacobs, 63 111. 178 ; St. L. A. & T. H. R. R. Co. v.
Manly, 58 id. 300 ; T. W. & W. R. R. Co. v. Jones, 76 id. 311 ;
C B. & Q. R. R. Co. v. Lee, Admx., 68 id. 576. The only
question, then, was whether the defendant was guilty of a de-
94: The C, B. & Q. K. K. Co. v. Van Patten. [Sept. T.
Opinion of the Court.
gree of negligence in comparison with which this negligence
of the intestate was slight. This was to be determined from
the evidence alone. There was no room to indnlge in
presumptions of what the intestate did or did not do, for his
acts were clearly and fully in proof before the jury. Neverthe-
less, the court, by the fifth instruction given at the instance of
the plaintiff, told the jury :
" The law presumes the deceased, in approaching the mill
crossing, exercised proper care and prudence ; and, unless the
jury believe from the evidence that the deceased did not exer-
cise care and prudence in approaching said crossing, he cannot
be regarded as guilty of negligence."
It may be, if there had been simply evidence of the defend-
ant's negligence resulting in the injury complained of, and no
evidence of what the intestate's conduct was, this instruction
would have been unobjectionable. But in view of the evidence
as it was, the tendency of the instruction was to mislead, and
we doubt not it did mislead the jury. They must have under-
stood it applied to the evidence before them, and, notwith-
standing there was clear proof of the plaintiff's negligence,
still it must be considered with reference to the legal presump-
tion that he was not negligent. When there is clear and in-
contestable proof of a fact, no presumptions can be indulged
except such as arise from the proof. How much, or whether
any evidence was sufficient, in the estimation of the jury, to
overcome this legal presumption that the intestate was not
negligent, under the peculiar form of the instruction, can,
of course, only be conjectured. It may, however, be in-
ferred, from their finding, that the presumption was of con-
trolling importance, for it is difficult otherwise to reconcile the
verdict with the evidence.
The instruction should have been refused, and the giving of
it was error.
The defendant requested, and the court instructed the jury
to find specially, in answer to the following interrogatories :
" Int. 1. In what particulars were the servants of the defend
1874.] The 0., B. & Q. R. R. Co. v. Van Patten. 95
Opinion of the Court.
ant guilty of negligence in causing the death of Matthew B.
Yan Patten ?
" Int. 2. At what rate of speed was the train which caused
the death of said Matthew B. Yan Patten moving at the time
of the accident ?
" Int. 3. Could the said Matthew B. Yan Patten, from his
position on the road at the point where the same turns out of
the public road westward to the place of the accident as indi-
cated on the map shown in the evidence, and from that point
until he reached the railroad track, have seen the approaching
train ; if so, for what distance could he have so seen the same ?
"Int. 4. Did the said Matthew B. Yan Patten at any
time before the accident occurred, and while the train that
caused his death was within sight, look in the direction of said
train as it approached ; if so, at what point did he so look ? "
The court then, of its own motion, and against the defend-
ants' objection, remarked to the jury that if they were unable
to render a special verdict in answer to the interrogatories, be-
cause of the uncertainty of the evidence, they could so report
in the way of a special verdict.
The jury, with their general verdict, returned the following
special verdict :
"First. We, the jury, find the greatest negligence on the
part of the defendant's servants, in causing the death of Mat-
thew B. Yan Patten.
" Second. In not giving the proper signals.
" Third. In running at an unusual rate of speed."
The defendant objected to receiving the verdict, but the
court overruled the objection and gave judgment on the gen-
eral verdict, for the plaintiff.
It was provided by the fifty-first section of the Practice act,
in force July 1, 1872, " The court may, at the request of either
party, require the jury to render a special verdict upon any fact
or facts in issue in the cause, which verdict shall be entered of
record," etc. "When the special finding of fact is inconsistent
96 The C., B. & Q. E. K. Co. v. Van Patten. [Sept. T.
Opinion of the Court.
with the general verdict, the former shall control the latter,
and the court shall give judgment accordingly.
When the court exercised its discretion and instructed the
jury to find specially in answer to the interrogatories, we think
its power in that respect was exhausted, and that it was
then the duty of the jury to obey the instruction. By subse-
quently informing them that if they were unable to answer the
interrogatories, because of the uncertainty of the evidence, they
might so report, etc., the jury were made to understand that,
in the opinion of the court, there was uncertainty in the evi-
dence upon the points presented by the interrogatories, and,
also, that, although the evidence was too uncertain to enable
them to specifically answer the interrogatories, they might,
nevertheless, be able to return a general verdict. We think
the tendency of this was to mislead the jury. The interroga-
tories embrace the vital issues in the case. Unless the jury
were able to find that the answers to them were unfavorable to
the defendant, their verdict should have been for the defend-
ant. If no instruction to find specially in answer to these
interrogatories had been given, it would still have been the
duty of the jury to have believed from the evidence, before
they returned a verdict for the plaintiff, that the defendant
was guilty of negligence which caused the injury to the intes-
tate ; that the intestate was not guilty of contributive negli-
gence, or, if guilty of such negligence, that it was slight and
that of the defendant gross when compared with each other.
It is idle to say a jury might intelligently return a general find-
ing embracing these issues, and yet, by reason of the uncertainty
of the evidence, not be able to answer the interrogatories.
The special findings, both in omitting to make answer in
reference to the negligence of the intestate, and in their
phraseology, show that the jury acted upon an incorrect under-
standing of the law applicable to the case. They find the
defendant was guilty of the greatest negligence in causing the
intestate's death, in not giving the proper signal, and in run-
ning at an unusual rate of speed. This was not sufficient to
1874.] Baldwin et al. v. Pool. 97
Opinion of the Court.
authorize the general verdict. If the comparison was with
reference to other acts of the defendant, supposed to be negli-
gent, it was immaterial. If it was with reference to the con-
duct of the intestate, as is most reasonable to infer, then it
afforded no basis for the judgment, since we have frequently
held the mere fact that the defendant's negligence is greater
than that of the injured party, when he is guilty of contribu-
tive negligence, does not authorize a recovery.
The judgment is reversed and the cause remanded.
Judgment 7*e
Letitia S. Baldwin et al.
v.
Alexander Pool.
1. Purchaser in possession — of his rights. Where land is sold and
in possession under a contract to convey upon the payment of the pur-
chase money, executed, and the purchaser let into possession, the pur-
chaser is in equity the owner, subject only to the lien of the seller for
the unpaid purchase money, and has a right to the free use and enjoyment
of the rents, issues and profits, so long as he is not in default under the
contract.
2. A vendor of land having let a purchaser into possession under a con-
tract to convey, cannot interfere with one having a privilege from such
purchaser in the enjoyment thereof, where there is no default under the
contract of purchase, and no lessening of the security for the purchase
money occasioned thereby.
Appeal from the Circuit Court of Peoria county ; the Hon.
Joseph W. Cochrane, Judge, presiding.
Messrs. H. M. & S. D. We ad, for the appellants.
Messrs. Starr & Conger, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was a bill in chancery, filed by Letitia S. Baldwin and
Thomas Baldwin, her husband, in the circuit court of Peoria
13 — 74th III.
98 Baldwin et al. v. Pool. [Sept. T.
Opinion of the Court.
county, against Alexander F. Pool to enjoin him from digging
a raceway and building a dam on land claimed to be owned by
complainants.
The defendant, Pool, answered the bill, and exceptions were
filed to the answer ; the court overruled the exceptions, and com-
plainants filed their replication.
The defendant- filed a cross-bill, to which complainants de-
murred, which the court overruled ; complainants thereupon
answered the cross-bill, to which a replication was filed.
Proofs having been taken before the master, the court, upon
hearing the cause, entered a decree dissolving the injunction
and dismissing the bill. The complainants bring the record
here by appeal.
It appears from the record that on the 1st day of March,
1873, the appellant Letitia S. Baldwin, being the owner of a
certain tract of land, containing two hundred acres, sold the
same to Mahala Thurston for $7,000. Two thousand dollars of
the purchase money was paid down, and promissory notes were
given for the deferred payments, payable in installments. A
bond for a deed was executed and delivered to Mahala Thurs-
ton, providing that, upon the payment of the balance of the pur-
chase money at certain specified times, the appellants would
convey the premises by general warranty deed of conveyance.
Mahala Thurston, upon receiving the bond for a conveyance
of the land, was let into possession under the purchase, and
while she was in possession and in no respect in default under
the contract, and on the 29th day of June, 1873, she conveyed,
by an instrument in writing, to the defendant, Pool, the privi-
lege or right to build a low dam across the creek on one corner
of the land, to draw off the water in a mill-race to his mill ;
at the same time Pool executed a contract not to flood the ad-
joining lands.
In the month of September, after this right was conveyed
to Pool, Mahala Thurston sold her contract of purchase which
she had obtained of complainants to one William Baldwin, and
delivered over her contract to him and possession j>f the land, he
1874.] Baldwin et al. v. Pool. 99
Opinion of the Court.
having notice of the purchase made by Pool ; at the same time
she delivered Baldwin the contract Pool had given her not to
flood the adjoining lands.
Pool commenced work some time in June, 1873, on the
land under the right granted him by Mahala Thurston, and
prosecuted the work contemplated in the instrument of writing
he had obtained until he was enjoined by a writ issued upon
the filing of this bill.
The only question which we deem it necessary to consider
is, whether the final decree dissolving the injunction and dis-
missing the bill was proper, under the evidence disclosed by
the record before us.
It is neither claimed nor pretended by the complainants that
Mahala Thurston, or ¥m. Baldwin, her assignee of the contract
of purchase, who assumed the payment of the balance of
the purchase money, is insolvent, nor is there any claim that
the balance of the purchase money will not be paid, and the
land likely to fall back to complainants on account of default
in payment.
Neither is it pretended that the acts done or to be done by
the defendant, Pool, on the land will in the least cause an irre-
parable injury, or in any manner lessen or impair the security
of complainants for the balance of the purchase money.
Complainants, as we understand their position, predicate the
right to maintain their bill solely upon the ground that they
are the owners of the property, and that the defendant has no
right to go upon their property and construct a dam across the
creek and make the mill-race in the bill described.
The main question, then, to be considered is, what were the
rights of the complainants and Mahala Thurston in regard to
the lands sold after the sale and while the purchaser wTas in
possession under the contract? The complainants held the
naked legal title, while the equity was in the purchaser. She
was, in equity, the owner, subject to the lien of complainants
for the balance of the unpaid purchase money. She was not a
mere tenant at will, as is insisted by appellants. The com-
100 Baldwin et al. v. Pool. [Sept. T.
Opinion of the Court.
plainants having sold Mahala Thurston the lands, and she hav-
ing been let into possession under her contract of purchase,
she had the right to the free use and enjoyment of all the
rents, issues and profits thereof without hindrance from the
complainants so long as she was not in default under the con-
tract ; had the complainants invaded the possession of the
premises they woulcT have been trespassers. In Smith v. Price,
42 111. 399, where land had been sold under a contract and the
purchaser let into possession, and the vendor went upon the
premises and removed young trees and ornamental shrubs, in
an action of trespass by the purchaser this court said : " The
defendant had no right of entry, and his entry was a trespass,
and he is liable for all injuries done to the premises, which
was in fact the property of the plaintiff, subject to the lien of
the defendant for the unpaid purchase money." See, also,
Stow v. Russell, 36 111. 23.
We are at a loss to perceive upon what principle complain-
ants can object when no default in payment has occurred, and
the security for the payment of the purchase money has in no
manner been lessened or impaired.
Mahala Thurston being the equitable owner of the property,
her interest was such that it could have been sold upon execu-
tion. She could mortgage it for the payment of her debts.
She could sell or create a privilege or easement upon any part
of the premises which would be valid and binding, but liable
to be defeated should there be a failure to pay the balance of
the purchase money according to the terms and conditions of
the contract of purchase. Baker v. Bishop Hill Colony, 45
111. 264 ; Lombard v. The Chicago Sinai Congregation, 64
111. 477.
The contract, therefore, which the defendant obtained of
Mahala Thurston under the facts and circumstances of this
case we regard as a sufficient justification as against the acts
charged in the complainants' bill ; its validity in the future will,
however, depend upon whether there shall be a faithful com-
pliance with the terms and conditions of the contract of sale
1874.] Town of Dorr v. Town of Seneca. 101
Syllabus.
on the part of the purchaser, Mahala Thurston, and her
assignee.
The decree of the circuit court will be affirmed.
Decree affirmed.
Town of Dorr
v.
Town of Seneca.
1. Paupers — where chargeable. A person who goes into a county or
town and makes no arrangement for a home, and who has no home or fixed
actual residence, but hires out and is employed by one or more persons,
and so continues for six months, and then becomes a pauper, comes within
the second class of persons named in the 15th section of the Pauper act
of 1845, and is a charge upon such town or county.
2. Residence — actual and apparent. Actual residence is determined
by intention and acts, whilst apparent residence consists of acts without
intention coupled with them.
3. A person being unmarried and employed away from his former home,
without any intention of returning, or of making the place where employed
his actual, fixed and permanent residence, has no actual place of residence,
but he has a residence at the place of such employment within the mean-
ing of section 15 of the Pauper law of 1845.
4. Evidence — to prooe residence of pauper. In a suit where the ques-
tion is as to the place of residence of a pauper, under the act of 1845, it is
not improper to piove the statements of the pauper as to where she con-
sidered her home previous to the time she became a town charge.
5. Nor is it error in such case to prove what was said by the brothers-
in-law of the pauper, in reference to their making a bargain for her wages
with those who employed her, as tending to show the relation of the par-
ties, and whether the brothers-in-law regarded their houses as her home.
Appeal from the Circuit Court of McHenry county; the
Hon. Theodore D. Murphy, Judge, presiding.
Messrs. Slavin & Smith, for the appellant.
Messrs. Coon & Curtis, for the appellee.
102 Town of Doer v. Town of Seneca. [Sept. T.
Opinion of the Court.
Mr. Chief Justice Walker delivered the opinion of the
Court :
This was an action brought by the town of Dorr against the
town of Seneca, to recover for the expense of keeping a
pauper claimed to be chargeable to the latter. A trial was had
by the court and a Jury, resulting in a judgment in favor of
the town of Seneca, from which this appeal is prosecuted.
It is first urged that the court below erred in the admission
of evidence. The main question in the case was, as to the
residence of the pauper at the time and for the preceding six
months to her becoming a town charge. This being the ques-
tion, it was not improper to prove her statements as to where
she considered her home previous to the time she became a
town charge. !Nor was it error to prove what was said by her
brothers-in-law in reference to their making a bargain for her
wages with those who employed her from the time she came
to the country. It tended to show the relation of the parties
to each other, and whether the brothers-in-law regarded their
houses as her home. But even if it did not, still it could not
have misled the jury in their finding.
It is next urged that the finding is not supported by the evi-
dence in the case. We think it tends strongly to prove that
the pauper regarded Albright's as her home. She left her
child there and paid its board from her earnings, from her
arrival in this country until the commencement of this suit.
She left a bed there in like manner, and it was stipulated that
the persons should bring her there or to Kneebush's, who lived
near to Albright's, as often as once in four weeks, they imposing
the condition when bargaining for hiring her to different per-
sons, and she called Albright's her home, and had contracted
with him to board her when she was out of employment.
Opposed to this is the fact that she hired out for two years
and nine months before she became a charge, with persons re-
siding in the town of Seneca ; and the two brothers-in-law
testify that she had no home with them, or, in fact, at any place
1874.] Town of Dorr v. Town of Seneca. 103
Opinion of the Court.
But they evidently swore as to their conclusions as to what con-
stituted a home, and not to facts from which a home might be
inferred. It is apparent that it was understood that when out
of employment she would return to Albright's, and remain
until she could again obtain work. It may be she had no such
contract as could be enforced, but such was the arrangement and
understanding among the parties, and the evidence was suffi-
cient to warrant the jury in finding that she and Albright
understood and intended that his house was her home, when
she was out of employment.
But exceptions are taken to the instructions given for the
defendant. To determine whether they are correct involves the
construction .of the fifteenth section of chapter 80, R. S. 1845,
entitled "Paupers." That section is this: "The term 'resi-
dence,' mentioned in this chapter, shall be taken and consid-
ered to mean the actual residence of the party, or the place
where he or she was employed ; or, in case he or she was in no
employment, then it shall be considered and held to be the
place where he made it his or her home." The first section of
the amendatory act of 1861 provides that any person becom-
ing chargeable as a pauper in this State shall be chargeable as
such in the county in which he or she resided at the commence-
ment of six months immediately preceding his becoming so
chargeable.
The fifteenth section seems to have provided for three dif-
ferent conditions of residence. The first is where the pauper
has a fixed, well-known, permanent place of abode. The
second is where such person has no such abode, but has been
employed by some one else ; and the third is where the per-
son has no fixed permanent place of abode, nor has had any
employment as specified, when the place the party made his
or her home is regarded the place of residence, and the place
where chargeable. In each of these three cases, the status, or
condition specified by the statute, must have existed at the com-
mencement of the six months before the party became charge-
able.
104 Town of Dork v. Town of Seneca. [Sept. T.
Opinion of the Court.
We are now brought to consider the question as to which of
the three classes made by this statute this pauper belongs. She
evidently does not to the last, but must to either the first or
second class. Did she, according to the first clause, have a per
manent, fixed place of abode, or residence, at Albright's ? She,
no doubt, left Germany with the fixed purpose of reaching
Kneebush's, in the town of Dorr. She arrived there, and, as
far as her intention and acts could do so, with a single woman,
that undeniably became her home for a time. She had no
other, nor did she then or ever afterwards claim any other.
She made an arrangement, intended to be permanent, that
Albright's should be her home when out of employment.
Nor is there any evidence that this arrangement was ever
changed. She always spoke of Albright's or Kneebush's as
her home.
She left her child and her little property at Albright's, and
it was never removed from the town, and only temporarily to
Kneebush's on one occasion. She, in pursuance to her agree-
ment, paid him two dollars a week for her board at his house,
during the time she was out of employment, and boarded with
him. This evidence tended strongly to show that Albright's
was the place of her actual and permanent residence, and fully
warranted the jury in finding that it was, and that the town of
Dorr was liable for her support.
Where a person comes into a county or town, and makes no
arrangement for a home, but hires out and is employed by
one or more persons, and such a person has no home or fixed
actual residence, such person falls within the second class of
persons fixed by the 15th section of the pauper act.
It is of frequent occurrence that persons hire for wages con-
stantly away from their father's house, and yet they and al]
others know that their actual residence is with their father,
although they as seldom return to their father's as did the
pauper in this case return to Albright's. 'Nov do such persons
usually do more, if even as much, to retain such actual resi-
dence as this pauper did. And yet they vote and exercise all
1874.] Town of Dorr v. Town of Seneca. 105
Opinion of the Court.
the rights of residents and citizens in the municipal division
in which the father resides, and their right to do so is never
challenged or doubted. Persons frequently leave their homes
for years, intending to return, engage in business abroad, or
find employment, and acquire an apparent new residence, and
yet their actual residence is their former home. Thus the
statute intended to make a distinction between the actual and
the apparent residence of paupers. Although the apparent
residence of this pauper was in the town of Seneca, the evi-
dence warranted the jury in finding her actual residence in the
town of Dorr.
Actual residence is determined by intention and acts, whilst
apparent residence consists of acts without intention coupled
with them. A person being unmarried and employed away
from his former home, without any intention of returning,
or of making the place where employed his actual, fixed and
permanent residence, has no actual* place of residence, bat has
an apparent or temporary residence at the place of such em-
ployment, and has a residence at the place of employment
under the second class of the statute.
In this view of the statute the court below committed no
error in giving the instruction asked by defendant. Although
they may not be literally accurate, they announce correct legal
propositions, and could not have misled the jury in finding
their verdict.
It then follows that the instructions given were proper, and
we perceive no error for which the judgment should be re-
versed, and the same is affirmed.
Judgment affirmed.
14 — 74th III.
106 The Bank of Chicago v. Hull. [Sept. T.
Opinion of the Court.
The Bank of Chicago
v.
Chakles J. Hull.
1. Practice — to require affidavit of merits from defendant. The statute
does not require the affidavit accompanying the plaintiff's declaration to be
made by the plaintiff. If an affidavit is filed by any one showing the nature
of the plaintiff's demand and the amount due, the defendant is required to
file an affidavit of merits with his pleas.
2. Same — bill of particulars. Where the plaintiff, in a suit against
a bank for a balance of deposit, attaches to his affidavit the bank-book con-
taining the entries made by the bank, and showing the balance due, this
will be a bill of particulars, notwithstanding its being sworn to, so as to
prevent a continuance.
3. Same — striking plea without affidavit from files. Where the statute is
complied with by the plaintiff, if the defendant files a plea without affida-
vit of merits, it is proper to strike the same from the files.
Appeal from the Circuit Court of Cook county ; the Hon,
Lambert Tree, Judge, presiding.
Messrs. Shufeldt, Ball & Westover, for the appellant.
Messrs. Chase & Crooker, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
There is nothing in the points made by appellant on this
record. The proceedings show full compliance by the plaintiff
below with the Practice act. The declaration was accompanied
by an affidavit showing the nature of plaintiff's demand and
the amount due him, and to the affidavit he attached the bank-
book, written up by the defendants, containing their own
entries, and showing from their own figures the balance due
the plaintiff. This was a full " bill of particulars," and none
the less so, by being sworn to.
The statute (sec. 36) does not require the affidavit to be
made by the plaintiff himself. He is required to file an afnda-
1874.] Stolz et al. v. Drury. 107
Opinion of the Court.
vit simply showing the nature of his demand and the amount
due. There was no ground for a continuance.
The statute having been fully complied with by the plain-
tiff, it was incumbent on the defendants to accompany their
plea with an affidavit of merits. Having no meritorious de-
fense, no affidavit of merits was made, and the court struck
their plea of the general issue from the files, all which was
proper, and in strict pursuance of the statute, and the judgment
is affirmed.
Judgment affirmed.
Maey E. Stolz et al.
v.
Henry Drury.
New trial in ejectment, under the statute. When a motion is made
by a party for a new trial, in open court, on the same day a judgment is
rendered in an ejectment suit, and he pays all the costs within two days
thereafter, and during the same term of court, he has done all he is re-
quired to do to entitle him to a new trial under the statute, and the court
has power to vacate the judgment and award a new trial in such case, even
after the expiration of the period limited by the statute, and should do so
at the request of the party.
Appeal from the Circuit Court of De Kalb county ; the
Hon. Theodore D. Murphy, Judge, presiding.
Mr. Charles Kellum, .for the appellants.
Mr. R. L. Divine, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
The statute in force at the time this cause was commenced,
and under which appellants claim a new trial as a matter of
right, provides, the court in which such judgment shall be ren
108 Stolz et al. v. Drttry. [Sept. T.
Opinion of the Court.
dered, at any time within one .year thereafter, on the applica-
tion of the party against whom the same was rendered, upon
payment of all costs and damages shall vacate such judgment,
and grant a new trial.
It is not controverted a motion was made for a new trial,
under this statute, on the day the judgment in ejectment was
rendered, and two days thereafter, during the same term of
court, the defendant paid all the costs in said cause to the clerk
of the court ; but the objection taken is, the judgment was not
in fact vacated by any order of the court within the period
limited by the statute.
The exact point urged by counsel was decided by this court
against the position assumed, in the case of Myers v. Phillips,
68 111. 269. In that case all costs had been paid and a
motion for a new trial entered in open court before the expi-
ration of one year, but the judgment was not, in fact, vacated
by any action of the court. It was insisted, as in the case at
bar, that after the expiration of the period limited by the
statute the court had no jurisdiction to vacate the judgment
and grant a new trial. But, it was held, the defendant, having
made his application and paid the costs within one year, had sub-
stantially complied with the requirements of the statute, and was
entitled to have the judgment vacated and a new trial granted.
Here, the defendant made his application in open court, as in
that case, and paid the costs within one year after the rendition
of the judgment. It was, perhaps, no fault of his, the court
took no formal action on the motion to set aside the judgment.
The defendant may have had no power sooner to move the
court to action in the premises. The motion to vacate the
judgment was made at the earliest moment possible, and the
costs paid within two days thereafter. This was all the law
required the defendant to do to obtain his new trial. More
than this he could not do, except to respectfully call the atten-
tion of the court to the fact that such motion had been made
and the costs paid.
The court and the parties, however, treated the judgment at
1874.] Ambke v. Weishaak. 109
Syllabus.
the February term, 1873, as having been previously vacated,
for the court at that time entertained a motion, without any
objection on the part of appellee that the cause was not then
pending, to substitute appellants for the nominal defendant,
which was done.
The decisions cited by counsel in this court are not in con-
flict with the rule here announced. In Emmons v. .Bishop, 14
111. 152, the costs had been paid within one year after the ren-
dition of the judgment, and a petition for a new trial filed with
the clerk. It was held that this was not sufficient, but that it
was imperative the application should be made to the court
within the statutory period. No application having been made,
it was not necessary for the court to decide he must obtain a
new trial within a year.
The point made in this case, and in Myers v. Phillips,
supra, was not raised or decided in Gibson v. Manly, 15 111.
140, or in Bees v. The City of Chicago, 40 id. 107. Those
cases announced the correct doctrine on the facts as presented
by the records, but are not analogous cases with the one we
are considering. They are not authorities against the views
stated in this opinion.
The court erred in not granting a new trial to appellants
under the statute, and in not entertaining the motion for a
change of venue, for which the judgment must be reversed and
the cause remanded.
Judgment reversed.
Nicolaus Ambre
V.
Michael Weishaar.
1. Will — attestation — ichat is, in the presence of the testator. If the
witnesses to a will, while signing their names thereto, as such witnesses
are in such a place that the testator can see them if he chooses, they are
110 Ambre v. Weishaar. [Sept. T.
Opinion of the Court.
to be regarded as in his presence, within the meaning of the statute ; and
it is not necessary that they shall be in the same room with the testator, or
that he shall actually see them sign.
2. Where a will was drawn and witnesses sent for at the request of a
testator, and after signing by him at his request, the witnesses went from
the bedroom where he was, into a dining-room to attest the same, on
account of the want of conveniences for doing so in the bedroom, and he
knew that the attestation was going on in the dining-room, and approved
it, and from the position he occupied in the bed could have seen the wit-
nesses while signing : Held, that the will was attested in the presence of
the testator,
Appeal from the Circuit Court of Cook county ; the Hon.
E. S. Williams, Judge, presiding.
This was a bill in chancery, by Michael Weishaar against
Nicolaus Ambre, to set aside the will of Barbara Ambre. The
opinion states the material facts.
Messrs. Wilson & Perry, for the appellant.
Mr. Wm. Hopkins, and Mr. Arno Voss, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a bill in chancery to contest the validity of the will
of Barbara Ambre, made on the 13th day of September, 1869,
and which had been admitted to probate in the county court
of Cook county.
The court below, on hearing without a jury, decreed against
the will and set the same aside.
On this appeal from the decree, the only real question which
arises upon the record is, whether the will was attested in the
presence of Barbara Ambre.
The attestation did not take place in the same room where
she was. Charles Sauter, one of the two attesting witnesses,
and who drew the will, testifies that after it was signed by
Mrs. Ambre he looked for some place in the bedroom where
the witnesses could sign, and finding none, they, at the request
of Mrs. Ambre, went into the dining-room, to witness the wil]
1874.] Ambre v. Weishaar. Ill
Opinion of the Court.
there ; that they went to the front of the dining-room table,
about the middle of it, and there signed their names to the
will.
This table was thirteen feet distant from the head of the
bed in the bedroom, where Mrs. Ambre lay, and stood about
opposite the bedroom door, into the dining-room, a little to
the left in going into the dining-room. The partition wall be-
tween the two rooms was eighteen inches thick. The passage
way between the rooms was not at right angles with the par-
tition wall, but inclined three inches to the left in going into
the dining-room, thus increasing the facility of view from the
bed to the table. The bed stood in the bedroom lengthwise
with the entrance into the dining-room, with the head at the
partition wall, about a foot from the door into the dining-
room, and at the right in going into the dining-room. It was in
evidence, that the door stood open at the time of the attestation ;
that Mrs. Ambre's position in bed was, that she was bolstered
up at an angle of about forty-five degrees ; that the bolstering
brought her head and shoulders about one-third of the way
down from the head of the bed ; that at the time of her sign-
ing the will, she was raised, so that she sat upright in bed ;
that she remained in that position for some time afterward,
and after the attesting witnesses had gone into the dining-room.
As to her physical condition at the time, her attending physi-
cian testifies that her disease was erysipelas, terminating in
gangrene of the right hand and arm ; that he thought she
could turn herself in bed, except that she could not move
her right arm; that she could move her head one way and
the other, nearly as well as anybody ; that if she had desired
to do so, he thought she could have turned in bed partly upon
her right side.
Two witnesses, the physician and John Marx, testify that
they were at this table in the dining-room at the time Mrs.
Ambre signed the will ; that they saw, from their position at
the table, the group around her bed, and saw her, her arms and
shoulders, and, as wMarx testifies, her head. Margaret Rich,
112 Ambre v. WEisnAAR. [Sept. T.
Opinion of the Court.
the daughter of Mrs. Ambre, who was attending upon her,
testifies that she stood behind the bed of Mrs. Ambre, and,
from her position there, saw the attesting witnesses at the
table, in the dining-room, while in the act of attesting the
will. John Sauter, one of the, attesting witnesses, and who
drew the will as before named, who had been accustomed to
draw wills for twenty years, and had been a justice of the
peace for that length of time, testifies that he knew at the
time that the witnesses must sign in the presence of the testa-
trix or the will would be invalid, and that before attesting the
will, he looked around to see that the door between the rooms
was open ; saw that it was open and then attested the will ;
and says that a line drawn from Mrs. Ambre's head, as she lay
in bed, would strike the table somewhere in the centre.
The physician states, that from where Mrs. Ambre lay at
the time, by turning her head she could have seen the witnesses
at the table in the dining-room while they were signing the
will. The other witnesses named, also add their opinion that
she could have so seen.
It is true, all this testimony is not uncontradicted. There is
some testimony that the door was closed at the time. But the
whole testimony leaves no doubt upon our minds that the door
was open. There is conflicting testimony as to Mrs. Ambre's
position in bed, as, whether she was lying down or sitting up.
But the chief conflict of testimony is, in the opinions of wit-
nesses, as to whether Mrs. Ambre could have seen the attesting
witnesses subscribe their names. A majority in number per-
haps of the witnesses testify that she could not.
But there is this important distinction between the opinions
of the two classes of witnesses.
The opinions of the witnesses on the part of appellee do
not seem to be based upon facts, upon actual observation made
at the time, as to the ability of seeing from the position Mrs.
Ambre was in, to that of the attesting witnesses at the table ;
whereas, the opinions of the witnesses for appellant were
based upon the fact that they themselves actually did, at the
1874.] Ambre v. Weishaar. 113
Opinion of tlia Court.
time, see and observe from the one position to the other, and
we regard the latter witnesses as of a more reliable character
than the former.
Without further dwelling upon this conflicting testimony,
we will say that, after a consideration of the entire testimony
and the surrounding circumstances, we can come to no other
conclusion than that the testatrix was in such a situation that
she might have seen the attestation.
The cases are very numerous, and not entirely harmonious,
in regard to the point what will constitute a sufficient presence
of the testator at the time of the attestation by the witnesses.
It is held not to be necessary that the testator and the wit-
nesses should be in the same room, or the same house, at the
time of the attestation, in order to constitute actual presence,
within the statute. And an attestation taking place even in the
same room, if done in a clandestine and fraudulent way, will
not be regarded as an attestation in the presence of the testator.
It is not necessary that the testator should actually see the wit-
nesses signing. In Doe v. Manifold, 1 M. & S. 294, Lord
Ellenborough, Ch. J., lays down the rule, that it is " not nec-
essary the devisor should actually see. In favor of attestation,
it is presumed if he might see he did see.'1 And when the
devisor " cannot by possibility see the act doing, that is out of
his presence."
In Dewey v. Dewey, 1 Mete. 352, the court, on this subject,
say : So the provision that the instrument shall be attested by
three witnesses, " in the presence " of the testator, has been
liberally construed, it being held sufficient evidence of the
presence of the testator, if the facts show a possibility of his
seeing the witnesses subscribe their names, unless controlled by
other evidence, showing that in fact he did not see them, and
that, therefore, it was not done in his presence. Redfield, in
his treatise on Wills, 248, § 7, in remarking upon the latter por-
tion of the above, as to controlling evidence, says : " But the
English cases treat the presumption of the execution being in
the presence of the testator, if so that he might have observed
15— 74th III.
114: Ambee v. Weishaar. [Sept. T.
Opinion of the Court.
it, as one not liable to be rebutted by evidence that lie did not
in fact see it witnessed." We should be quite unwilling to
allow evidence that the testator did not in fact see the will wit-
nessed, to have any controlling influence as to the attestation
being in his presence. We should regard such a rule one that
would be productive of mischief, and in very many cases wrong-
fully defeat the disposition of property by will. In Hagan v.
Grosvenor, 10 Mete. 56, the court say : " The decisions have been
various, but we consider the law as settled, * * * and
that all which is required is that the testator shall see their (the
witnesses') attestation, or be in a situation where he can see it."
We regard it as sufficiently established by the authorities, that
if the witnesses to a will, while signing their names thereto as
such witnesses, are in such a place that the testator can see them
if he chooses, they are to be regarded as in his presence, within
the meaning of the statute ; that it is not necessary that they
should be in the same room with the testator, or that he should
actually see them sign. In support of the principles above
expressed, in addition to the authorities already cited, reference
may be had to the following : 1 Redfield on Wills, 245, et scq.;
Shires v. Glasscock, 2 Salk. 688 ; Davy v. Smith, 3 id. 395 ;
Todd v. Winchelsea, 2 Car. & P. 488 ; Hill v. Barge, 12 Ala.
695; Nook v. Nock, 10 Grratt. 115; Lamb v. Girtman, 26
Ga. 629 ; Wright v. Lewis, 5 Rich. 216 ; Watson v. Pipes,
32 Miss. 468 ; McElfresh v. Guard, 32 Ind. 412.
Considering that Mrs. Anibre, at the time, was possessed of
entire consciousness ; that it was at her own request that the
witnesses went from the bedroom into the dining-room to attest
the will, on account of the want of conveniences for doing so
in the bedroom ; that she knew the attestation was going on in
the dining-room, and approved it ; and, in view of all the other
evidence under the legal rules affecting it, we do not hesitate to
say, that the proof is very satisfactory that the will was attested
in the presence of the testatrix.
As to the question which has been adverted to, of the effect
1874.] Jones v. Byrd. 115
Opinion of the Court.
of the will to pass any portion of the property devised, of
course that does not come up in this proceeding.
The decree of the court below will be reversed, and the
cause remanded for further proceedings.
Decree reversed.
Mary E. Jones
v.
George V. Byrd.
Appearance — after default for the purpose of making motion to set aside
default, is not a general appearance. An appearance and the entry of a
motion by a defendant in an attachment suit, who has not been personally
served, to set aside a default rendered against him upon a notice by publi-
cation, is not such a general appearance as will authorize a personal judg-
ment. If any judgment is authorized in such case, it is in rem only.
Appeal from the Superior Court of Cook county ; the Hon.
Josiah McRoberts, Judge, presiding.
Messrs. Herbert & Quick, for the appellant.
Messrs. Hutchinson & Willard, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court :
We deem it necessary to notice but a single error assigned
upon this record. Suit was commenced by attachment, and
notice given to defendant by publication. There was no per-
sonal service on the defendant, but she appeared, after default,
and moved to set it aside. Upon this the court rendered judg-
ment that the " plaintiff have and recover of the defendant his
damages, $463.65, in form aforesaid assessed, together with his
costs and charges in this behalf expended, and have execution
therefor.
116 Parmelee v. Lowitz. [Sept. T.
Opinion of the Court.
The appearance and entry of the motion to set aside the de-
fault, did not constitute a general appearance and authorize a
personal judgment. If any judgment was authorized, it should
have been in rem only. Klemm v. Dewes, 28 111. 317.
The judgment is reversed and the cause remanded.
Judgment reversed.
Feank Paemelee
V.
Elias Lowitz.
1. Common carrier — what constitutes. One who for hire carries
passengers and their baggage, and also baggage alone, for all persons
choosing to employ him, from, to, and between railroad depots and hotels,
and other places in a city, is a common carrier of goods.
2. Same — of goods, liable for all losses not inevitable. A common carrier
of goods, who receives and undertakes to carry a trunk from a railroad
depot to the owner's residence, is answerable for all losses, except such as
are inevitable, that may occur whilst the trunk is in his possession, and
until it is delivered to the owner.
3. A common carrier of goods who receives and undertakes to carry a
trunk for one not a passenger with such carrier, is responsible for the
delivery of the trunk and its contents, notwithstanding the contents con-
sist of articles not usually carried as baggage, unless the owner has been
guilty of some fraud or deception.
Appeal from the Circuit Court of Cook county ; the Hon.
John G-. Rogers, Judge, presiding.
Mr. John Lyle King, for the appellant.
Mr. Allan C. Story, and Mr. Rufus King, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This is an appeal from a judgment rendered in the circuit
court of Cook county, in favor of Elias Lowitz against Frank
Parmelee, for the sum of $180.40.
1874.] Pakmelee v. Lowitz. 117
Opinion of the Court.
It appears from the record, that in September, 1871, appellee
was a passenger from New York to Chicago, on the Pittsburgh,
Fort Wayne and Chicago railroad ; that his baggage, consisting
of a trunk, was checked from New York to Chicago. A short
time before arriving at Chicago appellee delivered his check
for the trunk to a servant of appellant, who received the trunk
to be carried for hire from the depot to appellee's residence in
Chicago. When the trunk was delivered to appellee, by the
driver of appellant, it had been opened and a part of the con-
tents abstracted. The loss of the goods occurred while the
trunk was in the possession of the servants of appellant.
Among the articles taken from the trunk were two patterns of
women's dress goods — silks in the piece, purchased for plain-
tiff's wife and daughter, in New York. These were of the
value of $111. Other articles lost were of the value of $69.40.
The appellant was the proprietor of a line of omnibus and
baggage wagons, and engaged in carrying, for hire, passengers
and their baggage, and also baggage alone, for all persons
choosing to hire from, to, and between the various railroad de-
pots and hotels, and different parts of the city in Chicago ; that
appellant had agents to solicit such business on all incoming
trains. As is shown by this record, appellant was clearly a
common carrier of goods as well as passengers, in the city of
Chicago. Par melee v. MclSFulty, 19 111. 556.
In order to determine whether the finding of the court upon
the evidence was correct, it will be necessary to consider the
duties and obligations of appellant as a common carrier of goods.
It is said by Kent, vol. 2, page 597 : " The carrier for hire
in a particular case, and not exercising the business of a com-
mon carrier, is only answerable for ordinary neglect, unless he
by express contract assumes the risk of a common carrier.
But if he be a common carrier, he is in the nature of an in-
surer, and is answerable for accidents and thefts, and even for
a loss by robbery. He is answerable for all losses which do not
fall within the excepted cases of the act of God, meaning inev-
itable accident, without the intervention of man, and public
118 Paemelee v. Lowitz. [Sept. T
Opinion of the Court.
enemies. This has been the settled rule of law for ages, and
the rule is intended as a guard against fraud and collusion, and
it is founded on the same broad principles of public policy and
convenience which govern innkeepers."
Appellant, as a common carrier, received the trunk of ap-
pellee at the depot in Chicago, and agreed for a certain price
to deliver it at the residence of appellee. The law required
him to safely carry and deliver it with its contents. This he
failed to do, but suffered a part of the contents of the trunk to
be stolen while he was the custodian and insurer of the goods,
and we are aware of no principle of law upon which he can
escape the responsibility that attached to his undertaking as a
common carrier.
It is, however, insisted by the counsel of appellant, that the
dress goods taken from the trunk were not baggage such as is
ordinarily carried by passengers, and, therefore, appellant was
not liable for the loss of those articles. And in support of this
position we are referred to authorities where passengers upon
railway or steamboat lines, who paid simply the fare of a pas-
senger, and had baggage checked and met with loss, could not
recover for the loss of goods which were not strictly denomi-
nated baggage.
Had the goods been taken from the trunk while it was in
the possession of the railroad company, and were this a suit
against the company to recover for the loss, then the position
assumed, and the authorities cited might be regarded with
some force.
But the case under consideration is not at all similar to the
cases cited by appellant in his brief. Appellee was not a pas-
senger with Parmelee. He did not pay or contract for fare.
The relation between carrier and passenger did not arise or
exist between them. When the trunk was received no inquiry
was made by appellant as to its contents, and so far as his lia-
bility was concerned, it was of no importance whether it con-
tained baggage or merchandise.
Appellant had no greater right to be informed of the con
1874.] Allen v. Stenger. 119
Syllabus.
tents of the trunk, than a railroad company has to be informed
of the precise contents of a box of merchandise which is re-
ceived for shipment.
The common carrier is answerable for the loss of a box or
parcel of goods, though he be ignorant of the contents, or
though those contents be ever so valuable, unless he made a
special acceptance. 2 Kent, 603.
This is the recognized rule, unless the owner of the goods has
practiced a fraud or imposition upon the carrier by concealing
the true value of the goods, and there is no pretense from this
record, that any fraud, or deception, or concealment, was prac-
ticed by appellee.
The law prescribing the duties of appellant as a common
carrier of goods, required him to safely carry and deliver the
trunk and its contents to appellee, unless prevented by the act
of God or the public enemies. This duty the record shows he
failed to discharge, and he must be held responsible for the loss.
The judgment will be affirmed.
Judgment affirmed.
Edward R. Allen
v.
Michael Stenger.
1. Assumpsit — when it lies for money had and received. An action
for money had and received will lie whenever a defendant has received
money which in justice belongs to the plaintiff, and which he should, in
justice and right, return to the plaintiff.
2. Where the mortgagor in a chattel mortgage sells the mortgaged
property on a credit, the proceeds of which sale are to belong to the mort-
gagee when collected, and after the death of the mortgagor, his adminis-
trator collects the purchase money and deposits it with one who is at the
time apprised of these facts, an action for money had and received will lie
at the suit of the mortgagee against the party so receiving the money oa
120 Allen v. Stengee. [Sept. T.
Opinion of the Court.
Appeal from the Court of Common Pleas of the city of
Aurora ; the Hon. Richard G. Montony, Judge, presiding.
Messrs. Beown & Southwoeth, for the appellant.
Messrs. Paeks & Little, for the appellee.
Mr. Chief Justice Walkee delivered the opinion of the
Court :
About the 12th day of October, 1869, appellee, to secure a
debt owing him by Robert Groch, took from him a mortgage
on about 1,000,000 brick. Groch, during his lifetime, sold
a portion of the brick. Afterwards Groch died and his son
was appointed administrator of his estate, and collected various
sums of money, which was deposited with appellant. Sub-
sequently the son died, and appellant was appointed adminis-
trator de bonis non of Groch' s estate. Before appellant re-
ceived the money from the administrator he was notified by
appellee that the money for which the brick was sold belonged
to him and he should claim it. A demand was made on ap-
pellant for the money before suit was brought. On a trial
below, before the court and a jury, a verdict was found in
favor of plaintiff, and after overruling a motion for a new trial,
a judgment was rendered on the verdict, which defendant now
seeks to reverse.
It is urged that appellee should look to the estate of the
mortgagor for his money, and not to appellant. It appears
that he received the money, knowing it to be the proceeds of
the brick of appellee, or on which he had a lien and was to
have the brick or the proceeds ; that the brick had been sold
by appellee's agent. Knowing these facts, and being notified
by appellee that he should claim the money, we can hardly
suppose that appellant would be so reckless as to report this
money as a part of the assets of Groch's estate in his hands to
be administered. If he so reported them, he did so with a full
knowledge of the facts.
1874.] Allen v. Stenger. 121
Opinion of tlie Court.
Was he, then, liable to pay the money to appellee % There- is
no pretense that the latter was not entitled to the brick or, when
sold, to their proceeds. But the question is as to the remedy
he shall pursue for its recovery. It may be a matter of doubt
whether appellee could prove up his claim for the price of the
brick sold by the mortgagor, when he did not receive the money,
against the estate. The agent sold the brick of his principal
on time, and died, and his administrator collects the money and
pays it to appellant, who knows the facts and knows appellee
claims the money as his. In what manner did this become
the money of the estate, any more than had the adminis-
trator collected money due to any other person and deposited
it with appellant, he knowing all of the facts % Had appel-
lant received this money supposing it belonged to the estate,
and without knowledge that it belonged to appellee, and had
applied it to payment of the debts of the estate under the order
of the probate court, he would have been manifestly protected,
and appellee's only remedy would have been in the probate
court for his claim as a trust fund, because, by failing to pro
ceed or give notice of his claim in time to prevent appellant
from applying it as assets, appellee would have been estopped
from looking to appellant for it.
Then does an action lie for money had to the use of appellee.
Assumpsit always lies to recover money due on simple contract.
And this kind of equitable action to recover back money which
ought not in justice to be kept is very beneficial and, there-
fore, much encouraged. It lies only for money which, ex equo
et bono, the defendant ought to refund. Chit. Contr. 474.
When, therefore, according to this rule, one person obtains the
money of another, which it is inequitable or unjust for him to
retain, the person entitled to it may maintain an action for
money had and received for its recovery. And it is not neces-
sary that there should be an express promise, as the law implies
a promise. The scope of the action has been enlarged until it
embraces a great variety of cases, the usual test being, does
the money, in justice, belong to the plaintiff, and has the de-
16 — 74th III.
122 Stuart v. McKichan. [Sept. T.
Syllabus.
fendant received the money, and should he in justice and right
return it to plaintiff ? These facts create' a privity, and the law
implies the promise to pay.
Tested by these rules, we have no hesitation in saying the
action lies in this case. Appellant received money for appellee's
brick sold by his agent, which was known to him when it came
to his hands. It then follows that appellant has money which
justly belongs to appellee, and it is inequitable for appellant to
hold it, and hence the right to recover. The judgment of the
court below must be affirmed.
Judgment affirmed.
Robert Stuart
v.
Solomon McKichan.
1. Books of account — presumed to be correct, as between partners.
Partnership books of account are presumed to contain a true history of the
business and a true record of the transactions between the partners. In the
absence of proof to the contrary, reliance is properly placed on such books
in stating the partnership account.
2. Partnership — right of partner to credit for interest paid. Where
one is taken as a partner in a business on account of his financial credit,
and to raise money to prosecute the business, and he is credited by the
book-keeper for the interest paid by him in procuring loans, and the other
partner having examined the books, makes no objection to such entries,
they may properly be allowed in stating the partnership account.
Appeal from the Superior Court of Cook county ; the Hon,
Joseph E. Gary, Judge, presiding.
Mr. T. S. Dice:son, for the appellant.
Messrs. Hervey, Anthony & Galt, for the appellee.
1874.] Stuart v. McKjchan. 123
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court :
This is an appeal from a decision of the Superior Court of
Cook county, rendered in a suit in chancery, wherein Solomon
McKiehan was complainant, and Robert Stuart was defendant.
The important questions made in that court arose upon ex-
ceptions to the master's report, which was confirmed with the
exception of one item, and a decree accordingly.
The propriety of this decree is questioned by Stuart, who
brings the case here, and insists that his exceptions should have
been allowed. We do not propose to consider all the excep-
tions, but those only we deem important. Nor do we propose
to go into the minutiae of the testimony, but will consider
such facts only as appear prominent in the record.
The prominent facts are these : In the summer of 1865, and
up to the autumn of 1869, these parties had several contracts to
pave certain streets in Chicago. The first contract was between
appellant and appellee, and one Andrew Gray, as copartners,
in 1865. Soon after it was entered into, Gray disposed of his
interest to appellant and appellee, so that they became equal part-
ners, each entitled to one-half the profits. In 1869 it was
claimed by appellee that appellant had caused an estimate to
be taken on the work done, which he appropriated to his own
use. Appellee thereupon filed a bill to enjoin appellant from
negotiating this voucher, whereupon appellant filed his bill to
investigate all the partnership transactions from 1865 up to
1869, and for an account and a dissolution of the partnership.
It was then agreed that the two suits should be consolidated,
and such decision as might be rendered should settle both cases.
A large amount of testimony was taken, and the cause heard
and referred to a master to state an account. This was not
long prior to the fire of October, 1871. Nearly all the papers,
files and vouchers were destroyed by that fire. Since the fire,
the files have been restored, and testimony retaken, and the
cause again referred to the master to state an account.
The master in due time made his report, to which appellant
124: Stuart v. McKichan. [Sept. T.
Opinion of the Court.
filed twenty exceptions. As we have said> the court disallowed
all the exceptions, save as to one item, and confirmed in all
things else the report.
When the cause was before the master, the books of account
and vouchers were produced before him, and before the court
also, in considering the exceptions. Those books are presumed
to contain a true history of the business, and a true record of
the transactions .between these partners. It would appear that
appellant was to superintend the work on these contracts, and
appellee to raise the means by which to carry them on, he
being a man in high financial credit, and to keep the books
and accounts of the firm. With the knowledge of appellant,
one McDougal was placed in charge of the books, whose abil-
ity is not questioned, and through whose hands all the accounts
and vouchers passed. There being no proof to the contrary,
reliance is properly placed on the books so kept.
The first exception taken to the master's report is, that ap-
pellee charged and was allowed against the firm the interest
and discounts he was required to pay for the use of the money
he raised for the partnership. It is claimed by appellant that
by the terms of the copartnership appellee was to raise the
money necessary to carry out the contracts. It appears from
the books kept by McDougal that the interest on moneys bor-
rowed to carry on the work was charged to the firm in the
account of " expenses." These books were open to the in-
spection of appellant at all times, and he knew from an exam-
ination of them from time to time that these charges were on
the books, and he made no objection to them. It is in proof,
also, by McDougal, the book-keeper, and by appellee, and by
Gray, that it was expressly understood by the parties, and
spoken about at the time the copartnership was formed, that
the interest which would have to be paid on loans of money
for the work was to be charged to the firm account as expenses.
McDougal testifies he called appellant's attention to those
charges for interest paid ; that he looked over the book time
and again with him to see the different entries and told him
1874.] Stuart v. McKichan. 125
Opinion of the Court.
the rate of interest the bankers were charging ; that it was
an understood thing at the beginning that the firm should pay
interest on such moneys as appellee might borrow for the use
of the firm. It would seem appellee was in the concern for
the special purpose of raising money by his commercial credit.
We think the court was fully warranted in disallowing this
exception.
The next exception of importance is in disallowing certain
payments on behalf of the firm for gravel and other material.
Appellant testifies that he kept a memorandum book when on
the street where work was being done, in which he would,
from time to time, as he paid out money, enter the amounts
in this memorandum book. It is proved, to our satisfac-
tion, that for all these amounts he was duly credited by
the book-keeper on the books of the firm. Of this there
can be no doubt, and the proof is made still stronger by
the fact that in 1871, while these suits were in progress,
before the fire of that year, and when appellant's memory
must be supposed to have been as clear as it was in 1873,
when he testified, Alfred Spink was selected by himself
as a very competent person to examine these books and to
state an account, and to whom, as Spink testifies, appellant
presented all the memoranda and accounts against the firm.
None of these claims which he now seeks to recover were pre-
sented to Spink. Spink examined these books with great
care, and found them correct, in the main, they showing appel-
lant had been credited with all he then claimed. These claims
were not thought of before the fire. We have examined the
testimony carefully, and fail to see that the court below mis-
understood it, or mistook its force. We think it fully estab-
lishes the fact that appellant received on the books of the firm
all the credits to which he was entitled, and has no cause to
complain of the decree.
Something is said about appellee appearing on the books as
a large debtor to the firm. We understand this was so in ap-
126 Fonvtlle et al. v. Monroe et al. . [Sept. T.
Opinion of the Court.
pearance only, his share of the profits not having been credited
to him at the time.
On the whole record, we are of opinion justice has been
done, and we affirm the decree.
Decree affirmed.
"William B. Fois"ville et al.
v.
James Monroe et al.
1. Practice and pleading — variance between writ and declaration. A
variance between the writ and declaration is a matter pleadable in abate-
ment, and where no attempt is made in the court below to avail of it, it
cannot be assigned for error in this court.
2. It is not error to render a judgment in favor of a plaintiff named in the
summons, although he is not named in the declaration, if no question is
raised in the court below on the variance.
3. Appearance — what constitutes. Where a defendant, not served
with process, files a demurrer to a special count and the general issue to
the common counts, and the demurrer is overruled and the plea stricken
from the files, and defendant, afterward, on his own motion, obtains an
extension of time to file a plea with an affidavit of merits, there is a full
appearance, and a judgment against such defendant is not erroneous.
Appeal from the Circuit Court of Kankakee county ; the
Hon. Nathaniel J. Pillsbury, Judge, presiding.
Mr. S. R. Moore, for the appellants.
Mr. Gr. S. Eldridge, and Mr. Hamilton K. Wheeler, for
the appellees.
Mr. Justice Scott delivered the opinion of the Court :
The point is urged that the name of Charles D. Reed ap-
pears in the summons, as one of the plaintiffs, but not in the
declaration, and because of the omission it is insisted it was
1874.] Tail et al. v. Mix et al. 127
Syllabus.
error to enter judgment in his favor, with the other plaintiffs.
Objections of this character cannot be taken for the first time
in this court. Variances between the writ and declaration are
matters pleadable in abatement. No attempt was made to avail
of the error in the court below. This not having been done,
the alleged variances, if any exist, cannot now be assigned for
error. Reed was a plaintiff in the suit, and the judgment in
his favor, with the other plaintiffs, was proper. Prince v.
Lamb, 1 Breese, 378.
Appellant Dunham was not served with process, and it is
insisted, inasmuch as his plea was stricken from the files, there
was no appearance, and, therefore, no judgment could be ren-
dered against him.
Both defendants had filed the general issue to the common
counts and a demurrer to the special count of the declaration.
The demurrer was overruled, and the plea stricken from the
files. Afterward, as appears from the record, the defendants,
on their own motion, obtained an extension of time in which
to file a plea with an affidavit of merits. This was a full ap-
pearance, and the judgment against both defendants was
proper.
The other questions raised are answered by the opinion in
Fonville v. Sausser et al., 73 111. 451.
The judgment will be affirmed.
Judgment affirmed.
Algernon S. Vail et al.
v.
James Mix et al.
1. Prescription — easement or right to overflow land. A right to over-
flow land, like easements in general, may be acquired by an uninterrupted
and adverse enjoyment for twenty years, or for the period of time fixed by
the statute of limitations for the right of entry upon lands.
128 Vail et al. v. Mix et at. [Sept. T.
Opinion of the Court.
2. Injunction — party precluded from, after long acquiescence. Where
the owners of land, which is overflowed by a dam, acquiesce in the erec-
tion of the dam, and permit the party erecting the same to make large
expenditures in the same and in buildiiag and maintaining a mill, and suf-
fer the dam to be kept up for twenty-four years, their acquiescence for so
great a time will preclude them from enjoining the rebuilding and repair
of a part of the dam carried away.
3. Statute construed — condemnation for mill. The provision in the
statute relating to mills' and millers, which prohibits the erection of a dam,
etc., which will injure the health of the neighborhood by the overflow of
lands, has application only to proceedings had under that statute, and does
not apply on bill for injunction to prevent the repair of a dam, long before
erected.
4. Injunction — nuisance affecting public health. For a threatened inj ury
to the public health, as by the erection of a dam and the consequent over-
flow of lands, a court of equity will not interfere at the suit of a few pri-
vate individuals, unless it be shown in the bill that their health is or will
be directly affected by the nuisance.
Appeal from the Circuit Court of Kankakee county ; the
Hon. ]ST. J. Pillsbury, Judge, presiding.
Mr. C. K. Starr, and Mr. W. F. Singleton, for the ap-
pellants.
Mr. S. R. Moore, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a bill for an injunction, brought by Algernon S.
Vail, Alfred Brown, David Lynds, and Enos Yan Kirk, on the
26th day of June, 1874, in the Kankakee county circuit court,
to restrain appellees from repairing the mill dam across the
Kankakee river, at Momence, in Kankakee county. Upon the
hearing of a motion to dissolve the temporary injunction which
had been granted, upon bill, and answers, and affidavits filed
therewith, the court below dissolved the injunction and dis-
missed the bill.
Three of the complainants, Yail, Brown and Lynds, take
this appeal to reverse the decree.
1874.] Vail et al. v. Mix et at. 129
Opinion of the Court.
The leading facts are as follows :
This mill power was established where it is now situated,
prior to the year 1842. At the point where the dam is situ-
ated, there is an island in the river, which divides the river
into two branches, known as the north branch and the south
branch. Prior to 1842, a dam was built across the north
branch, and this dam made power sufficient to run the mill
until 1849, and run both a grist mill and a saw mill. This dam
is maintained near the centre of the island, and no question is
made concerning it. In 1849, the erection of the dam in ques-
tion was commenced across the south branch, at the head of
the island, about eighty rods above the dam across the north
branch, and was finished in the spring of 1850.
These dams have been maintained permanently, and continu-
ously up to the present time, excepting occasional breaks which
were immediately repaired. In March, 1874, a portion of this
dam, on the south branch, at the head of the island, went out.
An undivided two-thirds part of this water power and mill
privilege was purchased by George W. Cass, in 1870, which
he now owns. He does not wish to have the dam repaired,
being largely interested in lands above the dam affected by
overflow. The owner of the remaining one-third interest was
about to proceed in the work of repairing the dam, when this
bill was filed and the temporary injunction obtained.
The bill alleges that the repair of the dam will cause the
several lands of the complainants to be overflowed with water
and damaged : those of Tail to the amount of $3,500 ; those of
Brown, $1,800; those of Lynds, $4,000; those of Yan Kirk,
$5,000 ; that they never consented to the building of the dam ;
that their damages have never been assessed, or released by
them ; that the owner of the said undivided one-third interest
is insolvent ; that he threatens to enlarge and increase the dam
for the production of increased water power ; and the bill
further charges that the health of the neighborhood will be
injuriously affected by the repair of the dam, and prays that
the defendants may be enjoined until they shall first have had
17— 74th III.
130 Tail et al. v. Mix et al. [Sept. T.
Opinion of the Court. *
a jury empannelled to assess the damages of complainants, and
until the jury so empannelled shall find that the erection of
the dam will not affect injuriously the health of the neighbor-
hood. The bill is filed in behalf of the complainants, and all
others in like situation who shall come in and contribute to
the expenses of the suit.
There is no proof of the allegation in the bill of the insol-
vency of the defendant, who was about to proceed and make the
repair, but proof to the contrary. The charge of any intention
to enlarge and increase the height of the dam is entirely dis-
proved by the evidence. The proof shows the break in this
dam to be about thirty feet ; that the length of the dam is
from two hundred and fifty to three hundred feet ; that it is
important for the safety of the remaining portion of the dam
that the repairs be speedily made ; that delay will endanger the
carrying away and destruction of the entire dam, and that to
rebuild it would involve an expense of from two to four thou-
sand dollars, so that to stay the work of repairing this dam until
the time prayed for would be to expose the owner of the mill
property to the hazard of a large pecuniary loss.
The proofs make out a case of large damages to a great num-
ber of persons as likely to result from the overflowing of lands,
to be caused by the erection of .this dam, and much more so to
other persons than the complainants; but none others have
come in under the bill and become parties, and we can only
consider the case of the complainants.
As respects the claim for damages to their lands, we are
of opinion that their acquiescence in the maintenance of the
dam has been for so long a time that they are not entftled to
the interposition, by injunction, of a court of equity in their
behalf. The dam has been maintained since 1850, some
twenty-four years. The proofs show that during all this time
Yail and Lynds have lived upon these lands they claim will be
damaged, near the dam, and were cognizant of the building
and maintenance of the dam, and of the overflowing of their
lands caused thereby. Yail himself assisted in the building of
1874.] Tail et al. v. Mix et at,. 131
Opinion of the Court.
the dam. True, they testify that they did not consent, and
that they claimed damages, and that they were promised they
should be paid. But the fact remains that they did suffer this
adverse use of their lands, by the backing of water upon them
for this length of time, and the expenditure for the erection of
the dam and mill to be incurred, without having their damages
previously paid or ascertained. The lands of Brown, in addi-
tion to having been similarly affected for the same length of
time, appear to have come to him some live or six years ago, in
right of his wife, to whom, as the heir of one Robert Hill, the
lands had descended ; and that Hill, June 1, 1850, by his deed,
conveyed to Chatfield, S trunk & Mix, the persons who built
the dam, " All my (his) right, title and interest in or to the
head of the island as may be in the northeast quarter of section
19, town 31, range 14, known as Mill Island ; also suffi-
cient ground and privilege adjoining a mill-dam to the east
shore of the Kankakee river, at or near the section line
dividing the southeast quarter of section 18 and the northeast
fractional quarter of section 19, town 31, range 14, and sufficient
ground on said east bank for the building of abutments and
protection of said mill-dam." In answer to this, Brown
merely shows that Hill had previously conveyed the northeast
quarter of section 19 to one Samuel Hill. But the lands of
Brown are the S. frac. S. W. J section IT and the frac. S. \ S.
E. \ section 18 in said township and range. And as we under-
stand the second clause of the above grant, it was a grant of
the privilege, by the ancestor owning the lands claimed by
Brown, to erect this dam, and the fact of a previous convey-
ance having been made by Hill of the N. E. J of 19, would
not detract from the effect of the grant as respects these lands
of Brown. As respects Brown, this grant of privilege seems
to be a further ground to preclude him from claim for relief.
Yan Kirk not having joined in the appeal, it is unnecessary
to consider his case.
A right to overflow land may, like easements in general, be
acquired by an uninterrupted and adverse enjoyment for
132 Tail et al. v. Mix qt al. [Sept. T.
Opinion of the Court.
twenty years, or for the period ^of time, whatever it may be,
limited by the statute of limitations for the right of entry upon
land. Angell on Water Courses, § 372. Whether the acquies-
cence has been such in this case as to bar an action at law for
damages, we need not decide. We are satisfied that it has been
such as to justify the refusal of an injunction.
The claim for relief on the ground of a nuisance seems to
be based mainly on provisions contained in the statute in
regard to Mills and Millers, Kevised Statutes 1874, pro-
viding a method for the ascertainment of the damages to
lands in case of the erection, repair, or increase in height of a
mill-dam, one provision being that "no such dam shall be
erected, or increased in height, or maintained, when the health
of the neighborhood will be injuriously affected thereby ; " an-
other, that " the jury which shall be empannelled to ascertain
the damages shall also inquire whether the health of the neigh-
borhood will be injuriously affected by the overflow of any
land, and if they shall find that it will be so affected, the peti-
tion shall be dismissed."
So far as respects any proceeding under this statute, it would
be subject to be defeated by the fact that the health of the
neighborhood would be injuriously affected by the contem-
plated work. But these provisions do not control in case of a
bill in chancery of this character.
For an injury to the public health, it would seem the pro-
ceeding, instead of being on the part of three or four individ-
uals, should be on the part of a representative of the public,
upon the information of the proper public officer. It is true,
that it is laid down that in case of a public nuisance a court of
equity will not only interfere, upon the information of the
Attorney General, but also upon the application of private par-
ties directly affected by the nuisance. 1 Story's Eq. Jur., § 924.
But there is no allegation in the bill, or proof whatever, that
these appellants themselves ever have been, or will be, in any
wise affected, as respects health, by reason of the dam, the alle-
gation and proof only being that the health of the neighbor-
1874.] Knight v. Hurlbut et al. 133
Opinion of the Court.
hood will be injuriously affected. The only injury which they
tsuggest, in respect to themselves, is damage to their lands.
We are of opinion the appellants have failed to show any
equitable claim to relief, and that the injunction was properly
dissolved, and the decree will be affirmed.
Decree affirmed.
Gteoege C. Knight
v.
E. W. Huklbut et al.
1. Promissory note — when it becomes obligatory. The defendants,
under an agreement with the plaintiff, that they would sign their father's
note to the plaintiff as sureties, executed a note and delivered it to the
plaintiff, who agreed to get the signature of the father of the defendants,
who was to be the principal in the note. The plaintiff never presented
the note to defendants' father for his signature, nor did the father ever
sign it : Held, that as between the parties, the note was not obligatory, not
being signed by the father.
2. Consideration — want of. Where a note was signed by two
persons as sureties for their father, and delivered to the payee who under-
took to get the father's signature but failed to do so, it was held that the
note was given without consideration and could not be collected by the
payee.
Writ of Error to the Circuit Court of Iroquois county ;
the Hon. !N". J. Pillsbury, Judge, presiding.
Mr. M. B. Wright, and Mr. L. H. Hamlin, for the plaintiff
in error.
Messrs. Doyle & King, for the defendant in error.
Mr. Justice Scholfield delivered the opinion of the Court :
The evidence, as preserved in the record, shows, with reason-
able certainty, that the note which is the subject of the present
controversy, was signed by the defendants, as sureties, in fact,
134 McLean v. McBean. [Sept. T.
Syllabus.
and sent by them to the plaintiff, under the agreement that he
was to procure it to be signed by their father, and then accept
it in liquidation of certain of his indebtedness ; and that he
neglected to obtain their father's signature, or to. present the
note to him for that purpose.
The note never having been assigned, the only question is,
can the plaintiff recover on it, in direct violation of the terms
of the agreement upon which it was signed and intrusted to
him?
As between the parties the note was imperfect, until it was
signed by the principal. It was not placed in the plaintiff's
hands, there to remain until a contingency should happen,
whereby it was to become obligatory, but it was intrusted to
him to be delivered to the principal for his signature, after
which, upon his redelivering it to him, it was to become oblig-
atory, but not until then. All that preceded the signing and
delivery of the note by the principal were but so many steps
in its execution.
Treated as a promissory note from the defendants alone, to
the plaintiff, it is, moreover, without consideration.
The judgment is authorized by the evidence, and is in con-
formity with StricMin v. Cunningham, 58 111. 295. See also
Seymour v. Cowing, 1 Keyes (N. Y.), 534 ; Miller v. Gam-
lie, 4 Barb. 146 ; Edwards on Bills, 186.
Judgment affirmed.
Thomas McLean
v.
John McBean.
1. Pleading — in suit against devisee for devisor's debt. Where an
action is brought against an heir or devisee, under the statute, for the debt
of his ancestor or devisor, the facts authorizing such action must be dis-
tinctly set forth in the declaration. No recovery can be had under th6
common counts for work and labor performed, etc.
1874.] McLean v. McBean. 135
Opinion of the Court.
2. Heirs — liability for ancestor's debt. An heir or devisee is under no
legal liability to discharge the debt of his ancestor or the devisor from
whom he takes real estate, except when the personal estate of such ancestor
or devisor is insufficient to pay the same.
3. Consideration — is essential. It is essential to every contract or
promise that it be founded upon a good consideration.
4. Same — promise to pay devisor's debt. The devise of real estate to
a party, not creating any liability to pay the devisor's debt, it not being
shown there was no personal estate left, a promise to pay the same by
the devisee, without any other consideration, is void, and cannot be enforced.
5. But even if the devise had created a legal liability to pay the
devisor's debt, a verbal promise by the devisee to pay the same, without
being released from liability under the statute, will be without consider-
ation, and void.
Appeal from the Superior Court of Cook county ; the Hon.
John Burns, Judge, presiding.
Messrs. Hoyne, Hokton & Hoyne, for the appellant.
Mr. Ira W. Buell, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of assumpsit, brought by John McBean,
in the Superior Court of Cook county, against Thomas McLean,
for filling, grading and paving in the year 1858 or 1859,
"Washington street, in the city of Chicago, in front of property
then owned by Thomas McLean, Sr., father of appellant.
The declaration contained the common counts, to which
appellant filed three pleas, general issue, the statute of limita-
tions and the statute of frauds. A jury having been waived,
a trial was had before the court, which resulted in a judgment
in favor of appellee, for $400.
It appears from the record, that the work for which this suit
was brought to recover was performed in 1858 or 1859. Ap-
pellee testifies that the work was done at the request of prop-
erty owners fronting on Washington street, including Thomas
McLean, Sr. The only other witness called by appellee, how-
ever, testifies that McLean objected to having the work done
136 McLean v. McBean. [Sept. T.
Opinion of the Court.
at the time, for the reason that the buildings on his property
were old, and he was receiving but small rents; but aside
from this fact, appellee testified that McLean, Sr., several
times promised to .pay him for the work, and a like amount
that Mr. Peck, another property owner on the street, should
pay.
The evidence tends to show the work was worth $1,600, but
no settlement was effected between McLean, Sr., and appellee.
up to the time of his death, which occurred in 18(55.
The property fronting on Washington street was devised to
appellant and his sister, who were the only children and heirs-
at-law of Thomas McLean, Sr.
In 1869 or 1870, Mr. Peck settled with appellee for the work
on the street fronting his property, and paid fifty cents on the
dollar upon the cost of the work.
Appellee proves by Mr. Barker, that in 1869 or 1870, appel-
lant agreed to settle and pay on the same terms that Mr. Peck
had ; that he would pay $400 for himself, and his sister would
pay a like amount. Appellee himself testified that appellant
made a like promise to him in New York in 1871.
The evidence of both of these witnesses is squarely contra-
dicted by appellant, who, in his evidence, says he never at any
time promised or agreed to pay the demand or any part of the
same.
Appellee bases his right of recovery against appellant solely
upon this promise, when the clear conflict in the evidence is
considered, in connection with the fact that this account was
standing unsettled from 1858 to 1865, the date, of the death of
McLean, Sr., for whom the work was claimed to have been
done, and from that time no effort whatever having been made
to enforce its collection until 1869 or 1870, it is not going too
far to say the evidence is very unsatisfactory upon which to
sustain a judgment. We are not, however, inclined to disturb
the judgment upon this ground, as there is another question
fatal to a recovery.
A recovery is not claimed on the ground that appellant was
1874.] McLean v. McBean. 137
Opinion of the Court.
devisee of his father, and as such liable for the debt. Where an
action is brought against the heirs or devisees, under our statute,
the facts authorizing it must be distinctly set forth in the dec-
laration. Ryan v. Jones, 15 111. 2. In this case the declara-
tion contains merely the common counts. No recovery could,
therefore, be had against appellant as devisee.
It does not appear from the evidence contained in the record
before us that appellant was liable as devisee.
The personal estate of a decedent is primarily liable for the
payment of debts ; no resort can be had to real estate until
the personal estate is exhausted, or until it has been determined
insufficient to discharge all legal liabilities of the deceased ; and
the statute which authorizes an action against a devisee does so
only where the personal estate of the ancestor is insufficient to
pay the debts. Revised Laws of 1874, page 524, section 12.
It nowhere appears from this record that the personal estate
of Thomas McLean, Sen., was insufficient to pay and discharge
all his liabilities. There was then no legal liability resting upon
appellant to pay the account of appellee.
If it be true, then, that appellant promised to pay appellee his
account, amounting to the sum of $400, can an action be main-
tained upon that promise ?
It is essential to every contract or promise that it be founded
upon a good consideration. If the promise upon which this
action was brought was without consideration, it would be void,
and no action could be maintained upon it. It is, however,
claimed by appellee that the consideration was the devise of
the lands fronting upon the street where the work was done ;
but we have shown that the devise of these lands created no legal
liability upon appellant to pay the debt. The promise, then,
was a bare, naked one, based upon no legal liability, and we are
unable to perceive any consideration upon which it could rest.
But even if it was true appellant was liable under the statute
as devisee to pay the debt, we apprehend this action could
not be maintained on the promise claimed to have been made.
In Runnamaker v. Cordray, 54 111. 303, which was an action
18— 74th III.
138 Collins et al. v. Thayer. [Sept. T.
Syllabus.
brought upon a promise to pay a judgment rendered in a for-
eign State, the declaration containing the common counts, it is
said " The first question presented is, whether plaintiff could
recover on the verbal promise of defendant to pay the judg-
ment. Such a promise is without consideration, and cannot
increase or change the liability of the debtor. The recovery
of the judgment imposes the obligation to pay, and that obli-
gation is in nowise increased or changed by the verbal promise.
" The verbal promise does not extinguish the binding force
of the judgment. It remains unimpaired. Nor does the promise
create a new debt or undertaking of binding force."
The same may be said in regard to the liability of appellant
under the statute, if any exists, and the verbal promise upon
which this action is brought.
We are, therefore, of opinion that the promise upon which
this action is brought was made without consideration and that
no action can be maintained upon it.
The judgment will be reversed.
Judgment reversed.
Jeremiah Collins et al.
v.
Hyram Thayer.
1. Limitation — of suit to recover money paid on voidable contract. In
a suit to recover back money paid upon a voidable contract, the statute of
limitations begins to run from the time the contract is terminated by one
party or the other, and not before.
2. A verbal contract for the sale of land is voidable at the will of either
party, but not absolutely void, and the parties have a right to rely upon
each other to perform it, until some act is done by one or the other mani-
festing an intention to terminate it.
3. But when anything is done by either party, manifesting an intention
to terminate a contract voidable under the statute of frauds, the statute ol
limitations will begin to run against an action to recover money paid on
such contract from that time.
1874.] Collins et al. v. Thayer. 139
Opinion of the Court.
4. Statute of frauds — rights of parties to a voidable contract. The
vendor of land, under a verbal contract for the sale of real estate, may
terminate it and recover possession of the land, or the purchaser may
terminate it and recover payments he may have made, and this, too, with
performance or an offer to perform the contract.
5. Recoupment. In a suit by a purchaser of land, under a verbal con-
tract which has been terminated at the option of either party, to recover
payments made on such contract, the vendor may recoup the value of the
use and occupation of the land, if it has been occupied by the purchaser,
unless he has bee*L compelled by law to pay the same to the owner of a
paramount title.
Appeal from the Circuit Court of Grundy county ; the Hon.
Josiah McRoberts, Judge, presiding.
This was a suit brought by the appellee against the appel-
lants, for the recovery of money paid by him under a verbal
contract for the purchase of land. The facts are stated in the
opinion.
Messrs. Dickey & Caulfield, and Mr. W. T. Hopkins, for
the appellants.
Mr. S. W. Harris, and Mr. James N. Reading, for the ap-
pellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
It appears that appellants, some time in the early part of the
year 1865 or 1866, entered into a verbal contract to sell to ap-
pellee a half section of land. The price to be paid was $40
per acre, in six equal annual installments ; all unpaid amounts
to draw eight per cent interest per annum. Appellants were
to convey a good title. The agreement was never reduced to
writing. Appellee paid, in a lot of cattle, $850 in August,
1866, and in another lot of cattle, $2,000, in October, 1868.
There being some doubt as to the validity of the title, it was
understood that if appellants should be unable to convey a good
and valid title, they should refund the payments made on the
140 Collins et al. v. Thayer. [Sept. T.
Opinion of the Court.
purchase, with interest. Appellee, by arrangement, went into
possession, and occupied the land, until in the month of Janu-
ary, 1873, when he was evicted under a judgment, in an eject-
ment suit, in favor of one Riggs, recovered under a different
title. After the cattle were paid, in 1868, and appellee had
refused to make further payments, Jeremiah Collins swears he
notified appellee that they did not consider themselves any
longer bound by the contract.
Appellee testified, and it seems to be conceded, that in Feb-
ruary, 1874, he caused a notice to be served on appellants, that
on a specified day he would pay the balance of the money due
on the original contract, and that he would require them to
make a deed for the land pursuant to the agreement ; that on
the day named he took a sufficient sum of money to make the
tender, and went to the house of Jeremiah Collins, but he was
not at home, but he said that he did not know that he would
have let them have it if they had made a warranty deed for the
land.
Appellants set up and relied upon the statute of limitations
of five years. To this plea a replication was filed, that the
cause of action did accrue within five years before the suit was
commenced. A trial was had, resulting in a verdict and judg-
ment in favor of plaintiffs for $3,839. A motion for a new
trial was entered and overruled, after verdict and before judg-
ment. The record is brought here, and various errors are as-
signed.
The first question we propose to consider is, when did the
statute of limitations begin to run ? This contract was voida-
ble under the statute, and, by objecting, either party had at
pleasure the right to terminate and refuse to execute it. But
until it was terminated the purchaser was not bound to sue.
The parties had a right to rely upon each other to perform the
agreement until some act was done terminating its existence.
Courts will enforce such contracts, unless the statute of frauds
is interposed as a defense. All courts, to render the statute
availing, require that it must be set up in some mode, and re-
1874.] Collins et al. v. Thayer. 141
Opinion of the Court.
lied upon as a defense. Hence it is reasonable to say the con-
tract is not absolutely void, as are contracts that are prohibited
to be made by the statute, as, where they are immoral or con-
travene sound policy. But such a contract is voidable, at the
will of either party, unless so far executed as to take it out of
the operation of the statute. It then follows that the statute
of limitations did not begin to run until one party or the other
brought it to an end. * If, as he testifies, Jeremiah Collins no-
tified appellee, that from the time he mentioned he and his
brother would not be bound by the contract, it was then at an
end, and appellee had no right further to rely upon the agree-
ment, and the statute began at that time to run, and would
bar an action to recover back the purchase money at the end
of five years from that date.
On the other hand, if no such notice was given, then the
verbal agreement was clearly ended when appellee gave notice
that he would make a tender and demand a deed. And the
statute then began to run, and would become a bar in five years
from that date. And it did not matter whether he made a
valid tender, or what amounted to a tender, as he thereby man-
ifested an intention to terminate the contract, which could have
' been done simply by giving notice that it was at an end. The
contract being voidable under the statute at the election of
either party to terminate it, notice only was required by one
party to the other that it was ended, or by the performance of
any act which manifested such an intention. The object in
attempting to make the tender was no doubt under the suppo-
sition that appellee was bound to show that he was ready and
willing to perform his part of the agreement before he could
recover the purchase money paid under the contract. Had the
agreement been in writing, and valid and binding, this would
no doubt have been true. But as each of these parties must
have known that either could at any time terminate it, and for
its execution it depended upon the concurrent continued con-
sent of the parties until its final consummation, it does not
depend upon the same rule that governs binding agreements.
142 Collins et al. v. Thayer. [Sept. T.
Opinion of the Court.
Each knew that the other might at any time sue for and recover
any thing paid or advanced to the other.
The seller could end the contract and sue for and recover
the possession of the land, or the purchaser could terminate it,
and sue for and recover back payments he may have made.
This, too, without performing or offering to perform his part of
the agreement. Where the contract is valid and binding, either
party, to place the other in default and rescind the contract
must perform or offer to perform his part of the agreement ac-
cording to its terms. Here, neither was required to do any
act before he terminated the agreement, because the statute, to
bind the parties beyond their mere consent, requires that it
shall be in writing, and thus placed beyond the withdrawal of
that consent by either party.
The next question is, was the inability of the vendors at all
times after sale to convey according to their agreement, a suffi-
cient excuse for appellee in not performing his agreement ac-
cording to its terms ? We have no doubt it was. And even
further, had they been able to convey a sufficient title, he could,
nevertheless, have refused to pay, as we have seen, and re-
covered the amount he had paid, if not barred by the statute
of limitations, and that is a fact to be found by the jury, and
not for us to determine.
It is also urged that the court erred in refusing to instruct
that if appellee took possession under the agreement, and after-
ward occupied the land, appellants had the right to re-
coup the value of the use of the land whilst so occupied, against
the claim of appellee. He, by agreeing to purchase, and en-
tering into possession under appellants, thereby acknowledged
that they were the owners of the land. He also knew that
they or he might at any time change his relation from that of
an occupant as a purchaser, to that of a tenant at will, liable to
account for rents. It is unjust for appellee to hold this land
for years under the contract, such as it was, and then escape
from paying for what he has received to his profit and benefit.
And unless evicted by paramount title, and a liability to ac-
1874.] Collins et al. v. Thayer. 143
Opinion of the Court.
count for the rents to the true owner, he is liable to account
to his vendors for its use. Whitney v. Cochran, 1 Scam. 209,
which sustains the rule that he must account to his vendors.
It is, however, contended that appellants offered to prove,
but were not permitted by the court, that they had paid to
Riggs, who recovered the land in ejectment, all rents from
1864 till 1873, the time when appellee was evicted. When a
tenant is evicted by paramount title, and suggestions are filed,
and a judgment recovered against the tenant for rents and
profits, which he pays, there can be no doubt that he may sue
his landlord and recover back any rents paid him and included
in the judgment. Or where the recovery under the sugges-
tions is greater than the amount of rent agreed to be paid, and
he pays such excess, he may no doubt recover it from the land-
lord, although he paid no rent. And it is for the reason that
the landlord is bound to maintain the possession of the tenant
and keep him harmless in the occupancy of the land. It then
follows, that if such a relation exists between landlord and ten-
ant, appellants, by virtue of the relation, might pay the rent,
and look to appellee to pay them fair and reasonable rent.
Suppose a landlord, believing he was owner of the demised
premises in fee, leases the same to a tenant for a stipulated rent,
and the tenant is evicted by paramount title, and a judgment
for use and occupation is recovered against him, and it is paid
by the landlord, will any one doubt that the landlord may sue
for and recover the stipulated rent ? And this, too, whether
such recovery were more or less than the rent reserved in the
lease. Or, under such circumstances, does any one suppose that,
although the landlord paid the recovery against the tenant,
the latter might nevertheless recover back rents paid under the
lease, or refuse to pay rents accrued and unpaid?
It then follows, the court below erred in excluding this evi-
dence ; and in so far as the instructions are opposed to the views
here expressed, the judgment must be reversed and the cause
remanded.
Judgment reversed.
144: Smith v. The People. [Sept. T.
Opinion of the Court.
John W. Smith
v.
The People of the State of Illinois.
1. Criminal law — as to reasonable doubt. If the jury have a reasonable
doubt of the guilt of one tried for crime, they must acquit him. But this
doubt must spring from the evidence, and cannot be searched for outside
of it.
2. An instruction " that a reasonable doubt means in law a serious, sub-
stantial and well founded doubt, and not the mere possibility of a doubt,"
and that " the jury have no right to go outside of the evidence to search
for, or hunt up doubts in order to acquit the defendant, and arising out of
evidence, or for the want of evidence," was held free from any well founded
objection, except that the word " serious " might have been omitted, as not
improving it.
3. Accessory — one present, aiding or encouraging. When one defendant
shoots a person with a revolver, deliberately and intentionally, a co-defend-
ant present at the time, who in any way or manner aids or advises, or
encourages such shooting, when not necessary, or apparently necessary, to
save the defendants' lives, or prevent their receiving great bodily harm, is
equally guilty with the one who does the shooting.
4. Instruction — as to matters not involved. An instruction embracing
matters not in controversy on the trial, and which cannot enlighten the j ury
on the questions before them, is irrelevant and properly refused.
5. Practice — witness not on indictment. On the trial of one for crime,
the court, in the exercise of a sound discretion, may allow a witness whose
name is not indorsed on the indictment to be sworn and testify for the
prosecution, though his name has not been furnished the defendant before
arraignment.
Writ of Error to the Criminal Court of Cook county ; the
Hon. "W. W. Farwell, Judge, presiding.
Messrs. E. & A. Tan Buren, for the plaintiff in error.
Mr. Charles H. Eeed, State's Attorney, for the People.
Mr. Justice Breese delivered the opinion of the Court :
This was an indictment, in the Criminal Court of Cook county,
against John W. Smith and James Jordan, for an assault upon
1874.] Smith v. The People. 145
Opinion of the Court.
Cornelius Tighe with a loaded pistol, with intent to kill him.
The defendant Smith was found guilty, and his term of
imprisonment in the penitentiary fixed at fifteen months.
The record is brought here by writ of error, and various
errors assigned.
The first point made is, that the verdict is against the evi-
dence. There is some conflict in the testimony, but as to the
fact of shooting by the prisoner and inflicting a serious bodily
injury upon the prosecuting witness, there is no conflict. The
point is, was the prisoner justified, under the circumstances?
On this point the controversy arises. The prosecutor, Tighe,
the person shot, makes out a clear case, without the shadow of
justification, and he is corroborated, in some particulars, by
other witnesses, especially as to the fact of his having a pistol
at the time of the shooting. He and the other witnesses ex-
amined as to that fact testify that he had no pistol, whilst the
prisoner and Jordan testified he had one and had drawn it.
This conflict was for the jury to settle, and we think the jury
were justified in finding that Tighe did not, with a pistol in his
hand, as argued, assault the prisoner, or conduct in such
manner toward him as to induce the prisoner's belief his life
or limb was in any danger. And there is some testimony from
which it might be inferred, the attempt on Tighe was premedi-
tated by the prisoner. But the idea that the prisoner had a
reasonable apprehension his life was in danger from Tighe is
dispelled by his own testimony, for he says, he intended to fire
over his head. Surely, a man armed with a loaded pistol, vio-
lently assaulted by another so armed, seeing his life or limb in
danger, would never think of firing his weapon over the head
of his assailant, but would take such aim as would at least
cripple him, in order to protect his own life or limb.
The evidence justifying the finding, we are next to consider
if the law was properly given to the jury.
It is complained by the prisoner that the court erred in giv-
ing the first instruction for the people.
19— 74th III.
146 Smith v. The People. [Sept. T.
Opinion of the Court,
The instruction was as follows : " The court instructs the jury
that a reasonable doubt means, in law, a serious, substantial and
well founded doubt, and not the mere possibility of a doubt.
The jury have no right to go outside of the evidence to search
for or hunt up doubts in order to acquit the defendants, not
arising out of evidence or for the want of evidence."
This instruction is free from any well founded objection, and
in substance has been sanctioned by this court in numerous
cases. It is not obnoxious to the criticism of the prisoner,
that the jury might convict, if there was no evidence. It is a
well-recognized principle, if the jury have a reasonable doubt of
guilt, they must acquit. This doubt must spring from the evi-
dence, and cannot be searched for outside of the evidence. A
serious doubt is a reasonable doubt, and nothing more. The
term " serious " might well have been omitted, as it does not
improve the instruction, but its use could do no harm.
It is complained the court erred in giving the people's second
instruction. That was as follows : " If the jury believe, from
the evidence, that the defendant Smith deliberately and inten-
tionally shot the witness Tighe with a loaded revolver, as
charged in the indictment, and that the defendant Jordan was
present, and in any way or manner aided or advised, or encour-
aged such shooting, when it was not necessary, or apparently
necessary, to save their own lives or prevent their receiving
great bodily harm, then the jury should find the defendants
both guilty."
This instruction was called for by the testimony of Tighe,
which implicated Jordan in the transaction, and was to instruct
the jury if they were both art and part in the ,assault, and
no necessity existing for it, they could both be guilty. It could
rot mislead the jury, so far as the prisoner's case was involved.
If, by possibility, it might be supposed to be misleading as to
him, the jury were fully instructed at prisoner's request, on
the law of the case as applicable to him, and they were very
comprehensive.
One instruction asked by the prisoner was refused, and of
1874.] "Whitman v. Fisher. 147
Syllabus.
this complaint is made. That instruction embraces matters not
in controversy in the case, and could not have enlightened the
jury on the questions before them. It was wholly irrelevant,
and was properly refused.
An objection is made that one Brennan, whose name was
not indorsed on the indictment, nor his name furnished the
prisoner before his arraignment, was permitted to be sworn
and to testify on behalf of the prosecution.
The doctrine is settled in this court that, in the 'exercise of
a sound discretion, this may be allowed. Gardner v. The
People, 3 Scam. 83 ; Gates v. The People, 14 111. 436 ; Perry
et al. v. The People, id. 499.
In this particular case, the prisoner could not have been sur-
prised or prejudiced, as Brennan was known to the prisoner
as a witness on the preliminary examination before the magis-
trate, and the prisoner might reasonably conclude he would be
called again as a witness. The court exercised a proper discre-
tion. On a full examination of the whole record, we are satis-
fied the prisoner has had a fair trial, under proper instructions
from the court, and we will not disturb the judgment, but
affirm the same.
Judgment ao
Chaeles N. Whitman
v.
Henry C. Fisher.
1. Judicial sale — not affected by reversal of decree. The reversal of
a decree construing a will as authorizing the executors to sell and convey
land at private sale, on mere errors in the proceedings, will not avoid a
sale made by the executors to a bona fide purchaser for value, if the court
rendering the decree had jurisdiction of the subject matter, and of the per-
sons of those interested.
2. Jurisdiction — depending on term of court being lield. Where ex-
ecutors gave notice of applying to the circuit court on a certain day in the
148 Whitman v. Fisher. [Sept. T.
Syllabus.
next term, being the fourth day, for an order to sell lands to pay debts,
etc., and filed their petition before the first day of such term, but no court
was held at such term, it was held that the proceeding was continued by
law, and the court had jurisdiction at a succeeding special term to render
a decree.
3. Judicial sale — presumption in favor of jurisdiction. After the
lapse of over twenty years from a sale and conveyance of land by an ex-
ecutor made under a decree of a court of competent jurisdiction, for a full
consideration to one buying in good faith, every reasonable intendment
will be indulged in favor of the jurisdiction of the court making the de-
cree, rather than to hold the sale invalid, and the action of the court will
be referred to its statutory or general jurisdiction, as may be necessary to
maintain its jurisdiction.
4. Process — service in chancery cases. An indorsement of service of
a chancery summons, " executed by leaving copy with A. B. and C. (the
defendants), this," etc., is sufficient to confer jurisdiction of the persons of
the defendants, its obvious meaning being that the officer delivered a copy
to each of the defendants.
5. Administrator's sale — power of court to order. A court of equity
has no original jurisdiction to order the sale of real estate of a deceased
person to pay debts, or for any other purpose, so as to bind the infant heirs'
legal estate. The power is derived "from legislative authority, and does
not exist except in cases where the statute expressly confers it.
6. Chancery jurisdiction — to construe wills. When purely legal
titles are involved, and no other relief is sought, a court of equity will not
assume jurisdiction to construe a will, but will remit the parties to their
remedies at law ; but if any trust is reposed in the executors, they may
seek. the aid and direction of a court of equity iu the management or exe-
cution of the trust.
7. Same — when executor has a trust. Where, by the terms of a will,
the executors are charged with the administration of the assets of the es-
tate differently from that directed by the statute, this will create in them
a special trust, and in case of doubt as to the mode of its execution, a court
of equity will assume jurisdiction on application by the executors for a
construction of the will.
8. Purchaser — not affected by application of purchase money. Where
power is given by will to executors to sell real estate to raise funds with
which to pay legacies, as the legatees become of age, a sale and conveyance
made after one of them arrives at majority, being in the due execution of
the trust created, will be valid, even though the proceeds are applied in
the payment of the testator's debts. The purchaser is not required to see
to the proper application of the purchase money.
1874.] Whitman v. Fisher. 149
Opinion of the Court.
Appeal from the Circuit Court of Winnebago county ; the
Hon. William Brown, Judge, presiding.
This was an action of ejectment, by Charles !N". Whitman
against Henry C. Fisher, for the recovery of an undivided in-
terest in a tract of land sold and conveyed by the executors of
Seth S. Whitman, deceased, to John Fisher, in his lifetime.
The substantial facts of the case appear in the opinion. A trial
was had before the court alone, resulting in a finding and judg-
ment for the defendant.
Messrs. Williams & Thompson, and Messrs. Crawford &
Marshall, for the appellant.
Mr. C. M. Brazee, and Mr. Wm. Lathrop, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
Both parties in this action claim title to the premises
described in the declaration from a common source, viz. : under
the will of Seth S. Whitman, in whom was the legal title at
the time of his death.
The testator, after directing the payment of his debts out of
his personal estate, unless some other arrangement could be
made, and the erection of a suitable family residence near
Janesville, made provisions for the payment of specific legacies
to each of his children, as they respectively became of age,
then disposed of all his property as provided in the tenth para-
graph of the will, as follows : " 10th. That after my youngest
surviving child becomes of lawful age, the residue of all my
property at that time be divided as follows, viz. : To my be-
loved wife, Matilda Whitman, I will and bequeath one-third
of my property for her support and maintenance during her
natural life, and at her decease to be divided between my sur-
viving children, or given for missionary purposes, at her dis-
cretion ; and the other two-thirds of my property be equally
divided between my son C. Coldon Whitman, Julia H. Whit-
man and Charles "N. Whitman."
150 Whitman v. Fisher. [Sept. T.
Opinion of the Court.
Proof was made that appellant was the youngest child sur-
viving the testator, and having become of age, it is under this
clause of the will he claims an undivided interest in the prem-
ises as devisee, and as heir at law of his brother C. Coldon
Whitman, who died after the will was admitted to probate,
without leaving him surviving wife, child or descendants of
any child or children.
Appellee is the heir at law of John Fisher, who was the
purchaser of the entire premises at a sale made by the execu-
tors named in the will. The title derived under this sale, it is
now insisted, is the paramount title. The principal question,
therefore, that presents itself, is, whether the title in fact passed
to John Fisher, by virtue of the executor's deed of the date
of April 19, 1854.
The executors being in doubt as to whether they had the
power under the will to sell real estate for the purpose of pay-
ing debts and for other purposes named in the will, filed in the
circuit court of Boone county a petition or bill in chancery,
and among other things they asked the court to construe the
will in this regard. The heirs were all made defendants to
this proceeding, by due service of process, and on the final
hearing the court decreed that " the executors have and right-
fully and lawfully may exercise the power to sell and convey
the above described real estate, of which the said Seth S. Whit-
man died seized, either at private or public sale, for the pur-
poses and objects specified in the said will."
Under this decree, or under the will as thus construed by
the decree, the executors sold at private sale for a full price,
and conveyed the land to John Fisher. The sale was made in
1854, but in 1859 the decree of the circuit court construing
the will was reversed on error in this court. It is conceded,
however, that neither the reversal of the decree nor errors in
the proceedings would avoid the sale, provided the court that
pronounced the decree had jurisdiction of the subject matter
and person of appellant.
Treated as a proceeding under the statute for leave to sell
1874.] "Whitman v. Fisher. 151
Opinion of the Court .
real estate to pay debts, it is insisted the order of sale was
clearly void. The notice of the application was, the executors
would apply on the 6th day of October, which would be on
the fourth day of the October term, 1853. The court for that
term should have convened on the third day in the month, but
no judge appearing, it stood adjourned until the next day, at
the hour of four o'clock, when, under the statute, it stood ad-
journed until court in course. No court being in session,
proof of the publication of the notice could not be made at
that term, and none was made until the December special term.
Hence it is contended the court failed to acquire jurisdiction,
and its future action was without authority of law, and there-
fore void.
Counsel cite in support of the position assumed the case of
Knickerbocker v. Knickerbocker, 58 111. 399. That case does
not sustain their view of the law.
The provision of the statute is : if no judge shall attend on
the first or second day of any appointed term, the court shall
stand adjourned without day, and all suits and proceedings
therein " shall stand continued until the next term of the court,
as if the same had been continued by order of the court."
The reason for the decision in Knickerbocker v. Knickerbocker
is, that neither the petition nor the notice of the application
was filed at the term to which the notice was given, and hence
there was no cause pending to be continued by operation of
law. But that is not this case. Here, the petition or bill on
which the court acted was on file at the date the court ought
to have convened for the October term, and had been from the
twelfth day of September previous. As was said in the for-
mer case, u jurisdiction of the subject matter is obtained by
filing the petition." This was done, and there was a cause
pending upon which the court at the October term could have
acted and continued it if necessary, with leave to make proof
of publication, but there being no court in session, the law
continued the cause and the jurisdiction of the court was pre-
served.
152 Whitman v. Fisher. [Sept. T.
Opinion of the Court.
The court had the undoubted jurisdiction, under the statute,
to entertain a petition on the application of the executors for
the sale of lands belonging to the estate, to pay the debts of
the testator. Jurisdiction of the person of the appellant was
acquired by publication of the notice of the application as
required by the statute.
If no other reason existed, the court having had jurisdiction
of the subject matter and the persons of the parties whose in-
terests were to be affected, notwithstanding the decree was
reversed for irregularity that intervened, the sale might still
be maintained on the ground it was a judicial sale. It was
made over twenty years ago. The purchaser bought in good
faith, for a full consideration, and after the lapse of so great a
period, every reasonable intendment will be indulged in favor
of the jurisdiction of a court of general jurisdiction, rather
than declare the sale invalid. The action of the court will be
referred either to its statutory or general jurisdiction, as may
be necessary to maintain its jurisdiction. It is, and has been,
the policy of the law to maintain judicial sales, and in this
policy the public interest is best subserved.
But the decision of this case need not be placed on this
ground, although it could be maintained. "We are not inclined
to regard the proceedings as a petition under the statute to sell
real estate to pay debts. However inartistically drawn, it has
more of the elements of a bill in chancery than of a petition
under the statute. The complainants, in their prayer, ex-
pressly invoke the aid of a court of equity, where the matters
alleged are only cognizable. The summons issued was in
chancery, and was served as the law directs such process shall
be served. All the proceedings were treated as being on the
chancery side of the court. When the cause was before this
court, at a former term, it was not determined whether it was a
proceeding in chancery or under the statute, but regarding it
as either one or the other, there were errors in the record that
would warrant a reversal of the decree. 22 111. 448.
Numerous objections have been taken to the regularity of
1874:.] Whitman v. Fisher. 153
Opinion of the Court.
the proceedings in the circuit court, but as the validity of the
title acquired under the sale is only collaterally attacked in this
action, it will not be necessary to consider any but such as have
respect to the jurisdiction of the court to pronounce the decree.
These are, first: the court did not have jurisdiction of the per-
son of appellant, and second, it did not have jurisdiction of the
subject matter of the litigation.
As to the first point, on the filing of the bill a summons in
chancery was regularly issued: It was returned by the sheriff
with the following indorsement of service : " Executed by
leavino- copy with Ogden H. Whitman, Julia H. Whitman,
Charles K Whitman, this 14th day of September, 1853." The
decree finds that " process has been duly served " on each of
the defendants, and the return of the sheriff on the summons
still among the files, on which the court must have acted, is not
inconsistent with that finding. It is urged the service is de-
fective for the reason it does not appear the officer left but one
copy for all the defendants. The objection is hypercritical.
The officer could not execute the summons, by copy, upon the
several persons named in the return, without using more than
one copy. The obvious meaning of the return is, he delivered
a copy to each of the defendants. There were three defend-
ants, and the fact that the officer charged fees for three copies
aids the view we have taken.
The service required by the statute is by delivering a copy
of the summons to the defendant. The sheriff, in this case,
says he " executed by leaving a copy." "Delivering a copy "
and " leaving a copy " are equivalent forms of expression, hence
the service is substantially correct. Buck v. Buck, 60 111.
106.
The second objection urged" raises the most serious question
in the case, viz.: the court did not have jurisdiction of the sub-
ject matter of the litigation.
The theory of appellee is, it was a bill to have construed the
will of Seth S. Whitman, and have the powers of the executors
over the property under the provisions of the will determined ;
20— Y4th III.
154 Whitman v. Fisher. [Sept. T.
Opinion of the Court.
that it was a matter clearly within the chancery jurisdiction of
the court ; that the court, having all the parties in interest be-
fore it, made its decree construing the will, declaring the
executors had lawful authority to sell the real estate of the
testator, and while that decree was in full force, John Fisher
having purchased the land in controversy, for a full price, on
the faith of the decree defining the powers of the executors
under the will, the decree must be held conclusive of the con-
struction of the will and the powers of the executors, and hence
the purchaser acquired an absolute title to the property as
against all persons claiming as devisee, or otherwise, under the
will.
On the other hand, counsel for appellant deny the court had
any jurisdiction to determine by construction of this will that
it contained a power of sale in the executors, or that the court
had any jurisdiction to make any decree affecting the title to
the real estate of which the testator died seized, or that the bill
states a case which called into action the power of the court,
and insist the decree, or order, so far as it concerned the land
which the testator devised to his children, was an absolute
nullity.
The proposition, a court of equity has no original jurisdic-
tion to order the sale of real estate to pay debts or for any
other purpose, so as to bind the infant's legal estate, is certainly
the law, and has for its support the best authorities. The
power is derived from legislative authority, and does not exist
except in cases where the statute expressly confers it. Donlin
v. Hettinger, 57 111. 348 ; Rogers v. Dill, 6 Hill, 415 ; Onder-
donk v. Mott, 34 Barr, 106.
But this exact question is not involved in the case we are
considering. The court did not assume to direct the sale of
the real estate of which the testator died seized, nor does the
title of appellee's ancestor rest upon any such principle. His
title is definitely placed upon the sale made by the executors
under the will as construed, and not upon any order of sale
made by the court. But counsel contend the court had no juris-
1874.] Whitman v. Fisher. 155
Opinion of the Court.
diction to determine by construction of the will it contained a
power of sale in the executors, or that the court had jurisdiction
to make any decree whatever affecting the title to the real
estate, of which the testator in this instance died seized.
The principle contended for is, when no trust is created,
neither the executor nor the heir or devisee who claims only a
legal title in the estate, will be allowed to come into a court of
equity for the purpose of obtaining a judicial construction of
the provisions of the will. In a general sense this proposition
is correct. "Where purely legal titles are involved and no other
relief is sought, a court of equity will not assume jurisdiction
to construe the will, but will remit the parties to their remedy
at law. The doctrine on this subject has been well stated by
Chancellor Walworth, in Bowers v. Smith, 10 Paige, 193, and
his statement of the rule with its qualifications is as accurate
as any we have seen. The case of Onderdonk v. Mott, cited,
supra, states the same general principles.
It is insisted the will created no trust in the executors in re-
spect to the lands of the testator, that the legal and equitable
title was in the heirs or devisees, and if the executors had any
power of sale, it was a mere naked power, not coupled with an
interest in the lands. Hence it is said the case comes within
the rule stated in the authorities cited. Without regard to the
question whether this is the true construction of the will, are
there no facts in this case which bring it within the exceptions
to the general doctrine contended for? All the authorities
concur, so far as we have examined, where any trust is reposed
in the executors, they may seek the aid and direction of a
court of equity in the management or execution of the trust.
Mr. Kedfield, in his work on the law of wills, in stating some
of the more recent rules of construction, adopted for declaring
the legal effect of wills, says that such questions more fre-
quently arise in courts of equity than in courts of law, " in
consequence of the right of an executor or any other trustee,
or even any cestuis que trustent, to apply to the former courts,
156 Whitman v. Fisher. [Sept. T.
Opinion of the Court.
to determine the proper course to be pursued to carry such
trusts into effect." 1 Eedf. on Wills, 438.
In Bowers v. Smith, supra, it was ruled that " where there
is a mixed trust of real and personal estate, it frequently be-
comes necessary for the court to settle questions as to the val-
idity and effect of contingent limitations in a will to persons
who are not in esse, in order to make a final decree in the suit,
and to give the proper instructions and directions to the execu-
tors and trustees in relation to the execution of their trust."
The chancellor then states the general rule, where there is no
trust the heir is not allowed to come into a court of equity for
the mere purpose of obtaining a judicial construction of the
provisions of the will, but adds the important qualification, the
decision of such legal questions belong exclusively to courts of
law, except where they arise incidentally in a court of equity
in the exercise of its legitimate powers, " or where the court
has obtained jurisdiction of the case for some other purpose."
The facts in the case at bar bring .it clearly in the equitable
jurisdiction of a court of chancery as thus defined. The per-
sonal estate of the testator was in the hands of the executors,
and they were charged with its administration in a manner
other than as directed by the statute. This created in them a
special trust. With the funds of the estate, they were directed
to erect a family residence near Janesville. From what source,
whether from the real or personal effects, the means for that
purpose were to be derived, the will is silent. It was a ques-
tion with the executors, whether the condition of the estate
would justify the expenditure of a sum of money sufficient
to erect a residence for the family as directed in the will. The
widow of the testator, who was also one of the executors, was
given the control of all the property of the testator until his
youngest child became of lawful age, " for their support, edu-
cation and maintenance." How was she to control all the
property of the estate for the " support, education and main-
tenance " of the family ? No directions were given m the
will.
1874.] Whitman v. Fishek. 157
Opinion of the Court.
These difficulties arising in the execution of the trusts im-
posed upon the executors, and which they had undertaken to
perform, made it eminently proper for them to apply to a court
of equity for its aid and direction in the premises. We have
no doubt of the jurisdiction of a court of equity to afford the
requisite relief. 2 Story's Eq. Jur., § 961 ; Hooper v. Hooper,
9 Cush. 127 ; Dimmoe'k v. Bixby, 20 Pick. 368.
Upon proper bill hied the court had the undoubted jurisdic-
tion to determine the question for the executors, whether the
house for a family residence should be built from the funds
realized from the personal or real estate, or, indeed, whether,
in view of the embarrassed condition of the estate, it should be
erected at all. This fact alone, if no other ground existed, con-
ferred jurisdiction on the court, and having obtained it for one
purpose, it is a familiar principle it would retain it for all pur-
poses. Hence it follows, the decree under which appellee's
ancestor purchased the property, was made in a cause where
the court had jurisdiction of the subject matter and the per-
sons of the parties. Having ascertained the court had juris-
diction, he could with safety purchase at a sale under its decree,
notwithstanding there might be irregularities in its proceed-
ings. He was not bound to know the court may have adjudi-
cated questions over which it had no original jurisdiction.
Being informed the court had jurisdiction for one purpose, he
could rightfully conclude it had jurisdiction for all purposes.
Any other rule would be unreasonable and would expose hon-
est purchasers at judicial sales to great hazards.
The widow was given the " control of all the property " until
the youngest child should become of age, for " their support,
education and maintenance," and it is a grave question, whether
this grant of power did not itself imply a power of sale as to all
the property, real and personal, for the purposes indicated, ac-
cording to the construction given to the will by the court in its
decree. But in the view we have taken it is not necessary to
express an opinion on this question. The validity of appellee's
title may be maintained on the ground indicated, viz.: The
158 Heiman v. Schrceder. [Sept. T.
Syllabus.
land was purchased by his ancestor under a decree of court pro-
nounced in a cause where it had jurisdiction both of the sub-
ject matter and the persons of the parties.
But there is another view that can with great propriety be
taken, which is conclusive of the rights of the parties. The
testator made certain bequests to each of his children, payable
respectively as they became of age. Power is expressly given
to the executors to sell real estate for the purpose of raising
funds with which to pay these several legacies. Ogden H.
Whitman, one of the beneficiaries under the will, became of
age in 1852, and was entitled to the bequest in his favor. The
sale to John Fisher was made in the spring of 1854. It does
not appear but the exact case had arisen where the executors
had the clear right under the will to sell real estate indepen-
dently of the decree of the court. The purchaser was under no
obligation to see to the application of the purchase money.
Hence it follows, the deed of the executors in the due execu-
tion of their trust passed all the title of the testator to the
purchaser of the land in controversy.
The finding of the court was correct and its judgment must
be affirmed.
Judgment affirmed.
Breese, J. : I am not prepared to concur in the conclusions
reached in this opinion.
Herman Heiman
v.
Theodore Schroeder.
1. Instruction — construed. An instruction in a suit to enforce a me-
chanics' lien, that if the petitioner was hindered and prevented by the
defendant from finishing and completing" the work which had been entered
upon, the petitioner was not precluded from recovering because tne work
1874.] Hetman v. Schroder. 159
Opinion of the Court.
was not completed entirely by him, is not open to the objection that it
authorized a recovery for all the work contracted to be done, and for work
not done by the petitioner.
2. Interest — on money due for work done under contract. Where
specific sums of money are agreed to be paid for work by an agreement in
writing, the several sums will, under the statute, carry interest from the
times they become due.
3. Same — may oe recovered without being claimed in pleading. Wbere
interest is an incident to a debt, it may be recovered though not claimed as
such in the petition or other pleading, if the sum claimed is large enough
to include the same.
4. Pleading- — when sufficient after verdict. Where the statements in
a pleading, although imperfect and insufficient in themselves, are yet of
such a character as force the conclusion that all must have been proved on
the trial, which ought to have been stated iD the pleading to procure the
verdict, then the defective pleading is aided by intendment after verdict,
and the court may render judgment.
Appeal from the Circuit Court of Cook comity ; the Hon.
John G. Rogers, Judge, presiding.
Messrs. M. Marx & Son, for the appellant.
Mr. Joseph Pfirshing, and Mr. Arno Yoss, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a suit to enforce a mechanic's lien, brought in the
circuit court of Cook county, where a trial was had before a
jury, resulting in a verdict and judgment for the petitioner,
the appellee.
The giving of the petitioner's first and second instructions
is assigned as error.
The first one was, that if the petitioner was hindered and
prevented by the defendant from finishing and completing the
work which had been entered upon, the petitioner was not pre-
cluded from recovering because the work was not completed
entirely by him. The objection taken to it is, that it tells the
jury that the petitioner could recover for all the work contracted
160 Heiman v. Schrceder. [Sept. T.
Opinion of the Court.
to be done, whether the contract was completed or not, and for
work which he had not done.
We do not consider the instruction as fairly open to such
objection, or that the jury would naturally have so construed
it as appellant claims it to be, or that they did so construe it,
from the amount of the verdict rendered by them.
The second instruction was, that the jury might allow six
per cent interest from the time the work was agreed to be paid
for. Specific sums of money were agreed to be paid for the
work, by an agreement in writing, and by the express provision
of our statute they carried interest from the time they became
due. Such interest was a legal incident to the debt. But
Mills v. Heeney et al. 35 111. 173, and Prescott v. Maxwell,
48 id. 82, are cited as authority against the allowance of inter-
est, because it was not claimed in the petition. "What was
there said upon the subject, we do not regard as applicable to
the present case. In each of those cases, there was a recovery
of a larger sum than that claimed in the petition to be due,
and we regard those cases as deciding nothing more than that
there cannot be a recovery beyond the amount claimed in the
petition to be due, unless interest on such amount be claimed
in the petition, in which case there may be a recovery to the
extent of the amount claimed, and interest thereon. The
recovery in the present case was for a less amount than that
claimed by the petition to be due. The interest here, being a
legal incident to the debt, claiming the debt by the petition
was claiming the interest, the incident. We do not consider
it necessary that there should have been a claim of the interest
specifically. McConnel v. Thomas, 2 Scam. 313.
The overruling of the motion in arrest of judgment is also
assigned as error.
The objection urged as ground of arrest is, that the petition
does not contain sufficient averments that the times for the
furnishing of the materials, performance of the work, and
payment therefor, were within the several periods named by
the statute, one and three years.
1874.] In re Appeal of Scranton. 161
Opinion of the Court.
Where the statements in the pleading, although imperfect
and insufficient in themselves, are yet of such a character as
to force upon the mind of the court the conclusion that all
must have been proved on the trial, which should have been
stated in the pleading to have made it sufficient before the
jury would have been induced to have rendered a verdict for
the plaintiff, then the defective pleading is aided by intend-
ment after verdict, and the court may render judgment. 1
Chit. PL 712 ; Warren v. Harris, 2 Gilm. 307. '
At least, under the above rule, the petition in this case must
be regarded as sufficient upon a motion in arrest of judgment.
Finding no error in the record, the judgment must be
affirmed.
Judgment affirmed.
In re Appeal of Abner R. Scranton.
1. Juries — exemption from service, a mere gratuity to the citizen. The
duty of serving on juries is one of the inseparable incidents of citizenship,
and can be exacted whenever and however the sovereign authority shall
command, and all exemptions from such service are mere gratuities, which
may be withdrawn at the pleasure of the law-making power.
2. Same — only active members of fire companies are exempt from service.
Under the general law in force February 11th, 1874, the only exemp-
tion from service on juries on account of service in the fire department is
of active members of that department.
3. The general law on the subject of juries in force February 11th, 1874,
repealed all local and special laws on the subject.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Kogers, Judge, presiding.
Messrs. Holden & Moore, for the appellant.
Mr. Justice Scholfield delivered the opinion of the Court :
Appellant was lawfully summoned to appear as a petit juror,
at the March term, A. D. 1874, of the Cook county circuit
21— 74th III.
162 In re Appeal of Scranton. [Sept. T.
Opinion of the Court.
court, and, failing to appear, he was subsequently, at the same
term of court, attached on account thereof. Upon the return
of the attachment, and in answer thereto, appellant alleged, as
the cause of his default, that he had served as a fireman in the
city of Chicago, for a period of seven years and more, and
claimed, on that account, to be exempt from service on juries.
The court, deeming the excuse insufficient, adjudged that he
was in contempt, and that he pay a fine of five dollars.
The only question raised by this appeal is, whether appellant
was exempt from serving on juries on account of the alleged
excuse.
By a section of the charter of the city of Chicago, which
we shall, for the purposes of the present case, assume was in
force at the adoption of the present constitution, it was pro-
vided that every fireman, etc., " who shall have faithfully
served as such in said city of Chicago for the term of seven
years, shall be exempt from serving on juries," etc.
It is insisted that the appellant was, by virtue of this pro-
vision, justified in what he did, and that he was, therefore, not
in contempt of court.
By § 22 of Art. 4 of the Constitution of 1870, it is declared
that the legislature shall not pass local or special laws for the
summoning or impanneling of grand or petit jurors.
Pursuant to this provision, the legislature, by a general law,
in force February 11th, 1874, have declared who shall be sum-
moned as grand and petit jurors, and who shall be exempt from
serving on juries. By this law the only exemption on account
of service in the fire department is of active ?nembers of that
department. No exception is made in favor of the city of
Chicago, nor would it have been competent for the legislature
to have done so, under the section of the constitution referred
to ; and the necessary effect of this law is to repeal all prior
local laws on the subject.
The claim made that appellant has a vested right in the
exemption, granted by the city charter, is without foundation.
The duty of serving on juries, like the duty of bearing arms
1874.] Mohler et al. v. Wlltberger. 163
Opinion of the Court.
in defense of the government, is one of the inseparable inci-
dents of citizenship, and can be exacted whenever and how-
ever the sovereign authority shall command. All exemptions
of this kind are mere gratuities to the citizen, which cannot
be the subject of contract between men and the State, and
may be withdrawn at the pleasure of the law-making power.
Cooley's Constitutional Limitations (1st Ed.) 383.
The judgment of the court below is affirmed.
Judgment affirmed.
John Mohler et al.
v.
Joseph Wiltberger.
1 . Chancery practice — complainant's right to dismiss bill. A com-
plainant lias the right, at any time before the decree is rendered, to dis-
miss his bill, unless a cross-bill has been filed. After decree he cannot,
except upon consent.
2. Same — right to dismiss after decree reversed. The effect of a reversal
of a decree being to leave the cause pending for hearing precisely as if no
decree had been rendered, the complainant may dismiss his bill after such
reversal.
Appeal from the Superior Court of Cook county ; the Hon.
S. M. Moore, Judge, presiding.
Messrs. Harding, McCoy & Pratt, and Mr. T. C. White-
side, for the appellants.
Messrs. Ayer & Kales, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
The only question presented by this record is, whether a
complainant may, before a hearing, dismiss his bill without
prejudice.
164 Mohler et at. v. Wiltberger. [Sept. T.
Opinion of the Court.
We understand the practice to be well settled that the com-
plainant, at any time prior to a decree, has the right, unless a
cross-bill has been filed, to control the fortunes of his own
bill, and dismiss it, as a matter of course.
After a decree has been rendered, then the complainant can-
not dismiss his bill, except by consent, for the reason that after
decree others aside from the complainant have a fixed and
definite interest in the subject matter in litigation in the cause,
and hence have a right to be consulted before their rights shall
be impaired by a dismissal of the bill.
The rule is well and clearly stated in Daniells' Chancery
Practice, vol. 2, page 356. as follows : " A plaintiff may move
to dismiss his own bill, with costs, as a matter of course, at any
time before the decree ; it is said that after witnesses have
been examined it is not to be prayed, except it be upon special
cause, but this does not appear to be the present rule of prac-
tice. After a decree, however, the court will not suffer a
plaintiff to dismiss his own bill, unless upon consent, for all
parties are interested in a decree, and any party may take such
steps as he may be advised to have the effect of it."
It is, however, insisted that a decree had been rendered in
this cause, and the motion of the complainant came too late.
It appears from the record before us that in 1866 a final
decree was rendered in the cause, from which one of the
defendants sued out a writ of error, and at the September
term, 18T0, of this court, the decree which had been rendered
was reversed, and the cause remanded.
The effect of the judgment of this court left the cause pend-
ing in the court below for trial, precisely as if no decree had ever
been rendered. This rule was announced in the case of Check-
ering v. Failes, 29 111. 294. The cause was governed by the same
rule, so far as complainant's right to dismiss was concerned,
as if no decree had ever been rendered therein. The Superior
Court so treated it, and in this we perceive no error.
The decree of the Superior Court will be affirmed.
Decree affirmed.
1874.] The Teutonia Life Ins. Co. v. Beck. 165
Opinion of the Court.
The Teutonia Life Insurance Co. of Chicago
v.
Anna Beck.
1. New trial — circuit judge should award when verdict is against the
weight of evidence. A circuit judge, who tries a case and sees the witnesses
on the stand, has superior opportunities of estimating the value of the evi.
dence, and the principal responsibility for the correctness of the verdict is
upon him, and if the verdict is against the weight of the evidence, it is
his duty to award a new trial.
2. Error will not always reverse. Even though evidence not strictly
admissible is introduced, yet if the court can see that such evidence could
not have misled the jury, and that their verdict is right, independent of
such evidence, the judgment will not be reversed.
Appeal from the Circuit Court of Cook county ; the Hon.
Lambert Tree, Judge, presiding.
Messrs. Barber & Lackner, for the appellants.
Mr. A. E. Guild, Jr., and Mr. Frank Scales, for the ap-
pellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
This suit was brought in the court below on a life insurance
policy. It bore date in October, 1869, and the application
was made by Jacob Beck, and was, in case of his death, pay-
able to his wife, Anna Beck. It contained, as stated by appel-
lant's witnesses, this clause : " If any of the statements made
in the application for this policy, upon the faith of which this
policy is issued, and which are to be deemed as a part thereof,
shall be found to be untrue, then this policy shall be consid-
ered null and void." And there was testimony tending to
prove that the application contained a statement, among others,
in answer to a question, that his health had formerly always
been good, and that the applicant had never had any serious
166 The Teutonia Life Ins. Co. v. Beck. [Sept. T.
Opinion of the Court.
sickness. The application seems to have been filled up, ready
to be signed, by a solicitor of the company, and signed by the
applicant. There is no evidence that he ever read it or under-
stood its nature, or what would be the effect of any inaccuracy
of statement in answer to these various questions ; nor that he
was then or afterward informed that he was required to war-
rant the truth of his statements in answer to these various
questions, and if either of them proved to be untrue that he
would forfeit his policy.
It is true, that such a statement is usually contained in
small print in the conditions annexed to the policy. But these
are usually difficult to read, and, as is believed, they are seldom
if ever known to be contained in the policy by the holder. In
this manner the honest and unsuspecting are easily over-
reached, and may frequently be imposed upon by the unscrupu-
lous. When an application is filled out by an agent of the
company, and the assured requested to sign it, most persons
regard it as a mere form, and unless admonished of the im-
portance of accurate answers to the questions, answers are
hastily given without reflection or time to ascertain facts with
precise exactness, which is frequently insisted upon after a loss
occurs. In this way the people are liable greatly to be abused,
and it is a matter of surprise that such bodies are still so ex-
tensively patronized.
In this case the defense interposed was, that the assured had
made a false answer in stating that he had not previously been
seriously sick, when it is claimed that he had been sick with
delirium tremens. On this question there was a conflict of
evidence, the physician, who was an officer of the company
at the time of the trial, testifying that deceased had delirium
tremens in June previous to receiving the policy, and that he
then attended him and treated him for the disease. On the
other hand, appellee states that her husband was not in the
habit of drinking, and in her statement she is strongly cor-
roborated by five other witnesses, one of whom was her hus-
band's partner for a number of years, and had been associated
1874.] The Teutonia Life Ins. Co. v. Beck. 167
Opinion of the Court.
in the daily transaction of their business during all that time.
In such a conflict it was for the jury to decide, and we think
the evidence clearly preponderates in favor of the verdict.
If the rebutting witnesses, who, so far as we can see, stand
unimpeached, are to be credited, we cannot but be satisfied
with the finding. Again, the circuit judge who tried the case
and saw the witnesses on the stand, and had superior oppor-
tunities of estimating the value of the evidence, has, by over-
ruling a motion for a new trial, signified his satisfaction with
the result. Had there been grounds for the motion he would
have unhesitatingly granted it, as, on such a motion, the prin-
cipal responsibility for the correctness of the verdict rests on
the court below. If wrong, he would not hesitate to set it
aside. With us, who neither know nor see the witnesses who
testify, we cannot estimate the worth of the evidence as can
the circuit judge. He is charged with the duty of awarding a
new trial when the finding is against the weight of evidence ;
whilst we never do so unless it seems to us that it is clearly
and almost without doubt unsupported.
It is, again, urged that the court below erred in admitting
evidence that appellants, to avoid a law suit, had offered ap-
pellee $500 for a settlement. This evidence was not strictly
admissible, and should have been rejected. But inasmuch as
we are satisfied with the finding, independent of that item of
evidence, we cannot reverse for that reason. It could not
have misled the jury, as they found the full amount of the
policy, with interest. That evidence did not tend, in the
slightest degree, to prove that there was due to appellee
$1,123.48. It could only have operated, if at all, as an admis-
sion that $500 was due. Again, at the request of appellants,
the jury were instructed that such an offer, if made by way of
compromise, was not evidence, and should not be considered
by them in finding their verdict. This, then, we can see, cor-
rected any wrong it was liable to inflict on appellants. The
judgment of the court below must be affirmed.
Judgment affirmed.
168 Western Union Tel. Co. v. Tyler et al. [Sept. T .
Opinion of the Court.
The Western Union Telegraph Company
James E. Tyler et al.
1. Telegraph companies — exemption construed. The usual regula-
tions exempting telegraph companies from liability for errors in unrepeated
messages, exempts them only for errors arising from causes beyond their
own control.
2. Same — requirement on blanks, no contract. The regulation requir-
ing messages to be repeated, printed on the blank on which a message is
written, is not a contract binding in law, as the duty arises to send the
same correctly upon payment of the charge required. Such regulation is
void for want of consideration, and as being against public policy.
3. Same — burden of proof '. Where the inaccuracy in the transmission
of a message is proved, the onus of relieving the telegraph company send-
ing the same, from the presumption of negligence thereby raised, rests
upon the company, by showing that the error was caused by some agency
for which it is not liable .
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. Dent & Black, and Messrs. Williams & Thomp-
son, for the appellant.
Messrs. Cooper, Gtarnett & Packard, for the appellees.
Mr. Justice Breese delivered the opinion of the Court :
This case was before this court at the September term, 1871,
and reported in 60 111. 421. It was then ably argued by
counsel and fully considered by the court. The authorities
were critically examined, and it was found they were not
entirely harmonious as to the principles which should be
applied to and govern telegraph companies, leaving this court
at full liberty to adopt such rules and apply such principles to
thenij as might seem best calculated to protect those who are
compelled to resort to those wonderful instrumentalities by
1874.] Western Union Tel. Co. v. Tyler et at. 169
Opinion of the Court.
which they operate, and at the same time impose no unneces-
sary hardship or liability upon them.
The cause having been remanded, a new trial has been had,
and the court below, as in duty bound, applied to the cause
the principles we had recognized as correct, the result of which
was a verdict and judgment for the plaintiffs, in au amount
sufficient to cover the damages they had sustained by the negli-
gence of the defendants in transmitting their message.
The first appeal was taken by the plaintiffs in the action,
they complaining, justly, as we thought, that through and by
the misdirection of the court to the jury as to the law of the
case, they had been permitted to recover only the amount of
the company's charges for sending the message, allowing them
no damages for the loss they had suffered by reason of their
negligent and careless mistake.
This appeal is taken by the telegraph company, and great
efforts have been made to induce this court to depart from the
ground it occupied on the first appeal, by questioning the cor-
rectness of the principles which governed our ruling. These
have caused us to re-examine that case and those principles,
to explore anew the whole ground, and we desire to say, and
that most emphatically, there is nothing in the opinion then
delivered we desire to retract or modify, fully believing it is
sanctioned by reason, by law and by justice, alike demanded
by public policy and public necessity.
The rule there announced is, that the usual regulations ex-
empting companies from liability for errors in unrepeated
messages, exempts them only for errors arising from causes be-
yond their own control, and that the inaccuracy of the mes-
sage being proved, the onus of relieving themselves from the
presumption of negligence thereby raised, rests upon the com-
pany.
And in regard to the regulation of the company requiring
messages to be repeated in order to insure correct results, for
which the sender is to pay fifty per cent in addition to the
original cost, we endeavored to show, that such was then the
22— T+th III.
170 Western Union Tel. Co. v. Tyler et al. [Sept. T
Opinion of the Court.
perfection to which the art of telegraphy had reached, that the
real object of such a requirement was to increase the revenue
of the companies. The proposition may be thus stated : The
company engages to use all proper skill and care in transmit-
ting a message over its wires for the established rates. The
duty at once arises, the charges being paid, to transmit this
message as delivered — not a different message, but the one de
livered and no other — the sender has paid his money to have
this message sent. The undertaking of the company is, prima
facie, to send it correctly, and if their wires and instruments
are in proper order, and their operators skillful and careful, it
will traverse the wires precisely in the words and figures which
composed it when placed upon the wires, and is sure, in that
shape and form, to reach its destination, no atmospheric causes
intervening to prevent. The very fact that but few cases of
negligence have been brought against these companies is strong
proof they do, in almost all cases, transmit messages correctly,
and they can always do it if they take proper care, have the
requisite skill and use proper instruments. If they will do all
this, there is no need of repeating a message, and it must be
regarded as a contrivance to swell their receipts. In the ordi-
nary course of business, the newspapers inform us, and we
have no reason to doubt the truth of the statement, telegrams
are sent from New York to London, and answers received, in
about thirty-three minutes, they having passed through thirty-
six different hands, and traveled over seven thousand miles !
This is done every day, such is the perfection to which the art
is brought. Does an instrumentality which can perform such
feats, require the fostering care of courts ? Is it an infant yet
in its swaddling clothes? No, but a giant power, under the
control of man, whose daily exploits, guided by his care and
skill, throw those of the fabled Mercury deep into shade and
far in the rear.
On the question whether the regulation requiring messages
to be repeated, printed on the blank of the company on which
a, message is written, is a contract, we held, it was not a con-
1874.] Western Union Tel. Co. v. Tyler et at. 171
Opinion of the Court.
tract binding in law, for the reason, the law imposed upon the
companies duties to be performed to the public, and for the
performance of which they were entitled to a compensation
fixed by themselves, and which the sender had no choice but
to pay, no matter how exorbitant it might be. Among these
duties, we held, was that of transmitting messages correctly ;
that the tariff paid was the consideration for the performance
of this duty in each particular case, and when the charges were
paid, the duty of the company began, and there was, therefore,
no consideration for the supposed contract requiring the sender
to repeat the message at an additional cost to him of fifty per
cent of the original charges.
We remain, after careful examination, of the same opinion.
Since the opinion in 60 111. was delivered, this subject has
been fully considered by the Supreme Court of our neighboring
State of Wisconsin, and in a very able opinion, delivered by
the chief justice of that court, our views and conclusions are
substantially approved, and they hold that regulations exempt-
ing a telegraph company from liability for its own negligence
are void for want of consideration. Comdee v. Western Union
Telegraph Co., decided October term, 1S73.
In the Supreme Court of Maine, the case of Bartlett d?
Wood v. The Western Union Telegraph Company was con-
sidered and determined. The action was brought to recover
damages for the incorrect transmission of a message. The dis-
patch was to a grain merchant in Chicago, ordering ten thou-
sand bushels of corn, but, as received and delivered, read,
"one" thousand bushels. It required two or three days to cor-
rect the error, during which time the price of corn had ad-
vanced ten cents per bushel, making a loss to the plaintiffs of
nine hundred dollars.
The court said, a rule adopted by a telegraph company as
follows : " The Western Union Telegraph Company will
receive messages for all stations east of the Mississippi river,
to be sent during the night, at one-half the usual rates, on
condition that the company shall not be liable for errors or
172 Western Union Tel. Co. v. Tyler et al. [Sept. T.
Opinion of the Court.
dela}' in the transmission or delivery, or for non-delivery of
such messages from whatever cause arising, and shall only be
bound in such case to return the amount paid by the sender,"
is against public policy, and therefore void. When assented
to by the sender, so as to become a contract, it is equally
void, as against public policy, and also because its terms are
repugnant, assuming to impose an obligation, and by the same
act releasing from all obligations. In an action to recover
damages of a telegraph company for an error in the transmis-
sion of a message, in the absence of any rule or contract fixing
the company's liability, the plaintiff makes out a prima facie
case by proof of the undertaking, error, and damage. The
burden rests upon the company to show that the error was
caused by some agency for which it is not liable."
This is in perfect harmony with this case as reported
supra.
The defendants in the case before us sought to overthrow
the pri?na facie case made by the plaintiffs, on the principles
settled by this court, by proposing to prove by persons under-
stood to be skilled in telegraphy that there were certain inhe-
rent imperfections in the art and practice of telegraphy beyond
the control of human agency, and which often operate to
impair or interfere with the accuracy of transmission of a mes-
sage. This proof the court refused to receive, and we think
properly. The opinion in this case then before the court, on
this trial assumes there are causes, atmospheric and others, not
under the control of the operator, to prevent the accurate
transmission of a message. It was not proposed to prove the
mistake in this case was occasioned by any of those causes.
The testimony was therefore unimportant. Besides, the testi-
mony was rather of a speculative character, and too remote to
be connected with this case, and was properly rejected. As
well might a common carrier by railroad, to discharge itself
from liability for loss of goods, offer to prove that carrying
goods by that mode was subject to accidents, the causes of
which had not been satisfactorily ascertained.
1874.] Albee v. Wachter. 173
Syllabus.
As to the instructions, we are of opinion the court properly
disposed of them. And in reviewing the whole case we find
no occasion to take back any thing that was said in the first
opinion, or to abandon any position therein taken. The only
safe rule for the public is to hold these companies to the same
liabilities as natural persons, who, when they undertake for a
compensation to perform a duty or work, shall perform it,
or to be excused shall show a good reason for the exemption,
and the onus must rest upon the company.
In this case no reason is shown ; the negligence is estab-
lished, by which a loss occurred to the plaintiffs, and justice,
reason and public policy demand the company shall make
good the loss, and this they will do by the affirmance of the
judgment of the Superior Court.
The judgment of that court is affirmed.
Judgment affirmed.
Hakriet Albee, Adm'x, etc.
v.
William H. Wachter.
1. Bill for account — sufficiency of proof. On bill by one partner against
his copartner for an account, the complainant, during the defendant's life-
time, proved by a third party who had examined the firm books, the
amount of the profits and the amount he found due the complainant. This
the defendant never attempted to explain or deny, though he had ample
time, and after his death his administrator failed to explain or rebut it by
testimony. It also appeared that the complainant had no access to the
books, which the defense never produced : Held, that although the evi-
dence was somewhat unsatisfactory, yet, under the circumstances, it was
sufficient prima facie to uphold a decree in complainant's favor.
2. Execution — cannot issue against an estate. It is error to award an
execution against an administrator upon a decree against the estate of his
intestate. The decree should require the administrator to pay the sum
found to be due, in the due course of administration.
174: Albee v. Wachter [Sept. TV
Opinion of the Court.
Appeal from the Circuit Court of Cook county ; the Hon.
Erastus S. Williams, Judge, presiding.
This was a bill in chancery, exhibited by William H. Wach-
ter against Cyrus P. Albee, in his lifetime, to settle a partner-
ship and state an account between the parties. Before the
decree the defendant died, and Harriet Albee, his administra-
trix, was made defendant in his place. From the final decree
in the case the administratrix appealed.
Messrs. Gardner & Schuyler, for the appellant.
Mr. E. A. Storrs, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This bill was to settle a copartnership. It was filed in 1869.
Before the death of Cyrus P. Albee, which occurred on the
25th day of March, 1871, the issues had been made upon the
original bill, and answer, and the testimony on the part of the
complainant, Wachter, including his own deposition, had been
taken. The books of the firm were then under the control of
the defendant, Albee, and although the testimony taken tended
to show a considerable indebtedness from him to Wachter, he
made no effort to explain it by his own testimony, or other-
wise. The record, testimony, books, and all the files, were
destroyed by fire in October, 1871.
Afterward, upon leave given, the record and pleadings were
restored and the cause revived, and the administratrix made
a party. The testimony, on the part of complainant, was
retaken, but none was offered by appellant. On the final
hearing of the cause, the court found, among other things,
the net profits of the copartnership from the commencement
to the dissolution, amounted to the sum of $5,856.47 ; that
complainant was entitled to one-half that sum, and decreed
accordingly.
The principal error assigned is, the evidence is not sufficient
to support the finding of the court.
1874.] Albee v. Wachter. 175
Opinion of the Court.
We have examined the evidence preserved in the record,
and if we exclude appellee's own testimony, which it is in-
sisted was improperly received, we are still of opinion there
is sufficient to sustain the decree of the court.
The witness Russell states he made a thorough examina-
tion of the firm books in the lifetime of Albee, and reported
to him they showed the net profits of the concern to be
$5,856.47. It is true, Albee, in a general way, said that
amount was not correct, but how and in what way he did not
undertake to explain. It seems very clear, and perhaps it is
not controverted, that Albee was indebted to Wachter in some
amount, and if the amount stated by Russell as appearing to
be due from the books was not correct, it was incumbent on
him to offer some explanation. This he did not do, although
opportunity was afforded him for that purpose, nor has the
administratrix, since his death, undertaken to rebut the prima
facie case made by the evidence.
When the firm was dissolved, the books in which the ac-
counts were kept were retained by Albee. It was not, there-
fore, in the power of the complainant to make any accurate
statement of the accounts. No one could make such statement
but Albee, and he declined to do it. It may be conceded the
testimony of the amount due is not altogether satisfactory, but
it is the highest grade of evidence that could be procured. If
appellee's own testimony is to be disregarded, he could only
support his cause by the evidence of strangers to their affairs.
This he has done, and however unsatisfactory it may be,
neither Albee, in his lifetime, nor his administratrix, since
his death, has offered any explanatory evidence.
Were it a question of first impression with us, we should
feel constrained to find as the circuit court did, on the evi-
dence contained in the record.
The court inadvertently ordered execution to issue against
the administratrix in case of default in payment of the amount
found due by a certain day fixed. For this irregularity the
decree will be reversed, and a decree rendered in this court for
176 Bated v. Underwood. [Sept. T.
Opinion of the Court.
the amount found due, to be paid by the administratrix out of
the effects of the estate which may come to her hands in due
course of administration. The appellant, however, will recover
costs in this court.
Decree reversed, and decree in this Court.
James C. Baird
v.
C. H. UlSTDEEWOOD.
Promissory note — payable on a contingency, not negotiable. An instru-
ment in writing for the payment of money six months after date, cm con-
dition its amount " is not provided for as agreed by C, D," not being
payable absolutely and unconditionally, is not a negotiable promissory
note, and suit cannot be maintained on it in the name of an assignee.
Appeal from the Circuit Court of Kane county; the lion.
Silvanus Wilcox, Judge, presiding.
Mr. T. E. Ryan, for the appellant.
Messrs. Brown & Southworth, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action brought by Baird, the appellant, as
assignee of the following instrument of writing, against Un-
derwood, appellee, the maker thereof.
" St. Charles, Nov. 22d, 1871.
Six months after date I promise to pay to the order of Lewis
Klink, the sum of one hundred and twenty dollars, for value
received, on condition said amount is not provided for as
agreed by J. Updike.
C. H. Underwood."
1874.] Baikd v. Underwood. 177
Opinion of the Court.
Judgment was rendered in the court below in favor of the
defendant, from which the plaintiff appealed.
The only question presented is, whether this instrument
sued on is a negotiable promissory note, so that the assignee,
the appellant, can sue and recover upon it in his own name.
It enters into the definition of a promissory note, that the
money must be payable at all events, not depending on any
contingency, either with regard to event, or the fund out of
which payment is to be made, or the parties by or to. whom
payment is to be made. Chitty on Bills, 155; Kelley v. Tlem-
mingway, 13 111. 604; Smalley v. Edey, 15 id. 324.
This instrument is payable bix months after date, on con-
dition its amount " is not provided for as agreed by J. Updike."
In case J. Updike should provide for the amount of the in-
strument then it would not be payable by the maker. It is
payable conditionally only, and not absolutely and at all events,
and therefore is not a promissory note.
The authorities cited by appellee's counsel to the point, that
an instrument is a negotiable promissory note wThere it is pay-
able absolutely at a time certain, but upon the happening of
some contingency will be payable before, do not conflict here-
with. In such case, the time of payment must certainly
arrive, and is not contingent, in the proper sense ; for that
means a time which may or may not arrive. This instrument
is not absolutely payable by the maker at all ; it is only con-
tingently payable by him, and it was not certain at the time
of the giving of the note, that it ever would be payable by
the maker.
The instrument not being negotiable, the appellant has not
the legal title to it, and cannot maintain the suit in his own
name.
The judgment will be affirmed.
Judgment affirmed.
23— 74th III.
178 Taylor v. Bailey. [Sept. T.
Syllabus.
Amanda F. Armstrong
v.
The People ex ret. Julian S. Rumsey.
Appeal — identity of judgment appealed from. Where the record does
not show any such judgment as the appeal professes to be taken from, the
appeal will be dismissed.
Appeal from the Circuit Court of Cook county; the Hon.
Lambert Tree, Judge, presiding.
Mr. William Eliot Furness, for the appellant.
Mr. F. Adams, and Mr. T. Lyle Dickey, for the appellees.
Mr. Justice Scholfield delivered the opinion of the Court :
We are unable to find in the record before us, any such
judgment as that from which this appeal professes to be taken.
The only judgment in the record is against certain lots in the
city of Chicago. The appeal is from a judgment against the
N. 10J acres of the W. \ of the S. E. \ of the S. E. \ of sec.
13, T. 39 N. R. 13 E., which appears to be entirely different
property from that described in the judgment. We are not
authorized to presume it is the same, and the appeal must
therefore be dismissed.
Appeal dismissed.
Edmund D. Taylor
v.
John W. Bailey.
1. Landlord and tenant — landlord not liable for damage caused by
tenant's own negligence. Where the water pipes in a building are of the
proper size and properly constructed, a tenant occupying a room and hav-
1874.] Taylor v. Bailey. 179
Opinion of the Court.
ing the use of the pipes and water, and access to a crank by which to turn
off the water to prevent freezing, and who neglects to turn off the same,
whereby it freezes and bursts the pipe and damages his goods by leakage,
cannot maintain an action against the landlord for damage, on account of
his own negligence and want of ordinary care in not turning off the water
when likely to freeze.
2. Same — lease construed as to liability for leakage. A clause in a lease,
exempting the landlord from liability for damage to the tenant by leakage
of water, will not only be held to apply to leakage in the story or room occu-
pied by the tenant, when it appears that the water pipes are in a room
on a floor above and to which the tenant has access and agrees to keep
in order, but will also apply to leakage from the pipes in such upper room
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. Dent & Black, for the appellant.
Messrs. McDaid, Wilson & Pioher, for the appellee.
Mr. Justice Craig delivered the opinion of the Court.
This was an action, on the case, brought by appellee, in the
Superior Court of Cook county, against Edmund D. Taylor, to
recover damages sustained upon a certain quantity of teas
caused by leakage of water in a certain building occupied by
appellee under a lease from Taylor, as a wholesale tea store.
A trial was had before a jury which resulted in a judgment
in favor of appellee for $1,471.75. The court overruled amo-
tion for a new trial and rendered judgment upon the verdict,
to reverse which the defendant, Taylor, has prosecuted this
It appears from the record that appellant formerly owned a
double building in Chicago, arranged into two stores, known as
No. 274 and 276 S. Water street ; the former he gave to his
wife, and the latter to his daughter, Mrs. Strather ; these stores
were destroyed by the fire of October, 1871, and were subse-
quently rebuilt. The building contained a stairway in the
center, and a partition between the stores back of the stairway.
The water closets for the building were at the rear end of the
180 Taylor v. Bailey. [Sept. T.
Opinion of the Court.
hall in the second story ; the water pipe, which runs from the
basement up the partition in store No. 274, supplied the water
closets, and also a sink in the hall over store 276, which was a
few feet in front of the water closets.
There was a crank to the rod in the hall for the purpose of
shutting off the water from the main pipe, to guard against
freezing in a cold night.
In September, 1872, Mrs. Strather died, leaving only one
child, Cora, an infant. In January, 1873, Cora having no
guardian, appellant directed D. Cole & Sons to lease her prop-
erty. Under this direction they made a contract with appellee
to lease him the first floor and basement from January 15th,
1873, to the 1st of May, 1873, at $75 per month. A lease was
prepared and executed by E. D. Taylor, appellant, agent, as a
party of the first part, and by appellee as party of the second
part. One provision of the lease read as follows : " The said
party of the second part is to keep all side-walks in front of
the premises in good order, ashes, garbage, and slops of every
kind and nature, clear and clean off, and from or about the
said premises at his own costs, and also to keep sewer and
catch basin clean, so it will carry off the slops and waste water,
at his own cost, and in case of any damage caused by leakage
of water the said first party shall not be responsible therefor."
The lease also contains this clause : " The second party is
not to keep, or cause to be kept, any spirits in said premises,
and also to keep the hydrants and pipes, fences and privies
and all other parts of the house in good order, free of all costs
to said first party during this lease."
The lease also contains a clause that the party of the second
part has received the premises in good order and condition,
and that he will return them in like good condition.
On the night of the 28th of March, 1873, the water pipe in
the hall in the second story of the building burst, which was
caused by freezing, and the water went through the ceiling
and did the damage to appellee's teas, for which this action is
brought.
1874.] Taylor v. Bailey. 181
Opinion of the Court.
In the view we take of the record before us, the judgment
cannot be sustained, for two reasons.
First — It is apparent that the damage appellee sustained is
to be traced to his own negligence or want of ordinary care in
not turning off the water when it was liable to freeze and burst
the water pipe.
It seems to be clearly established by the proof, by those who
were competent to judge, on an examination made in January
or February, previous to the accident that caused the damage,
that the sink was properly constructed ; that the water pipe
was of proper size and in good condition, guarded and packed
where packing was necessary, and that there was a rod in the
hall for the purpose of turning the water off. Under these cir-
cumstances we are at a loss to perceive upon what principle
negligence or the want of care can be attributed to appellant.
Appellee, as appears from the testimony, had a key to the
water closet in the second story of the building, and it was oc-
cupied by him. The lease required him to keep it in order. It
was an appurtenant to the premises leased, and as the water
pipe in that part of the building was constructed for the use
and benefit of the water closet, it, too, must be regarded under
his control. J. T. Griffiths, a witness for appellant, testified,
after the pipes had been packed he went to the plaintiff's store
and told him distinctly that there was a place to turn the water
off, and to use care in turning it off, as they were liable to be
flooded at any time if they did not use care. While it is true
this is denied by appellee, yet we see no reason for disregard-
ing the evidence of this witness, who seems to be entirely dis-
interested.
Under these circumstances we can only attribute the dam-
ages sustained to the negligence of appellee. Had he taken
the precaution to have used the appliances prepared for his
protection and turned off the water, the accident would not
have occurred.
But, aside from this question, there is another point fatal to
a recovery.
182 Tatlok v. Bailey. [Sept. T\
Opinion of the Court.
The lease expressly provides, in case of any damage caused
by leakage of water, Taylor, appellant, shall not be held
responsible.
It is insisted that this clause in the lease must be confined
to the basement and first story of the building, which were
actually occupied by appellee.
The building was leased to be used as a wholesale tea store.
The teas were kept in the first story of the building. We
cannot conceive in what manner it was possible for appellee's
teas to be liable to damage from leakage that would occur from
water in the basement. Such is not possible. From what
direction was leakage contemplated by the parties when the
lease was executed ? Evidently from the second story, as that
was the only direction from which water could come which
was likely to damage the goods of appellee.
By referring to another provision in the lease, it seems plain
that the construction contended for by appellee is not tenable.
The lease provides in express terms that the appellee shall
keep in good order the hydrants and pipes, privies and all
other parts of the house.
There was no privy connected with the premises except the
one in the second story of the building. This, then, was the
one intended by the parties to be embraced in the lease. The
water-pipe which burst was connected with the privy, and that,
too, must have been one of the water-pipes intended to be
embraced in the lease.
In order to arrive at the intent of the parties, the various
provisions of the lease must be considered and compared to-
gether. When this is done, a reasonable and fair construction
of the lease will not hold appellant responsible for damages
occasioned by leakage.
From these views it follows that the Superior Court erred
in the instruction given for appellee, and in refusing instruc-
tions one, two and seven, which were asked in behalf of appel-
lant, for which the judgment must be reversed and the cause
remanded. Judgment reversed.
Scott, J., dissents.
1874.] Forbes v. Balenseifer. 183
Syllabus.
William Foebes
v.
Henry Balenseifer.
1. Easement — can be acquired only by grant or prescription. An ease-
ment, being connected with and appurtenant to real estate, so far partakes
of the character of land that it can only be acquired by grant, or prescrip-
tion, which implies a previous grant.
2. License — what constitutes — and whether revocable. A verbal
agreement between the several owners of several tracts of land, by which
each gives to the others a right of way over his land, amounts to a mere
license, revocable at the will of either of the parties.
3. A verbal license to pass over the land of another may be revoked
either by express notice, by obstructing the land licensed to be used, by
appropriating it to any use inconsistent with the enjoyment of the license,
or by a sale of the land without reserving the privilege to the licensee, and
in all such cases the rights of the licensee are terminated.
4. A license does not become executed and irrevocable merely because
the licensee has availed himself of the privileges of a license and entered
upon their enjoyment, but cases may arise where to revoke would be a great
wrong and oppression, and amount to a fraud on the part of the licensor,
and in such case a court wilJ, to prevent the fraud, hold the licensor
estopped from revoking the license.
5. Dedication for highway — must be accepted. A dedication of
land to public use as a highway must be accepted and appropriated to
the uses intended, and until there is such acceptance the owner may
withdraw his offer and appropriate the land to any other purpose he may
choose.
6. Same — how acceptance of dedication maybe evidenced. An accept-
ance of a dedication of a highway may be evidenced by the public officers
taking charge of the road and repairing it at public expense; or, where it
needs no repair, by placing it on the map of roads for the proper district,
and by its being used by the public, but mere travel by the public is not
evidence of acceptance.
7. Instruction. An instruction that if land was laid out as a public
highway by the owner, and the public recognized and accepted it, it would,
in law, be a public highway, is erroneous in not telling the jury what is
necessary to constitute an acceptance.
Appeal from the Circuit Court of Marshall county; the
Hon. John Burns, Judge, presiding.
184 Forbes v. Balenseifer. [Sept. T.
Opinion of the Court.
Messrs. Barnes & Mum, for the appellant.
Messrs. Peleg & Perley, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
Appellant brought an action of trespass, before a justice of
the peace, against appellee, to recover for injury to and destruc-
tion of his corn by appellee's hogs and cattle. A trial was had
before the justice, when appellant recovered a judgment for
$150 and costs. The case was removed by appeal to the cir-
cuit court, where another trial was had by the court and a jury,
which resulted in a verdict and judgment in favor of the de-
fendant, and plaintiff brings the case by appeal to this court.
It appears that the owners of four several tracts of adjoin-
ing lands, some three or four years previous to the trial, agreed
that in fencing these lands each would leave out a rod of
ground in width along the dividing line between them, so as
to form a lane two rods in width between their farms, from
the north to the south side, where this lane intersected at right
angles with a public highway. The fences were so built, and
it was understood that the lane was to be for the benefit of
each proprietor. Subsequently one of the owners sold his
farm to appellant, without, so far as we can see from the rec-
ord, making any reservation. This agreement was never
reduced to writing, but only existed in parol, and seems not
to have intended the lane as a public highway, but simply as a
pass-way for the owners of these lands.
After appellant purchased one of the tracts he closed the
lane, by erecting gates, as he claims, with the consent of appel-
lee, but the latter denies that he ever gave consent. It appears
that appellee has to pass over a strip of appellant's land to
reach this lane, and that appellant forbade appellee's crossing
over this strip, but he disregarded the prohibition and subse-
quently passed over it repeatedly to get out at the lane, and
appellant claims that he left the gate open and the fence down,
1874.] Forbes v. Balenseifer. 185
Opinion of the Court.
by which the stock got in and destroyed his corn. The court,
against the objections of appellant, permitted appellee to
prove the declarations of appellant's grantor, to show this was
a private way, which appellee was entitled to use as such, and
this is assigned as error.
An easement, being connected with and appurtenant to real
estate, so far partakes of the character of lands that it can only
be acquired by grant, or prescription, which implies a previous
grant. Washburn on Easements, 23. It then follows that
this evidence was incompetent to prove appellee had a right
of way over appellant's land, as that could only be done by
deed, or such long and uninterrupted use as the law would
imply a grant, neither of wbich is claimed in this case. But
any verbal agreement which appellant's grantor may have
made with appellee for passing over his land could give appel-
lant no vested right of way.
It at most would amount to a mere license, and such a
license is revocable at the pleasure of the licensor ; and a re-
vocation may be made in different modes. It may be done by
express notice, by such acts as are entirely inconsistent with
the enjoyment of the license, as, by obstructing the land
licensed to be used, by appropriating it to any use inconsistent
with the enjoyment of the license, or by sale of the land with-
out reserving the privilege to the licensee. In all such cases of
revocation the licensee's rights are terminated. A license, un-
like an easement, is not an interest in the land, but only a priv-
ilege to go upon the land for a specified purpose, but is revoca-
ble at the will of the owner, whilst an easement is irrevocable.
Wash, on Eas. ib. But it is urged that an executed license is
not revocable, and the case of Russell v. Hubbard, 59 111. 335,
is referred to in support of the proposition. In that case it
was held that where an adjoining owner induced another, who
intended to erect a frame building, to change it to a brick
structure, to join his building to the wall of that of the licensor,
and afterward insisted upon his removing it, which would
have been of great expense to the licensee, besides destroying
24 — 74th III.
186 Forbes v. Balenseifer. [Sept. T,
Opinion of the Court.
his building, it was held that the license was executed and the
licensee and his grantees acquired a right to so use the wall,
and that the licensor was estopped to revoke it.
In that case the doctrine was limited to cases where a large
sum of money had been expended under the license, partly
for the benefit of the licensor, and the position of the licensee
had been so changed at the request of the licensor that he
could not on a revocation be restored to his original position
or be compensated in damages, and having been induced by
the licensor to so act, it would have been a fraud to permit a
revocation, and that the facts of that case were held to take it
out of the general rule which was stated and fully recognized,
that the licensor might revoke at pleasure. It was there only
intended to hold that cases might arise when to revoke would
be a great wrong and oppression, and amount to a fraud on
the part of the licensor such as a court would interpose to
prevent by holding that he was estopped from revoking the
license, and the facts there presented such a case, but not that
because a licensee had availed himself of the privileges of a
license, and had entered upon their enjoyment, it thereby
became executed and irrevocable. The declarations of appel-
lant's grantor, whether made before or after his conveyance,
were not admissible to prove the grant, and it was error to
admit them. If offered to prove a license, the_y were improper,
because he had conveyed the land over which the license ex-
tended, and thereby revoked it.
It is urged that a number of appellee's instructions have no
evidence on which to base them, and that they were calculated
to mislead the jury, and it was error to give them. The
third of his instructions informs the jury that if the former
owner laid out a public highway, and the public recognized it
and accepted it, then, in law, it would be a public highway,
and that defendant could not commit a trespass over the line
so fenced out, nor by the removal of any obstruction to free
travel along such line as was in the boundaries thus fenced out.
We have examined the testimony in the bill of exceptions care-
1875.] Forbes v. Balenseifer. 187
Opinion of the Court.
fully, and fail to find any*evidence upon which to base this
instruction. There is no pretense that the road was established
under the statute, or by prescription, nor do we see the slight-
est evidence that there was a dedication to public use. It has
been said many times by this court, and if any principle is set-
tled, it is, that a dedication, to be valid and binding, must be
given by the owner of the land to the public for a highway,
and must have been accepted and appropriated to the use in-
tended; that there must be evidence of acceptance, and until
there is, the owner may withdraw his offer and appropriate
the land to any other purpose he may choose; that an ac-
ceptance can be evidenced by the public officers taking charge
of the road and repairing it at public expense, or, where
it needs no repair, by placing it on the map of roads for
the proper district, and by its being used by the public.
But mere travel by the public is not evidence of an acceptance.
And in all cases it must appear from declarations or convinc-
ing circumstances that the owner intended to dedicate the use
of the land to the public. No such intention appears in this
case. There is no evidence that the public accepted the dedi-
cation if one had been intended. The evidence only shows
that other persons than the parties occasionally traveled over
the road. And the instruction failing to inform the jury what
was necessary to constitute a dedication and its acceptance,
they may have, and probably did conclude that the travel by
the public was an acceptance and was all that was required
to create it a public highway.
The fourth instruction refers to and re-announces the rule
contained in the third, and for the reasons we have given it
failed to announce the law of this case. But it is said that
the court should not reverse even if these instructions are
erroneous, if they could not have misled the jury, or where we
can see that substantial justice has been done. We do not
see that these instructions did not mislead the jury, on the
contrary we are of opinion that they may have done
so ; nor can we say that the finding of the jury is clearly
188 Forbes v. Balenseifer. [Sept. T.
Opinion of the Court.
right and that substantial justice has been done. It was error
to give these instructions.
By the sixth of appellee's instructions the jury are informed
that if they believe that the former owners of the land laid
out the road before the acts complained of had been commit-
ted, and worked and traveled it amongst themselves as a
highway, that would amount to a license to each owner to so
use it unless revoked by the owners of the land, and that
neither of such owners, nor his grantee, could commit a trespass
against any of the other owners or their grantees, by passing over
it, nor by the removal of obstructions to free travel therein,
till the license was revoked. This instruction was vicious,
because it announced an incorrect rule of law, and as framed
the jury could only consider whether all of the owners or part
of them and the grantees of the others had united in revoking
the license. We are aware of no principle of law which re-
quires all the parties to a mutual license to join in its revoca-
tion. A verbal license is no more out of the statute of frauds
because it is mutual among several, than when it is simply
made from one, person to another. A verbal agreement between
four persons that each shall have a license to pass over a
designated portion of the land of each, is within the statute of
frauds equally with any other such license. The statute has
made no exceptions on account of numbers, and no reason is
perceived why it should. Under such a verbal license or
agreement either, any, or all of the parties would have the
same right to revoke a license as would the licensor to revoke
such privileges to a single person. They both stand upon and
are governed by the same rule. This instruction was mani-
festly wrong, as there was no pretense that all of these persons
joined in a revocation, and as they did not, this instruction
ended the case.
The judgment of the court below must be reversed and the
cause remanded.
Judgment reversed.
1874.] Marsh v. Kauff. 189
Opinion of the Court.
Chaeles V. Maesh
V.
Petee Kauff.
Contract — right to damages for delay caused by the party claiming
them. Where a written contract for the building' of a stable provides that
the work shall be completed by a specified day, and that the contractor
shall pay the sum of thirty dollars a day for each day's delay after the
date mentioned, the employer will have no right to exact damages for a
delay caused by his own act in stopping the work.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
This was an action of assumpsit, brought by Peter Kauff
against Charles Y. Marsh, to recover a balance due on a con-
tract for building a stable for the defendant. The opinion of
the court states the material facts of the case.
Mr. Thomas H. Marsh, for the appellant.
Mr. Robert T. Lincoln, for the appellee.
Mr. Justice Breese delivered the opinion of the Court:
This was assumpsit, in the Superior Court of Cook county,
on a written contract, dated April 3, 1873, by which Kauff,
the appellee, agreed with Marsh, the appellant, to build for
him a stable and finish it on or before May 17, of the same
year, for the sum of three thousand seven hundred and
fifty dollars, which appellant was to pay in installments as the
work progressed. In the contract was this clause : " The con-
tractor shall pay the sum of thirty dollars a day for every day's
delay after the date mentioned above."
The action was brought to recover an unpaid balance
claimed to be due on the work. A jury was waived and the
cause submitted to the court for trial.
190 Maesh v. Kauff. [Sept. T.
Opinion of the Court.
There was a special plea interposed, to which a special de-
murrer was put in, which was sustained on the ground that
the plea amounted to the general issue. The record shows
the facts alleged in the plea went to the court sitting as a jury.
The proper plea was a plea of set-off, but it is not material.
It claimed damages for the delay according to the stipulation
in the contract.
It appears from the record, after the completion of the
stable, the defendant set up a claim for thirty dollars a day for
delay. When this claim was made it was agreed to submit it
to arbitration. The arbitrators were chosen — they met and
heard the parties, and then adjourned to find Mr. Lareau, the
architect. At this juncture appellant left, saying he would
not be needed further. After finding the architect, the
arbitrators heard his statement and made an award in favor of
appellee. Appellant declined to abide by it, as he did not
think the finding correct.
On the trial it does not appear that appellee claimed any
thing under the award or any benefit from it. The justifica-
tion of the court, in failing to find the damages liquidated by
the contract, may be attributed to this fact, leaving out of view
the ambiguity in the terms, as there are two dates mentioned
in the contract that the work was interrupted by appellant
himself, at a point of time after the foundation was laid and
appellee ready to go on with the superstructure. Owing to
disappointment in money arrangements, appellant directed his
architect to stop work on the building, and he would pay
reasonable damages to the contractor. The delay being caused
by appellant, a demand for damages therefor comes with a
bad grace, and was properly disallowed by the court.
We can perceive no error in the finding and judgment, nor
do we deem it necessary to cite authorities on the point, that a
delay caused by the party himself excuses the other party
from performance, but refer to the general principle as found
in Comyn's Digest, title " Condition," L. 6.
Judgment affirmed.
1874.] Mason et al. v. Patterson et al. 191
Syllabus.
Nelson Mason et al.
v.
Joseph M. Patterson et al.
1. Decree — construed as to whether sale under passed title of one or two
defendants. Where a creditor's bill sought to subject the equitable interest
of A and B in land to sale for the payment of their debts as members of
a firm, and the decree ordered the sale of the property as prayed for, and
directed, that the master " upon the sale of said premises, or any part
thereof, make, execute and deliver to the purchaser or purchasers thereof
a deed of conveyance, conveying to the purchasers thereof all the right,
title and interest in said premises conveyed by the said A, in and by the
several trust deeds set forth in said original and cross bills herein," etc. :
Held, that the direction to the master could not have the effect to make
the decree for the sale of A's interest only, but that the reference to the
deeds of trust was simply to identify the property to be sold, and that a
purchaser under said decree acquired the interest of both A and B, and
succeeded to their equitable right to enforce the execution of a deed from
the party holding the legal title.
2. Same — whether made in term time or in vacation. Where a decree
is entitled as of a certain term of court, and is so certified in the record,
this will be conclusive evidence that the decree was made in term time
and not in vacation, and the record cannot be impeached.
8. Chancery — evidence not necessary as to defendant defaulted. Where an
adult defendant is in court and is defaulted for failing to answer in pursu-
ance of a rule of court, a decree may be rendered against him without evi-
dence ; but when the decree recites that the cause was heard upon the
pleadings and proof, and also upon the agreement of the parties filed, the
recital of a hearing upon proofs is conclusive in a collateral proceeding.
4. Estoppel — by decree rendered on default. Where a creditor's bill is
filed to subject to sale the equitable title of A and B in real estate, owned
by them under a contract of purchase from C, and the cross-bill filed in the
cause, C being a party duly served, alleges full payment of the purchase
money by A and B to C, and C suffers a decree against him by default,
and the interests of A and B are sold under the decree, on bill by the pur-
chaser against C to compel a conveyance of the legal title, the latter will
be estopped by the default from asserting that he has any claim on the
land for purchase money, or for any other cause.
192 Mason et at. v. Patterson et al. [Sept. T.
Opinion of the Court.
Appeal from the Circuit Court of Whiteside county ; the
Hon. William W. Heaton, Judge, presiding.
This was a bill in chancery, filed by Joseph M. Patterson,
William L. Patterson, J. Bradley Crandall, Eliza Crandall,
Ansel A. Terrell, John Charter and Simeon Sampson, against
Nelson Mason and Robert Cochran, for the specific perform-
ance of a contract for the sale and conveyance of lot 1 in block
39, west of Broadway, in the city of Sterling, Whiteside
county, Illinois, made by Nelson Mason to Allen G. Schenck.
It appeared that Schenck transferred one-half of his interest
in the contract to his partner B. G. Wheeler. On a creditor's
bill against Wheeler, Schenck and Mason, the equitable in-
terest of Wheeler and Schenck was found, and their interest
ordered to be sold. The premises were sold under this decree,
when Silas P. Wilson became the purchaser of a part thereof,
and James Gait of the balance. The complainants derive
their title through this sale by mesne conveyances from Wil-
son and Gait. On the hearing the court decreed that Mason
convey the premises to the complainants within sixty days,
etc. From this decree Mason and Cochran appealed.
Messrs. Dinsmoor & Stager, for the appellants.
Messrs. Kilgour & Manahan, and Mr. James M. Wallace,
for the appellees.
Mr. Justice Scott delivered the opinion of the Court :
While this case is not entirely free from doubt, we are of
opinion the decree may be maintained on the facts proven.
Appellees, claiming to be the equitable owners of the real
estate which is the subject of this litigation, filed their bill
against appellants to compel a conveyance to themselves of
the legal title that was alleged to be in Robert Cochran.
Nelson Mason was formerly the owner in fee simple of this
property. On the 28th of January, 1857, he sold it to Allen
Schenck, one of the two members constituting the firm of B.
1874.] Mason et al. v. Patterson et al. 193
Opinion of the Court.
G. Wheeler & Co., bankers, doing business in Sterling.
Schenck afterward sold an undivided one-half interest to his
partner, Wheeler, and made an assignment to that effect on
the back of the contract he held from Mason. 'No deed was
ever made to them, but the legal title was afterward con-
veyed by Mason for a fraudulent purpose to his son-in-law,
John A. Bross, who made a will devising it back to him.
Pending the proceedings to subject this property to the pay-
ment of the debts of Wheeler '& Co., to which he was made a
defendant, Bross died, leaving a widow and one child surviv-
ing. Although leave was obtained for that purpose, the cause
was not revived as to the widow and heir. But afterward,
by a sale made in pursuance of a decree of court made in a
cause to which the widow and heir of Bross were made de-
fendants, Mason became again reinvested with the legal title
in the property. This latter proceeding was perhaps nothing
more than a device adopted and conducted in the name of
certain alleged creditors to get the legal title out of the heirs
of Bross. None of the appellees were parties to that proceed-
ing, nor does it appear they had any knowledge of its pen-
dency.
In order to a clear understanding, it will be necessary to
recur to some of the principal facts connected with the origin
of appellees' title. On the 18th day of May, 1858, Buel Gr.
Wheeler and his wife executed and delivered to Mason, as
trustee, to secure him and other parties named as indorsers on
the paper of Wheeler & Co., a trust deed on this lot, with
other real estate. At the same time Schenck assigned to
Mason for a like purpose his interest in the contract for a deed
of the lot purchased of him, and Wheeler on that or a future
day assigned all his interest in that contract to Mason.
Wheeler & Co. having failed, and a part of the indebted-
ness referred to in the trust deed not having been paid, the
holders instituted proceedings in the Whiteside circuit court
to subject all the property assigned to Mason to the payment
of their claims. Other creditors of Wheeler & Co. came in
25 — 74th III.
194 Mason et al. v. Patterson et at. [Sept. T.
Opinion of the Court.
and asked to become complainants with a view of having their
claims paid out of the trust property. A change of venue was
awarded and the cause sent to Stephenson county, where a de-
cree was rendered directing a sale of all the property assigned
to Mason, or so much of it as might be necessary for that pur-
pose, to pay the creditors of Wheeler & Co. The title ob-
tained by the purchasers at the sale made under that decree is
now held by appellees. There is no pretense the conveyance
by Mason to Cochran was in good faith. Being a resident of
another State, it was made to him with a view to transfer the
litigation, in regard to the property, into the United States
court.
A great number of objections have been taken to the val-
idity of the decree under which appellees claim to have ac-
quired the equitable title to the premises, but it is not deemed
necessary to consider all of them.
It is contended the decree did not direct the sale of the in-
terest of Allen Schenck in the property. The construction
sought to be given the decree is not warranted. It will be ob-
served the prayer of the bill is for the sale of the interest of
both Wheeler and Schenck in the lot, and the decree following
the prayer of the bill directs the sale of the entire property.
The recital at the close of the decree, the master " upon the
sale of said premises or any part thereof, make, execute and
deliver to the purchaser or purchasers thereof a deed of con-
veyance, conveying to the purchasers thereof all the right,
title and interest in said premises, conveyed by the said Buel
Gr. Wheeler and Helen C. Wheeler to the said JSTelson Mason,
in and by the several trust deeds set forth in said original and
cross-bills herein," is a mere matter of description. The en-
tire lot was described accurately in the trust deeds set out in
the original and cross-bills, and, doubtless to avoid the restate-
ment of an extended description, reference was made to the
trust deeds of Buel G. Wheeler for a description of the prop-
erty the special master was to convey on making the sale as
before directed. It plainly appears from the context, the
1874.] Mason et al. v. Patterson et at. 195
Opinion of the Court.
court ordered the sale of the entire estate of all the parties in
interest who had been made defendants. The case of Hoffer-
bert v. Klinkhardt, 58 111. 450, is an authority that favors in
some degree this construction.
But if there was a defect in the decree in this regard, appel-
lees have since this suit was commenced obtained a deed from
Schenck for any interest he may have had in the property,
and set it up by way of an amended or supplemental bill.
This places his title, whatever it was, in appellees, and that is
sufficient to authorize them to maintain this bill as against
Mason and all persons claiming under him.
The suggestion the decree was made in vacation has no
foundation in fact. It is entitled as of the December term,
1866, and is so certified in the record. This is conclusive, and
we will not permit the record to be impeached.
It is said it does not appear the cause was ever heard by
the court. There was a stipulation signed by a part of the
defendants to the effect, the decree might be entered at the
December term, 1866, or in vacation. Mason did not sign
this stipulation. But at a previous term he was ruled to an-
swer at a succeeding term and, failing to do so, was defaulted.
He was in court by service of process. The decree recites, the
cause was " heard upon the pleadings and proofs filed herein,
and also upon the agreement of the parties filed herein." This
was all and even more than the law required the court to do.
It was in the power of the court to render a decree against all
adult defendants upon default, without evidence. But it did.
not choose to do this. Proofs were heard, and the recital in
the decree to that effect cannot be challenged in a collateral
proceeding.
The only questions in the case of any considerable moment
are, whether there was any thing due Mason from Wheeler
and Schenck, or either of them, for the balance of the pur-
chase money for the property, or whether there was any thing
due him for expenses incurred in the execution of the trust.
The weight of the evidence indicates the entire purchase
196 Mason et al. v. Patterson et al. [Sept. T.
Opinion of the Court.
money was fully paid. Confessedly, it was all paid unless it
was the last installment. That, however, was credited to him
on his bank pass-book by Wheeler & Co. But he says he only
drew a few checks on the bank after that credit was given, and
the balance never was paid. On this question the testimony
is conflicting. Wheeler and Schenck both testify it was paid.
The bank-book bears unmistakable evidence that some leaves
are missing. It had been balanced and checks returned to
March 5. At that date the balance of the account was $81.61,
which was entered as a credit to the depositor. On June 16,
the full amount of the last installment, $324.90, due on the
contract, was credited on the pass-book under the item of
$81.61. The account appears to have been again balanced.
The bank was debtor to the amount of the last two items,
$406.51, but there are no corresponding credits for checks
returned.
These facts make it incumbent on appellant to offer some
satisfactory explanation of the condition of the pass-book,
which we do not think the record contains.
But whatever may be the fact as to the payment of the bal-
ance of the purchase money, we are of opinion Mason is es-
topped by the proceedings had in the Stephenson county
circuit court, to say it was not. Both the original and the
cross-bills allege full payment of the contract price of the land
sold to Wheeler and Schenck, and the default admits the truth
of the allegation. An opportunity was afforded Mason to as-
sert whatever rights he had in the premises, and if he had not
been paid, to insist upon his claim. But having failed to do
so, the law will not permit him to assert the contrary against
honafide purchasers under that decree over his solemn admis-
sion, by the default upon the record, that he had been fully
paid the purchase money for the land.
This view is conclusive against the claim now insisted upon
for expenses in the execution of the trust under the trust deed.
It is too late to advance such a claim against remote grantees
of the purchasers under that decree. If he had any equities in
1874.] The Milw. and St. P. Ky. Co. v. Smith. 197
Statement of the case.
the premises, he should have had them adjusted in the former
litigation. Superior equities have obtained in appellees that
must prevail.
After a most careful consideration of all the points raised,
we are of opinion the decree must be affirmed.
Decree affirmed.
The Milwaukee and St. Paul Railway Company
William H. Smith.
1. Carriers — implied contract as to place of delivery. The rule in this
State is, that where goods are delivered to a railway company marked to a
place not upon the line of its road, but beyond the same, with no other di-
rections or without any express contract as to the place of delivery, the
law will imply an undertaking on the part of the carrier to transport and
deliver the goods at the place to which they are marked.
2. Lex loci — governs contract of carrier. Where goods are delivered
to a carrier in Wisconsin, the contract to be performed there, the laws of
that State will govern as to the construction of the contract, and determine
the extent of the carrier's undertaking.
3. Evidence — common law of a State, how shown. The unwritten or
common law of another State may be proved by the testimony of compe-
tent witnesses instructed in its laws.
Appeal from the Superior Court of Cook county ; the Hon.
Arthur A. Smith, Judge, presiding.
This was an action of assumpsit, brought by Smith against
the appellant, to recover damages for the breach of an alleged
contract of the defendant as a common carrier. By agreement
the cause was tried by the court without a jury, who rendered
judgment in favor of the plaintiff for $1,554.51.
198 The Milw. and St. P. Ky. Co. v. Smith. [Sept. T.
Opinion of the Court.
Mr. Charles M. Sturges, and Mr. Sanford B. Perry, for
the appellant.
Messrs. Tenneys, Flower & Abercrombie, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action brought by attachment in this State,
against the appellant, to recover for the breach of an alleged
contract, in failing to carry certain goods and chattels from
Milwaukee, in the State of Wisconsin, and deliver the same
at Eau Claire, in said State.
The facts of the case were these : The appellant was a Wis-
consin corporation, owning and operating a line of railway
running from Milwaukee, in the State of Wisconsin, to La
Crosse, in said State, Milwaukee being its eastern and La
Crosse its western terminus. It was the ordinary course and
general business usage of appellant to receive at Milwaukee
from consignors, to be carried on its railway, goods and mer-
chandise, marked and directed to places beyond La Crosse,
and off the line of its railway, and the same to carry to La
Crosse, and there, as a forwarder, within a reasonable time, to
deliver to other carriers for forwarding to or towards the
places to which such goods and merchandise were marked
and directed. Eau Claire is a town in Wisconsin. The cus-
tomary route and mode of transporting goods and chattels
from La Crosse to Eau Claire, was by way of the Mississippi
river, on which La Crosse is situated, by steamboats owned
and operated respectively by the Northwestern Union Packet
Company, and the Northern Line Packet Company, to Peed's
Landing on said river, and thence to Eau Claire by small steam-
boats running on the Chippewa river, on which Eau Claire is
situated. On or about May 13, 1870, appellee delivered to
appellant at Milwaukee, ror carriage, the goods in question,
marked and directed to appellee at Eau Claire. Within a
reasonable time thereafter appellant safely carried the goods
to La Crosse, and there delivered the same to the Northwest-
1874.] The Milw. and St. P. Rv. Co. v.. Smith. 199
Opinion of the Court.
era Union Packet Company, for carriage for the appellee to
or towards Eau Claire. There were no directions to and no ex-
press promise or undertaking upon the part of appellant, in
respect of the carriage from Milwaukee to any place whatever.
The only contract in that respect is such an one as the law
implies from the facts above stated. There is no dispute
about the facts.
The only question is as to the law — whether that implied a
contract on the part of appellant, to carry to, and deliver at,
Eau Claire.
According to the law of this State, as decided in the case of
/. C. R. R. Co. v. Frankenberg et al. 54 111. 88, and recog-
nized in later decisions, the contract was one to carry to, and
deliver at, Eau Claire. Such an agreement would be implied
from receiving the goods marked and directed to that place. But
it is not the law of this State which is to govern — it is that .
of Wisconsin. The transaction took place in that State, and
the performance was to be there. It is an established princi-
ple, with respect to personal contracts, that the law of the
place where they are made shall govern in their construction,
except when made with a view to performance in some other
State or country. The Pennsylvania Co. v. Fair child et al.
69 111. 260. There is no statute of Wisconsin upon the sub-
ject, according to the testimony. It depends, then, upon the
unwritten or common law of Wisconsin. Such law of a
foreign State is to be proved by the testimony of competent
witnesses instructed in its laws, under oath.
There appears in the record the concurring testimony of
three practitioners of law in Wisconsin, of more than twenty
years' standing, whose practice has been continuous and exten-
sive, and in the highest courts in the State, that upon the
state of facts in this case, the promise and undertaking which,
under the law of that State, would arise upon the railway
company, would be one to carry and deliver, or offer to deliver
to the connecting line at La Crosse, unless prevented by the
200 The Milw. and St. P. Ky. Co. v. SMrm. [Sept. T.
Opinion of the Court.
act of God, or the public enemies — that such is the contract
implied by the unwritten law of the State of Wisconsin. There
is no opposing testimony.
This would seem to be sufficient to settle the question as to
what is the law of Wisconsin.
But inasmuch as the witnesses, on cross-examination, state
that they do not think the law of Wisconsin to be different
from the common law, and as there has been no direct decision
of the Supreme Court of Wisconsin upon the question, the
testimony of the witnesses, it is said, amounts to no more than
an opinion on their part that such is the common law ; and
that this court must say for itself what the common law is
upon this point ; and that it is what this court decided it to be
in the Frankenberg case. But the common law is not unvary-
ing in all places where it prevails. It exists with more or less
of modification in the different States, and it is not unchange-
able in the country of its origin.
The rule adopted by this court in the Frankenberg case,
that when a carrier receives goods to carry, marked for a par-
ticular place, he is bound to carry to and deliver at that place,
agrees with the present rule of the common law in England.
But this court admitted, in the case of Illinois Central By.
Co. v. Cojpeland, 24 111. 332, where it first expressed a prefer-
ence for this rule, that the first English case which adopted it
was that of Muschamp v. The Lancaster <& Preston Junction
Railway Co., decided in the Court of Exchequer in 1841,
and reported in 8 Meeson & Welsby, 421 ; and it was also
said in the Copeland case, as well as in that of Frankenberg,
that the consideration of public convenience had weight with
this court in determining upon the adoption of that rule ; and
it was further said, in the latter case, that the received doctrine
among the courts of this country might be said to be, that the
carrier was not responsible beyond his own route, except upon
his special undertaking so to be liable.
Now the question is not, what is the common law of England,
or of this State, but what is the common law, in this respect, of
1874.] The Milw. and St. P. Ky. Co. v. Smith. 201
Opinion of the Court.
Wisconsin ? The courts of that State are free to act upon their
own notions of public convenience, as well as the courts here.
A rule which this court deems to be promotive of public con-
venience, the courts of Wisconsin might hold to be otherwise.
The witnesses, or some of them, state one ground of their
opinion as to what the law of Wisconsin is, to be judicial
recognition.
The case of OonJcey v. The Milwaukee and St. Paul Rail-
way Co., decided by the Supreme Court of Wisconsin, and
reported in 31 Wis. Rep. 620, was in evidence. The decisions
of that court, so far as we have been referred to them, indicate
a leaning in favor of the rule of law as testified to by the wit-
nesses, and may be said to add strength to their testimony.
Persons transacting business and entering into contracts
within a State, must be supposed to seek and rely upon the
information to be obtained from the legal profession of such
State, in regard to the legal force of their contracts. The re-
sult of the best professional advice in the State of Wisconsin
at the time the transaction in question took place, as to its legal
effect, would have been, as we must believe from the evidence,
that it was only a contract to safely carry to La Crosse and'
deliver within a reasonable time to the connecting line at that
place. That, from the evidence, we think should be held to
be the law of Wisconsin.
Although this court has held the law to be different in this
State, we would not be so wedded to our own decision as to
impose it upon the citizens of another State as the law of that
State, and enforce upon them the performance of a contract
they had no reason to suppose that they had ever made, and
which the best legal advice obtainable in the State where the
transaction was had would have pronounced they had never
entered into.
Finding that the contract in question, according to its con-
struction by the law of Wisconsin, as testified to, was fully
performed, the appellee had no cause of action, and the judg-
ment must be reversed. Judgment reversed.
26— T4:th III.
202 Stevens v. Hollingsworth et al. [Sept. T.
Opinion of the Court.
James C. Stevens
v.
WlLLAED HOLLINGSWOETH et al.
1. Homestead — wlwU ground exempt. The intention of the legisla-
ture, in enacting the homestead exemption law, was not to save a mere shel-
ter for the debtor and his family, but it was to give him the full enjoyment
of the whole lot of ground exempted, to be used in whatever way he might
think best for the occupancy and support of his family, whether in the
way of cultivating it, or by the erection of buildings upon it, either for
carrying on his own business or for deriving income in the way of rent.
2. When a debtor owns a lot upon which he resides, and upon which he
has a mill, shop or other building, the whole property is his homestead,
and as such exempt from execution to the extent of one thousand dollars.
3. Where the homestead of a debtor is sold on execution without any
division, although it may be worth more than one thousand dollars, yet
the purchaser acquires no title to any part of it which he can make avail-
able in an action of ejectment, either as plaintiff or defendant, whatever
may be the rule in equity.
Appeal from the Circuit Court of Mercer county; the
Hon. George W. Pleasants, Judge, presiding.
Mr. B. C. Taliaferro, for the appellant.
Mr. I. N. Bassett, for the appellees.
Mr. Justice Scholfield delivered the opinion of the Court :
This was an action of ejectment, by appellant against ap-
pellees, which, on the trial in the court below, resulted in a
judgment for appellees.
One count in the declaration is for a mill-house, machinery
and appurtenances to the mill, situated on lot four in block six
in Keith's second addition to the town of Keithsburg in the
county of Mercer, and the only controversy is in respect to
this property.
It was admitted on the trial that the lot was, from before the
second day of March, 1869, until the time of trial, the home-
stead of the plaintiff, who was the head* of a family, residing
1874.] Stevens v. Hollingsworth et al. 203
Opinion of the Court.
with the same thereon ; and that the defendants were in the
possession of the mill-house and 'machinery in controversy,
but of no other part of the lot.
The evidence shows that the lot is 156^ feet long, about 100
feet of the south end being occupied by the plaintiffs resi-
dence and yard, and the mill occupying about 20 by 40 feet
of the north end. There is also another lot owned by plain-
tiff adjoining this one, on which he has fruit trees, etc.
The defendants claimed to be lessees of Abercrombie, who
claimed to be the owner of the lot by virtue of a deed made to
him by the sheriff of Mercer county on the fourth day of Feb-
ruary, 1871. This deed was supported by a judgment of the
circuit court of Mercer county, rendered on the second day of
March, 1869, against the plaintiff, for $4:66, upon which exe-
cution was issued and levied on the lot, which was sold to
John O. Humphreys, and he assigned his certificate of pur-
chase to Abercrombie. There is no evidence that the plain-
tiff ever abandoned his residence on the lot, or that he ever
relinquished, in writing, his claim of homestead in the mill.
[t is claimed, however, by the defendants, that he voluntarily
surrendered the mill to Abercrombie, and, subsequently, with
the defendant, Willard Hollingsworth, rented the same from
Abercrombie.
There is a conflict of evidence upon this point, but we think
the preponderance is clearly with the plaintiff.
Abercrombie is a son-in-law of plaintiff, and claims that he
bought the certificate of purchase at the request of plaintiff, to
keep the property from falling into the hands of strangers.
Plaintiff denies that he ever requested him to purchase the
certificate, but they agree that it was understood that if plain-
tiff would refund to Abercrombie his money, plaintiff was to
retain the property.
Abercrombie swears that plaintiff gave him possession of the
property when he got his deed ; that he then rented it to one
Young for a time, and subsequently to plaintiff, and Willard
Hollingsworth, one of the defendants; that plaintiff after-
204. Stevens v. Rollings worth et al. [Sept. T.
Opinion of the Court.
wards requested him to rent the property to one Brewer ; that
plaintiff and Hollingsworth being unable to agree, lie resumed
possession of the property, and then rented it to the defend-
ant Willard Hollingsworth. He says that plaintiff did not
object to this, but did not seem pleased with the arrangement.
Plaintiff swears that he rented the mill to Dunn and Thomp-
son on the 15th. day of June, 187*0; that they afterwards sub-
let it to Hinsey and Smith, who sub-let it to Young; that
Young, on quitting the mill, surrendered it to plaintiff; that
he remained in possession until the eleventh day of December,
1873, when Abercrombie came into the mill, saying that he
was going to take plaintiff's place ; that for fear of having
trouble he went out of the mill, fully determined to test the
title to the property. He further swears that the defendant
Willard Hollingsworth was his partner in the mill at the time ;
that he (Hollingsworth) refused to let plaintiff have any thing
to do with the mill, after Abercrombie ordered him out, and
thenceforth refused to recognize him as his landlord ; that,
when he first let Hollingsworth into the mill, Hollingsworth
was to pay him $500 per annum rent ; that subsequently it
was agreed between plaintiff, Hollingsworth and Abercrombie
that Hollingsworth should pay Abercrombie $250 per annum,
which Abercrombie was to apply on what he had paid for the
certificate of purchase ; and that plaintiff agreed to pay Aber-
crombie as much more as he could. He positively denies that
he ever rented the property from Abercrombie.
Plaintiff is sustained in his version in regard to the renting
to Young by his son, Charles Stevens, and Gr. L. Dunn. He
is sustained in his statement that he and the defendant Willard
Hollingsworth went into partnership while he was himself in
possession of the mill, and that Hollingsworth rented from
him and not from Abercrombie, by David Hinsey, who
swears: "Willard Hollingsworth, one of the defendants,
ordered Stevens, the plaintiff, out of the mill. This was after
Abercrombie came and took possession. Hollingsworth told
me that, in the first place, he had arranged to run the mill in
1874.] Stevens v. Hollingsworth et al. 205
Opinion of the Court.
partnership with • Stevens, and was to pay Stevens $22 per
month, and furnish means to run the mill, and that Stevens
was to keep up the engineer's part."
By Charles Stevens, who swears : u Hollingsworth first went
into partnership with father. * * * Father had posses-
sion and continued in possession until Hollingsworth came into
the mill with father. * * * I heard Abercrombie say
he was satisfied when he got his money back, and father said
he would pay him out of the rent of the mill."
And by B. 0. Taliaferro, who swears, after proving demand
made by him on the defendants for the possession of the mill,
for plaintiff: " Hollingsworth refused to give possession ; he
stated to me that he had commenced running the mill in part-
nership with Stevens, in the first place, but he had afterwards
rented of Abercrombie ; that he was running it under Aber-
crombie's lease and would not give Stevens possession."
We are not satisfied, from the evidence, that plaintiff ever
voluntarily surrendered possession of the property to Aber-
crombie, but, on the contrary, are of opinion that it was
agreed between these parties that Abercrombie, instead of
insisting on his claim of ownership to the property, was to ac-
cept from plaintiff what he had paid for his certificate of pur-
chase ; and that the rents were to be appropriated in this way.
This view, in connection with the fact, which seems to have
been known, that Abercrombie had the certificate of purchase,
sufficiently explains why Brewer, in desiring to rent the prop-
erty, deemed it important to have Abercrombie's consent to
any negotiation he should make, and why plaintiff consulted
him in that respect.
This brings us to the question, did Abercrombie's deed give
him a legal right to the possession of the property ? It is
insisted, for the defendants, that notwithstanding plaintiff's
dwelling-house, etc., is on the same lot with the mill, yet inas-
much as the mill itself is no part of his residence, and he uses
an adjoining lot, in part, for fruit and vegetables, and the por-
tion occupied by the mill may be separated from the residue
206 Stevens v. Hollingsworth et al. [Sept. T.
Opinion of the Court.
of the lot without inconvenience, it cannot be a part of his
homestead. Linton et al. v. Quwiby, 57 111. 271, and Loomis
v. Gerson, 62 id. 11, are cited in support of the position. In
the first of these cases lots 12, 13, 14 and 15 had been sold on
execution, and it was asked that the sale be set aside for the
reason that they were the complainant's homestead. The
court set aside the sale as to lot 13, only. It was shown that
complainant's residence was on this lot, and that it greatly
exceeded in value $1,000. This court held that the com-
plainant had received all the relief to which he was entitled.
It was, however, said : " If the lots had been sold in a body,
it would have been impossible to give this relief without
setting the sale aside as to the other lots. But, as they were
sold separately, complete justice can be rendered to Linton as
to his homestead rights without doing a wrong to Quimby.
The fact that each lot was sold separately, and that the lot
on which Linton's house was situated was confessedly worth
more than one thousand dollars, makes it easy to fix the pre-
cise limit to which the court should go in administering equi-
table relief." It will thus be seen that whatever inferences,
applicable to the present case, can be drawn from that case,
are against the defendants. Here, the sale was of the entire
lot, and it is impossible to apportion the amount bid to any
particular part of it.
In the other case referred to, it was held, on bill filed to set
aside a sale on the ground that the premises were a homestead,
it appearing that the premises were worth $1,800, that the sale
should not be absolutely set aside, but that the purchaser should
be allowed to pay the $1,000 to the defendant in execution, if
he so chose, and retain the property. But this was upon
equitable principles purely, and manifestly can have no appli-
cation, in an action of ejectment, where the naked legal title
only can be considered. Moreover, instead of being an
authority to show that the right of homestead does not extend
to the entire lot upon which the dwelling-house is located, it
by implication recognizes the opposite doctrine.
1874.] Stevens v. Hollingsworth et al. 207
Opinion of the Court.
The language of the statute is, " The lot of ground and the
buildings thereon, occupied as a residence," etc., "shall be
exempt," etc.
In Walters v. The People, 18 111. 197, it was held a tract of
timber, a mile from the farm land, and not adjoining, yet from
which supplies of timber, rails, firewood, etc., were alone de-
rived for the support of the farm, was not a part of the home-
stead. And this construction was given to the statute on
account of its peculiar phraseology. It was said : u This lot
of ground may be but a few feet square, while the debtor owns
thousands of acres in many other tracts. It may, again, con-
tain thousands of acres in one compact body, embracing many
surveys or legal subdivisions."
The dictum in Reinbach v. Walter, 27 111. 393, does not
assert a contrary principle. In that case there were two lots,
and it does not appear that a division should have been made,
except by the lines of the lots. But the question was not be-
fore the court, anyhow, and what was said in this respect was
but obiter dictum.
In Thornton v. Boyden, 31 111. 211, which was ejectment
for eighty acres of land, it was held competent for defendant
to show that the land adjoined his dwelling-house, which was
on a town lot, and was claimed by him as a homestead.
In Hubbell et al. v. Canady, 58 111. 426, bill was tiled to set
aside a sale on execution of the west half of a certain town lot.
The whole lot was 60 by 120 feet. The dwelling-house was
mostly on the east half of the lot ; about four feet of it, and
seven feet of the smoke-house, were on the west half, as also
the garden, fruit trees and well. There was a store-house 20
by 45 feet on the west half of the lot, which set back six or
eight feet from the end, and was in the occupancy of a ten-
ant. It was held that the whole lot constituted the home-
stead, and was exempt from the sale.
It was said : " The whole lot of ground is covered by the
exemption, not some part of it, and the lot included all the
buildings upon it.
208 Stevens v. Hollingsworth et at. [Sept. T.
Opinion of the Court.
" We are not to regard the intention of the legislature
as being only to save a mere shelter for the debtor and his fam-
ily, but that it was the purpose to give him the full enjoyment
of the whole lot of ground' exempted, to be used in whatever
way he might think best for the occupancy and support of his
family, whether in the way of cultivating it, or by the erection
and use of buildings upon it, either for the carrying on
of his own business, or for deriving income in the way of
rent."
We are entirely satisfied with the correctness of these obser-
vations, and there is nothing in the present case to except it
from their application.
While evidence has been received to show that two or more
subdivisions of real estate constitute a lot, within the meaning
of the homestead act, in no instance has evidence been received
to show the lot was less than a subdivision, simply because the
debtor used a portion of it for prosecuting his business. It
would be difficult to explain, upon any principle of correct
reasoning, why the farmer shall have his farm of eighty acres
adjoining his dwelling-house on a town lot, and yet the mill
of the miller, or the shop of the mechanic, although on the
same lot with his dwelling-house, shall not be exempt. Or,
narrowing the application, why the garden, stables, yards,
orchard, etc., shall be exempt, and the shop, mill or business
house, although indispensably necessary to earn a support for
the family, and located on the same lot of ground with the
residence, shall not be exempt. The homestead, however, is
not limited to the ground occupied by the residence, but to
the lot of ground and the buildings thereon, and each is pre-
sumably of the same importance to the debtor.
But it is further argued that the lot exceeded in value one
thousand dollars, and the judgment was a lien on the excess ;
that the sale, therefore, was but voidable, and that the plaintiff,
having voluntarily abandoned the property and yielded its
possession, Abercrombie's title became perfect
The sale was of the entire lot, and there is no pretense
1874.] Stevens v. Hollingsworth et al. 209
Opinion of the Court.
plaintiff ever abandoned his residence; nor, as we Lave befcre
said, does the evidence, in our opinion, show that plaintiff
voluntarily abandoned the mill. He yielded simply to what
he considered an intrusion, and, as he says, with the intent to
assert his rights by law. It cannot be assumed that the indi-
vidual, who leaves his property in the possession of a trespasser
rather than resist his aggressions, thereby loses all legal
remedy for the assertion of his ownership and right of posses-
sion. Yet this is, practically, what plaintiff claims to have
done, and what, we think, the evidence shows he did do. No
steps were taken, pursuant to the requirements of the statute,
to subject plaintiff's homestead to sale, upon the supposition
that the property was divisible, or that it exceeded in value
$1,000.
A reference to the previous decisions of this court will, it
is believed, show, without a single exception, that a title so
acquired to a homestead cannot avail in an action of ejectment,
either to sustain a recovery by the plaintiff, or when interposed,
as a defense by the defendant.
In Green v. Maries^ 25 111. 221, the general principle was
announced that a judgment and exe3ution do not create a lien
against the homestead, and the owner may sell or mortgage it,
free from any lien of the judgment. In that case, however,
it appears the value of the property, in fact, did not exceed
$1,000 ; still the reasoning of the court applies with equal
force where the value of the homestead exceeds that amount.
The gist of it lies in these remarks : " The judgment lien
upon lands, then, being conferred by statute alone, and not as
a common law right, it can only attach and become effective
in the mode, at the time, and upon the conditions and limita-
tions imposed by the statute itself. Our statute is not in aid
of a common law right to sell real estate, but it confers the
right. * * * This statute is silent as to any lien on the
homestead. The third section, it is true, authorizes the credi-
tors or the officer having an execution, if they believe the
value of the property to be of greater value than one thousand
27— 74th III.
210 Stevens v. Holling-sworth et al. [Sept. T.
Opinion of the Court.
dollars, to have it appraised, and if it is so found, to have so
much of the premises, including the dwelling, set off for the
debtor, if susceptible of division, as may be worth that sum,
and authorizes the sale of the remainder." Then, after quoting
other provisions of the act, it is added : " The legislature have
manifested, in an unmistakable manner, the design to secure
the debtor, and his family after his death, in the enjoyment of
a home. They have carefully guarded the right, when the
tract of land is of greater value than the amount of the exemp-
tion, by having the homestead of that value set off to him, if
susceptible of a division, and if not, then on a sale one
thousand dollars is required to be paid to him."
In Patterson v. Kreig, 29 111. 518, it was held it could
be proven as a defense on a trial in ejectment, that the
property was the homestead of the defendant. In Smith v.
Miller, 31 111. 160, this was reasserted, but it was also there
held that where a homestead which exceeded $1,000 in value
was mortgaged, the mortgage was good as to the excess over
$1,000, notwithstanding the right of homestead was not prop-
erly released in the mortgage.
In Pardee v. Lindley, 31 111. 183, it was also held that it is
competent to prove, on the trial of an ejectment, that the prem-
ises in controversy are the homestead of the defendant ; and it
was further held that the fact that they exceeded one thousand
dollars in value was immaterial in this action.
Thornton v. Boy den, in the same volume, at 211, refers to
and approves what was said in Pardee v. Lindley.
In Booker v. Anderson, 35 111. 86, while it is said a mort-
gage or deed of trust is not a lien against the homestead, it is
also said, " If worth more than that sum it was, no doubt, bind-
ing as a lien on the overplus, which could be subjected to the
payment of the debt in the mode prescribed by the statute."
Brown v. Coon, 36 111. 246, overrules and modifies Patter-
son .v. Kreig, so far, that it was held that where the homestead
is conveyed, either with or without an express statutory relin-
quishment, and actual possession is given to the grantee, by
187 i.] Stevens v. Hollingsworth el at. 211
Opinion of the Court.
the voluntary withdrawal of the husband and wife, the home-
stead as to such grantee, and persons claiming under him,
and in his and their favor, is abandoned, but only as to them.
But in that case it was expressly conceded to be the law, in
the case of a mortgage of a homestead, without the statutory
relinquishment, and not followed by an abandonment of the
homestead by the mortgagor and his wife : " If the premises
were worth less than $1,000, the mortgage was practically
inoperative for any form of action, so long as the mortgagor
should choose to assert his homestead rights. If they were
worth more than $1,000, although the mortgage was at once op-
erative for the surplus, yet it could not be enforced by eject-
ment until the homestead had been set off, as the court, in
that action, could not determine how far the homestead right
would extend."
In Blue v. Blue et al. 38 111. 18, it was said : " It is ob-
jected that there is no evidence to show that this tract was
worth only one thousand dollars, or less. This cannot vary the
result, as, if it was not worth more than that sum, the sale was
prohibited by the statute, and if worth more, then none of the
requirements of the statute were observed in making the levy
and sale ; so that, in either view, the sale was unauthorized."
The same was also again held in Bliss v. ClarJc, 39 111. 590,
the court, among other things, saying: " That the statute de-
signed the premises, to the extent of $1,000, to be free from
the operation of the lien, is manifest from the fact that the
excess over and above the value of that sum may be levied
and sold in the mode pointed out by the act; and if not sus-
ceptible of division, then the entire premises may be sold, upon
the creditor paying $1,000 to the debtor, which is declared to
be exempt for one year. If the right to occupy, or the land
itself, had been intended to be subject to the lien of the judg-
ment, why not authorize a sale, subject to the right of the
debtor to occupy it as a homestead ?"
In McDonald v. Crandall, 43 111. 236, it was said : " It
has, however, been held, that where the homestead property
212 Stevens v. Hollingsworth et al. [Sept. T.
Opinion of the Court.
exceeds $1,000 in value, a judgment, a mortgage, or deed of
trust, becomes a lien that may be enforced against the surplus."
It would thus seem that, if the repeated assertion of a prin-
ciple can be regarded as making it settled law, it is the settled
law of this court that, while a judgment against a debtor,
whose homestead exceeds in value one thousand dollars, is a
lien on the excess over the one thousand dollars, that lien can
only be enforced in the mode prescribed by the statute ; and
if the judgment creditor proceeds to sell the homestead and
acquires a deed to it, disregarding the statutory requirements,
his deed is not admissible in ejectment against the claim of
homestead, either in attempting to recover possession, or in
defending his possession.
Where a bill in chancery is filed to set aside a sale, on the
ground that the property sold was the homestead of the com-
plainant, the chancellor may, undoubtedly, in' the exercise of
the equitable powers with which he is invested, cause the
property to be divided and set aside the sale only as to so much
as shall be found, if the property be divisible, of the value of
$1,000 ; or require the complainant, if the property be not
susceptible of division, to accept the $1,000 for his homestead
if the purchaser shall elect to retain it and pay the amount, as
was held in Loomis v. Gerson, supra j but a court of law, in
the trial of an ejectment, obviously can exercise no such
powers.
We are therefore of opinion, that the deed of Abercrombie
was no justification to the defendants, who held and attempted
to justify under that title. The judgment must be reversed,
and the cause remanded for further proceedings not inconsist-
ent with this opinion.
Judgment reversed.
1874.] Richardson et at. v. Olmstead. 213
Opinion of the Court.
Elias Richardson et al.
v.
Hiram D. Olmstead.
1. Contract — whether of sale or bailment. Where grain is received by
a dealer, into his warehouse, under a contract to pay the owner the market
price on any day he may choose to call for it, and such grain is mixed with
other grain in bins, from which shipments are being made every day, the
dealer becomes the owner of the grain and liable to pay for it whenever
called on, and is not a mere bailee.
2. Where grain has been delivered to a dealer at his warehouse under a
contract on his part to pay the market price for it when called for, and he
mixes it with other grain in bins, from which he is constantly shipping,
and after such grain has all been delivered, the party delivering it not
needing the money, and believing the price will be higher, proposes to
leave the grain in the warehouse of the dealer until a specified time, to
which the dealer agrees for a consideration to be paid him, the title to the
grain is in the dealer, and the effect of the last contract is simply to give
the party delivering until the time specified to name the day on which he
will take the market price.
Appeal from the Circuit Court of La Salle county ; the
Hon. Edwin S. Leland, Judge, presiding.
Mr. Charles Blanchakd, for the appellants.
Mr. D. B. Snow, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of assumpsit, brought by Hiram D. Olm-
stead, in the circuit court of La Salle county, against Elias and
William N. Richardson, to recover the value of a certain
quantity of corn claimed to have been sold and delivered.
A trial of the cause was had before the court without the
intervention of a jury, which resulted in a judgment in favor
of appellee for $419.09. To reverse this judgment the defend-
ants have prosecuted this appeal.
The only question presented by this record is, whether the
214 Richardson et al. v. Olmstead. [Sept. T.
Opinion of the Court.
contract under which the grain in question was delivered and
held by appellants was one of bailment or sale.
In order to obtain a clear understanding of the question, a
brief statement of facts becomes necessary.
The appellants kept a warehouse in the city of Ottawa, and
were engaged in buying and shipping grain ; on the 27th day
of May, 1870, appellee made a contract with them by which
he was to deliver his grain at their warehouse, and they were
to pay him for the same the market price of grain on any
given day he might elect to call upon them for payment;
under this arrangement appellee placed his entire crop in ap-
pellants' warehouse, a portion of which, as delivered, he elected
to take the then market price for, and received payment under
the contract. All grain delivered prior to August 5 was, paid
for. On the 6th of August appellee commenced delivering
corn, and from that time to August 25, he delivered nine
hundred and thirty-one bushels, wmich is the grain in contro-
versy. All grain delivered by appellee, as delivered at the
warehouse, was mixed with other grain, and appellants were
constantly receiving grain from various parties which was
placed in a common bin in the warehouse, and they were
from time to time making shipments from the warehouse to
market.
In the month of April, 1871, appellants' warehouse, with its
contents, was destroyed by fire.
Thus far there is no dispute between the parties in regard to
the facts. William Richardson, one of the appellants, testified
that about the 1st of November, 1870, appellee came to their
office and said he wanted to leave his corn over until spring ;
that his son would sell his corn as he needed the money, but
he, appellee, did not need money and would not sell ; I told
him that we would have to charge him storage if he left it
over the winter ; he wanted to know what it would be. I told
him we had agreed to store for other parties at three cents.
The conclusion was, he was to pay three cents per bushel
1874.] Richardson et al. v. Olmstead. 215
Opinion of the Court.
Elias Richardson, the other appellant, testifies, in substance,
to the same.
This, however, appellee in his evidence flatly denies. He
testifies that no arrangement or contract of any character was
made except the one entered into on the 27th day of May be-
fore he commenced the delivery of grain.
Whether this last agreement to hold the grain until spring
was actually made or not, in the view we take of the case, can
make no difference in regard to the rights of the parties.
It was not contemplated or expected by either party to the
record, that appellee was ever to receive back from appellants
the identical corn delivered in the warehouse; the manner in
which the grain was handled rendered this utterly impossible.
Appellee's corn was not kept separate, but as fast as received
was mixed with other grain, and, no doubt, long prior to the
fire, had been shipped and sold in the market ; but whether it
had or not, appellants at no time after the grain was delivered
would have been able to pick out and redeliver appellee the
corn received of him. They, no doubt, at any time prior to
the fire, had in hand and were able to furnish appellee corn of
like quality and amount as that received, but that is a fact of
no importance and could not change the rights of the parties
as they became fixed by the contract and delivery of the corn.
If, then, it be true, as contended by appellants, that the corn
was not actually sold, but held in store under the arrangement
made in November, 1870, then they would be required to rede-
liver the identical corn on demand, or pay its value.
In the case of Lonergan v. Stewart, 55 111. 45, the same ques-
tion arose as is presented by this record. It was there held by
the court, when the identical thing delivered is to be restored,
though in an altered form, the contract is one of bailment, and
the title to the property is not changed, but where there is no
obligation to restore the specified article, and the receiver is at
liberty to return another thing of equal value, he becomes a
debtor to make the return, and the title to the property is
changed. See, also, 2 Kent, sec. 590 ; Story on Bailments,
216 Richardson et al. v. Olmstead. [Sept. T.
Opinion of the Court.
sees. 283, 439 ; Wilson v. Finney, 13 Johns. 358 ; Chase v.
Washburn, 1 Ohio St. 244.
The record before us presents a much stronger one, however,
in favor of appellee, than would arise against a warehouseman
who received grain on store, mixed it with other grain of like
kind, and agreed to return like quantity and quality on de-
mand. Here, under the contract made, neither was the iden-
tical corn, or corn of like quality, to be returned, but the
market value of the grain was to be paid appellee on any day
he should see proper to call for the same. This can be re-
garded in no other light than an actual sale. The amount to
be received was the market price on a day thereafter to be
named by appellee ; neither did the arrangement, which ap-
pellants claim was made in November, materially change the
contract. That arrangement must be construed in connection
with the original contract. By the original contract appel-
lee had the right to name the day he would receive the
market price for his grain. Appellants say these contracts
were usually settled up before navigation closed. Appellee
was not satisfied to take the then market price of corn. He did
not need the money — thought it would be higher ; under these
circumstances appellants agreed, in consideration of three cents
per bushel, which they term storage, that appellee's right to
name the day upon which he would take the market price for
his corn might be extended over until spring. This is the
only fair construction that can be placed upon the second ar-
rangement made.
It left the original contract in force and merely extended the
time in which appellee had a right to elect the day he would
receive the market price for the grain.
Under the facts as they are claimed to exist, by either ap-
pellants or. appellee, we are of opinion the judgment rendered
by the circuit court was correct, and it will therefore be
affirmed.
Judgment affirmed.
1874.] Mo. Kiv. Tel. Co. v. Eat. Bank, etc. 217
Syllabus.
Missouri River Telegraph Company
v.
First National Bank op Sioux City.
1. Conflict of laws — power to enforce penal laws not of this State.
The courts of this State cannot enforce the criminal or penal laws of an-
other State, or of the United States.
2. The courts of this State will not entertain jurisdiction in a suit by
a corporation created and doing business in another State, against a Na-
tional bank organized under the laws of the United States, for the recov-
ery of a penalty under an act of congress for receiving interest over and
above the rate allowed by the laws of the State where the bank is located
and transacts its business.
3. Jurisdiction — of State courts. The courts of this State derive all
their powers from the constitution and laws of this State, and do not, nor
can they derive any power from the laws of the United States or other
source.
4. Same — power of congress to confer. Under the constitution of the
United States congress can not confer jurisdiction upon a State court, or
any other court which it has not ordained and established,
5. Same — State courts derive solely from State authority. The courts of
this State have jurisdiction, under the power conferred by our constitution,
over all persons and things within its borders, and when persons or corpo-
rations, without reference to where or when the latter are created, Come
into this State, they are within the jurisdiction of our courts, which is
then exercised by virtue of such power, and not by virtue of any congres-
sional action or federal grant of power.
6. Our courts will exercise jurisdiction in suits by or against corpora-
tions, whether created by act of congress or by the laws of another State,
and whether doing business in this or some other State, in all cases except
where they will refuse to entertain jurisdiction in a suit between natural
persons.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. Bennett, Kretzinger & Veeder, for the appellant.
Messrs. Tennets, Flower & Aberorombie, for the appellee.
28— 74th III.
218 Mo. Eiv. Tel. Co. v. Nat. Bank, etc. [Sept. T
Opinion of the Court.
Mr. Chief Justice "Walker delivered the opinion of the
Court :
It appears that appellee is a corporation organized under
the banking law enacted by the congress of the United States,
and is located in the State of Iowa ; and appellant, who sues
for the use of Percy and Daggitt, is also a foreign corporation,
organized and transacting business under the laws of Iowa.
The first count of the declaration avers that appellee, in vio-
lation of the laws of congress, received from appellant inter-
est over and above the rate allowed by the laws of Iowa, at
divers times, the sum of live hundred dollars, whereby, under
the act of congress appellee became and was liable to pay
to appellant double that sum, amounting to one thousand
dollars. The common counts were also added. To this decla-
ration defendant filed a demurrer, which the court sus-
tained, and rendered judgment for defendant, and this appeal
is prosecuted.
It is urged in affirmance that the court below has no juris-
diction to try a cause of the character shown in the first count
of the declaration ; that it is for the recovery of a penalty im-
posed by the* laws of another State, or of congress, or both,
and inasmuch as courts never execute the criminal or penal
laws of another State or government, that the rule would be
violated to hold that this penal law may be executed by our
courts. There can be no pretense that any law of this State
has been violated, as it is averred that the transaction occurred
beyond the limits of the jurisdiction of the courts in this State.
And it is equally true that both the governments of the United
States and Iowa are wholly independent of this State. They
severally have all of the attributes of sovereignty essential to
the enactment and enforcement of laws for the government of
their citizens within the limits of their constitutions. And in
accordance with long settled rules of law, this State cannot
enforce their criminal or penal laws. See Sherman v. Gassett^
4: Gilm. 521. But the jurisdiction is claimed under the fifty
1874.] Mo. Kiy. Tel. Co. v. Nat. Bank, etc. 219
Opinion of the Court.
seventh section of the act of congress to provide a national cur-
rency, etc. (13 Statutes at Large, p. 117), which provides that
all suits, actions and proceedings arising under that act, may
be had in the United States courts or in " any State,
county or municipal court in the county or city in which
said association is located, having jurisdiction in similar
cases." It is manifest that this language confers no jurisdic-
tion on any court in this State to try this case, for the obvious
reason that the appellant's bank or association is not located in
this State. The jurisdiction attempted to be conferred is only
on the State courts, the county courts or municipal courts in
the State in which the bank is situated. By the plain mean-
ing of the language of this section, congress intended only to
confer jurisdiction upon the State courts of Iowa, the county
court of Woodbury county, and the municipal court of Sioux
city, if they had jurisdiction of similar cases under the laws of
that State. The effort to confer jurisdiction was not on such
courts generally, but simply upon the courts in the jurisdiction
in which the delinquent bank might be located. The language
is so plain that it will not admit of construction. The clear
and unequivocal meaning of the law would be violated to hold
otherwise, and it is manifest that the Superior Court does not
answer to the description of any one of the courts enumerated
by the act, and hence congress neither intended to, nor did it
confer jurisdiction in this case upon that court.
It is urged for reversal that our courts entertain jurisdiction
in cases where these banks are parties either plaintiff or defend-
ant, as we do with individuals, whether resident or non-resi-
dent. This is true, but the jurisdiction that our courts exer-
cise in such cases results from the power conferred by our con-
stitution and laws, and not by any means from acts of congress.
All of their jurisdiction comes from that, and not from a for-
eign source. They are brought into being and exist alone by
virtue of our organic law. And the same is true of the United
States courts, as they derive all of their powers from the fede
ral constitution. We presume no one has ever conceived the
220 Mo. Eiv. Tel. Co. v. Nat. Bank, etc. [Sept. T.
Opinion of the Court.
novel idea that a State could, by legislative enactment, confer
any power or jurisdiction on the federal courts or officers.
Nor can it be imagined that any one would suppose that if
such an effort were made, and the federal courts should refuse
to exercise such jurisdiction, there is the least shadow of
power by mandamus or otherwise to coerce obedience to the
requirements of such a law.
If we could imagine that a law of that character could be
passed, does any one believe that the federal courts would thus
acquire the semblance even of authority to act thereby 1 Does
any one doubt that all acts under such an enactment would be
void ? Does any one suppose that this State can rightfully
confer judicial power on any other courts than those provided
for and created under our fundamental law? Could our legis-
lature confer judicial power on the courts of other States ?
Surely not, and if the effort were made and the law were acted
under, all their proceedings in pursuance of such a require-
ment would be clearly void.
The first section of article four of our constitution provides
that the judicial power of the State, except as otherwise therein
provided, shall be vested in one Supreme Court, circuit courts,
county courts, justices of the peace, police magistrates, and in
such courts as may be created by law in cities and incorporated
towns. This section has exhausted the judicial power of the
people of the State. It is there fully disposed of, leaving no
residuum. There is nothing in that Article that can be tor-
tured into authority to confer any of the judicial power of the
State on courts of other States, or the federal courts, hence it
would be palpably unconstitutional to enact such, a law.
The first section, article three, of the federal constitution,
provides that : " The judicial power of the United States shall
be vested in one Supreme Court, and such other inferior courts
as the congress may from time to time ordain and establish."
This provision has disposed of the judicial power, and it is
vested in such federal courts as have been ordained and estab-
lished by congress; and under the express requirements of
1874.] Mo. Kiv. Tel. Co. v. Nat. Bank, etc. 221
Opinion of the Court.
that section of the federal constitution it must remain there as
now distributed, until congress shall see proper to organize
other courts to which a portion of that judicial power may be
distributed. In the face of this clear and unmistakable dispo
sition of ail the judicial power of the general government, can
it be reasonably insisted that congress may confer any of that
power on courts they have not ordained or established % And
it will, we apprehend, be contended by no one that the Superior
Court of Cook county was ordained or established by an act of
congress. Suppose the court below, on motion, had dismissed
this suit, — to what federal court or officer would counsel have
applied to compel it to take jurisdiction and proceed to hear
the cause ? It seems to us to be impossible to imagine where
such federal power lies. If it exists it has, so far as we know,
been unsuspected. The United States government, when
created, was provided with all means necessary for the enact-
ment of laws, their adjudication and enforcement, and it was
supposed that the power would be exercised by its own agency,
consisting of its own officers, created and maintained for that
purpose, and that it would not require the officers of the State
governments to enforce its laws. See Prigg v. Penn. 16 Pet.
539. That case holds that whilst State officers cannot be com-
pelled to execute laws of congress, although such laws may
empower them to do so, still, when such officers so act they are
fully justified and their acts will be valid and binding. This
may be true, but that fact by no means compels State officers
or tribunals to enforce the laws of congress.
Our courts, under the powers conferred on them by our con-
stitution, have jurisdiction over all persons and things within
the borders of the State. And when persons or corporations,
without reference to when or where the latter are created, come
into this State, they are within the jurisdiction of our courts.
And it is by virtue of this power thus conferred that our courts
exercise their jurisdiction, and not by virtue of congressional ac-
tion or federal grant of power. If either of these corporations
were to sue in our courts for any matters, except such as those
222 Mo. Kiv. Tel. Co. v. Nat. Bank, etc. [Sept. T.
Opinion of the Court.
in which the court would refuse to exercise its functions in
favor of a natural person, our courts would take jurisdiction and
proceed to trial and judgment. The law regards such bodies
as persons, and extends to them the rights and privileges of
natural persons, but no more or greater rights. It then fol-
lows that the court below decided correctly in sustaining the
demurrer to the special count of the declaration.
But it was manifest error to sustain the demurrer to the
common counts. They are in the most approved form. No
objection to them has been suggested. It is true, that it is said
that no account was filed under these counts. This court has
held that such account is no part of the declaration, and we can
hardly see how it ever became necessary to make such a
decision, as any one at all conversant with the elementary prin-
ciples of pleading must see that it can form no part of the
declaration.
We have examined the seventeenth section of the practice
act (Laws 1871-2), and fail to see in what manner it has the
slightest bearing on the question. It is true, that it refers to
attachment suits, and provides that in such cases the plaintiff
may be requirecl to file his declaration at the first term, and
the defendant have a trial at such term. How this can have
the remotest connection with the question as to sustaining a
demurrer to a common count in proper form, is beyond our
comprehension. We must conclude that there is a wrong ref-
erence as printed in appellee's brief.
For the error indicated, in sustaining the demurrer to the
common counts, the judgment must be reversed and the cause
remanded.
Judgment reversed.
1874.] Bauer et al. v. Bell. 223
Syllabus.
Julius Bauer ei al.
v.
Joseph Bell.
1. Evidence — jury should determine from the entire testimony and not
a part. On a question whether a piano was sold or leased, one party in-
troduced in evidence a printed form of a lease which he had partly filled,
and which he testified was a copy, except as to numbers, which fact was
denied in the testimony of the other party, he insisting that the printed
form used was changed by striking out, and interlineations, before its ex-
ecution. The court instructed the jury that they were not bound to take
the copy of the agreement as conclusive upon the point whether a sale or
lease was made of the piano, but in determining that question should con-
sider the entire evidence in the case: Held,i\iaX the instruction was unob-
jectionable, as a mere copy made from recollection was not conclusive.
2. Trespass — instruction as to finding all guilty. Where the court had
already instructed the jury, in an action of trespass against several, to find
a verdict against only such of the defendants as they believed from the
evidence were participators in the tort, an instruction that if the trespass
was committed by either of two defendants, or both of them, by their ser-
vants or agents, they must find for the plaintiff', is not obnoxious to the
criticism that it directs the jury to find against both, if either by his ser-
vants or agents committed the trespass.
3. Same — to make one liable for a trespass committed by his direction,
the place at which the direction was given is unimportant. It is not ne-
cessary it should be given at the place where the trespass was committed.
4. Instructions — based upon a wrong theory of the case. Where a
trial in trespass against parties not present at the time and place where
the wrongful acts were committed, is conducted by the plaintiff on the
theory that the trespass was committed by the servants of the parties by
their direction and procurement, instructions on the part of such parties
defendant, based upon a subsequent ratification of the acts done, are in-
correct.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Rogers, Judge, presiding.
This was an action of trespass quare dausum /regit, brought
by Joseph Bell against Julius Bauer, Herman Bauer, William
224 Bauer et al. v. Bell. [Sept. T.
Opinion of the Court.
Swinburn and John B. Hatton. The opinion of the court
states the substance of the material facts of the case. The two
Bauers, alone, appealed.
Messrs. Hoyne, Hoeton & Hoyne, for the appellants.
Mr. S. K. Dow, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
This was an action of trespass, for breaking and entering
plaintiff's house, in the city of Chicago, by forcing open the outer
door and breaking it to pieces, breaking some furniture in the
house, and taking from one of the rooms a valuable piano, the
property of the plaintiff, as alleged, and converting the same to
the use of the defendants.
The plea was, not guilty. The cause was tried by a jury,
who returned a verdict of guilty, and assessing the damages at
nine hundred dollars. A motion for a new trial was over-
ruled, and judgment rendered on the verdict, to reverse which
a part of the defendants appeal.
The fact of breaking and entering into plaintiff's house by
two of the defendants, and taking and carrying away a piano,
is conclusively established, and was not questioned on the
argument, but it is denied that Julius and Herman Bauer, the
appellants, had any thing to do with it, or that the act was done
by their contrivance, procurement or assent.
It seems appellants in 1864, and before and since, were large
dealers in pianos in Chicago, and this controversy grows out
of a dealing in that instrument.
On the trial of the issue several questions were presented
upon which the jury were required to pass.
The first was, did appellee Bell buy this piano of appellants,
or hire it of them, at a stipulated rent per month ?
On this point, the testimony of the plaintiff Bell was in di-
rect conflict with that of appellants. This conflict it was the
peculiar province of the jury to settle, and we do not think
1874.] Bauer et al. v. Bell. 225
Opinion of the Court.
they erred in finding the piano was sold, not rented, to ap-
pellee. If sold, it is proved it was fully paid for according to
the contract, and before the trespass was committed.
The next question for the jury was, the trespass having been
committed, was it by direction of appellants ?
On this point the testimony was also conflicting, and we
cannot say the jury have found against its preponderance. The
sworn statements of appellee and of one of the defendants,
Swinburn, could, if credited by the jury, leave little or no
doubt in their minds that appellants inaugurated the unlawful
proceedings against appellee, and after the piano was taken
from the dwelling-house, it was delivered at the store of ap-
pellants, and by them rented to one Engle, their friend and
occasional clerk, for whose benefit, it would seem, the raid
on appellee was set on foot and fully carried out. The active
party in this raid testified he was instructed by appellants at
their store on Washington street, to go to Bell's house and get
the piano — they said they had a piano out on the west side —
presented the lease — it was in the house of a pretty hard case,
and he would have to use extra means to get it, and should
not take no for an answer — he must bring the piano back with
him — a dray in the employment of appellants went with him
— appellants wanted a man of nerve to go and bring that piano
to the store — a man who would take the piano " any how "
and would not take no for an answer. That man of nerve was
found in Swinburn, then an acting constable, who, armed with
what was said to be a lease, obeyed his instructions to the
letter.
Appellee testifies, after the deed was done, which was on
Saturday, he went to see Mr. Bauer on the following Monday
afternoon and told him he had lost the piano, and asked Julius
Bauer if he had sent those men. He replied "yes," and on
being asked by Bell what his instructions were to the men,
Bauer replied he told them " to take it any which way they
could get it." Of this, a written memorandum was made at
the time by appellee.
29— 74th III.
226 Bauer et al. v. Bell. [Sept. T.
Opinion of the Court.
Now, although this is denied by appellants, and they indig-
nantly repudiate any participation in the matter, it was a clear
case for the consideration of the jury, which party they
should believe, and we are satisfied with their finding on
this point.
The questions of fact being settled by the verdict, the re-
maining question is, were the jury properly instructed as to
the law of the case?
It is urged by appellants that giving the fourth instruction
for the plaintiff was error. That instruction was as follows :
" 4. It is for the jury to determine, from all the evidence
and circumstances proven in the case, whether the piano forte
in question was the property of the plaintiff or that of the
defendants, at the time the same is alleged to have been taken
from the house of the plaintiff, and the jury should determine
this from the evidence in the case, and the jury are not bound
to take the copy of the agreement in respect to the piano, in-
troduced in evidence, as conclusive upon this point, but should
consider the entire evidence in the case ; and if the jury be-
lieve, from all the evidence in the case, that the defendants,
Julius Bauer and Herman Bauer, sold the piano forte to the
plaintiff, at an agreed price of five hundred and ninety-five
dollars, with a discount from that of forty dollars, to be paid
for in monthly installments; and if the jury further believe,
from the evidence and circumstances proven in tha case, that
the plaintiff had fully paid the agreed price to defendants,
Bauers, at the time of the alleged taking by them of the
piano; and if the jury further believe, from the evidence,
that the dwelling-house of the plaintiff was broken into,
against the will of the plaintiff, and the piano carried away by
the direction or connivance of the defendants, the jury should
find for the plaintiff, and against such of the defendants as is
shown, by the evidence, participated, aided or encouraged in
the commission of the acts complained of."
To make good the claim of appellants, that the piano was
rented, not sold, to appellee, Julius Bauer, when on the wit-
1874. | Bauer et al. v. Bell. 227
Opinion of the Court.
ness stand, produced the form used by their house of a piano
lease, and filled the blanks as he remembered they were filled,
except, perhaps, the number of the instrument and the number
of the house to which it had been sent, and claimed that the
writing signed by appellee was of the same tenor. The origi-
nal had been destroyed in the fire of October, 1871, making
it necessary to prove the contents of the instrument. Bauer
stated in one way and appellee another way, the latter insist-
ing the contract made was a verbal contract and afterward
reduced to writing, which he signed, and that it was a contract
of sale, and the form then used by the firm was altered and
interlined to agree with the verbal contract. The witness was
using, not the original, but a paper he said was a copy. The
pertinency and point of the instruction will be readily seen,
and we think it is wholly unobjectionable. The witness spoke
of the* contract from his recollection, and it differed very essen-
tially from appellee's recollection of it, and the copy was not
conclusive upon the jury. They could say which was right.
As to the fifth instruction, we do not think it obnoxious to
appellants' criticism. It does not tell the jury to find against
both defendants, if either of them, by their servants or agents,
committed the trespass. It instructs the jury, if the trespass
was committed by either of them or both of them, by their
servants or agents, they must find for the plaintiff, not against
both, if the trespass was committed by one only. The jury
had been previously instructed to find a verdict against such
only of the defendants as they believed, from the evidence,
were participators in the tort.
"We perceive no objection to the refusal of appellants' tenth
instruction, as it was unimportant that the direction should
be given at "the house of said Bell." As we understand the
instruction, it is liable to this construction. It is not very
intelligible, and there was no error in refusing it.
It is also complained the court modified certain instructions
of appellants, containing the element of a subsequent ratifica-
tion by them of the acts done. We are of opinion, as the trial
228 Lawloe v. The People. [Sept. T.
Opinion of the Court.
did not proceed upon that theory, all instructions of that kind
were irrelevant.
As to the point that the court admitted improper testimony
on behalf of appellee in regard to the contract under which he
claimed ownership in the piano, it is sufficient to say, the ques-
tion was of the contents of a lost instrument. One party gave
his recollection, and the opposite party gave his, and no objec-
tion was made on either side.
We have carefully considered this record and the points
made by appellants, and do not think they are well taken, and
must affirm the judgment.
Judgment affirmed.
John Lawlor .
v.
The People of the State of Illinois.
1. Criminal law — act w7ien justified as self-defense. To justify one in
shooting at another in self-defense, it is essential that his apprehension of
serious or great bodily injury be reasonable. It is not proper to say in an
instruction, if he had any such apprehensions.
2. The use of the words " serious bodily injury," instead of the words
" great bodily harm," employed in the statute, in instructing the jury as
to the law of self-defense, will not render the instruction objectionable or
erroneous.
Writ of Error to the Criminal Court of Cook county ; the
Hon. William W. Farwell, Judge, presiding.
Mr. Emery A. Stores, for the plaintiff in error.
Mr. Chaeles H. Reed, State's Attorney, for the People.
Mr. Justice McAllistee delivered the opinion of the Court :
Plaintiff in error was tried and convicted in the Criminal
Court of Cook county, upon an indictment in the usual form,
1874.] Lawloe v. The People. 229
Opinion of the Court.
charging him with an assault upon one Devol with intent to
murder him. Upon the trial, evidence was given tending to
show that only a short time previously to the assault in ques-
tion, and on the same day, Devol had committed an assault
and battery upon plaintiff in error, by knocking him down in
the street, and while the former was upon the body of the lat-
ter, inflicting personal injuries, some person in Devol's com-
pany kicked plaintiff in error; that at the time the assault
occurred, for which plaintiff in error was convicted, the latter
met Devol in a public street of Chicago, it being only about
two hours after Devol's previous assault upon plaintiff ; that
upon the occasion of such second meeting, Devol had a cane in
his hand, and, upon seeing plaintiff in error near by, he changed
it from one hand to the other and raised it in a threatening
manner. Devol was a gambler by profession, and was, at this
time, accompanied by another gambler of the name of Garrity,
who was shown to have been a desperate character, who had
been in the penitentiary for manslaughter, and after his release
therefrom had been arrested for violent assault and for larceny.
The evidence tended to show that the assault of plaintiff in
error upon Devol, in question, was made when the former was
approached by Devol and Garrity, the former of the two hav-
ing but a short time before committed violence upon plaintiff,
as above stated, and now, with a cane in his hand and accom-
panied as before recited. The theory of the defense was that
plaintiff in error was not the assailant, and acted upon a
reasonable apprehension that great bodily injury was about to
be inflicted upon him by Devol, supported, as he appeared to
be, by this desperate character, Garrity.
The prisoner's counsel asked the court to give to the jury
the following instructions :
" Before the jury can convict under the indictment in this
case, they must be satisfied beyond a reasonable doubt, that
the defendant intended to murder the prosecuting witness,
that he had this intent at the time of the firing, and that he
fired the shots with no other intent, and without any appre-
230 Lawlor v. The People. [Sept. T.
Opinion of the Court.
hension of receiving from the prosecuting witness a serious
bodily injury."
" The jury are instructed, that if they believe from the evi-
dence in the case, that there is a reasonable doubt as to whether
the prisoner at the time of the shooting was under reasonable
apprehensions that the prosecuting witness intended to inflict
upon him serious bodily injury, and that he tired the shots in
self-defense, then the jury must acquit."
These instructions were refused by the court, to which ex-
ception was taken.
It is not true nor is it claimed by the State's attorney, that
the propositions embraced in these instructions, or their equiv-
alent, were embodied in any that were given. The only point
of objection to them urged by counsel for the people, to justify
their refusal is, that the word " serious" is used in defining the
degree of apprehended bodily harm, instead of "great" as
employed in the statute. And the case of Reins v. The Peo-
ple^ 30 111. 256, is cited by him as authority. That case is not
an authority for the position. There, the court, on behalf of
the people, instructed the jury, that to justify the killing the
" threatened danger must be so great as to create a reasonable
belief in the mind of the accused of imminent peril to life,
or the most serious bodily harm." JThis court simply held
that the instruction required a reasonable apprehension of a
greater degree of bodily injury, than that contemplated by the
statute, to constitute' a justification. That " great bodily
harm " falls far short of the most serious bodily harm ; that
the latter might endanger life, the other not.
The court did not there decide that the very words of the
statute, "great bodily harm," must be used in instructions,
but merely that it was improper to instruct for the people, that
a bodily injury must have been reasonably apprehended by
the accused of such a character as might endanger his life.
So, on the other hand, we may say, that it is not competent
for the prisoner to ask instructions, that he might be justified
by a reasonable apprehension of any bodily harm or injury of
1874.] Lawloe. v. The People. 231
Opinion of the Court.
a less momentous character than that contemplated • by the
expression, "great bodily harm," used in the statute. But
while this is so, it does not follow that the identical words of
the statute must be followed. Equivalent or equipollent
words will answer. It is quite usual to substitute " injury "
for " harm," and nobody ever thought of questioning it. If
the prisoner's counsel saw fit to say " enormous bodily injury,"
instead of " great bodily harm," that certainly would be no
ground for refusing the instruction, if otherwise correct.
Suppose, in the Reins case, above cited, instead of the State's
attorney asking the instruction there condemned, the prisoner's
counsel had asked one whereby the statute was construed as
meaning the most serious bodily harm ; would the court have
been justified in refusing it? We think not. Because, al-
though not couched in the language of the statute, it implied
a higher degree of apprehended bodily harm than the statute
required, and would therefore be more favorable to the peo-
ple's case and less to the prisoner's. This shows that it was
not intended, and this court cannot hold that the use of the
identical words of the statute is indispensable.
New the word " serious," when used to define the degree
of bodily harm or injury apprehended, requires or implies as
high a degree as " great," and the latter word as used in the
statute means high in degree, as contradistinguished from
trifling.
Such, likewise, is the meaning of "serious" when used in
the same connection. The definition given by lexicographers
of the word " serious " is " important, weighty, momentous
and not trifling."
In drawing these instructions the prisoner's counsel seems
to have followed the language used by this court in Hophin-
son v. The People, 18 111. 264, as respects the substitution of
" serious " for great, in defining the degree of apprehended
bodily harm. It is thus: "If the circumstances attending
the assault were such as to justify a reasonable conclusion in
the mind of Hopkinson of impending danger of serious
232 Kendall v. Brown. [Sept. T.
Syllabus.
hodily injury from Onmmings, and he acted from the
instincts of self-preservation, etc., he could not be guilty of
the crime charged, although, in fact, there was no actual
danger."
We are inclined to hold, therefore, that the use of the
word "serious" instead of "great" did not vitiate these
instructions. The first of the two above set forth is faulty in
omitting the word " reasonable " before apprehension ; " any
apprehension " is not sufficient. It must be a reasonable
apprehension. The second one, however, is free from that
objection and should have been given.
The refusal of the second of the above instructions being suffi-
cient to justify a reversal of the judgment, the other questions
raised, as they are not likely to arise upon another trial, will
not be considered. The judgment of the court below will be
reversed and the cause remanded.
Judgment reversed.
Edwin E. Kendall
v.
Samuel A. Brown.
1. Surgeon — liability for shortening of fractured limb. Where a frac-
tured limb is shortened by reason of the want of extension at the proper
time, and the extension of the limb could not well and safely be effected,
nor the means and appliances for that purpose be safely used before what
is called the bony union commenced, and the defendant surgeon treating
the case was discharged before such bony union, under proper treatment,
would and did commence, and another surgeon was employed, it was held
that the defendant was not liable in an action for the injury, there being
no other charge of unskillful treatment, on his part.
2. Instruction — proper on a state of facts which the evidence tends to
prove. Where the evidence teDds to prove a certain state of facts, the party
in whose favor it is given has the right to have the jury instructed on the
hypothesis of such state of facts, and leave it to the jury to find whether
the evidence is sufficient to establish the facts supposed in the instruction
1874.n, Kendall v. Brown. 233
Opinion of the Court.
3. Same — in reference to care of surgeon. There is no substantial
difference in the use of the words " ordinary " and " reasonable " in defin-
ing the care and skill required of a surgeon or physician in his employ-
ment
Appeal from the Circuit Court of Warren county ; the
Hon. Arthur A. Smith, Judge, presiding.
This was an action on the case, brought by Samuel A. Brown
against Edwin E. Kendall, to recover damages sustained by
the unskilllul treatment of a fractured leg of the plaintiff by
the defendant, as a surgeon. A trial was had in the court be-
low, resulting in a verdict and judgment of $1,375. 17J, from
which judgment the defendant appealed.
Messrs. Miller & Frost, for the appellant.
Messrs. Douglass & Harvey, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
Appellant is a physician and surgeon, and as such was em-
ployed to treat appellee. There is no controversy as to his
employment, and that he treated appellee for a period of twenty-
nine or thirty days, visiting him every day with the exception
of one or two days. The declaration counts upon such employ-
ment, that he so unskillfully and carelessly treated appellee's
injury that his leg became shortened one and one-half inches,
and thereby he suffered great pain. The gravamen of the ac-
tion is, that through the unskillful treatment of the surgeon
in charge, appellee's leg became so much shortened he lost the
comparative use of it. The pain alleged to have ensued is set
forth by way of aggravation of damages.
On this, the principal question, there is a marked conflict in
the evidence, so much so, as to render it doubtful which party
ought to succeed. There is no decided preponderance in favor
of either party. Commonly, in such cases, we should regard
the finding of the jury as settling the controverted facts. And
without expressing any opinion as to which way is the weight
30— 74th III.
234: Kendall v. Brown. [Sept. T.
Opinion of the Court.
of the evidence, we should, perhaps, be inclined to do so now,
had the jury been accurately instructed as to the law of the case.
Appellee, either through inevitable accident or the unskill-
f ulness of the attending surgeons, or one of them, has sus-
tained a severe, permanent injury. On the other hand,
appellant's professional character is involved in the result.
These considerations have induced a most careful and pains-
taking investigation of the case. We forbear, at this time, to
remark upon the evidence, the sufficiency of which to sustain
the verdict has been questioned by one assignment of error,
for the reason the decision at this time will be placed on other
grounds.
That the third instruction asked by appellant and refused
by the court, states a correct principle of law, can hardly be
doubted. It is, in substance, that if appellee's leg became
shortened in consequence of the fracture or during the course
of treatment subsequent to the fracture, then appellant is not
liable in damages therefor, unless the shortening was due to
the want of reasonable care and skill on his part, and if the
extension of the limb could not well and safely be effected,
nor the means and appliances for that purpose be safely used,
before what is called the bony union commenced, and that
bony union, under proper treatment, would not and did not
commence before appellant was discharged and appellee placed
under charge of another surgeon ; and if the shortening could
be prevented at all it could only be done by the use of proper
extension applied when the bony union did commence, and
continued until ossification had sufficiently progressed to hold
the leg at its proper length, then appellant would not be
chargeable.
The principle of this instruction was all important to the
defense. No other given, contained so full and accurate a
statement of the law on this branch of the case. Its materi-
ality will be more readily appreciated by a reference to some
of the principal facts.
Whatever defects there may have been in appellant's state-
1874.1 Kendall v. Bkown. 235
Opinion of the Court.
ment prior to his discharge, there is some evidence that tends
to show the shortening of appellee's limb was not necessarily
the result, and this instruction was better calculated than any
other given, to direct the attention of the jury to that theory
of the case.
The medical testimony all shows that in the earlier stages of
the treatment there are a great many difficulties to be encoun-
tered in keeping the fractured limb in proper position, and
great difficulties were experienced in treating appellee's in-
jury. It is not then the danger of shortening occurs, as we
understand the testimony. It is in the later stages of the
treatment that appliances to prevent shortening are used.
The injury to appellee's limb is described as a slightly ob-
lique compound fracture of both bones of the leg, and under
the most skillful treatment some shortening of the limb is to
be anticipated — a half inch would not be considered, in the
judgment of the witnesses, unusual, or evidence of unskillful
surgery. The difficulty seems to be to prevent the overlap-
ping, in consequence of which shortening ensues.
All the surgeons examined seemed to agree in the statement
that what they called the bony union of the fractured bones,
in cases of compound fracture, does not commence to take
place much before thirty days after the injury. If there is
much inflammation in the soft parts, and suppuration is con-
tinually going on, the period of bony union is often very much
delayed. The proof shows there was great inflammation in
the soft parts of appellee's leg, and suppuration was continu-
ally going on. While the wound was in that condition, the
surgeons all say there could be expected but little, if any, ten-
dency to union. The theory seems to be, the plastic matter
necessary to the bony union would be carried off. It is in
proof also, the patient was very much debilitated from bilious
attacks. Some of the surgeons examined give it as their opin-
ion it was impracticable, in the condition of the patient, and
perhaps unnecessary, to apply extension to the limb at any
time before appellant was discharged, basing their opinion
236 Kendall v. Brown. [Sept. T.
Opinion of the Court.
mainly upon the fact that what they called the bony union
had not then commenced. The witness Doctor Cooper, the
surgeon who had the care of appellee after appellant was dis-
charged, says there was no bony union when he took charge of
the case. His testimony is " from the receipt of an injury until
the thirtieth day, the bony union is very slight ; but from the
thirtieth day to the fiftieth day, nature sets herself to work
and the consolidation becomes thorough." Doctor Hamilton
says : u I would not expect union of bones, under the best cir-
cumstances, short of the third week, but not generally so soon as
that. I suppose it would range from the third to the sixth week."
There is testimony in the record that tends to show that
prior to the time the bony union commences to take place ex-
tension is of very little practical use, and the omission to
attach appliances for that purpose does not always indicate
unskillful surgery. On this subject Doctor Hamilton says : " I
would wait and attend to the patient's general condition and
keep the limb as steady as I could, and when I thought
the soft parts would bear extension I would try it, • even
if it were on the second or third week; and if I iound
the soft parts would not bear it, or if it produced a great deal
of disquietude, I would desist and let it alone to such time as
the swelling had gone down, and after the skin was in good
condition, provided it did not go past thirty or thirty-live days,
then I would put on some kind of extension and counter ex-
tension to reduce the shortening, for at that time you may
expect the bony union to take place."
The professional opinions of a number of surgeons were
taken as to the practicability, in the condition of appellee's
wound and his general health, of applying extension to the
limb at any time before appellant was discharged, and on this
point Doctor Hamilton says : " My impression is, that it would
not have been of much use to try extension until between
three or four weeks after the injury had occurred ; would not
have put on extensions when he was bilious and prostrated on
account of the bilious attack, unless there was great urgency ;
1874.] Kendall v. Brown. 237
Opinion of the Court.
I don't think there was in this case." Other testimony tends
to prove the application of extension might have endangered
the life of the patient, and the omission to apply it in his con-
dition was not conclusive evidence of bad surgery or unskill-
ful treatment. Perhaps the common sense of the matter
would be, it would be better to risk the shortening of the limb
than the life of the patient.
Whether the theory of practice advanced by the appellant
is correct, must of course be ascertained from the testimony of
persons skilled in that department of medical learning. It is
enough, the evidence tends to prove it was not the duty of
appellant to apply extension at any time prior to the date of
his discharge, and to make it a question to be settled by the
testimony of experts whether he could with safety have done
any thing to prevent shortening of the limb prior to that time.
The refused instruction embodies the whole theory of the
defense on this branch of the case, and whether the hypothet-
ical case stated was borne out by the evidence, ought to have
been submitted to the jury. It presented one of the vital
issues of the case.
There is no substantial objection to the instruction given
for appellee. The words "ordinary" and " reasonable" used
in defining the nature of the care and skill expected of a phy-
sician or surgeon in his employment, have been interchange-
ably used. Rickey v. West, 23 111. 385. Perhaps the word
"ordinary" would indicate more clearly to the common mind
the degree of care and skill which he is bound to exercise in
his professional engagements, or answer in damages for the
want of it.
For the error of the court in refusing to give appellant's
third instruction the judgment will be reversed and the cause
remanded.
Judgment reversed.
Mr. Justice Craig, having been of counsel for appellee, took
no part in the consideration or decision of this case.
238 Hansen et al. v. Rounsavell. [Sept. T.
Statement of the case.
Hans L. Hansen et al.
Richard C. Rounsavell.
1. Payment — direction as to application implied. A direction as to the
application of a payment may be implied from circumstances. An agree-
ment before payment, or even the expression of a wish on the part of the
debtor as to how payment shall be applied, will amount to a direction to
that effect.
2. Same — instruction as to application. Where there is evidence tend-
ing to show a previous agreement as to the application of payments, an in-
struction that if the debtor gave no direction as to the application of cer-
tain payments, then the creditor had the right to apply them on the oldest
account due at the time, is not so faulty as to justify a reversal. It would
be better to have used the word agreement than the word instruction.
3 Same — application when there is a surety. Where an obligor makes
a general payment to his obligee, to whom he is indebted not only on a
bond upon which there is security, but otherwise, the surety of the obligoi
cannot require that the payment shall be applied to the bond, unless
aided by circumstances which show that such application was intended by
the obligor.
4. Judgment — whether sufficiently certain as to amount. When the
verdict in debt upon a penal bond is for the debt and $949.40 damages, and
the plaintiff remits $54.50 of the damages, and a judgment for the debt,
to be fully satisfied upon the payment of $894.90, the damages assessed by
the jury, except amount remitted together with costs, is sufficiently cer-
tain, as the exception will be referred to the sum found by the jury and
not to the sum of $894.90.
Writ of Error to the Circuit Court of Cook county ; the
Hon. W. W. Heaton, Judge, presiding.
Hans L. Hansen and Anton J. Wulff, on the 5th day of
February, 1872, entered into an agreement with Richard C.
Rounsavell whereby, in consideration of Rounsavell's having
granted to Hansen and Wulff the right to purchase from
Rounsavell the ^Etna sewing machines for the sale thereof
within the county of Cook, in this State, Hansen and Wulff
agreed to deal in said machines sold by Rounsavell, and Roun
1874.] Hansen et at. v. Rounsavell. 239
Statement of the case.
savell agreed to furnish machines, and Hansen and Wulff
agreed, among other things, to pay Rounsavell for them in
cash or approved notes received by them in payment of ma-
chines, and guaranteed by them, or their own notes, and to
make payments on machines each month, and pay in full
each month's purchase in eight months from time of purchase.
At the same time, Hansen and Wulff as principals, together
with C. A. Walter, George Hansen and S. M. Krognoss, as
sureties, executed a bond to Rounsavell in the penalty of
$6,000, conditioned for the faithful performance of the agree-
ment on the part of Hansen and Wulff.
This was an action brought by Rounsavell against the prin-
cipals and sureties in the bond, to recover for sewing machines
sold and delivered to Hansen and Wulff", in pursuance of the
agreement. The plaintiff recovered and the defendants ap-
pealed.
The bill of exceptions recites that plaintiff introduced evi-
dence tending to show an indebtedness on the part of Hansen
and Wulff, and that defendants introduced evidence tending
to show the contrary ; that there was evidence tending to
show that divers payments were made by Hansen and Wulff,
after the making of the bond and contract, and while the
delivery of the machines was from time to time being made,
which the defendants claimed the right to apply pro tanto to the
discharge of the indebtedness for the goods delivered under the
bond and contract, and introduced evidence tending to show
that there was a special agreement that the payments so made
should be applied first for the goods delivered under the contract
and bond, and that the balance should go on a former indebted-
ness, which Hansen and Wulff owed the plaintiff ; that this
special agreement was denied by the plaintiff, who testified
that no such agreement existed, and that such payments were
applied to an old debt, then over due, a,t the time they were
made ; that plaintiff also offered evidence, tending to show
that nothing was due him upon the contract sued upon in this
case, at the time such payments were made.
240 Hansen et al. v. Kounsavell. [Sept. T.
Opinion of the Court.
The following instruction was given for the plaintiff :
The jury are instructed that if they believe, from the evi-
dence, that Hansen and Wulff gave no direction as to the ap-
plication of the money or property received from them by R.
C. Kounsavell, then Kounsavell had a right to apply such
payments to the oldest account at the time due from said Han-
sen and Wulff.
Messrs. Herbert & Quick, for the plaintiffs in error.
Mr. Charles B. Wells, for the defendant in error.
Mr. Justice Sheldon delivered the opinion of the Court :
The question made is, on the propriety of the instruction
which was given for the plaintiff. It is objected to it, that it
withdrew from the jury the question of the agreement ; that
it assumed that there was no agreement for the application of
the payments, or if so, that it was of no importance; that
there must have been a direction, to be of avail.
We are of ©pinion that appellant in his objection attaches
undue force to the word "direction." We apprehend that the
expression of a wish on the part of a debtor how a payment
should be applied, would amount to a direction to that effect.
A direction might be implied from circumstances. In the
making of an agreement for the application of the payments,
there would have been the expression of an intention and pur-
pose on the part of Hansen & Wulff that the payments should
be thus applied.
An agreement between creditor and debtor for a particular
application of a payment must include an implied direction on
the part of the debtor as to the application.
Had there been an agreement between the parties as to the
application of the payments, we cannot think that the jury
could have been misled by the instruction to think that such an
agreement alone would not suffice, but that, in addition thereto,
the debtors must have given an express direction how to make
the application. We think they could not but have considered
1874.] Hansen et al. v. Kounsavell. 241
Opinion of the Court.
an agreement as amounting to a direction. As there was noth-
ing in regard to the subject but an agreement, the instruction
would have been better if it had used the word agreement, in-
stead of direction. But we cannot regard it so materially
faulty as to require that the judgment should be reversed on
account of such instruction. The case cited in support of the
objection (Taylor v. Sandford, 7 Wheat. 20) is not in point.
There, the instruction was to find for the plaintiff, unless
" the defendant at the time of paying the money had expressly
directed " its application to another simple contract debt. The
instruction was held wrong, as it would exclude an application
of the money made by the creditor himself, with the assent of
the debtor, to the simple contract debt. The requirement of
an express direction at the time of payment makes a very dif-
ferent case.
In the absence of any appropriation by the debtor, the right
of the creditor to appropriate the payment to the earlier debt,
and the propriety of doing so, is undoubted. /Sprague, War-
ner <& Co. v. Hazenwinkle, 53 111. 419 ; Mills v. FowJces, 5
Bing. N. C. 455.
But it is claimed that if there was no agreement for the ap-
propriation, then the circumstance of there being sureties
for one debt should control the application in protection
of the sureties to that debt. But we understand the general
rule to be otherwise, and that it is the creditor's right in
such case to have the payment applied to the debt which is
the most precarious, where there is nothing to control this
application. 2 Pars, on Con. 631, 632. We recognize the
rule as stated by that author, as follows : But where an obligor
makes a general payment to his obligee, to whom he is in-
debted not only on the bond but otherwise, the surety of
the obligor cannot require that the payment should be applied
to the bond, unless aided by circumstances which show that
such application was intended by the obligor. Ibid. 634.
There is nothing in the point made that the judgment is
uncertain as to amount
31— 74th III.
242 Miller et al. v. Kirby. [Seiit. T.
Syllabus.
The verdict was, debt $6,000 ; damages assessed at the
sum of $949.40. The judgment entry is, " And the plaintift
remits from the amount of damages assessed the sum of fifty-
four dollars and fifty cents, and thereupon the court enters
judgment against all the defendants for $6,000 debt, to be
fully satisfied upon the payment of eight hundred and ninety-
four dollars and ninety cents, his damages aforesaid by the jury
assessed except amount remitted," together with costs. The
exception plainly applies to the damages assessed by the jury
and not to the sum $894.90
Finding no substantial error, the judgment is affirmed.
Judgment affirmed.
Cyrus F. Miller et al,
v.
Richard D. Kirby.
1. Trespass — title and possession necessary to maintain. In trespass to
personal property, the plaintiff must show that when the injury was com-
mitted he had an actual or constructive possession of the goods, and also a
general or qualified title therein : but it is well settled that actual possession,
though without the consent of the real owner, or even adverse to him, will
be sufficient, as against a wrong-doer, or one who can show no better title.
2. If one gives a deed of trust upon goods to secure the payment of
money, and it is provided therein that he shall have full right to carry on
-the business of the store in his own name, make sales and receive the pro-
ceeds, and have the management of the business, such party, being in the
actual possession, can maintain trespass for the taking of any of the prop-
erty, although the trustee also may have had a constructive possession for
the purpose of seeing that the proceeds of the sales were applied on the
debt.
3. Fraudulent conveyance — sale on credit, etc. In case of an abso-
lute and unconditional sale of goods, the fact that the vendor was indebted
at the time, that the sale was on a credit, and that the notes taken for the
unpaid price were to be used in the payment of his debts, will not establish
fraud in the sale as to creditors.
1874.] Miller et al. v. Kerbt. 243
Statement of the case.
4. Same — party indebted may sell. A party, though in debt, may sell
his property to whom he pleases, if no lien exists to prevent it, and if the
transaction be an honest one, made in good faith, and for an adequate con-
sideration, it matters not how many creditors may thereby be prevented
from reaching the property.
5. Same — purchaser must be guilty of fraud. It is not sufficient to
vitiate a sale of property that it was made by the vendor to hinder, de-
lay or defraud his creditors, but the purchaser must also have participated
in the fraudulent intent or purpose.
6. Instructions — assuming facts. If an instruction assumes the exist-
ence of facts not controverted on the trial, and which, under the circum-
stances, if assumed, could not prejudice, there will be no error.
7. Damages — exemplary. Vindictive or exemplary damages should not
be awarded unless the injury complained of was done wantonly or will-
fully.
8. Same — trespass for levying on strangers' property. In trespass by the
purchaser of goods, for levying upon and selling a part thereof, under an
execution against his vendor, when there was no violence used, and no un-
usual noise or demonstration made, and the levy was a reasonable one, and
it appeared that the contest of the fairness of the sale was not made in bad
faith, it was held that exemplary damages could not be allowed.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
This was an action of trespass, by Richard D. Kirby against
Cyrus F. Miller, A. Swick, Henry Sears, E. B. Sears, and E.
W. Beattie. The trespass was the levy of an execution issued
upon a judgment in favor of the two Sears and Beattie, part-
ners under the name of Henry Sears & Co., and against Charles
Gr. French, a former owner of a part of the goods. Swick was
the constable who made the levy, and Miller the attorney of
Henry Sears & Co., who directed the levy. The material
facts of the case appear in the opinion.
Messrs. Miller, Williamson & Miller, and Mr. F. Sackett,
for the appellants.
Mr. Gr. A. Follansp.ee, for the appellee.
2M Miller et al. v. Kebby. [Sept. T.
Opinion of the Court.
Mr. Justice Scholfield delivered the opinion of the Court :
About the 1st of June, 1873, Charles Gr. French, being en-
gaged in tKe sale of jewelry, etc., in Chicago, sold his stock
in trade to appellee for $7,500, for which appellee paid in
cash, at the time, $1,500, and gave his twelve promissory notes
for $500 each, payable, the first one month thereafter, and the
others one for each consecutive month following, until the last
note should become due, for the residue. To secure the pay-
ment of the notes he also executed, at the same time, a deed
of trust to one Nichols. Appellee took possession of the stock,
in conjunction with Nichols, the trustee, immediately after his
purchase, and proceeded to sell the same as customers enabled
him to do so, and also made some additional purchases to re-
plenish and enlarge the stock.
On the 5th of July, 1873, the appellants, Henry Sears, Ed-
mund B. Sears, and Edward W. Beattie, recovered a judg-
ment before a justice of the peace of Cook county, against
Charles Gr. French, for $76.00, and costs of suit taxed at $5.95.
Execution was issued on this judgment on the 11th of July,
1873, and placed in the hands of appellant Swick, a constable,
to execute. He, in company with appellant Miller, an attorney
at law, acting for the plaintiffs in the execution, thereupon
went to the place of business of appellee, and levied the execu-
tion upon certain watches and " watch movements," which
were included in the sale by French to appellee, and also upon
one watch which had been left with appellee for repairs, and
one watch which belonged to Nichols, for both of which, how-
ever, appellee seems to have been under obligation to, and
did, account to their respective owners.
The action is trespass de bonis asportatis, and the appellants
justify under the judgment and execution.
The jury, by their verdict, found the appellants guilty and
assessed appellee's damages at $514.44. The court thereupon
gave notice that he would grant a new trial unless appellee
would remit all but $200 of the amount found bv the ver-
1874.] Miller et at. v. Kirby. 245
Opinion of the Court.
diet, which being done, judgment was then given for that
amount.
Several errors have been assigned, which we will notice, in
the order of their precedence on the record.
It is objected that appellee does not show sufficient posses-
sion, or right to possession, to enable him to maintain the ac-
tion ; that the possession is shown to have been in Nichols,
under the deed of trust, and he alone, if any one, can bring
trespass, under the proof.
The general doctrine is well settled, as claimed by counsel
for appellants, that the plaintiff, in such cases, must show that,
at the time when the injury was committed, he had an actual
or constructive possession of the property, and also a general
or qualified title therein ; but it is equally well settled that
actual possession, though without the consent, or even adverse
to the real owner, will be sufficient as against a wrong-doer,
or one who can show no better title.
Assuming the sale by French to appellee to have been valid,
the question raised upon which we shall pass for the present,
appellee, after executing the deed of trust, still retained an
equitable interest in the property, which it was important to
him should be protected. That he might do so, it is expressly
provided in the deed : "It is understood and agreed by and
between said parties, that said Kirby (appellee) is to have, dur-
ing the time said Nichols shall be trustee as aforesaid, full right,
power and authority to carry on the business of said store in
his own name ; to have his signs out as such owner ; to sell
the goods therein contained, and in said schedule mentioned ;
to receive the proceeds of sales of said goods, and to have the
management of said business in the same manner as a retail
jewelry business is generally carried on." It surely cannot be
insisted that this provision is inconsistent with the actual pos-
session of the property by appellee. It is plainly impossible
that it could be practically carried out without an actual pos-
session. Whatever possession, then, it was designed Nichols
should have, must have been simply constructive, the sole pur-
246 Miller et al. v. Kjrby. [Sept. T.
Opinion of the Court.
pose of his appointment, and the extent of the authority vested
in him, being to see that appellee faithfully carried on his
business and applied the proceeds of his sales to the payment
of the notes. The evidence, moreover, shows that, in fact,
Nichols never had the actual possession of the goods, but that
it was always held by appellee.
We think the evidence ample, in this respect, to sustain the
plaintiffs right of action.
The next question to which our attention is directed is, was
the sale by French to appellee made in fraud of the rights of
the creditors of French, and therefore, as to them, void under
the statute for the prevention of frauds and perjuries ?
Appellants' counsel argue upon the assumed hypothesis that
this was an assignment by French for the benefit of his credi-
tors, and they cite authorities holding that where, in such an
assignment, the trustee is authorized to sell upon a credit, the
assignment will, in equity, be set aside at the instance of a
dissatisfied creditor. But, as we understand the evidence, that
is not this case, and these authorities, therefore, have no appli-
cation.
French absolutely and unconditionally sold the property to
appellee ; and although, in providing for the payment of the
balance over the $1,500 paid down, he provided that it should
be appropriated to the payment of his debts, this did not in
any degree affect the validity or the regularity of the sale. The
fact that French was indebted at the time of the sale, that it
was on a credit, and that the notes were to be used in the pay-
ment of his debts, do not establish fraud. Nelson v. Smith,
28 111. 500. A party, though in debt, may sell his property to
whom he pleases, if no lien exists to prevent it ; and if the
transaction be an honest one, made in good faith and for an
adequate consideration, it matters not how many creditors may
be thereby prevented from reaching the property. Hessing
v. McCloskey, 37 111. 352.
In the light of these well-settled principles, we are unable
to discover from the evidence any thing whereby the sale is
1874.] Miller et al. v. Kikby. 247
Opinion of the Court.
successfully impeached. It is not even shown that French, at
the time of the sale, was unable to pay his debts ; nor is it
shown that there was any thing designedly done by appellee
for the purpose of enabling him to defraud any creditor.
It is objected that in one of the instructions, given at the
instance of appellee, the jury were told, although they should
find the conveyance by French was had, made, or contrived
with the intent or purpose to delay his creditors, yet before
they could find for the defendants, they must also believe " that
the plaintiff also contrived the conveyance with malice, fraud,
covin, collusion or guile."
We see no objection to this. It is in accordance with the
principles laid down in Ewing v. Runkle, 20 111. 448, Her-
kelrath ei al. v. Stookey, 63 id. 486, and Hessing v.McClos-
key, supra.
Objection is also taken to the action of the court in giving
the seventh and eighth instructions asked by appellee, and
in refusing the second instruction asked by appellants.
The objection to the seventh and eighth instructions of appel-
lee wTe conceive to be unimportant. The facts, the existence
of which they assume, were not contested on the trial ; and it
is not possible that assuming their existence could, under
the circumstances, have prejudiced appellants.
The same principle intended to be asserted in the appellants'
second instruction, and which was refused, is declared in the
fourth of their instructions, which was given ; and it was
entirely unnecessary to repeat it. The refusal to do so is, at
least, no cause for reversal.
So far, we perceive no important error in the record. There
remains, however, to be considered the question of damages.
Notwithstanding the remittitur made at the instance of the
court, the judgment still exceeds any actual damages proved.
It is true, the question is for the jury to determine from the
evidence whether there are such circumstances of aggravation
as to justify vindictive damages; and where the evidence
reasonably tends to sustain their finding in that respect, we
248 Miller et al. v. Kirby. [Sept. T.
Opinion of the Court.
will not reverse for the mere difference of opinion we may
entertain as to the weight of the evidence ; bnt the jnry are
no more at liberty on this question than on any other to act
without evidence, and when it is clear to our minds they
have done so, we have no alternative but to set their finding
aside.
The rule recognized by our previous decisions is, that vin-
dictive or exemplary damages should not be awarded unless
the injury complained of was done wantonly, or willfully.
Foote v. Nichols, 28 111. 486; Hawk et al. v. Ridgway, 33
id. 475.
There is no evidence, not even that of appellee, that shows
any thing to have been done by appellants which can be reason-
ably construed as wanton or willful. There was no violence,
no unusual noise or unnecessary demonstration. The fact that
more property was taken than was actually necessary to satisfy
the execution was, under the circumstances, of no great sig-
nificance. Appellee was requested to point out the property
he had obtained from French, and to give the constable values.
This he refused to do, as did also Nichols. Neither the consta-
ble nor the attorney with him was a jeweler, and the value of
the property levied upon was, at the highest selling estimate
fixed by any witness, not more than double the amount called
for by the execution. By the estimate of some witnesses it
was much less than that.
The fact that the constable proceeded with the levy, after
appellee notified him the property was his, is not a conclusive
circumstance as to his knowledge that the property belonged
to appellee. Appellants contested, and we cannot say in bad
faith, the validity of appellee's title ; and this was one mode
by which it could be tested.
For the reasons last stated the judgment is reversed and the
cause remanded,
1874.] Chicago and N. W. Ry. Co. v. Dickinson et al. 249
Opinion of the Court.
Chicago and Northwestern Railway Company
v.
William P. Dickinson et al.
1. Carkter — burden of proof of loss or non-delivery. In an action
against a carrier, where the loss or non-delivery of goods is alleged, the
plaintiff must give some evidence in support of the allegation, notwith-
standing its negative character, but slight evidence will be sufficient.
2. Same — plaintiff not required to shoic non-delivery by a preponderance
of evidence. In an action against a carrier for failing to deliver goods
shipped, the plaintiff is not bound to show non-delivery by a preponder-
ance of testimony. Slight evidence of that fact will be sufficient to shift
the burden of proof upon the carrier.
3. Same — measure of damages. The measure of damages in case of
the failure of a carrier to deliver goods according to contract, and which
are lost, is their market value at the time when and the place where
they should have been delivered, and such value is purely a question
of fact for the jury.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Rogers, Judge, presiding.
Mr. B. C. Cook, for the appellant.
Mr. John Woodbridge, for the appellees.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of assumpsit, brought by appellees in
the circuit court of Cook county, against the Chicago and
Northwestern Eailway Company, to recover the value of
one car of broom-corn shipped at Cherry Valley, October
6th, 1871, consigned to appellees at the Empire Warehouse
in Chicago.
A trial was had before a jury, which resulted in a verdict of
8.32 in favor of the plaintiffs. The court overruled a
motion for a new trial and rendered judgment upon the
verdict.
32 — T-Ith 111.
250 Chicago and K". W, Ry. Co. v. Dickinson et a'L [Sept. T.
Opinion of the Court.
The railroad company has prosecuted an appeal, and relies
upon three grounds to obtain a reversal of the judgment.
1st. The verdict is against the weight of evidence.
2d. The court erred in refusing appellant's fourth instruc-
tion.
3d. The court erred in giving appellees' fourth instruction
in regard to the measure of damages.
There is no dispute but the railroad company received the
broom-corn at Cherry Yalley for transportation, and it is
also a conceded fact that the contract under which it was
shipped required the company to carry it to Chicago and
deliver the car containing the corn upon the side track con-
nected with appellees' warehouse.
The evidence does not agree as to the time the corn was
shipped. Appellees claim it was shipped on Friday evening
October 6, 1871, while appellant insists that it was shipped on
the morning of October 6. That fact, however, is not very
important.
The real controverted fact in the case was whether the com-
pany had delivered the corn at appellees' warehouse.
Upon this point appellant introduced evidence tending to
show that the corn was shipped on the morning of the 6th, in
a car of a certain number. Beecher, agent of Park station,
testifies the car arrived at that station October 6, 1871, at ten
minutes past two o'clock, P. M.; one Chadwick, an employee
in the freight depot, testified he had a record showing that the
car arrived at G-alena in freight-house about four o'clock, P. M.,
of that day ; that it was loaded with broom-corn, and that he
marked the car " W. P. Dickinson, Empire Warehouse."
That is the usual course of business. The car would be
switched down to the warehouse at the earliest opportunity by
Mr. Daily, switchman.
Thus far the appellant traced the car from the time it was
filled with broom corn at Cherry Yalley, but no witness testi-
fies that the car was switched to the warehouse of appellees.
Daily, the switchman, testifies, in a general way, that all cars
1874.] Chicago and N. W. Kt. Co. v. Dickinson et ah. 251
Opinion of the Court.
were delivered that came in ; that no car was left unloaded at
the Galena freight depot on Saturday night, October 7, but
he does not testify that the car which appellant traced from
Cherry Valley so accurately by number, was delivered.
On the other hand, Bogardus testified that the car of broom-
corn did not leave Cherry Yalley until Friday evening, Octo-
ber 6. Appellee Dickinson testified, on Friday they received
two cars from Bogardus and one from Kendall, that had been
shipped several days before ; that on Saturday, late in the
afternoon, they paid the freight on those three cars, and were
notified that another car had arrived at the depot from Bogar-
dus, and the freight was also paid on that car, but it was not
delivered ; that he was at the warehouse all day Saturday.
This testimony was corroborated by the evidence of other
witnesses, which it is not necessary to refer to in detail.
In our judgment, from an examination of the evidence, it
clearly preponderates in favor of appellees, that the broom-corn
was not delivered; but were it otherwise, we could not, under
the uniform decisions of this court, reverse. The most favor-
able light in which the evidence can be viewed for appellant,
on the question of delivery, is, it is conflicting, and under such
circumstances we will not disturb the verdict.
The fourth instruction of appellant, which the court refused,
was as follows :
" Before the plaintiffs can recover in this case, they must
prove, by a preponderance of testimony, that the broom-corn
in question was not delivered to them by placing the car con-
taining the broom-corn upon the track adjacent to plaintiffs'
warehouse."
In an action of this character, against a common carrier, to
recover for the loss of goods which the carrier has failed to
deliver, the law undoubtedly requires some proof that the goods
were not delivered ; but slight evidence will be sufficient to
shift the burden of proof upon the common carrier.
In section 213, second volume Greenleaf on Evidence, the
rule is stated thus : " If the loss or non-delivery of the goods
252 Chicago and N. W. Ry. Co. v. Dickinson" et al. [Sept. T.
Opinion of the Court.
is alleged, the plaintiff must give some evidence in support of
the allegation, notwithstanding its negative character."
Angell on the Law of Carriers, section 470, says, " when non-
feasance or negligence is alleged in an action on contract, the
burden of proof is unquestionably on the plaintiff, notwith-
standing its negative character ; that is, the party making the
allegation of loss or non-delivery must give some evidence in
support of the allegation, notwithstanding its negative char-
acter."
In Woodbury v. Frink, 14 111. 279, this court held the alle-
gation of non-delivery was a material one, which the plaintiff
was required to sustain by proof; but slight evidence was
sufficient.
In view of the authorities, the instruction of appellant was
properly refused.
The other point relied upon by appellant arises upon the
instructions given for appellees as to the measure of damages,
one of which is as follows :
" If the jury shall believe, from the evidence, that the broom-
corn in question was shipped from Cherry Valley, consigned
to plaintiffs, about October- 6th, 1871, on a freight car of
defendant, under a contract between plaintiffs and defendant
to deliver the same, at plaintiffs' warehouse in Chicago, for
hire, and that defendant failed to deliver said corn at said
warehouse, or in the yards adjacent thereto, and were common
carriers, the jury must find for plaintiffs, and must assess their
damages at the market value of the corn in Chicago when the
same should have been delivered, unless defendant was pre-
vented from making such delivery by the act of God or of the
public enemy."
The broom-corn, for which this action was brought, was no
doubt destroyed by the fire that occurred in Chicago on the
8th and 9th day of October, 1871.
This action is based upon the contract of appellant to trans-
port and deliver the broom-corn. The measure of damages on
the failure of appellant to deliver the article, was its market
1874.] Hulett v. Ames. 253
Syllabus.
value when it should have been delivered. Leonard v. Dun-
ton, 51 111. 48^.
This is the principle embodied in the instruction, which is
clearly correct.
If there was a fire raging in Chicago at the time the corn
should have been delivered, which materially affected its mar-
ket value, appellant should have made proof of that fact before
the jury.
The market value of the corn when it should have been
delivered was purely a question of fact for the jury to deter-
mine from the evidence before them.
The case of Parsons v. Pettingill, 11 Allen, 507, cited by
appellant, cannot be regarded as an authority in this case.
There is no analogy between the facts disclosed by this rec-
ord and those upon which the decision in the case cited was
made. That was an action against a fire warden to recover
the value of a building which he had caused to be blown up
to check the spread of an extensive fire.
In this case there was no fire in existence at the time the
corn should have been delivered.
We are satisfied the law involved in the case has been fairly
given to the jury. The verdict of the jury is sustained by
the evidence. The judgment will therefore be affirmed.
Judgment affirmed.
Feank Hulett
v.
Eugene E. Ames.
1. Practice — appeal from county to circuit court. An appeal from the
county to the circuit court can be tried alone on the record. The circuit
court can not try the case de novo, either in whole or in part, but takes the
record as presented.
2. Same — transcript of county court, matter of record in circuit court
254 Hulett v. Ames. [Sept. T.
Opinion of the Court.
on appeal. When a record of the proceedings is filed in the circuit court,
it becomes a matter of record in that court, and being a matter of record
then no bill 6f exceptions is necessary to get it before this court, but only
a certified transcript.
3. Same — bill of exceptions in circuit court on appeal from county court.
Affidavits, notices, etc., made in the county court are not a part of the rec-
ord, unless made so by bill of exceptions, and cannot be considered in the
circuit court, nor is it proper for the judge of the circuit court to make
them a part of the record of that court by bill of exceptions.
4. Practice in Supreme Court — assignment of errors. The failure or
refusal of a j udge to sign a bill of exceptions, cannot be assigned for error,
nor considered in the Supreme Court. The remedy, where a judge wrong-
fully refuses to sign a bill of exceptions, is by mandamus.
Appeal from the Circuit Court of Will county ; the Hon.
Josiah McRoberts, Judge, presiding.
Messrs. Barber & Munn, for the appellant.
Messrs. Goodspeed & Snapp, for the appellee.
Mr. Chief* Justice Walker delivered the opinion of the
Court :
The practice in the circuit court on appeal from the county
court, is required to be the same as in the Supreme Court.
When a case is thus taken to the circuit court, it can be tried
alone on the record of the county court. And the circuit
court cannot try the case de novo, either in whole or in part,
but takes the record as it is presented, and if manifest error is
found the judgment is reversed, and the cause remanded,
otherwise the judgment is affirmed.
It appears that in the circuit court it was assigned for error
that the county court set the case for trial in the absence of
defendant, and out of its order on the docket. There is no
semblance of force in this objection. Defendant had been
served with process and it was his duty to be present in person
or by attorney in court, and see and know every step that was
taken. It never has been the practice for the court to sum
mons a party at every step that is taken in a cause.
1874.] Hulett v. Ames. 255
Opinion of the Court.
Nor can we see or know that the case was taken np out of
its order. There is no bill of exceptions appearing in the
record of the county court. The presumption is, until over-
come by the record, that all the steps taken by the court are
regular and legal. All who are at all familiar with the prac-
tice know that when such a matter is irregular it must be
shown by a bill of exceptions. For aught that appears in the
record from the county court, this may have been the last and
only case on the docket.
It was also assigned for error that the county court refused
to change the venue of the cause. Appellant filed no bill of
exceptions embodying his petition therefor, and the affidavit
therewith, and thus make them a part of the record. This
court has repeatedly held, that to make such matters a part of
the record, so as to have them reviewed in the appellate court,
they must be embraced in a bill of exceptions. And we decline
to discuss the question or cite cases in support of the practice,
but must presume that all practicing attorneys are familiar
with it or can refer to our decisions previously made.
It was also assigned as error, that the court tried the cause.
The record, so far as we can see, discloses nothing upon which
to base this assignment of error. Nor has appellant shown
any thing in support of this objection.
The next error assigned in the circuit court is, that the court
erred in finding for the plaintiff. There was no exception
taken to the declaration. An appearance was entered and no
question could arise as to service, and a trial was had and
evidence heard, and as it was not preserved in a bill of excep-
tions, we must presume that there was an abundance of testi-
mony, not only to justify, but to require, the finding as it was.
And the same may be said of the last error assigned, that the
court erred in rendering judgment for plaintiff. From an
inspection of the record of the county court, we are unable to
see that the circuit court could have done otherwise than affirm
the judgment.
It is next urged that the court below erred in not signing a
256 Hulett v. Ames. [Sept. T.
Opinion of the Court.
bill of exceptions in this case. Such an error cannot be assigned
or considered. If a judge refuses to sign a bill of exceptions,
presented in proper time and according to the rules of practice,
the remedy of the party aggrieved is by mandamus. In this
case, if we could consider the question, there was nothing in
the paper presented to the judge that is proper to be contained
in a bill of exceptions. It contains the transcript of the county
court, and every thing which became and was a matter of record
in that court, and when a transcript of the same, properly certi-
fied, was filed in the circuit court, became a matter of record in
that court. And being a matter of record, appellant need only to
have a certified transcript of the same made to file in this court.
The summons from the county court and the sheriff's return,
the declaration, the plea, and the judgment of tbe county court,
were matters of record in the circuit court, and became a mat-
ter of record in the circuit court when a transcript of the same
was filed. And being a matter of record, it would have been
improper for the circuit judge to sign a bill of exceptions con-
taining them.
This court has many times said that affidavits, notices, etc.,
in support of motions, although filed by the clerk, do not, un-
less made so by bill of exceptions, become a part of the record.
None of such papers filed in the county court were so made a
part of its record, and not being a part of the record, the cir-
cuit court could not consider them, nor could he, consistently
with his duty or with truth, make them a part of the record in
his court. The party, having neglected to embody them in a
bill of exceptions in the county court, thereby waived all right
to have them considered or reviewed in the circuit court, or in
this court. Even if the clerk's entry on his record that a
motion was entered, but overruled by the court, could be re-
garded as a part of the record, still the exception to the deci-
sion of the court must be preserved in a bill of exceptions as
well as the motion itself, and the papers relating to it. And
the legal presumption would be that the court decided cor-
rectly, as we could not look to affidavits, etc., in support of the
1874.] Hough v. Gage. 257
Syllabus.
motion. The judge could only sign a bill of exceptions to
make something a matter of record which could only be made
such in that manner.
There was nothing before the circuit court to be considered
but the record proper of the county court. Nor had appellant
the right in the circuit court to introduce any evidence but
what was strictly the record of the county court. In the ap-
pellate court he could not introduce as evidence, or for any
purpose, his notice and sworn petition for a change of venue,
which the clerk of the county court certified had been filed in
his office. Nor did it acquire any more validity by being em-
braced in the transcript transmitted to the circuit court.
The judgment of the circuit court is affirmed.
Judgment affirmed.
Oramel S. Hough
v.
ASAHEL GrAGE.
1. Failure of consideration — plea of — its requisites. A plea of
total failure of consideration must show all the elements entering into
the consideration, and a failure of each and every part of it distinctly
averred with as much precision as the allegations of a declaration.
2. A plea that the consideration of a note was the sale of an interest in
a certain patent right, which has wholly failed, the patent being void,
because the result therein claimed to be accomplished could not be accom-
plished, is bad on demurrer as failing to show what the result claimed to
be accomplished was, and wherein it had failed.
Appeal from the Superior Court of Cook county.
Messrs. Gookins & Roberts, for the appellant.
Messrs. Goodwin-, Offield & Towle, for the appellee.
33— 74th III.
258 Hough v. Gage. [Sept. T.
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court :
This is an appeal from the Superior Court of Cook county to
reverse a judgment obtained therein by Asahel Gage against
Oramel S. Hough, in an action of assumpsit on a promissory
note alleged to have been executed by defendant to one Isaac
N. Gregory or order, and indorsed before maturity to the
plaintiff " without recourse."
The defense was embraced in three special pleas, on the two
first of which issues were joined. The third plea averred that
the consideration for the note was an interest in a patent for
the making of " Warfield's soap," sold by payee to defendant,
and that the consideration had wholly failed ; that the letters
patent were void, because the result therein claimed to be ac-
complished could not be accomplished, of which plaintiff had
notice prior to the assignment.
There was a^demurrer to this plea, which the court sustained,
and it is on this the controversy arises.
The objection to this plea is obvious. It fails to show what
the result claimed to be accomplished was, which the patented
article would accomplish. It therefore fails to show how the
consideration failed. These allegations must be set out with
as much precision as allegations in a declaration are required
to be set out. Poole v. Vanlandingham, Breese, 47 ; Bradshaw
v. Newman, id. 133. The doctrine of these cases has been
repeatedly reaffirmed by this court. Evans v. School Commis-
sioners of GreeneCo. 1 Gilm. 654, and subsequent cases ; Kinney
v. Turner, 15 111. 182. All the elements entering into the con-
sideration must be set forth, and a failure of each and every
part of it distinctly averred. So here, it should have been
shown by the plea what was the result claimed, and wherein
it failed to accomplish the result.
The demurrer was not taken, and the judgment must be
affirmed.
Judgment affirmed.
1874.] Guffin et al. v. First Nat. Bk. of Morrison. 259
Syllabus.
Thomas Guffin et al.
The First National Bank of Morrison.
1. Parent and child — right of child to recover for services after
majority. No principle is better settled than that a son or daughter, after
becoming of age, in the absence of a contract, can recover nothing for ser-
vices rendered thereafter as a member of the family; and whatever the
father may choose to give in after years is nothing more than a mere gift.
He is under no legal obligation to make any recompense.
2. Fraudulent conveyance — of father to daughter to defraud credi-
tors. Where a father transfers his property and notes to his daughter
after incurring indebtedness, it is immaterial whether it is a voluntary
settlement or founded on good consideration. In either case it will be void
as to existing creditors.
3. Where a father, in consideration of the past services of his daughter,
who remained with him many years after becoming of age, and kept house
for him, and of her mere verbal promise to support and take care of him
the rest of his days, transferred to her all his notes amounting to six or
seven thousand dollars, it was held that the transaction could be regarded '
in no other light than a voluntary settlement, and fraudulent in law as to
existing creditors, and that if a secret trust was reserved in favor of the
donor, it could be assailed by subsequent as well as by then existing
creditors.
4. And where the proof showed that the father, after such transfer,
collected the interest and renewed notes as before, and really depended
upon the property so transferred for his future support, and that the trans-
fer was for his benefit to defraud creditors, it was held that the transaction
was void, both as to existing and subsequent creditors.
Appeal from the Circuit Court of Whiteside county ; the
Hon. "William W. Heaton, Judge, presiding.
This was a creditor's bill filed by the First National Bank
of Morrison, against Thomas Guffin and Sarah Guffin*. The
opinion states the material facts of the case.
Messrs. McCoy & Sons, and Mr. F. D. Ramsey, for the ap-
pellants.
Messrs. Woodruff Bros., for the appellee.
260 Guffin et al. v. First Nat. Bk. of Morrison. [Sept. T
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court :
This is a creditor's bill, which seeks to discover assets alleged
to be in the hands of Sarah Guffin, but charged to be in reality
the property of Thomas Guffin, the other appellant, and to
have so much as might be necessary for that purpose appropri-
ated to the payment of a judgment recovered by appellee versus
Thomas Guffin, impleaded with Charles C. Guffin and John
N. Baird. The indebtedness on which the judgment was ob-
tained was incurred originally for a loan to the firm of Guffin
& Co. made to them on the 15th day of April, 1872, on whose
note, to the bank, Thomas Guffin was security. The first and
second notes given were taken up, and a third note given in
renewal. The last note bears date the 1st day of December,
1872. It was upon this latter note the judgment was rendered.
It is alleged that prior to the commencement of the suit
and the recovery of the judgment against him, Thomas Guffin
was the owner and in possession of a number of promissory
notes on divers persons, besides a large sum of money, amount-
ing in the aggregate to $7,000 or $8,000 ; that his business
had previously been that of loaning money ; that just before
the institution of legal proceedings against him on the note,
for the purpose of cheating, hindering and delaying appellee
in the collection of its claim, he made a pretended sale or gift
of his notes to Sarah Guffin, his unmarried daughter, who was
then and had been hitherto a member of his family, without
any consideration whatever, and that she received them with
a view to assist him in this unlawful purpose. By an amend-
ment to the bill it is charged that at the time of the alleged
transfer, he was largely indebted to persons other than ap-
pellee, for whom no provision was made in the transfer of
notes and other property.
The answer admits the recovery of the judgment and the
amount alleged to be due thereon. Appellants, however, deny
that at the time of loaning the money to Guffin & Co., or at
any other time since, Thomas Guffin was the owner and in
1874.] Guffin et al. v. First Nat. Bk. of Morrison. ' 261
Opinion of the Court.
possossion of any great number of promissory notes or any
large sums of money, but on the contrary, state that he is a
man eighty-one years of age, has been a widower thirteen
years, that Sarah, his daughter, is unmarried, is of the age of
forty-nine years, and for the last thirty years has had charge
of her father's household affairs. It is also alleged, in view of
his advanced age, and in consideration of past services ren-
dered to him by his daughter and her agreement to render like
services in the future, and to provide for and take care of him
during the remainder of his life, it was agreed Thomas Guffin
should transfer to Sarah all the notes he then had, and in pur-
suance of that agreement it is charged he did, on the 27th day
of February, 1872, assign and transfer to her all his notes,
which constituted his entire property, amounting to some
$6,000 or $7,000.
The ..question raised has relation chiefly to the good faith of
the transaction between the appellants. The theory of the
bill is, the transfer of the notes, if in fact any transfer was
ever made, was a colorable arrangement to avoid the pay-
ment of appellee's judgment, both the legal and equitable title
still remaining in the judgment debtor. The defense main-
tains there was a bona fide sale and delivery of the notes for a
good consideration, and that it is valid and binding in law.
We have given the case that careful attention its importance
demands. If there was really no transfer of the property or
notes before the indebtedness was incurred, it is immaterial
whether it is a mere voluntary settlement, or founded on a
good consideration. In either case it would be void as to
existing creditors.
But the transaction has all the distinctive features of a vol-
untary settlement. No actual consideration was paid for the
notes, although their aggregate value was not inconsiderable.
The consideration insisted upon is, the past services of the
daughter rendered in hei father's family for the preceding
thirty years, and her parol agreement to support him during
the remainder of his life.
262 Guffin et al. v. First 1ST at. Bk. of Morrison. [Sept. T,
Opinion of the Court.
'No principle is better settled, than where a son or a
daughter remains in the father's family after becoming of age,
in the absence of a contract, such person can recover nothing
for services rendered, and whatever the father may choose to
give in after years is nothing more than a mere gift. He is
under no legal obligation to make any recompense. The son
or daughter is presumed to have rendered such services gratui-
tously.
The alleged agreement on the part of the daughter to sup-
port her father in the future, was by parol. It was not evi-
denced by any writing nor was any security taken. There is
really no valuable consideration shown to support the alleged
sale of the notes to Sarah, and the transaction can be viewed
in no other light than a voluntary settlement of the property
upon her. No matter how praiseworthy the object may be,
such a settlement is fraudulent in law as to existing creditors,
and if a secret frrust is reserved for the benefit of the donor, it
may be assailed by future as well as by existing creditors.
The contract insisted upon as having been made between
appellants is itself unreasonable. Such a contract should be
proved by the most satisfactory evidence to induce the belief
it was ever understandingly entered into in good faith. No
folly is so great as where a father places his entire estate in
the hands of another, whether a son or daughter, taking back
an obligation for his future maintenance. In this instance,
Mr. Guffin is represented as placing the earnings of an entire
lifetime, amounting to a considerable sum, in the hands of his
daughter, taking back no higher security than her parol prom-
ise to provide for him during the remainder of his life. It is
inconceivable, a man in the full possession of "his faculties,
would make such a contract, however much confidence he
might have in his trusted son or daughter. Appellant himself
says, he was " depending exclusively on the $5,000 " in Sarah's
hands, and it is a far more rational solution of this transaction,
that he was depending upon that fund rather than upon her
mere promise for his future support.
1874.] Guffin et al. v. First Nat. Bk. of Morrison. 263
Opinion of the Court.
Admitting the notes were transferred to the custody of
Sarah in February, 1 872, which was nearly two months before
the indebtedness to appellee was contracted, there is evidence
tending to prove, it was a secret arrangement for the benefit
of Thomas Guffin. It is shown he continued to receive in-
terest as it became due, renewed the former loans and made
new loans as he had formerly done with his own money. It
is said he did it as agent for Sarah, but it is clearly proven she
knew but little in regard to the business, and it was controlled
by her father as it had previously been. The conviction pro-
duced by the evidence is, that Sarah was the mere custodian
of these notes under a colorable arrangement she should be
the owner, while the property in the securities remained in
Thomas Guffin. No other theory can be maintained consist-
ently with the evidence. Disregarding all the testimony
offered by appellee, that of the appellants alone makes this
impression on our minds. It is incontestably proven, if the
notes were transferred to Sarah at all, it was for the benefit of
her father, and for no other purpose. Such a transaction is
void both as to existing and future creditors. Taylor v. Jones,
2 Atk. 600 ; Sands et al. v. Codwise et al. 4 Johns. 536.
It does not admit of controversy that Thomas Guffin con-
trolled these securities, after the alleged assignment, the same
as he had done before. But the attempted explanation- of his
conduct in this regard, that he was acting as the agent of his
daughter, has more the appearance of an artifice, adopted for
the purpose of concealing the true character of the transaction,
than a real agency.
We see no reason for reversing the decree of the circuit
court, and it is accordingly affirmed.
Decree affirmed.
264 Boskowitz et al. v. Baker et al. [Sept. T.
Statement of the case.
Igjstatz Boskowitz et al.
v.
Isaac Gr. Baker et al.
1. Contract — for sale of buffalo robes, construed as to quality. A con-
tract for the sale and delivery of a lot or collection of buffalo robes, which
provides for the payment of half price for fifteen hundred, and that no more
than two hundred headless and mismatched robes shall be contained in the
collection, and that the assortment shall be of good quality, does not mean
that the quality shall be determined merely by comparison with other
collections of the place where the vendors and vendees expected the robes
were to be obtained, but that it shall be an average good collection as
known to the trade, in the market.
2. Where a contract for the sale and delivery of an entire collection of
buffalo robes by an Indian trader provides for the payment of $6 for each
robe on delivery, except fifteen hundred, for which $3 each is to be paid,
they '* being supposed to be of an inferior quality," and further provides
that the " assortment " shall be of good quality, those of inferior quality
will be limited to fifteen hundred, and a tender of a greater number of in-
ferior ones will not be a compliance with the undertaking of the vendors.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph Sibley, Judge, presiding.
J. & A. Boskowitz, the appellants, sued I. G. Baker & Bro.,
the appellees, upon the following contract, to wit :
" We, J. & A. Boskowitz, of Chicago, Illinois, have this
day purchased of I. G. Baker & Brother, of Fort Benton,
Montana Ter., their entire collection of buffalo robes, amount-
ing to 18,000 skins, and for which we agree to make a pay-
ment of $5,000 upon the signing of this contract, and upon
delivery of the buffalo robes, to complete the payment, the
said delivery to be completed on or before September 1st, 1871.
" We, J. & A. Boskowitz, agree to pay for these buffalo robes,
delivered to them at Chicago, $6 each, except for 1500 robes
of this collection, which are to be deducted from the total
1874.] Boskowitz et al. v. Baker et at. 265
Statement of the case.
number, and for said 1500 robes we agree to pay $3 each,
these being supposed to be of an inferior quality ; and for
buffalo robes known as black calf, we agree to pay $3 each ;
and it is mutually agreed that no more than 200 headless and
mismatched robes shall be contained in the collection.
" I. G. Baker & Brother agree the assortment of Buffalo
robes shall be of good quality.
" We, J. & A. Boskowitz, agree to pay $3 each for all sound
wolf skins, excluding stagy skins, delivered in Chicago, on or
before September 1st, 1871. The quantity to be delivered by
I. G-. Baker & Brother, to be not less than 3000 skins, and
not to exceed 5000 skins. Signed and sealed at St. Louis,
Aprill 9th, 1871." (Signed by the parties.)
I. Gr. Baker & Bro.'s entire collection of buffalo robes for
the season of 1871 was shipped from Fort Benton as follows:
On May 18, 1871, one thousand bales; on May 31,1871,
twelve hundred and eighty-five bales ; and on July 2, 1871,
one hundred and ninety-five bales; the bales averaging about
ten robes each. They forwarded the two thousand two hun-
dred and eighty five bales shipped on the 18th and 31st of May
to Chicago, for delivery to J. & A. Boskowitz. The remain-
ing one hundred and ninety-five bales were shipped from
Sioux City to St. Louis, and did not arrive there until Sept.
1, 1871. These last, comprising about eighteen hundred
robes, were collected by Baker & Bro. of the Crow Indians,
and were in quality superior to those shipped to Chicago and
tendered to J. & A. Boskowitz.
On the 10th day of July, 1871, I. Gr. Baker, out of the ship-
ments of May 18 and 31, made a tender to J. A. Boskowitz,
at Chicago, of twenty thousand four hundred and odd buffalo
robes, and insisted upon their taking the whole lot thus ten-
dered or none, and declined to let them have any buffalo robes
or wolf skins, unless they would receive the entire lot so ten-
dered. Out of the robes tendered, J. & A. Boskowitz offered
to receive, and tendered pay for, eleven thousand six hundred
34— 71th III.
266 Boskowitz et al. v. Baker et al. [Sept. T.
Statement of the case.
and eighty-five as of good quality; two hundred headless and
mismatched, otherwise of good quality ; four hundred and
sixty-nine black calf, as of good quality ; and fifteen hundred
of inferior quality; in all thirteen thousand eight hundred and
fifty-four robes. They also tendered pay for all the wolf
skins, as to the quality of which there was no disagreement-
Subsequent to the execution of the contract the following cor-
respondence was had between the parties.
On the 16th of May, 1871, I. G. Baker wrote from St. Louis
to J. & A. Boskowitz as follows :
"In the letter from my brother at Fort Benton, he says : ' I
am satisfied we will have 20,000 robes, and the probability is
it will be 21,000, and that there will be 6,000 wolves ; our
contract says 18,000 ; do you want them all, both robes and
wTolves£' He says there will be kit, fox, elk and antelope,
and but very little beaver. Will you please give us figures on
the last mentioned."
The reply is :
" May 17, 1871.
" We will consult our firm in New York on the points men-
tioned, and write you again when we hear from them, say about
21st or 22d inst. In. all probability we will take the entire
collection ; will write you prices for the other skins in our
next. WiL you please inform us, whenever you receive advice
to the effect from your brother, on what boat the robes are
coming down, and when they may be expected, so that we can
make our arrangements accordingly % "
And on the 22d of May, 1871, they again wrote further in
answer as follows :
"We wrote you last on the 17th, which letter we presume
you have received ; your collection of robes turn out much
larger than you anticipated, and we hope their quality and
assortment will not be indiscriminate ; on this presumption
1874.] Boskowitz et at. v. Baker et al. 267
Opinion of the Court.
we will take the additional 2,000 or 3,000 robes, and also the
1,000 wolf skins."
To this last letter Baker & Bro. did not reply.
The declaration alleged a breach of the contract by tlje de-
fendants, and a part performance and a tender as to the bal-
ance by the plaintiffs. The plea was the general issue. The
verdict and judgment were for the defendants, and the plain-
tiffs appealed.
The appellants allege error in the court below in these par-
ticulars :
First. Error was committed in the construction placed upon
the contract.
Second. The offer to perform by the defendants was not in
conformity to the contract.
Messrs. Goodrich & Smith, for the appellants.
Messrs. Goudy & Chandler, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
The chief question here arises upon the construction of the
contract of April 19, 1871, with reference to the quality of the
buffalo robes.
The appellants insist that by this contract all except fifteen
hundred of the eighteen thousand robes were to be of good
quality, as known to the trade generally, and without reference
to the place where collected ; that the number of robes of
inferior quality by the agreement is definitely limited to fifteen
hundred, as much so as the headless and mismatched robes are
to two hundred.
On the contrary, it is claimed by the appellees that this con-
tract only called for an original unassorted Fort Benton col-
lection of robes, which, as an entire collection, would average
as good in quality as Fort Benton collections generally ; and
that, tested by this standard, whatever the number of inferior
robes, J. & A. Boskowitz were bound to receive them, paying
268 Boskowitz et al. v. Baker et al. [Sept. T.
Opinion of the Court.
half price for fifteen hundred, and full price of good robes for
the residue.
In refusing the first, second, third and fourth instructions
asked by the plaintiffs, and in giving the fourth instruction
asked by the defendants, the court below rejected the con-
struction claimed by the appellants and followed that claimed
by appellees. The fourth instruction given for the defendants
was as follows :
u 4c. If the jury believe, from the evidence, that the defend
ants' collection of buffalo robes, referred to in the contract,
were gathered or collected at Fort Benton, Montana Territory,
and that the defendants were ready and willing, and offered to
deliver to the plaintiffs, their entire collection, not less than
18,000 in number, in July, 1871, and that such entire collec-
tion or assortment was of good quality (having reference to
entire collections from Fort Benton in determining the ques-
tion of quality)* provided that at the time of the execution of
the contract in evidence the plaintiffs knew that the collection
was to be made at that place, and that no more than two
hundred headless and mismatched robes were included among
such collection of not less than 18,000, and that at the same
time the defendants were ready and willing and offered to
deliver to plaintiffs sound wolf skins to the number required
by the contract (admitted by plaintiffs to be according to the
contract), then the plaintiffs cannot recover in this case, and
the jury must find for the defendants."
For the purpose of a better understanding of the phraseol-
ogy of the contract, it may be proper to advert to certain facts
and circumstances relating to the subject matter which appear
in evidence.
The buffaloes are killed by the Indians, who dress and sell
the skins to Indian traders. These Indian traders are the
original collectors, and the lots obtained by them in any one
season are called original collections. The Indian trader sells
to the wholesale dealers, the latter to the jobbers, and the job-
ber sells to the retail dealer. The defendants devoted them-
1874.] Boskowitz et al. v. Baker et al. 269
Opinion of the Court.
selves to the first branch of the trade, and confined themselves
to the making of original collections and selling them to the
wholesale dealers, and the plaintiffs limited their operations to
the second branch of the trade, as wholesale dealers.
The defendants had a house at Fort Benton, on the upper
Missouri, where they made their collections by purchases from
the Indians. The plaintiffs had a house in Chicago, and
another in New York, most of their sales being made in New
York.
Original collections of robes and skins are made on the up-
per Missouri, the lower Missouri, on the plains and on the
Arkansas. Those collected on the plains are superior in
quality. The Missouri river Indians " cut their robes in half
previous to dressing, while those of the plains leave their robes
whole." In original unassorted collections from Fort Benton
there is usually a greater percentage of inferior robes than in
original collections from the plains or the lower Missouri. In
purchasing from the Indians, no difference is made in price for
quality of robes, " their ideas of trade (in the language of the
witness) not going to the extent of different prices for different
qualities, and the price of robes is fixed without reference to
quality, at so many cupsful of sugar or coffee, or so many
arms-lengths of cloth, etc., for each robe." An original collec-
tion has all kinds of robes and is unassorted. Before the robes
are ready for the wholesale and retail dealers, the collection
must be assorted into various grades, according to kinds, size
and quality. The robes are first assorted with four grades,
according to value, and known as Nos. 1, 2, 3, 4. These are
classified in various sub-grades, numbering as high as forty.
Grades Nos. 1, 2 and 3 are, as a whole, considered by the trade
as of good quality. Those robes falling below grade No. 3,
and into grade No. 4, are considered by the trade as robes of
inferior quality. Nos. 1, 2 and 3 are robes fit for sleigh and
carriage purposes, and No. 4 are those unfit for carriage pur-
poses, and principally used for making into overshoes, and
called sometimes shoe-robes.
270 Boskowitz et al. v. Baker et al, [Sept. T.
Opinion of the Court.
In making these assortments of original Indian collections,
no different standard is adopted, and no distinction is made,
between Fort Benton collections and collections from other
regions; a robe of good quality would be the same from any
section, and so of an inferior robe.
We find no testimony in the record tending to show that
in dealing in robes either Indian traders, wholesale dealers or
jobbers buy or sell or fix prices in the market with reference
to the locality where the skins are originally collected ; but
the skins must stand upon their merits under a uniform
standard as to quality.
Assuming appellees' construction to be correct, that Baker
& Bro.'s stipulation that the assortment of buffalo robes shall
be of good quality, means simply, that this collection, as a
whole, shall be of good quality, we cannot accede to the view
that its quality should be determined merely by comparison
with other Fort Benton collections. There is no such qualifi-
cation to be found in the words of the contract ; and we can-
not think there is any such implied qualification from this
being a Fort Benton collection, and it being understood and
expected that Baker & Bro. would, in fact, collect all their
robes for that season at that place. We are very clearly of the
opinion that in that case the requirement would be that it
should be an average good collection as known to the trade and
in the market, without reference to the particular point where
these skins may have in fact been collected. The witness
Boughton, in speaking of original collections generally, says
that "in an entire unassorted lot of buffalo robes, assuming
that the entire collection is of good quality, there should be
eighty-five per cent of Nos. 1, 2 and 3, and fifteen per cent
of poor robes."
The witness Gage also says : " I would include in an
entire unassorted lot of buffalo robes of 18,000 supposed tc
be of good quality, all grades, except No. 4, in these propor-
tions : Ninety-five per cent of Nos. 1, 2 and 3, and five per
cent of No. 4."
1874.] Boskowitz et at. v. Baker et al. 271
Opinion of the Court.
These two witnesses appear to be the only ones who testify
on this point as to the percentage of inferior robes which an
average good original collection should contain.
And their testimony shows clearly that these robes were
not up to such a standard. Of the robes tendered, about one-
third would appear to have been robes of inferior quality, of
grade No. 4.
In this respect at least we regard the defendants' fourth
instruction and the finding of the jury as wrong.
This would cause a reversal, and is sufficient for the present
disposition of the case, but for the future guidance of the par-
ties, perhaps, we should not stop short of settling the whole
question which is raised on the construction of this contract.
The further question is more doubtful, whether, according
to the terms of this contract, the number of robes of inferior
quality was not to exceed 1,500, and that 16,500 robes were
to be all of good quality; or whether the entire collection
was to be of good quality, and appellees had the right to put
more than 1,500 robes of inferior quality in the collection, if
that did not thereby change the quality of the entire collection
from good to bad. The second paragraph in the contract is
the one that fixes the price of the robes; and looking at this
by itself, the first clause would rather seem to be a contract to
pay for all the buffalo robes sold six dollars each, except 1,500
of them for which three dollars each was to be paid. Yet
there is used in immediate connection with the number 1,500,
the language " these being supposed to be of an inferior qual-
ity." This tends to indicate the intention to pay only three
dollars each for robes of an inferior quality. Then comes the
succeeding paragraph : " I. G. Baker & Brother agree the
assortment of buffalo robes shall be of good quality." The
two paragraphs are to be construed in connection with each
other.
What was here agreed to be of good quality, the entire
collection, as compared with other collections, or the portion
of the robes appellants were to pay six dollars each for ?
272 Boskowitz et al. v. Baker et al. [Sept. T.
Opinion of the Court.
The terms " good quality " and "inferior quality " appear to
have been well known to the trade as designating two well-
defined separate classes of robes. The difference between the
prices for robes of inferior quality and the other robes is recog-
nized by the parties as one-half, three dollars each for the
former, and six for the latter ; and this appears to be about
the average relative difference of value between the two
classes. The parties, from their familiarity with the trade,
knew that the actual number of the robes of inferior quality
could not be fixed, that it was uncertain, and not capable of
ascertainment there, at St. Louis ; and they must have known
that there would be a larger number of them than 1,500 in
the collection. Boskowitz testified that the actual number of
the inferior robes in this case was 6,774 ; and the testimony
concurs that this lot as a whole was a fair, average good Fort
Benton collection.
It is quite unreasonable to- suppose that it was intended
that J. & A. Boskowitz should pay the full price of good
robes for an indefinite and, in all probability, much larger
number of inferior robes in addition to the specified 1,500.
It was agreed that there should be no more than 200 headless
and mismatched robes which, otherwise, would grade with
robes of good quality. And we would be slow to believe
that appellants, while stipulating to exclude quantities of
headless and mismatched robes, were still willing to include a
large number of robes much inferior at a price they were
unwilling to pay for these headless and mismatched ones.
Such considerations, of course, do not control, but they may
help in solving an ambiguity.
The agreement then is, that the assortment of buffalo robes
shall be of good quality. Before, in the writing, whenever
speaking of this lot of robes, it is called a " collection." That
word is so used three times before. But here, it is dropped,
and "assortment" is used. It is not likely the change of
term was accidental with these men, conversant with the terms
used in their trade, one of whom, Boskowitz, drafted the in-
1874.] Boskowitz et at. v. Baker et al. 273
Opinion of the Court.
strument. The difference between an assortment and an orig-
inal Indian collection, as has been shown, is marked. The
entire collection evidently was not to be taken ; the number
to be taken was eighteen thousand skins, and the parties in
their subsequent correspondence recognize this limitation; and
the stipulation that there were not to be more than two hundred
headless and mismatched robes, shows the entire collection
was not to be taken. There were actually in this case two
thousand one hundred and seventy of these headless mis-
matched robes. The contract calls for a fixed number of
robes, to be selected or assorted, from Baker & Bro.'s original
Indian collection. We cannot yield to appellees' construction
that " assortment " is used as synonymous with " collection ; "
but we consider the agreement that the assortment should be
of good quality, one, that the robes of the assortment should
all be of good quality, which, taken together with the pre-
ceding paragraph, would mean that they all should be of good
quality, except one thousand five hundred, which might be of
inferior quality. And perhaps this is no more than what
should be the implication from the preceding paragraph. By
specifying one thousand live hundred only, as being of inferior
quality, and valuing them at half price in consequence, it
might be implied that all the other skins not specified as infe-
rior, and valued at the full price of good skins, were to be of
good quality. So that upon the construction of the whole
instrument taken together, in the light of the surrounding
circumstances, we are inclined to hold that the contract placed
a limitation of one thousand five hundred on buffalo robes of
inferior quality. It must be confessed the parties have ex-
pressed such meaning quite awkwardly ; but we must accept
the language they have seen gt to employ, and construe it as
we best can.
Under this view, there was further error in refusing the
first, second, third and fourth instructions asked by the plain-
tiffs, or some one of them, as they put that construction upon
35— 74th III.
274: Senichka v. Lowe. [Sept. X.
Syllabus.
the contract which we adopt. The judgment is reversed ^ and
the cause remanded.
Judgment reversed.
Mr. Chief Justice Walker : I am unable to concur in the
construction given to the contract in this case, and hold the
judgment should be affirmed.
Mr. Justice Craig : I do not concur with a majority of the
court in the decision of this cause.
Mr. Justice Scholfield : I dissent from the views expressed
in the foregoing opinion.
Harbakd Senichka
v.
Hervey Lowe.
1. Taxes — of the notice and certificate of publication. A certificate
of the publisher printed at the conclusion of the list of delinquent lands,
and as a continuation of the same advertisement, without any separate
certificate made since the publication, is insufficient to give the court juris-
diction to render j udgment against lands for taxes.
2. Jurisdiction — effect of finding as to due publication. The finding
of a court in favor of its jurisdiction is not conclusive, especially when
the record discloses the evidence of jurisdiction upon which the court
acted.
Appeal from the Circuit Court of Will county ; the Hon.
Josiah McRoberts, Judge, presiding.
This was an action of ejectment, by the appellant against
the appellee, for the recovery of two lots in the city of Joliet,
in Will county. The cause was tried by the court without a
jury. The plaintiff claimed title under a sale of the lots in
1866 for the taxes of 1865. The court found for the defendant.
1874.] Senichka v. Lowe. 275
Opinion of the Court.
Mr. Thomas H. Hutchins, for the appellant.
Mr. George S. House, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court :
The only evidence of the publication of the notice by the
collector that he would apply for judgment for the delinquent
taxes against the property in controversy, is what purports to
be the certificate of the publisher of the paper, printed at the
conclusion of the list of delinquent property, and as a contin-
uation of the same advertisement. This appears only in the
same number of the paper containing the advertisement, and
there is no certificate made by the publisher since that publi-
cation was made. This was clearly insufficient to give the
court jurisdiction in the case.
In Fortman et al. v. Haggles et al. 58 111. 207, in speaking
of the question of notice in a like case, it was said : " Such a
notice is required by the statute, and it is indispensable to
confer jurisdiction in this proceeding, unless an appearance is
entered. It is statutory and summary in its character, and the
requirements of the law must be strictly pursued. The notice
takes the place of process, and it is only by its publication, as
required by the statute, that the court obtains jurisdiction to
hear and adjudicate upon the case."
In Fox v. Turtle, 55 111. 378, the certificate of publication
was signed " John Wentworth, publisher, by Keed," and it
was held insufficient to sustain the judgment upon delinquent
taxes.
It is contended, however, in the present case, appellee is
concluded on this question, by the finding of the county court
as recited in the judgment. If this be true, it is difficult to say
why the appellant was not also concluded by a like finding in
the case just referred to, for the judgment there pursued the
statutory form prescribed by the 35th section of the act of
February 12, 1853 (Gross' Stats. 1869, p. 605), reciting that
due notice had been given.
276 Sentchka v. Lowe. ' [Sept. T.
Opinion of the Court.
But the statute required that the collector should obtain a
copy of the advertisement of the delinquent lands and lots,
together with a certificate of the due publication thereof from
the printer or publisher of the newspaper in which the same
was published, and file the same with the county clerk on or
before the first day of the term at which judgment was prayed.
Gross' Stats. 1869, p. 608, § 188. The advertisement and cer-
tificate in evidence are the only advertisement and certificate
relating to this judgment and sale, filed by the collector in the
office of the county clerk ; and it is proven by the evidence of
the county clerk that it is the same which was inspected by
the court, and the evidence upon which the court acted in
entering judgment. It has never been held, where the record
itself showed that the evidence of jurisdiction upon which the
court acted was insufficient, that its finding, in favor of its
jurisdiction, was conclusive. In Goudy et al. v. Hall, 30 111.
116, it was expressly said that the finding in such case was not
obligatory. The chief justice, in delivering the opinion,
observed : " Take the case where the law requires six weeks'
notice, and the record itself shows but three weeks' notice was
given ; or where a process has been returned not served, and
the court should find that the requisite notice was given, or
that the process was duly served ; it would be absurd to say '
that such finding was conclusive, when the very record would
show that this finding was void for want of jurisdiction to find
any thing whatever in the case." Other and more recent de-
cisions recognize the same doctrine.
The evidence being clear and full to the point that the pre-
tended certificate of publication before us is the one upon
which the court acted in rendering judgment ; and it being
equally clear that it was not made after the pretended publica-
tion, it was insufficient evidence of the facts recited in it. It
would be just as reasonable to receive in evidence the deposi-
tion of a witness taken about a matter in litigation before the
facts deposed to had occurred, as to receive a certificate of this
kind as a compliance with the law.
1874.] 0. and I. R. E. Co. et al. v. Pinckney et al. 277
Syllabus.
The objection urged, that appellee should not have been
allowed to make defense until he showed a payment or tender
of the taxes, etc., for which the property had been sold, is fully
met by Reed et al. v. Tyler et al. 56 111. 288, where it was
held that the law requiring that this should be done is uncon-
stitutional.
The j udgment is affirmed.
Judgment affirmed.
The Chicago and Iowa Railkoad Company et al.
v.
Daniel J. Pinckney et al.
1. Constitution — clause relating to municipal subscriptions and dona-
tions construed. The object of the proviso to the section of tlie new con-
stitution relating to municipal subscriptions, was, to save such subscrip-
tions and donations voted in aid of railroads and private corporations prior
to its adoption. The saving clause, by a reasonable construction, embraces
donations as weil as subscriptions, and places them upon the same footing.
2. Municipal donation — sufficiency of notice of election. Where the
petition filed with the town clerk for an election upon the question of the
town donating its bonds in aid of a railroad, stated the time the bonds were
to run and the interest they were to bear, as required by law, it was held,
that an omission in the notice of the election to state these facts, when the
notice recited that the petition was filed in the clerk's office, would not
vitiate the election, as the petition was subject to inspection of any voter
desiring to learn the facts.
Appeal from the Circuit Court of Ogle county; the Hon.
William W. Heaton, Judge, presiding.
Mr. E. Walker, Mr. J. H. Cartwright, Mr. H. Crawford,
and Mr. S. P. McConnell, for the appellants.
Mr. James K. Edsall, and Mr. T. Lyle Diokey, for the
appellees.
278 C. and I. E. E. Co et al. v. Pinckney et at. [Sept. T.
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court :
This was a bill tiled in the circuit court of Ogle county, by
Daniel J. Pinekney and others against the Chicago and Iowa
Railroad Company, the town of Mount Morris and others, to
enjoin the town and its officers from issuing bonds to the
Chicago and Iowa Railroad Company in the sum of $75,000.
The cause was heard upon bill, answer, replication and
proofs, and a decree rendered in favor of complainants, accord-
ing to the prayer of the bill. The defendants excepted to the
decree and prosecuted an appeal to this court.
The principal points relied upon by appellees to prevent the
town from issuing the bonds are :
First. The constitution of 1870 prohibits a donation by a
town to a railroad corporation.
Second. The pretended vote in favor of such donation was
void, because the notice of the election, and the petition, were
defective.
The clause of the constitution relied upon reads as follows :
" No county, city, town, township or other municipality shall
ever become subscriber to the capital stock of any railroad or
private corporation, or make donation to loan its credit in aid
of such corporation ; provided, however, that the adoption of '
this article shall not be construed as affecting the right of any
such municipality to make any such subscriptions where the
same have been authorized, under existing laws, by a vote of
the people of such municipalities prior to such adoption."
The election in the town of Mount Morris, by which the
voters of that town decided to donate $75,000 to the Chicago
and Iowa Railroad Company, occurred on the thirtieth day of
June, 1870. The constitution was adopted on the second day
of July following.
At the time the section of the constitution referred to was
framed, large sums of money in different parts of the State
had been voted by municipalities to be subscribed and donated
to railroad companies, on condition that railroads then being
1874.] C. and I. K. K. Co. et al. v. Pinckney et al. i}79
Opinion of the Court.
constructed should be completed within a given time, and the
country, whether wisely and judiciously or not, seemed to de-
mand that in cases where the people in these municipalities
had, under then existing legislation, voted to aid railroads by
subscription or donation prior to the adoption of the constitu-
tion, that such subscription or donation should not be affected
by the formation of the constitution.
And we have no doubt it was in view of this demand of a
large portion of the State that the proviso was engrafted in
the foregoing section.
It is conceded by appellees that the proviso saves subscrip-
tion to stock previously voted, but they insist it does not save
donations voted. We cannot adopt a construction so narrow
and technical. A reasonable construction of the whole sec-
tion will embrace donations as well as subscriptions. In one
sense of the term a donation is a subscription to the capital
stock of a company.
We have no doubt at the time the section was framed there
were then in the State quite as many donations voted as there
were subscriptions to stock in any other manner, and if a
necessity or reason existed to protect a subscription there was
also the same reason and demand to protect a donation, and we
entertain no doubt it was the intention of the framers of the
constitution, by adding the proviso to the section cited supra,
to place subscriptions and donations on the same footing.
The notice of the election under which the vote was taken
to make the donation reads as follows :
SPECIAL TOWN MEETING.
Office of the Town Clerk of the Town of Mount Mor- )
ris, in the County of Ogle and State of Illinois. j
To the voters of said Town :
Whereas, twenty legal voters of the town of Mount Morris,
in the county of Ogle and State of Illinois, have presented
and filed in my office their written application requesting that
an election and special town meeting be held in said town, to
280 0. and I. R. R. Co. et al. v. Pinckney et al. [Sept. T.
Opinion of the Court.
determine whether said town shall, in its corporate capacity,
make a donation to the Chicago and Iowa Railroad Company
to the amount of seventy-five thousand ($75,000) dollars, in
the bonds of said town, to aid in the construction of said rail-
road, said bonds not to be issued until said railroad company
shall have located their said railroad from a connection with
the Chicago, Burlington and Quincy Railroad at the city of
Aurora, Kane county, Illinois, into and through said town,
and shall have located a depot on the line of said railroad,
within three-fourths (f) of one mile of Rock River Seminary
building, nor until the said company shall have constructed
said railroad through said town, and laid the track for the
same with a T rail, to weigh not less than fifty-six pounds to
the yard, the same to be completed on or before the 31st day
of December, A. D. 1871.
JVow, therefore, I, F. B. Brayton, town clerk of said town
of Mount Morris, in pursuance of an act of the General Assem-
bly of the State of Illinois, entitled " An act to incorporate the
Chicago and Iowa Railroad Company," approved March 30th,
A.. D. 1869, do hereby notify the legal voters of said town
that a special town meeting and an election will be held at A.
W. Little's shop, in said town, on the 30th day of June, A. D.
1870, to vote for or against said donation, and that the polls
will be opened between the hours of nine and ten o'clock in
the forenoon of said day, and remain open until six o'clock
in the afternoon, unless otherwise ordered.
Dated this 9th day of June, A. D. 1870.
F. B. Brayton,
Town Clerk of said town.
The objection made to this notice is, that it fails to state the
rate of interest the bonds were to bear, or the time when
they became due.
While it is true those things are not stated in the notice,
yet the law under which this election was held required a
petition to be presented to and filed with the town clerk,
1874.] C. and I. R. R. Co. et al. v. Pinckney et al. 281
Opinion of the Court.
signed by twenty legal voters of the town, in which the rate
of interest the bonds are to draw, and the time they are to run,
is required to be stated. Private Laws of 1869, vol. 2, § 12.
The voters of the town of Mount Morris are told by this
notice that a petition has been filed in the town clerk's office,
signed by twenty legal voters of the town. If there was a
bare possibility of any voter not knowing by the notice how
long these bonds were to run or their rate of interest, he is
informed by the notice that the information is in the office of
a public officer of the town, and all he has to do in order
to obtain the required information is, to call on that officer.
The petition filed with the town clerk, upon this point,
reads : " Said bonds to be made payable within ten years from
the date of their issue, and to bear interest from the date of
their issue at the rate of ten per cent per annum, payable
annually."
We do not think there can be a pretense for a single voter
being misled by the notice. The petition is referred to as
being on file, and was thus subject to inspection by all the
voters of the town. We are of opinion that the notice, in
connection with the petition, is sufficient.
The election seems to have been free from fraud and undue
influence, and was conducted honestly and fairly, the result of
which was, two hundred and sixty-nine votes were cast for
donation of $75,000 ; one hundred and sixty-three votes
against donation.
The railroad company seem to have complied fully with
each and every condition required of them in the construction
of the road before they would be entitled to the bonds, and
in conformity to the former decisions of this court, wTe can see
no ground upon which the bill in this case can be sustained.
The decree will be reversed and the bill dismissed.
Decree reversed.
Mr. Chief Justice Walker and Mr. Justice McAllister,
dissenting : The first branch of the section of the constitution
36— 74th III.
282 Fkazer v. Supervisors of Peoria Co. [Sept. T.
Syllabus.
referred to, prohibits subscriptions or donations, or loans, by
municipalities, to private corporations. The proviso drops
donations and loans of credit, and merely authorizes subscrip-
tions to capital stock where the same had been before voted.
This is a donation, and had not been voted as a subscription.
It is not, therefore, within the proviso but within the prohibi-
tion. The constitution clearly makes a distinction between
a subscription and donation, and this court is powerless to
annihilate it.
Perry Frazer
v.
The Board of Supervisors of Peoria County.
1. Conveyance — to one and heirs of her body. A conveyance of land, to
an unmarried woman, to have and to hold unto her and the heirs of her
body forever, vests in her an estate for life only, and creates a contingent
remainder in favor of the heirs of her body who, when born, will take the
absolute fee.
2. Same — tenant for life cannot defeat estate of remainderman. A
grantor who conveys to an unmarried woman real estate, to have and to
hold to her and to the heirs of her body forever, thereby deprives himself
of all estate but a contingent reversion, dependent upon the grantee dying
without having had issue, and it is not in the power of the grantee, by a
reconveyance before issue born, to defeat the contingent remainder in
favor of such issue.
3. Covenants for title. Where the owner of land conveys it to another
and the heirs of her body forever, and the grantee, before having issue,
reconveys to the grantor, he only acquires a life estate during the life of
the grantee in the first deed, and if he again conveys the land with cove-
nants that he is seized of a good, sure, perfect, absolute and indefeasi-
ble estate of inheritance in the law, in fee simple, his covenant is broken
when made, and his grantee may sue and recover upon such breach, not-
withstanding he may have been put into possession of the land under his
deed.
4. Measure op damages — for breach of covenant of warranty. Where
there is a covenant in a deed of conveyance of real estate, that the grantor,
1874.] Frazer v. Supervisors of Peoeia Co. 283
Opinion of the Court.
at the time of making the deed, was seized of a good, sure, perfect and abso-
lute and indefeasible estate of inheritance in the law in fee simple, and the
grantor has in fact only a life estate and a contingent reversion in the land,
the grantee may, upon reconveying or tendering a reconveyance, sue and
recover for breach of covenant, and in such case the measure of damages ia
the amount of the consideration named in the deed, together with taxes
paid on the land, and interest, less the value of rents received or which
could have been received by the grantee from the land.
Weit of Eeeoe to the Circuit Court of Peoria county ; the
Hob. Joseph W. Cochran, Judge, presiding.
Messrs. McCulloch, Stevens & Wilson, for the plaintiff
in error.
Messrs. Johnson & Hopklns, for the defendants in error.
Mr. Chief Justice Walker delivered the opinion of the
Court :
Plaintiff in error brought an action of covenant against
defendants in error. The evidence shows that William S.
Moss was seized in fee of two lots in Peoria, and conveyed the
same to defendants in error. An agreement as to the facts
was made by the parties and the case submitted to the court,
by consent, without a jury. It is agreed in substance that in
December, 1854, Moss conveyed the lots to his unmarried
daughter, Harriet W. Moss. The deed recites a consideration
of one dollar and natural love and affection, and "to have and
to hold the said premises, with the appurtenances, unto the
said party of the second part, her heirs of her body, for-
ever." She afterwards intermarried with Arthur H. Griffith.
Afterwards, in June, 1865, Griffith and wife reconveyed the
premises to Moss, the father. The deed recites a consideration
of one dollar. It recites that " the conveyance of the above and
foregoing premises is hereby made in consideration of the said
William S. Moss having heretofore, to wit, on the 30th day of
December, A. D. 1854, conveyed, in consideration of one dollar
together with natural love and affection, to the said Harriet
284 Frazer v. Supervisors of Peoria Co. [Sept. T.
Opinion of the Court.
W. Moss, now Griffith, and before her said marriage, the above
described premises, and subsequent arrangements having been
made by which it is desirable to change said intended gift (the
said conveyance of said William S. Moss to the said Harriet
W. Moss, now Griffith, having been intended as a deed of gift)
from said premises to other property, therefore this deed is
made to revest the title to said premises in the said William
S. Moss, in consideration of other property received in ex-
change, and to and for the same uses and purposes, the receipt
of which said property is hereby acknowledged." This deed
contained no covenants. The daughter at the time the
stipulation was entered into had no children, and is still the
wife of Griffith.
On the 5th day of March, A. D. 1867, Moss conveyed
the premises to the county of Peoria. This deed contained
full covenants. On the 20th day of April, 1867, the
county of Peoria conveyed the premises to plaintiff in error,
for the consideration of $5,700, and covenanted that the county
was seized of a good, sure, perfect, absolute and indefeasible
estate of inheritance in the law in fee simple ; that it had good
right, full power and lawful authority to grant, bargain, sell
and convey the same ; that the same was free and clear of and
from all former and other grants, bargains, sales, liens, taxes,
assessments and incumbrances. The plaintiff took posses-
sion under the deed and inclosed the same with a fence, but
the same had been otherwise unoccupied during the time, and
plaintiff had derived no profit therefrom and has paid taxes to
the amount* of $392.88, and still has possession. He paid
the full value of the property except $1,250, for which he gave
his note and a mortgage on the premises, and the note has been
assigned to one Jack.
At a session of the board of supervisors, plaintiff ten-
dered to the county a deed for the premises, and caused a no-
tice to be served on them that inasmuch as the county had no
title when they conveyed to him, and had afterwards acquired
no title, he tendered the deed and offered to surrender
1874.] Frazer v. Supervisors of Peoria Co. 285
Opinion of the Court.
possession, and demanding a re-payment to him of the
purchase money, with interest, taxes and costs of conveyance,
but the board of supervisors refused to comply with the
request.
Upon this agreement of facts the circuit court found for
defendants, and rendered a judgment against plaintiff, to re-
verse which he prosecutes this writ of error.
It is conceded by all parties that Harriet took an uncondi-
tional life estate. But as to what became of the remainder of
the estate the parties are not agreed. Defendants in error insist
that Moss, the grantor, retained the fee to support the partic-
ular estate, liable to be defeated by the contingent remainder,
on the birth of children of her body. And that until the birth
of a "child the grantor and the grantee, by uniting in a convey-
ance, could pass the entire absolute fee. Or where the grantee
so conveyed to the grantor he became invested with an abso-
lute fee and could convey it to whom he might choose. And
hence the county took and conveyed a fee simple title, free from
the contingent remainder.
On the other hand, it is contended that by virtue of the
sixth section of our conveyance act the strict rules that
obtained at the common law and under the statute de donis
have been modified, and that under a deed of the character of
that made by Moss to his daughter the grantee only takes an
unconditional life estate, and the remainder, by force of the
statute, vests in fee in the heirs already in being, or if there are
no children of the body at the time, then the fee is in abeyance
until a child is born of her body, when the remainder vests
in the heir, subject to be defeated in part by the birth of other
children, who at birth become invested with the fee to their
share. And that under the 14th section of the same act, the
fee having been limited in remainder to the children of her
body, they would take at birth, whether they were in being
at the time the conveyance was made or were born after-
wards.
To see the force of these sections more clearly, and to appre-
286 Frazer v. Supervisors of Peoria Go. [Sept. T.
Opinion of the Court.
ciate more fully their practical operation, it is perhaps neces-
sary to review to some extent the law on this subject as it
stood prior to the adoption of these statutory provisions. At
the common law, a conveyance to a person and the heirs of
his body, whether generally or specially, created a conditional
fee, which wras held to be performed and the fee vested upon
the birth of issue. It was held that there was an implied con-
dition that if the donee should die without such heirs, the land
should revert to the donor. This was a condition annexed to
all grants, by operation of law, that on the failure of the heirs
specified in the grant, the grant should be at an end and the
land return to the ancient proprietor. 2 Bl. Com. 110. The
condition annexed to these fees by the common law, was held,
where it was to a man and the heirs of his body, to be a gift
on condition that it should revert to the donor if the donee
had no heirs of his body ; but if he had, that it should remain
to the grantee. Hence it was called a fee simple, on condition
that he had issue. And when the condition was performed
by the birth of issue, the estate in the grantee became absolute
and unconditional. And when the condition was thus per-
formed, the estate became absolute for at least three purposes.
First, to enable the grantee to alien the land, and thus to bar
both his own issue and the donor; second, to subject him to
forfeit it for treason ; and third, to empower him to charge
the land with rents, commons and certain other incumbrances.
2 Bl. Com. 111. If after such performance of the condition
the grantee did not alien the land, and the heir died and then
the grantee died, the estate reverted to the donor. To obviate
this reversion it was customary for the grantee, on the birth
of issue, to alien and then repurchase, so that he might become
vested with a fee simple absolute that would descend to his
heirs generally. lb. This was the state of the law when par-
liament adopted the statute de donis conditionalibus.
The effect of that statute was, to prevent the grantee from
aliening, after birth of issue, so as to cut off or bar this estate,
which descended in like manner from generation to generation
1874.] Frazer v. Supervisors of Peoria Co. 287
Opinion of the Court.
to the class of heirs described in the deed to the first donee.
Bat on failure of issue the land reverted to the donor. It was
held that by this act the estate was divided into two parts,
leaving in the donee a new kind of particular estate called a
fee tail, and investing in the donor the ultimate fee simple in
the land' expectant on the failure of issue, which expectant
estate is what is called a reversion. And it was obviously the
purpose of the General Assembly, in adopting the sixth section,
to prevent the tying up of titles in perpetuity by entails. This
was manifestly the first purpose, and another was, to carry out
the intention of the grantor in making the conveyance, that
the land should go in remainder to the particular persons desig-
nated in the deed. The artificial and highly technical rules
of the ancient common law are not known or understood by
the people generally or by the great majority of persons who
are called upon to prepare conveyances, and hence it was also
the purpose of this statute to more effectually carry out the
intention of the parties. But few understand the rule in
Shelltfs Case, which is defined to be, "In any instrument, if a
freehold be limited to the ancestor for life, and the inheritance
to his heirs, either mediately or immediately, the first taker
takes the whole estate ; if it be limited to the heirs of his body,
he takes a fee tail ; if to his heirs, a fee simple." 1 Preston
on Estates, 263.
The sixth section of our conveyance act provides that where
any person, under the common law, might become seized of
land, etc., by any devise, gift, grant or conveyance, etc., in
fee tail, such person, instead of becoming seized in fee tail,
shall be deemed and adjudged to be and become seized thereof
for his or her natural life only, and the remainder shall pass in
fee simple absolute to the person to whom the estate tail would,
on the death of the grantee, etc., in tail first pass, according
to the course of the common law, by virtue of such devise,
gift, grant or conveyance. The General Assembly must have
intended to refer to estates tail created by the statute de donis.
They speak of persons becoming seized of such estates by the
288 Frazer v. Supervisors of Peoria Co. [Sept. T.
Opinion of the Court.
common law, when we have seen that estates tail grew out of
the statute de donis, and not out of the common law. The
object of our statute was, to convert the estate tail in the donee
into an estate for life, and in the person who would first take
under the grant into an estate in fee simple absolute, and thus
cut off the reversion to the donor expectant on the failure of
issue of the donee, of this class designated in the instrument
conveying the land, and to vest the fee in the first taker.
It seems to us that this was the obvious purpose of the en-
actment. If, as is contended by defendants in error, the Gen-
eral Assembly intended to restore the common law as it stood
before the adoption of the statute de donis, they would simply
have repealed that statute, and left the donee with power, on
the birth of issue, to alien the estate, and re-purchase, and thus
cut off both the remainder and reversion. But this statute
has accomplished the same end, effectually declaring that the
person who would first take from the tenant in tail shall take
a fee simple absolute, and expressly provided that the donee,
in such a case, shall only have a life estate. We are at a loss to
see in what manner the donee could possibly cut off the re-
mainder, in the face of the statute, when it has unequivocally
stated that the remainder-man shall become invested with an
absolute fee, by operation of the deed or instrument creating
the estate. To so hold would be in manifest violation of the
express will of the General Assembly. This provision, we think,
repels, in the most unmistakable manner, any and all inference
that the donee might dock the remainder, or that the donor
should ever have the reversion, except on failure of the issue,
but that the estate in the heir of the body of the donee should
take the fee untrammeled and free from all conditions what-
ever.
The last clause of the section, in declaring that the fee should
pass according to the course of the common law, by virtue of
the instrument creating the estate, is manifestly intended in
the same manner as the reference to the common law in the
first clause of the section. It could not have been intended to
1874.] Frazer v. Supervisors of Peoria Co. 289
Opinion of the Court.
so limit or qualify the provision as to the manner the heir
should take, else other and very different language would have
been employed. Had such been the intention, the General
Assembly would no doubt have said that the heir, or person
first taking from the donee, should take as at the common law,
and before the statute de donis, and not that he should take
an estate in fee simple absolute. In this mode and this alone
can we harmonize the language of the statute and carry out its
provisions.
Before the statute de donis the donee only took a conditional
fee, subject to be defeated, and to revert to the donor in case
of failure of issue of his body. These conditions our statute
has effectually wiped out, as well as the tenure by fee tail,
leaving no doubt or possibility of a reversion. And it is im-
material, as affects the estate thus created, whether we say that
the statute has totally abolished estates tail, or whether we
say they are abolished only after the first degree, as the opera-
tion of the statute is the same, and vests the absolute fee in
the heir. Butler v. Uuestis, 68111.594; Voris v. Sloan,
ibid. 588; and Blair v. Vanhlarcum, 71 111. 290. These
cases hold that under such conveyances the heir, at birth, takes
a fee simple.
If any thing further was necessary to show that such was
the intention, although the fee might be in abeyance until the
birth of the child, we think it is done by the fourteenth sec-
tion of the conveyance act. It provides that " when an estate
hath been, or shall be, by any conveyance, limited in remain-
der to the son or daughter, or to the use of the son or daugh-
ter of any person, to be begotten, such son or daughter, born
after the decease of his or her father, shall take the estate in
the same manner as if he or she had been born in the life-
time of the father, although no estate shall have been conveyed
to support the contingent remainder after his death." Thus
it is seen that the estate may, under this statute, be in abeyance,
with no particular estate to support the remainder nor any
person in being to take the inheritance until he comes into
37— 74th III.
290 Frazer v. Supervisors of Peoria Co. [Sept. T.
Opinion of the Court.
being so that it can vest. From these enactments we are
clearly of opinion that children born after the execution of
the conveyance will take the remainder in fee, precisely in
the same condition as though they were at the time in being.
See Blair v. Vanhlarcum, supra.
It then follows that Harriet took only a life estate by the
deed from her father, and that by the deed a contingent re-
mainder was created in favor of the " heirs of her body," who,
when born, will, under the statute, take the absolute fee. And
by force of the same statute, Moss deprived himself of all
estate but a contingent reversion, and when he conveyed to the
county nothing passed but the life estate of Harriet which he
had acquired, and this right to the expectant reversion. He
had and could not have the fee, and hence could not convey it
to his grantee. He could, of course, convey no greater estate
than he held. Should Mrs. Griffith die without having had
issue, then the title would no doubt revert to Moss, if living,
or, if dead, to his heirs, and if there are proper covenants in his
' deed to the county, the fee would then inure to the benefit of
the county, and he or his heirs would be estopped to claim the
property. But that event has not occurred, and hence the
county did not have the fee.
It then follows that there was a breach of the covenant that
the county was seized of a good, sure, perfect, absolute and
indefeasible estate of inheritance, in the law, in fee simple,
and of the covenant that the premises were free and clear
from all former grants, bargains and sales. We have seen that
he did not own the premises in fee, but had, by a former sale,
divested himself of the fee simple title, and had not regained
it. And these covenants, being in the present tense, have been
always held to be broken, if at all, on the delivery of the deed.
They are unlike the covenant for peaceable enjoyment or of
general warranty, which are covenants to be performed in the
future, and are only to be broken by eviction. Nor is the
30venant answered by placing the grantee in possession. That
1874.] Frazer v. Supervisors of Peoria Co. 291
Opinion of the Court.
is a seizin in fact, while the covenant is that the county was
seized, in law, of the fee.
The plaintiff in error did not intend to purchase any thing
less than the fee, nor did the defendant covenant that it had
sold any thing less. He did not purchase a mere possession
or right of possession. Nor did he intend to purchase a mere
life estate. And shall he be told that, although he intended
to purchase, and the county intended to sell him the fee, and
covenanted that they had, he must be content with a life estate ?
That although he paid the full price of the land with perfect
title, he must be satisfied with only a life estate worth
perhaps not one-tenth of the sum he paid 'I Shall it be said
that, being let into possession under a mere life estate, the
covenant of lawful seizin in fee is answered % We think not,
though some courts seem to so hold. In the cases of Brady
v. Spurck, 27 111. 482, King v. Gilson, 32 ib. 348, and
Baker v. Hunt, 40 ib. 264, it was held that if there is a
breach of the covenant of seizin it is at the delivery of the deed.
This, then, is repugnant to the notion that a mere seizin in fact
answers the covenant of seizin, as the breach occurs at or before
possession is or can be delivered.
It remains to determine what is the measure of damages.
We can see no reason why plaintiff in error should not recover
the purchase money he has paid, with interest ; also, all taxes
he has paid on the premises. The covenant being broken, and
failing to obtain the title he purchased, he had only to tender
a deed reconveying all the interest he had acquired from the
county, and then recover what he had paid for and on account
of the purchase of the lots. If the county has negotiated any
of his notes for the purchase money, it must, of course, either
take up and surrender the security or pay plaintiff in error to
take it up, so as to become released from liability thereon.
The title purchased did not pass, and on a recovery both par-
ties should be placed in statu quo. The county should have
restored to it all the title it conveyed, and plaintiff in
error all money paid, with interest, and all taxes paid, and
292 The People v. Meaoham. [Sept. TV
Syllabus.
with a deduction therefrom for all rents and profits which
have been or could have been received from the property.
This is reasonable, just and proper as the measure of damages.
And whether he may recover for notes negotiated by the
county must depend upon whether the county shall release and
discharge him from liability on the same.
The judgment of the court below is reversed, and the cause
remanded.
Judgment reversed.
The People of the State of Illinois
■ v.
Urban D. Me a cham.
1. Scire facias — sufficiency of proof on plea of nul tiel record. On plea
of nul tiel record to a scire facias upon a forfeited recognizance, if the recog-
nizance, with the certificate of the magistrate attached and the indorse-
ments on it, together with the indictment, and the record of its return into
court, and the judgment declaring a forfeiture, are read without any specific
objections, this will sustain the issue on the part of the people.
2. Recognizance — validity of, does not depend upon the original charge
being the one for which the indictment is found. It matters not whether the
principal in a recognizance was examined on the charge for which he is
indicted or some other, provided it was for a bailable offense. If examined
for any offense which is bailable, the recognizance will be good.
3. Same — certificate of justice. The certificate of a justice of the
peace to a recognizance that it was taken, entered into and acknowledged
before him is sufficient.
4. Scire facias — plea denying official character of justice. In a scire
facias upon a recognizance, a plea that the committing magistrate was
not a justice of the peace amounts to nothing. By entering into the recog-
nizance, the cognizor admits the official character of the person making the
commitment, which cannot be inquired into collaterally.
5. Burden of proof — death of principal in recognizance. On a plea
of the death of the principal in a recognizance, the burden of proof rests
upon the defendant.
1874.] The People v. Meacham. 293
Statement of the case.
Writ of Error to the Circuit Court of Stephenson county ;
the Hon. Benjamin R. Sheldon, Judge, presiding.
This was a scire facias upon a recognizance entered into by
one Thomas H. Needham, as principal, and Urban D. Mea-
cham as surety, before Abraham T. Green, a justice of the
peace, for the appearance of Needham before the circuit
court to answer a charge for an assault with intent to commit
a bodily injury, without stating upon whom or with what
instrument. The certificate of the justice was as follows :
" Taken, entered into and acknowledged before me this 26th
day of August, 1865.
"A. T. Green, J. P."
The recognizance was marked i; tiled Sept. 4, 1865, E. P.
Hodges, clerk."
The record showed the finding and return by the grand
jury of an indictment against Needham for an assault upon
Isaac Zortman, with a deadly weapon, to wit, a pistol, with
intent to inflict upon Zortman a bodily injury,, without any
considerable provocation therefor.
The defendant Meacham, alone, was served, and pleaded nul
tiel record, and several other pleas, the second and fourth of
which were, that Needham was not examined before Green
upon the charge of unlawfully making an assault upon Zort-
man with a deadly weapon, etc., as stated in the scire facias.
The fifth denied that Green was a justice of the peace of the
county. The sixth denied that Green made a certificate that the
recognizance was taken and approved by him, and alleged that
he did not certify the same to the clerk of the circuit court on
or before the next term. The other facts of the case are
found in the opinion of the court.
Mr. James K. Eds all, Attorney General, for the People.
Mr. U. D. Meacham, pro se.
294 The People v. Meacham. [Sept. T.
Opinion of the Court.
Mr. Justice Bkeese delivered the opinion of the Court :
This was a proceeding by scire facias, in the circuit court
of Stephenson county, on a forfeited recognizance entered into
by Urban D. Meacham, as surety, for the appearance of Thomas
H. Needham, to answer a charge of an assault with intent to
commit a bodily injury.
Meacham was duly served, and appeared and pleaded several
pleas, on which issues were made up and tried by the court, by
consent, without a jury. The court found the issues for the
defendant and rendered judgment that the defendant be dis-
charged from his recognizance herein.
Proper exceptions were taken on behalf of the people, and
the record brought here by writ of error.
The first point made is on the plea of nul tiel record. We
are satisfied this plea was not sustained by the evidence. The
recognizance, with the certificate of the magistrate attached,
and the indorsements upon it, together with the finding of the
indictment, and of its return into court, and the judgment
of the court declaring the forfeiture, were all read in evidence
without any specific objection by the defendant, and sustained
the issue on this plea in favor of the people.
Pleas numbered two and four presented immaterial issues,
on whi(3h the court should have found for the people, if they
were considered by the court.
It was held by this court in C Brien v. People, 41 111. 456,
that it mattered not whether the principal was examined or
not before the justice who committed him, upon that charge
or some other, provided it was a bailable offense. It was of
no importance what the offense charged against the principal
may have been, if it was bailable. The only important ques-
tion is, did the cognizor undertake his principal would appeal
and answer to the charge.
The plea that the committing magistrate was not a justice
of the peace, amounts to nothing. The cognizors admitted by
their undertaking that he was a justice of the peace, and the
1874.J The Tillage of Dwight v. Palmer. 295
Syllabus.
inference is, from the recitals in the recognizance, that the
officer was acting as a justice of the peace — he was de facto a
justice of the peace, whether rightfully or not cannot be in-
quired into in a collateral proceeding. .
As to the seventh plea, we see no objection to the certificate
of the justice of the peace; it is all the law requires, (Law-
rence, v. The People^ 17 111. 172,) and the clerk's indorsement
of filing is all sufficient.
As to the eighth plea, which avers the death of the princi-
pal, no proof was offered on this fact — the onus was on the
defendant, and he should have maintained it by sufficient
proof.
The court erred in rendering judgment for the defendant
Meacham, and it should be reversed and the cause remanded.
Judgment reversed.
Mr. Justice McAllistee : I do not concur. The offense
with which the principal was charged was not bailable. It was
one of which the justice had exclusive jurisdiction. Hence he
had no authority to take bail. It was for a simple assault, and
the justice should have tried the accused instead of taking bail,
he being the only officer or court authorized to take jurisdic-
tion. In my opinion the recognizance was void, and the court
below decided correctly in so holding.
Mr. Justice Sheldon took no part in the decision, having
decided the case below.
The Village of Dwight
v.
Charles L. Palmer.
1. Contract — of village officer with the trustees, prohibited. An officer
of a village incorporated under the act July, 1872, in relation to cities and
villages, is prohibited from making any contract with the trustees to dc
296 The Tillage of Dwight v. Palmer. [8ept. T.
Opinion of the Court.
work for the village, to be paid for out of the treasury, and any such con-
tract is void, and such officer will be entitled to no compensation for any
thing he may do under such contract.
2. Where a clerk of the board of trustees of an incorporated vil-
lage contracted to publish certain ordinances for $300, which was re-
scinded before any work was done under it, and such officer then resigned
his office, but the contract was never renewed after acceptance of his resig-
nation : Held, that he was not entitled to compensation for any ordinances
he may have published afterward, as it was done without authority.
Appeal from the Circuit Court of Livingston county ; the
Hon. Nathaniel J. Pillsbury, Judge, presiding.
This was an action of assumpsit, by the village of Dwight
against Charles L. Palmer. The declaration contained only
the common counts for money had and received, etc. On a
trial there was a verdict and judgment in favor of the defend-
ant. The opinion of the court states the material facts of the
case.
Mr. A. E. Harding, for the appellant.
Mr. S. S. Lawrence, and Mr. L. G. Pearre, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
The declaration in this case contains only the common
counts. The pleas are : first, non-assumpsit ; and second, nul
tiiel corporation.
The facts in this case are briefly as follows : On the 11th
day of August, 1873, the village of Dwight entered into a con-
tract with appellee, who was at that time the proprietor of the
only newspaper published in the village, to publish the ordi-
nances enacted by the board, which the appellee undertook to
do for the consideration of $300. The same evening on which
the resolution was passed, appellee, who was himself clerk of
the board of trustees, and acting as such, presented to the
president of the board three blank orders for his signature,
which he signed, to be filled up as he supposed with the
amounts of a like number of bills previously audited. That
1874.] The Village of Dwight v. Palmer. 297
Opinion of the Court.
night or the next morning, appellee filled up one of the blank
orders with the sum of §300, the amount of his contract, and
on presentation to the treasurer it was promptly paid. No
part of the work had then been done, nor had his bill been
audited, nor was there any agreement to pay for the work in
advance.
The members of the board became dissatisfied with the con-
duct of appellee in drawing the money before any part of the
work had been done. A meeting of the board was immedi-
ately called by the president, at which appellee was present.
At that meeting it was proposed appellee should return
the money which it is alleged he had wrongfully obtained, but
this he declined to do. A resolution was then passed requir-
ing him to give bond with sufficient security for the faithful
performance of his contract. Appellee agreed to this propo-
sition and had such bond prepared, but no one ever called for
it, and consequently it was never delivered or accepted.
On the 15th of August the board of trustees held another
meeting, at which the resolution authorizing appellee to print
and publish the village ordinances passed on the 11th of
August was rescinded, as was also the resolution of the board
requiring security for the performance of the contract. Ap-
pellee at this meeting tendered his resignation as clerk, the
consideration of which was laid over to the next regular ses-
sion, which would be held on the 19th of the same month. At
the next session of the boai^the resignation of appellee was
accepted, to take effect on the 19th of August. Only a portion
of the work had been done when the trustees undertook to
rescind the alleged contract, and there had then been no num-
oer of the paper issued in which the ordinances could be pub-
lished.
This action was brought by the village to recover of appellee
the $300 obtained under the alleged contract. The right of
action is predicated upon the ground the contract with appel-
lee, he being an officer of the village, was prohibited by law,
and hence void.
38— 74th III.
298 The Village of Dwight v. Palmer. [Sept. T
Opinion of the Court.
The village of Dwight was organized under the general law
in force July, 1872, in relation to the incorporation of cities
and villages, which provides, " No officer shall be directly or
indirectly interested in any contract, work or business of the
city, or in the sale of any article, the expense, price or consid-
eration of which is to be paid from the treasury, or by any
assessment levied by any act or ordinance." This provision is
made to apply to villages as well as to cities organized under
that law.
The appellee, being himself a village officer, could make no
contract with the trustees to do work for the corporation to
be paid for out of the treasury, and hence the alleged contract
for printing the ordinances was absolutely void. It was a
work of supererogation on the part of the trustees to attempt
to rescind it. It had no binding force at all, and whatever
was done by appellee under it was done without any authority
from the village.
The money was, therefore, unlawfully obtained. Appellee
had no right to it. He was entitled to no compensation what-
ever from the village for any thing he may have done under
the alleged contract while he was one of its officers. There is
no pretense the board ever authorized him to do any work by
way of publishing the ordinances, after his resignation was
accepted on the 19th day of August. What the individual
members of the board may have said to him on the street in
relation to the matter, if they safQ. anything, is of no conse-
quence.
The contract was formally rescinded while appellee was an
officer of the village, and was never renewed by the trustees
after his resignation was accepted. If, therefore, appellee pub-
lished the ordinances, he did it without authority, and cannot
enforce payment from the village.
It seems to be insisted, that because the law requires the
ordinances to be published in a newspaper, if one be printed in
the village, and because appellee was the proprietor of the only
newspaper then published in the village, this fact would in
1874.] Blazey et al. v. Delius et al. 299
Syllabus.
some way render the contract valid. We cannot concur in
this view. Appellee, if he desired to enter into any contract
with the village authorities to do work for which payment was
to be made out of the treasury, should first have tendered his
resignation as a village officer. His contract would then have
been valid ; but while he continued to exercise the functions
of an office he could make no lawful contract to do work that
was to' be paid for out of the treasury, or by an assessment
under any act or ordinance of the village.
Appellee has received money out of the village treasury
under an illegal contract, and under such circumstances as
render it against the policy of the law for him to retain it.
The court should have given appellant's instructions without
modification. Those given for appellee are in conflict with
the views expressed in this opinion, and ought not to have
been given.
For the reasons indicated the judgment will be reversed,
and the cause remanded.
Judgment reversed.
Charles Blazey et al.
v.
William Delius et al.
1. Foreclosure — sale for part of debt not due. On foreclosure of
mortgage the court may direct the whole mortgaged premises to be sold, if
most conducive to the ends of justice in reference to the equitable rights
of all parties, although a part only of the mortgage debt has become due ;
but the fact that the premises are a meager and scant security, and are
going to ruin and decay, does not justify their sale for a debt not due.
2. On bill to foreclose two mortgages, one of which embraces land not
included in the other, and where the whole debt is not due, the decree
found that the mortgagor was insolvent and the premises could not be sold
in parcels without prejudice to the parties, when there was no allegation
in the bill to admit such proof, and authorized a sale en masse for the whole
debt due and to become due : Held, that the decree was erroneous.
300 Blazey et al. v. Delius et al. [Sept. T.
Statement of the case.
3. Same — of the decree for sale for debt not all due. If a sale of mort-
gaged premises is ordered for the entire debt, a part of which is not due,
the decree should protect the rights of the mortgagor, so that in redeeming
he will not be compelled to pay mouey before it is due under the contract.
4. Same — sale of lands not embraced in. Where two mortgages are
partly upon the same premises, bat one including land not in the other, it
is error to decree the sale of the land not embraced in one mortgage for its
satisfaction, and thereby increase the kburden upon the premises in the
other mortgage.
Writ of Error to the Common Pleas Court of the city of
Aurora ; the Hon. Richard G\ Montony, Judge, presiding.
On the 15th day of November, 1873, William Delius and
Detmar Delius, defendants in error, filed their bill in chancery
against Charles Blazey and Margareth, his wife, to foreclose. a
mortgage executed by the two latter on the 3d day of Janu-
ary, 1872, to secure the payment of a promissory note of that
date, made by said Charles, payable on July 8, 1876, with ten
per cent interest payable annually. The bill states that $340
of interest is due ; that the premises are a scant security
therefor; that the property had been sold for the taxes of 1870
and 1871 ; that complainants had been compelled, to save the
property, to pay $200 to redeem it from the tax sale ; that
there was situated upon the premises a brewery with large cel-
lars, together with out houses, barns, stables, ice-houses and a
dwelling-house, and vats, kettles, boilers, etc., fixtures attached
to the realty ; that the premises are going to ruin and decay ;
and the bill prays a decree of sale for the payment of the
amount due for principal and interest, and the amount paid to
redeem from the tax sale. On the 8th day of January, 1874:,
the complainants filed their supplemental bill, stating that since
the filing of the original bill the further sum of $340 interest
had become due ; and that also, on the 5th day of January,
1874, the complainants, by purchase and assignment, acquired
the ownership of certain promissory notes and a mortgage to
secure their payment made, the notes by Charles Blazev, and
the mortgage by himself and his wife, Margareth, on the first
1874.] Blazey et al. v. Delius et at. 301
Opinion of the Court.
day of June, 1862, the notes, amounting in the aggregate to
$5,500, and payable two, four, six, eight and. ten years from
date, with six per cent interest, on which was due the sum of
$4,400, with interest from April 23, 1871 ; that the mortgaged
premises are a meagre and scant security, and praying a sale
for the payment of the amount due for principal and interest
on the said notes and mortgages. The property described in
the two mortgages is in part the same, the last mortgage for
$3,400 including all that described in the first mortgage, and
some additional land.
The said Charles and Margareth Blazey having entered their
appearance and failed to answer, a rule to answer instanter
having been taken, the original and supplemental bills were
taken for confessed against them, and after the hearing of
proofs the decree found that there was due in all $6,138.25,
besides $3,400 not yet due, and ordered that, in default of
payment of the sum due within ten days, the premises be
sold in parcels, or so much thereof as would be sufficient to
pay the amount of $6,138.25 with interest and costs, and if
there should be no bidders when offered in parcels, then the
premises might be sold in whole to make the whole amount of
the indebtedness due and yet to become due, to wit, the sum
of $9,538.25, together with interest and costs. The defend-
ants sued out this writ of error.
Messrs. Wheaton, Smith & McDole, for the plaintiffs in
error.
Messrs. Brown & Southworth, for the defendants in error.
Mr. Justice Sheldon delivered the opinion of the Court :
It is impossible to uphold this decree in its present form.
It provides that in case there shall be no bidders for the prem-
ises when offered in parcels, then the premises may be sold in
whole, to make the whole amount of the indebtedness due and
302 Blazey et al. v. Delius et al. [Sept. T.
Opinion of the Court.
to become due, of which $3,400 would not become due until
July 3, 1876.
This was erroneous. JSTot that the court might not direct
the whole mortgaged premises to be sold if that should be
most conducive to the ends of justice in reference to the equit-
able rights of all parties, although a part only of the mortgage
money had become due. Bank of Ogdensburgh v. Arnold, 5
Paige, 38. The decree, it is true, finds that Charles Blazey is
insolvent ; that the premises cannot be sold in parcels without
great prejudice to both complainants and defendants. But
there is no allegation in the bill to admit such proof, the only
allegation in that regard being that there are situated upon the
premises a brewery, dwelling-house, etc. The premises em-
brace a block of ground and several lots in another. block, be-
sides other land. All the improvements might have been on
any one lot, or parcel, for aught that appears by the bill.
There is no allegation that the premises were not capable ot
being sold in parcels, or of being divided, without manifest
injury to all the parties concerned, nor of facts showing the
same. There is an allegation and a finding in the decree that
the premises are going to ruin and decay, and that they are a
meager and scant security ; but those circumstances would not
give the complainants any right in equity to have the prem-
ises sold for a debt not due. Campbell v. Macomb, 4 Johns.
Ch. 533. And had it been necessary, in order to raise what
was due, to sell the whole of the mortgaged premises because
consisting of one entire subject, care should have been taken
to protect the rights of the mortgagors as far as might be.
The mortgagors would have had a period of time after sale
for redemption. In case of a sale of the whole premises, in
order to the exercise of such right to redeem, they would have
been obliged to pay $3,400 before the time when it was due
from them by their contract. Their rights in this respect
should have been saved by the decree.
The $3,400 mortgage embraces land not included in the
$5,500 mortgage. In case there could not be a sale in parcels,
1874.] ISTispel v. Wolff. 303
Syllabus.
the whole mortgaged premises in both mortgages were to be
sold for the satisfaction of both mortgage debts.
The improvements, for any thing that appears, and what
constituted the chief value of the whole property, might have
been situated upon that part of the premises in the
$3,400 mortgage which was not covered by the other mort-
gage ; and thus, under the decree, the $5,500 mortgage debt
might have been largely satisfied out of land described in the
$3,400. mortgage, and not covered by the mortgage to secure
the $5,500 debt, whereas that debt was not entitled to be sat-
isfied out of any other land than that embraced in the mort-
gage given to secure its payment*
The decree must be reversed, and the cause remanded for
further proceedings consistent with this opinion.
Decree reversed.
Elizabeth Nispel
v.
Isaac Wolef.
1. Appeal — setting aside dismissal, discretionary. Where an appeal is
dismissed for want of prosecution, it is discretionary with the court to
allow or deny a motion to vacate the order of dismissal, and this court will
not interfere with the exercise of that discretion, except in case of its fla-
grant abuse.
2. Same — negligence ground for refusal. On motion to set aside an
order dismissing an appeal, when the affidavit in support of the motion
fails to show diligence in prosecuting the appeal, as, that the attorney was
absent when the cause was called in its order, trying a case before a jus-
tice of the peace, on the information of one of the clerks that there was a
trial pending, which would be likely to last the whole day, there will be
no error in refusing to vacate the order and reinstate the case.
3. Negligence — in prosecuting appeal. Where an appeal suit is set
for trial on a particular day, it is negligence for the appellant's counsel to
leave the court because there is a trial pending likely to occupy the whole
day, and no relief can be granted against the consequence of such neglect.
304 Nispel v. Wolff. [Sept. T.
Opinion of the Court.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Mr. B. Walsh, for the appellant.
Mr. Philip Stein, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court :
Appellee brought suit against appellant and John C. Nispel,
before a justice of the peace of Cook county. Service of
summons was had on appellant only, and judgment was ren-
dered by the justice in favor of appellee and against her for
$95.68 and costs of sui't. From this judgment she appealed
to the Superior Court of Cook county, where, at the July term,
1874, of that court, her appeal was dismissed for want of
prosecution, and a procedendo was awarded to the justice of
the peace. She subsequently made a motion, supported by
affidavits, to vacate this order and reinstate the appeal, which
the court overruled.
In this action of the Superior Court there was no error.
It was discretionary with the court to allow or deny the
motion, and, except in cases where it is clearly shown there has
been a flagrant abuse of such discretion, we will not interfere.
The affidavits failed to show diligence in prosecuting the
appeal. It was not pretended that the case had been called
out of its order, and it was admitted that counsel knew that
the case was set for trial on the day it was called and dismissed.
The only excuse for the absence of counsel which is shown is,
that he was engaged at the time in a trial before a justice of
the peace ; and that he had been informed by one of the clerks
of the court that there was a trial pending before the court
which would likely last the whole of the day on which the
case was set for trial.
Attorneys are not justified in taking the opinions of clerks
and other subordinate officers of the court with regard to what
length of time cases on trial will probably occupy, or whether
1874.] Kispel v. Wolff. 305
Opinion of the Court.
cases set for trial on a particular day will be reached on the
call of the docket on that day or not. When a case stands
for call or trial at a particular time, they are bound to know
that it may be reached; and it is their duty then to be ready
and answer to the case. It is within the experience of most
attorneys that it cannot be anticipated with absolute certainty
how much time the trial of any case will occupy. In all cases
unanticipated circumstances may intervene, necessitating the
instant termination of the trial. Applications for delay or
indulgence to cover necessary or convenient absence of counsel,
parties or witness should, unless under exceptional circum-
stances, be addressed to the court ; and whoever ordinarily
chooses to be absent, wThen the case in which he is interested
is liable to be called, without making such application, acts at
his own peril,, and has no legal claim to relief from its conse-
quences.
We cannot look into the character of the defense disclosed
by these affidavits, because, however meritorious it might have
been if interposed on trial, the right to interpose it was for-
feited by the negligence of appellant and her counsel.
It appears that after the appeal was taken from the justice
of the peace, and before its dismissal in the Superior Court, on
appellee's motion summons was issued, and served on John C.
Nispel, to make him a party to the judgment, and he entered
his appearance in the Superior Court.
It is evident that this circumstance in nowise affected the
regularity of the dismissal of the appeal, because he was not a
party to the judgment appealed from, nor was there any
authority in the law to make him a party thereto in this way.
Appellant was not injured by this irregularity, and no one else
complains of it.
Judgment affirmed.
39— 74th III.
306 Nispel et al. v. Laparle et al. [Sept. T.
Syllabus.
Elizabeth Nispel et al.
v.
William B. Lapaele et al.
1. Married women — power to contract. The right of a married woman
to engage in business in her own name with her separate property, neces-
sarily implies the right to purchase goods with which to carry it on, and to
bind herself by contract to pay for such purchases, and the law that author-
izes this will compel her to abide by and perform such contracts.
2. Same — notes by, when binding. If a married woman gives her promis-
sory notes with her husband for goods bought by her as her own property,
for her own use, in her own business as a saloon keeper, carried on by her
in her own name, with her own means, and which were used by her in
such business for her own benefit, without the interference of her husband,
she will be liable to an action on the notes, notwithstanding her coverture.
3. Demurrer — admission of facts in pleading. By demurring to a
pleading, such as a replication, the party admits the substantial facts al-
leged in the pleading demurred to, and no proof of them is necessary on a
trial upon other issues.
4. Judgment — on demurrer binding as an estoppel. A judgment on a
demurrer is equally conclusive, by way of estoppel, of the facts confessed by
the demurrer, as a verdict finding the same facts, and facts thus estab-
lished can never afterward be contested between the same parties, or those
in privity with them.
5. Contract — to extend time of payment. A contract to extend the
time of payment of notes upon giving other notes secured by mortgage on
good real estate, is not a defense to a suit on the original notes when the
mortgage is objected to as upon land of no value and for want of title in
the mortgagor, where these objections are not obviated or shown to be un-
founded.
Appeal from the Superior Court of Cook county ; the Hon.
Josiah McRoberts, Judge, presiding.
Mr. B. Walsh, for the appellants.
Mr. James Lane Allen, for the appellees.
1874.] Nispel et al. v. Laparle et al. 307
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of assumpsit, brought by appellees, in the
Superior Court of Cook county, against appellants, upon
three promissory notes.
The defendants filed five pleas to the declaration : 1st. The
general issue. 2d. That the plaintiffs, in consideration of de-
fendants agreeing to pay ten per cent interest, agreed to extend
the time of payment of the notes. 3d. That the plaintiffs
agreed to extend the time of payment of the notes upon the
understanding that defendants would give new notes and a
mortgage upon real estate to secure the same. 4th. Substan-
tially like the third. 5th. Coverture of defendant Elizabeth
Nispel.
Issue was formed on all the pleas except the fifth ; to this
plea the plaintiffs replied that the appellant Elizabeth Nispel
bought the goods for which the promissory notes were given
as her own property, for her own use, in her own business as
a saloon keeper, then carried on by her, in her own name,
with her own means, and were used by her for her own bene-
fit without the interference of her husband.
To this replication a demurrer was interposed, which the
court overruled, and defendants electing to abide by the
demurrer, judgment was therefore entered upon it. A jury
having been waived, a trial was had before the court, which
resulted in a judgment in favor of appellees for $299.80, to
reverse which the defendants have prosecuted this appeal, and
assigned two errors upon the record.
1st. The court erred in overruling the demurrer to the re-
plication.
2d. The court erred in finding in favor of the plaintiffs and
entering judgment against the defendants.
The question presented by the first error assigned is, admit-
ting that appellant purchased the goods for which she executed
the promissory notes, with her own means, as her own prop-
erty, for her use, in a business carried on in her own name,
308 Nispel et at. v. Lapakle et al. [Sept. T.
Opinion of the Court.
without the interference of her husband, for her exclusive
benefit, is she liable ? This is not an open question in this
court. We regard the law as well settled that her liability is the
same as if she were sole and unmarried.
The case of Cookson v. Toole, 59 111. 515, was an action
against a married woman to recover for work and labor, a plea
of coverture having been interposed, to which the plaintiff re-
plied the work and labor was performed in the improvement
and cultivation of defendant's farm and taking care of her
stock, which were her own separate property. In disposing of
the validity of the replication, it is there held : In the case at
bar, the separate estate, as is alleged in the replication, was de-
rived from persons other than defendant's husband ; it con-
sisted of a farm under cultivation, with implements and stock,
subject to her sole control and management, for her sole use
and benefit. The measure of her right to hold, own, possess
and enjoy this property, is that which an unmarried woman
would have. This right must, by necessary implication, carry
with it all the incidents to such a degree of enjoyment of
property, and one of those incidents is a legal capacity to con-
tract for servants and laborers.
The same principle there announced applies with equal force
to the replication in this case.
The right of appellant to engage in business in her own
name with her separate property necessarily implies the
right to purchase goods, to bind herself by contract for the
payment of such purchases, and it necessarily follows that the
same law that authorizes her to engage in business and
contract will compel her to abide by and perform these
contracts. Martin v. fiobso?i, 65 111. 129; Haight v. Mo-
Veagh, 69 id. 624.
We are, therefore, of opinion that the facts alleged in the
replication were sufficient in avoidance of the plea of coverture,
and the court properly overruled the demurrer.
This brings us to the second error assigued, and under this
head it is claimed by appellants that no proof was introduced
1874.] Nispel et al. v. Laparle et al. 309
Opinion of the Court.
to establish the fact that the notes sued upon were made by
Elizabeth Nispel in respect to or regard of her separate prop-
erty. No proof was necessary upon this point other than that
appearing upon the record. The facts alleged in the replica-
tion, one of which was that the notes sued upon were given
for goods purchased by appellant with her own separate
money, and used and enjoyed by her as her own separate
property, were admitted of record by the judgment of the
court upon the demurrer.
A judgment rendered upon a demurrer is equally conclusive
(by way of estoppel) of the facts confessed by the demurrer
as a verdict finding the same facts would have been, since
they are established as well in the former case as in the latter,
by matter of record ; and facts thus established can never
afterwards be contested between the same parties or those in
privity with them. Gould's Pleadings, 4th ed. 444, §§ 43
and 44.
This, then, left the issues raised by the other four pleas,
only, to be determined by the court upon the evidence intro-
duced.
The testimony relied upon by appellants the court held
was no defense to the action, and in this we concur entirely
with the decision rendered.
It was claimed by appellants that an agreement was made to
extend the time of payment of the notes in suit ; that the agree-
ment was they were to give other notes secured by mortgage
on good real estate owned by Elizabeth Nispel ; that the notes
and mortgage were made out and tendered, but appellees
refused to accept them.
It appears, however, that objection was made that the real
estate was worthless and the title was not in appellant.
When these objections were made and pointed out by appel-
lees to appellants, it does not appear that any efforts were made
to remove them.
Neither does the record before us show that the objections
were unfounded. One of the appellants testifies, it is true, that
310 David M. Force Manf. Co. v. Horton et al. [Sept. T
Opinion of the Court.
the real estate contained in the mortgage was unincumbered,
but whether it had any real value or who owned the title
does not appear.
We are of opinion that the appellants entirely failed to
establish a defense under the issues, and the judgment of the
court below was correct ; it will, therefore, be affirmed.
Judgment affirmed.
The David M. Foece Manufacturing Company
v.
Oliver H. Horton et al.
1. Exceptions — when necessary. When a cause is, by consent, tried
by the court, without the intervention of a jury, and no exception is
taken to the finding of the court and the judgment thereon, error cannot
be assigned on such finding and judgment, in the Supreme Court.
2. It is not sufficient for the order allowing an appeal to the Supreme
Court from a judgment of the circuit court, to state that exceptions were
taken to the judgment appealed from. Such exceptions should appear in
the bill of exceptions.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. G-ookins & Roberts, for the appellants.
Mr. James E. Munroe, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
Appellees brought an action of assumpsit, in the Superior
Court of Cook county, against appellants, to recover a sum of
money claimed to have been advanced by them at their
request to procure a large amount of insurance on their
1874.] David M. Force Manf. Co. v. Hoeton et at. 311
Opinion of the Court.
property. A trial was had before the court, by consent, a jury
having been waived. The court found the issues for the
plaintiffs, and assessed their damages at $1,492.65. for which
amount a judgment was rendered. Defendants prayed an ap-
peal, which was granted, and the record is brought to this
court to obtain a reversal.
The errors assigned are, that the court erred in finding the
issue, upon the evidence submitted, for appellees when the
finding should have been in favor of appellants, and in
rendering judgment in favor of appellees when it should
have been in favor of appellants. No exceptions were taken to
the finding of the issues by the court, or the final judgment
rendered.
The case of Mahony v. Davis, 44 111. 288, holds that it is
not necessary to ask the court to review the evidence which had
already been maturely considered. It nowhere intimates that
an exception to the finding is not necessary. Again, the stat-
ute (sec. 22, Practice act, R. S. 1845) expressly requires an
exception before the evidence can be reviewed, when the trial
is had by the court. That section provides that " Exceptions
taken to opinions and decisions of the circuit courts upon the
trial of causes in which the parties agree that both matters of
law and fact may be tried by the court * * * without the
intervention of a jury, shall be deemed and held to have been
properly taken and allowed, and the party excepting may assign
for error, before the Supreme Court, any decision or opinion
so excepted to, whether such exception relates to receiving
improper or rejecting proper testimony, or to the final judg-
ment of the court upon the law and evidence."
The statute is explicit in the requirement, and we are pow-
erless to dispense with or disregard its directions. The cases
of DicJchut v. DurreM, 11 111. 72, and Parsons v. Evans, 17
id. 238, are in point on this question. The case of Jones v.
Buff ma, 50 111. 277, makes the distinction, that a motion for a
new trial in a case like this need not be overruled, excepted to
and preserved in a bill of exceptions, where there is an excep-
312 Hayes et al. v. Hayes et al. [Sept. T.
Syllabus.
tion preserved to the final decision. See also Metcalfv. Fonts,
27 111. 110. The record as presented does not authorize us to
examine and pass upon the errors assigned.
If it should be said that the order allowing the appeal states
that exceptions were taken, the answer is, that the exceptions
do not appear in the bill of exceptions. See Boyle v. Levings,
28 111. 314; Drew v. Beall, G2 ib. 164. So that, in any view
of the case presented by the record, the questions sought to be
discussed are not properly before us for decision. But we
have examined the evidence, and will say that it does not, we
think, violate the principles of justice, even if some technical
rule may have been disregarded.
The judgment of the court below is affirmed.
Judgment affirmed.
Amheest Hayes et al.
v.
Maria B. Hayes et al.
1 . Domicile — defined. In a strict legal sense, the domicile of a person is
where he has his true, fixed, permanent home and principal establish-
ment, and to which, whenever he is absent, he has the intention of return-
ing. Actual residence is not indispensable to retain a domicile after it is
once acquired, but is retained by the mere intention not to change it and
adopt another.
2. Same — what necessary to a change. To effect a change of domicile
there must be an actual abandonment of the first, coupled with an inten-
tion not to return to it, and there must be a new one acquired, with actual
residence in another jurisdiction, coupled with the intention of making the
last acquired residence a permanent home.
3 A domicile in this State, within the meaning of the statute respecting
the descent and distribution of personal property, is not lost or changed by
the party residing in another State owing to domestic troubles, and by his
voting in such other State when its laws authorize him to vote on a resi-
dence of six months, or by his purchasing property on speculation in such
State, when there is no intention of making a final home there.
1874.] Hayes et al. v. Hayes et al. 313
Opinion of the Court.
Writ of Error to the Circuit Court of Rock Island county ;
the Hon. G. W. Pleasants, Judge, presiding.
Mr. William H. Gest, for the plaintiffs in error.
Messrs. Connelly & McNeal, for the defendants in error.
Mr. Justice Breese delivered the opinion of the Court :
This is a writ of error to the Rock Island circuit court, to
reverse a decree entered therein on the chancery side of that
court, in a proceeding commenced by bill on behalf of Am-
herst Hayes and others, claiming to be the heirs at law of the
Rev. Harvey H. Hayes, deceased, and against his widow,
Maria B. Hayes, who, with one Carlos L. Bascom, had taken
out letters of administration on the estate of the decedent.
It appears by the bill that Dr. Hayes died on the 20th July,
1867, at Rock Island, leaving Maria B. Hayes, his widow, and
no child or children, nor descendant of any child, and no
parents. Letters of administration were granted by the county
court of Rock Island county August 5, 1867. The bill alleges
that deceased was a resident of the State of Iowa at the time
of his death, within the view of the law of that State as to
distribution of the personal estate of an intestate ; that the
appraisers have certified to the widow the sum of eighteen
hundred and thirty-two dollars as the "widow's award," and
complains that she claims the whole of the personal estate.
The prayer of the bill is, that this award be set aside, and the
whole surplus, after the debts are paid, may be distributed
according to the law of Iowa.
An issue was made up on the question, where was the de-
ceased domiciled at the time of his death, within the meaning
of the law as to the distribution of the personalty. This issue
was tried by the court, by consent, without a jury, and the
court found that this State was the domicile of the deceased,
so far as the succession to his personalty was concerned.
40— 74th III.
314 Hayes et al. v. Hayes et al. [Sept. T.
Opinion of the Court.
The plaintiffs in error insist that this finding is against the
evidence.
We have given the testimony, voluminous as it is, a careful
reading and full consideration, and have reached the conclusion
it supports the decree.
It is said by authoritative text-writers, that the. term " dom-
icile," in its ordinary acceptation, means the place where a
person lives or has his home. In a strict legal sense, that is
properly the domicile of a person, where he has his true, fixed,
permanent home and principal establishment, and to which,
whenever he is absent, he has the intention of returning.
Story's Conn, of Laws, 39, § 41. It is further said, actual res-
idence is not indispensable to retain a domicile after it is once
acquired ; but it is retained, animo solo, by the mere* inten-
tion not to change it and adopt another. lb. 42, § 44.
Testing this case by these rules, the finding was clearly
right. It is not denied that the domicile of Dr. Hayes, from
1852 to May, 1860, was Rock Island, at which time, there be-
ing some disagreement with his wife, she went from their
home in Rock Island on a visit of uncertain duration to her
relatives in Washington city, and he himself went to Bentons-
port, in the State of Iowa, to supply a pulpit there for one
year. Before he left Rock Island he rented the homestead
and a part of the furniture, storing the balance on the premises.
When the year expired he engaged for another year, which
terminated in the spring of 1862, when he left, spending the
spring and summer in visiting his wife in Washington and his
friends in the East. In the fall of 1862 he returned to this
State, visiting some of his relatives, and spent the winter with
a brother, Gordon Hayes, living at Brighton, Iowa. In the
spring of 1863 he accepted an invitation to supply a pulpit at
Kossuth, Iowa, for one year, and after its expiration he re-
newed the engagement for another year, but neither at Ben-'
tonsport nor at Kossuth was he installed as pastor. Having
some spare funds, he bought in Kossuth a house and lot, on
speculation, in which he slept, taking his meals at a hotel. Pie
1874.] Hayes et al. v. Hayes et al. 315
Opinion of the Court.
voted at the election in 1863, and at the presidential election
in 1864, the laws of Iowa conferring the elective franchise on
a resident for six months. That the house was not purchased
as a residence is clear from the testimony, it was an invest-
ment merely.
When his engagement at Kossuth closed, in the summer of
1865, he left that place and returned to Rock Island, staying
there but a short time, and then proceeding to Washington
city, where his wife remained engaged in keeping a boarding-
house. With the exception of about two months in 1866,
which he spent at Rock Island, engaged in making repairs on
his property there, he remained at Washington with his wife,
until the last of June or first of July, 1867, when he returned
to Rock Island, and staying but a short time, proceeded to
Kossuth, collected the last payment due on the property he
had there sold, and returned to Rock Island with his library
and some other articles of property, and while there, on the
twentieth of July, 1867, he made a sudden exit from this
world.
At the time of his death he was the owner of several houses
and lots in the city of Rock Island, and other real estate in
other parts of the State. His wife, the defendant in this suit,
was at no time in Iowa, whilst her husband resided there; and
after his death, closing up her affairs in Washington, she re-
turned to the old homestead, where she has since remained.
There is a strong current running through all the mass of
testimony tending to show it was never the intention of Dr.
Hayes to make Iowa his home. It is inferable he would have
done so had his wife joined him there and been pleased with
the place and prospects. All his letters, and much of the tes-
timony, go to show Iowa was not regarded by him as his
home. Nothing can be inferred from the fact of his having
voted there ; that act was consistent with his domicile in this
State, the law of Iowa giving the right to a resident of six
months. He was such resident, undoubtedly, and as such had
a right to vote. This could, by no possibility, effect a change
316 Hayes et al. v. Hayes et al. [Sept. T.
Opinion of the Court.
of domicile. To effect a change of domicile there must be an
actual abandonment of the first domicile, coupled with an
intention not to return to it, and there must be a new domi-
cile acquired by actual residence within another jurisdiction,
coupled with the intention of making the last acquired resi-
dence a permanent home. Nothing of this is discernible in
the testimony in this record. The case of Smith v. The People,
4:4: 111. 16, may be referred to in support of this doctrine, and
other cases cited. Smith et al. v. Groom et al. 7 Fla. 200 ;
Shaw v. Shaw, 98 Mass. 158. But the doctrine does not
need the citation of authorities in its support.
There can be no doubt that the unsettled condition of the
deceased was in a great degree owing to domestic disturb-
ances. The great bulk of his property was in Bock Island,
and to that place his inclinations would naturally tend. To
that his thoughts would revert, for it was his home, which he
had never abandoned ;
" He still had hopes - his long vexations past — ■
There to return, and die at home at last ;"
and his hope was accomplished.
It is conceded, domicile is a question of fact and intention.
This is the proposition we have argued, and from the evidence
we are satisfied Dr. Hayes had no fixed, permanent home in
Iowa, nor any other home than Rock Island, and the circuit
court in so finding found the truth, as we understand it. And
the decree of that court must be affirmed. The domicile of
succession to the estate of Dr. Hayes was in the State of Illi-
nois at the time of his death.
Decree affirmed.
1874.] Bishop of Chicago v. Chiniquy et al. 317
Opinion of the Court.
The Catholic Bishop or Chicago
v.
Charles Chiniquy et al.
1. Chancery jurisdiction — enjoining ejectment suit. A court of equity-
has no jurisdiction to enjoin the prosecution of an action of ejectment on
the ground that the conveyance relied on by the plaintiff is absolutely
void for want of delivery and acceptance, or if delivered, it was procured
through threats and duress, the defense being complete at law.
2. Same — grounds for enjoining suit at law. The indispensable basis
upon which a defendant to an action at law may resort to a court of equity
to restrain the prosecution of such action is, that he has some equitable
defense, of which a court of law cannot take cognizance, either by reason
of want of jurisdiction, or from the infirmity of legal process.
3. Injunction — of action at law. An application to enjoin a suit at
law concedes the plaintiff's strict legal right to recover, but is based upon
the fact that the defendant has equities calling for the interference of the
court, as clear as the legal right it seeks to control.
4. Where an action of ejectment is sought to be enjoined on the grouDd
that the plaintiff's deed was never delivered and accepted so as to pass the
legal title, a court of equity cannot be invested with jurisdiction to so
declare by an allegation that the deed was subject to a trust which the
plaintiff is attempting to pervert.
Appeal from the Circuit Court of Kankakee county ; the
Hon. Charles H. Wood, Judge, presiding.
Messrs. Moore & Caulfield, for the appellant.
Mr. Melville W. Fuller, for the appellees.
Mr. Justice McAllister delivered the opinion of the Court :
This is an appeal from the decree of the circuit court of
Kankakee county, perpetually enjoining an action of ejectment
pending in that court, which had been brought by appellant,
as a corporation sole, having the legal title, against ap-
pellees, the defendants therein, to recover the land described
in appellees' bill of complaint herein.
318 Bishop of Chicago v. Chiniquy et al. [Sept. T.
Opinion of the Court.
The bill, so far as we can discover through its abounding
redundancies, really and substantially goes upon the ground
that appellant had no legal title to the premises, that the con-
veyance relied upon by the latter was absolutely void, and the
court has so found by the decree appealed from.
We might properly rest the case upon the sole ground of
want of jurisdiction in equity. If the conveyance was abso-
lutely void, as the court has found, for want of delivery and
acceptance of the deed, to the Bishop of Chicago, through
which deed the latter claimed title, that would have consti-
tuted a complete legal defense to appellant's action of eject-
ment. The indispensable basis upon which a defendant to an
action at law may resort to a court of equity to restrain the
prosecution of such action, is, that he has some equitable de-
fense which a court of law cannot take cognizance of, either
by reason of want of jurisdiction, or from the infirmity of
legal process. The application to equity necessarily concedes
the legal right, and it is upon the ground that such legal right
which is sought to be enforced by the action at law is subser-
vient to an equitable claim, which the defendant at law cannot
set up there, that the court takes jurisdiction. Because it
would be against conscience and good faith that the plaintiff
at law should use the advantage of which he is thus possessed
at law, when the legal right he is seeking to enforce is sub-
servient to equities which the defendant at law is powerless to
assert there. It is not upon the ground of want of legal right
in the plaintiff at law, that equity interferes, but upon the
principle of preventing a legal right from being enforced in an
inequitable manner or for an inequitable purpose. Equities
calling for its interference, as clear as the legal right which it
seeks to control, must be shown before a court of chancery
should interfere with an action at law. These principles are
recognized by all the authorities. Kerr on Inj. pp. 13, 14, and
cases in notes. They arise out of the very nature of the juris-
diction at law and in equity, and where properly applied har-
monize the powers of equity, with the constitutional right a
1874.] Bishop of Chicago v. Chiniquy et al. 319
Opinion of the Court.
party plaintiff has of having his case at law tried before a jury
according to the course of the common law. Where the ap-
plication is properly made, the defendant at law virtually says
to the plaintiff : " I do not controvert your legal right, bnt I
have a claim in respect of that right which in conscience
and good faith ought to control you in the exercise of
it ; and inasmuch as you have brought me into a for urn.
where you can establish and enforce that right, while by
the rules of that forum I am precluded from establishing
my claim, I will therefore transfer the controversy to
another forum, where, admitting your legal right, I shall seek,
and be allowed, if I can, to establish my claim, and by doing
so, control the exercise of your legal right." This is a very
different position from that of such defendant saying : " I deny
your legal right in toto, and inasmuch as I have no confidence
in juries, will withdraw the controversy from a court of com-
mon law into a court of chancery, where the facts may be set-
tled and the law applied by a single judge and without a jury."
That position amounts to an arbitrary deprivation by a court
of chancery of the right of a plaintiff at law to have his case
tried according to the course of the common law, a right se-
cured by constitutional guarantee. Now, in what respect does
the position of appellees differ from that just supposed \ The
appellant brought ejectment against them. They admit them-
selves in possession of the land in controversy, holding
adversely to him. They admit the deed under which he
claims is prior in time and was of record, but they say that
deed was never delivered and accepted so as to become opera-
tive, or, if it were, it was obtained by threats and duress, and
in either case it is absolutely void. Was not this a denial of
his legal right, and were not these fit questions to be deter-
mined in a court of law ? Most clearly they were. If appel-
lant had no title, for the reason that the deed relied on as
vesting him with the legal title was absolutely void, that would
seem to be conclusive of the whole case. That defense was
clearly available at law, where plaintiff at law had a right to
320 Bishop of Chicago v. Chiniquy et al. [Sept. T.
Opinion of the Court.
have it tried. The ground, the whole gist of the case made
by the bill, was, that the conveyance under which appellant
claimed was utterly void from the beginning. That proposi-
tion, decided in appellees' favor, effectually cuts off all connec-
tion of appellant with the land in controversy. The decree in
this case does determine that proposition in their favor. The
court finds, as fact, that the deed referred to in the bill and
made the subject of the controversy, was never delivered or
accepted, and, as matter of law, that it is void. This is far
reaching enough, it would seem, to make a finality of the mat-
ter ; but the decree goes farther. The deed was to the bishop
of Chicago and his successors in office, " in trust for the use
and benefit of the Catholic population of the parish of St.
Anne, in the county of Iroquois." The deed containing this
trust is by the decree declared void, for want of delivery and
acceptance, but it assumes to construe that trust, and declares
the intention of the grantors to have been for the use of the
whole population who had then settled at the colony of St.
.Anne; and also finds that the Catholic bishop of Chicago has
attempted to divert the property from the use of the whole
population of St. Anne to the use of a small portion thereof.
The counsel for appellees concede that the legal effect of the
decree is only to determine that the Catholic bishop cannot
assert legal title and the right of possession thereunder. That
is true, but because the only object of the bill was to deter-
mine the question of legal title, and the question upon which
it was to be determined was cognizable by the court of law, in
the action of ejectment, the court of chancery had no power or
authority to deprive the plaintiff in ejectment of his constitu-
tional right of a trial by jury, by the mere withdrawal of that
question to itself by means of the preventive power of injunc-
tion against proceeding at law. And we apprehend the other
matters covered by the decree, which render it not only illogi-
cal but absurd, were prepared for the purpose of showing a
color of jurisdiction. If the deed purporting to convey subject
to a trust never had any legal existence, what need could there
1874.] Bishop of Chicago v. Chiniquy et al. 321
Opinion of the Court.
be of attempting to construe that trust, and then declaring that
the bishop had been attempting to pervert it \
As before said, we might rest the decision of this case upon
the want of jurisdiction in the court to withdraw from the
court of law, the proper forum, the decision of the mere ques-
tion as to appellant's legal title ; but we go farther. The
decision of the court below, that the deed in question was
never delivered to or accepted by the grantee, is not only un-
supported by the evidence, but directly against the testimony
of the only witness upon the question. The deed bears date
December 20, 1851. The grantors were Antoine Allain and
wife. The grantee was the Right Rev. James Oliver Yande-
veld, bishop of Chicago. The land covered by it was situate
in the parish of St. Anne, which was a parish of the
Catholic church, in the diocese of which the grantee was
the bishop. Charles Chiniquy was a Catholic priest, and
as such had been appointed to the charge of that parish
by Bishop Vandeveld, under whose jurisdiction were both
the priest and parish. Allain, the owner of the land,
was a member of the Catholic church and of said parish.
Chiniquy had contracted for the purchase of the land in ques-
tion at the consideration of twenty-five dollars, for the purpose
of putting upon it a building for the religious and secular pur-
poses of the parish in his charge. There are some indications,
from his testimony, that he even then had ideas of seceding
from the Catholic church, as he a few years after openly did.
At all events, he desired to get the title of this land into him-
self, for such uses for the parish as he chose to declare. Ac-
cording to the usages of the church, he was required to have
it conveyed to the bishop of Chicago, for the use of the church.
He resisted this requirement for some time, destroying deeds
which the bishop had caused to be prepared for the purpose.
Allain, on his part, had no other purpose in conveying the
property than that it should go for the use of the congregation
of the church of Rome at St. Anne. After the bishop had
refused to accept a deed with the trust expressed, like that in
41 — 74th III.
322 Morehouse v. Moulding et al. [Sept. T.
►Syllabus.
question, this deed was executed, placed upou record, and then
taken by Chiniquy to the bishop, who at first, according to
Chiniquy's testimony, declined to accept it, but, after an
appeal made to him, which is described by the witness with
much dramatic effect, Chiniquy says : " And he was startled
by my prayers and tears, and he showed tears, then he shook
hands and accepted it ; he told me it was received." The case,
in this regard, rested wholly upon Chiniquy's testimony. The
bishop was dead. But the evidence is abundantly sufficient to
show both delivery and acceptance.
We are of opinion, also, that the decree is erroneous in re-
spect to the construction of the language creating the trust.
When the words are considered in the light of surrounding
circumstances, there is no doubt as to the purpose of the con-
veyance. It was for the use of the Catholic population of the
parish of St. Anne. When we consider that there was a
Roman Catholic society there, over which Chiniquy was priest,
Allain a member, and the grantee, bishop over all, who can
doubt that the conveyance was intended for the use of that
society ? The decree of the circuit court must be reversed,
and the bill dismissed.
Decree reversed.
Philo Mobehouse
V.
Thomas Moulding et al.
1. Mechanic's lien — payments after notice by sub-contractors. After
notice to the owner, of the claims of sub-contractors, the owner cannot
rightfully pay the original contractor so as to defeat the demands of the
sub-contractors, nor can he pay one sub-contractor in full and another
nothing, as his caprice or partiality may determine.
2. Same — when balance due must be paid pro rata. When there is not
enough to pay all sub-contractors and materialmen after deducting all
1874.] Morehouse v. Moulding et ai. 323
Opinion of the Court.
payments rightfully made, the balance is to be divided between the seve-
ral claimants entitled to liens, in proportion to their respective interests.
3. Same — right to retain payment to complete work. The owner of a
building has not the right to retain the balance due on the original con-
tract remaining in his hands, with which to enable the contractor to com-
plete the work, after notice of the claims of sub-contractors.
4. Same — liability of owner to sub-contractors on failure to complete
contract. If the contractor for any cause fails to complete his contract,
the owner will be liable to the persons entitled to a lien under the act of
1869 for so much as the work and materials are reasonably worth according
to the contract price, first deducting all payments rightfully made, and
damages, if any, occasioned by the non-performance of the contract, giving
to each his ratable share, and the balance he can retain with which to fin-
ish the work.
5. Instructions — assuming facts. There is no error in refusing an
instruction which assumes the existence of a material fact which should
be left to the jury to find, or when its substance is contained in others
given.
Appeal from the Superior Court of Cook county ; the Hon.
Theodore D. Murphy, Judge, presiding.
The nature and facts of this case necessary to an under-
standing of the points decided appear in the opinion of the
court. The jury found there was due the petitioners, Kelley,
Wood & Co., $330.18, and Moulding & Harlan, $860.50.
The defendant, Morehouse, moved for a new trial, which was
refused and an exception taken.
Messrs. Dent & Black, for the appellant.
Messrs. Scates & Whitney, for the appellees Moulding and
Harlan ; Mr. G. P. Whitcomb, for the appellees Kelly, Wood
&Co.
Mr. Justice Scott delivered the opinion of the Court :
This is a case arising under the mechanic's lien law, as con-
tained in the act of 1869. The facts necessary to an under-
standing of the merits of the case may be shortly stated. In
June, 1870, appellant contracted with W. H. H. Miller to
324 Morehouse v. Moulding et al. [Sept. T.
Opinion of the Court.
erect for him a double dwelling-house on the premises de-
scribed in the petition. The contract was in writing, and by
its terms Miller was to furnish all the materials and labor
necessary to fully complete the buildings according to the
plans and specifications, at a total cost of $20,900, which was
to be paid, as the work progressed, on the certificate of the
architect, less fifteen per cent, which was to be reserved for
the security of the owner until the completion of the work.
Appellees furnished materials which were used by the builder
in the erection of the buildings under his original contract
with appellant, and now seek to establish a lien on the prem-
ises for the amount respectively due them. There is no
dispute, there was due Moulding and Harlan for brick furnished
to Miller, and which were used in the construction of the
building, $1,442, and to Kelly, Wood & Co., for lumber fur-
nished and used for the same purpose, $555.85. Each of these
firms commenced separate actions, but, by stipulation, the two
suits were consolidated in the court below, and have since pro-
gressed as one cause.
Proof was made that within twenty days after payment
should have been made, these parties gave appellant notice of
their claims, and that they would insist upon the lien given by
the statute.
The building, when completed, cost something over $30,000,
but a large portion of the cost over the contract price, indeed
nearly all of it, Miller insists was made up of extra work not
indicated on the original plans.
This case has been elaborately argued, and should we dis-
cuss all the points made, it would require us to give a con-
struction to almost every clause of the mechanic's lien law.
But this will not be necessary. We are of opinion the decree
can be maintained on principles about which there can be no
controversy.
Great stress is laid on that clause of the first section of the
mechanic's lien law, which provides : " In no case shall the
" owner or lessee be compelled to pay a greater sum for, or on
1874.] Mokehouse v. Moulding et al. 325
Opinion of the Court.
"account of such house or building or other improvements,
" than the price or sum stipulated in said original contract or
"agreement." That depends on the fact whether the pay-
ments made to the contractor, or on -his order, shall be re-
garded as having been rightfully made. If made in violation
of the rights and interests of the persons intended to be bene-
fited by the act, the owner is not to be credited with them,
and in that way it may happen he will be compelled to pay more
than the original contract price. All payments made, after
notice, are of this character. The result will be attributable
to his own folly and improvident conduct. He cannot pay
one sub-contractor in full, and another, nothing, as his par-
tiality or caprice may determine. When there is not enough
to pay all sub-contractors or materialmen, after deducting all
payments rightfully made, the balance is to be divided between
the several claimants entitled to liens, in proportion to their
respective interests.
About the time of service of notice of appellees' claims, it
was ascertained Miller would not be able to complete the work
on account of the cost, and it is claimed appellant had the
right, in consequence of that fact, to use the balance due on
the original contract, remaining in his hands, to pay such per-
sons as should thereafter perform labor for, or furnish mate-
rials to Miller with which to complete the buildings. This
view of the law is untenable. It is not in the power of the
owner, as we have said, to elect that he will pay certain per-
sons performing labor, or furnishing materials to the con-
tractor, and not others. The law will permit no such discrim-
ination. Had Miller, for any cause, failed to complete his
contract, all the owner would be liable for, to persons entitled
to a lien under the provisions of this act, would be for so much
as the work and materials shall be shown to be reasonably
worth, according to the contract price, first deducting such
payments as shall have been rightfully made, and damages, if
any, occasioned by the non-fulfillment of the contract, giving
326 Pierce et al. v. Plumb. [Sept. T.
Syllabus.
to each his ratable share, and the balance he can retain with
which to furnish the work.
There is nothing in the action of the court in giving or re-
fusing instructions, that would justify a reversal of the decree.
The first clause of the ninth instruction is objectionable, be-
cause it assumes the existence of a material fact, which it was
the province of the jury to find. Whatever else it contained
that was material, was given in other instructions.
The other causes of error suggested are not regarded as
aifecting the merits of the case. The decree is warranted by
both the law and the evidence. Miller never abandoned the
work, but completed the buildings according to the contract,
except as varied by mutual agreement, and in addition did a
large amount of extra work. Payments properly due him
under the contract, were made to Miller or on his order, after
appellant had notice of appellees' claims, that were in viola-
tion of their rights. If there was not enough money in the
hands of appellant with which to pay appellees m full, they
were, nevertheless, entitled to their pro rata share with the
other sub-contractors or persons performing labor or furnishing
materials under Miller's contract. This is all the court by its
decree allowed appellees. There is, therefore, no reason for
disturbing the decree of the court, and it will accordingly be
affirmed.
Decree affirmed.
Edgar T. Pierce et al.
v.
Ralph Plumb.
1. Contract — to pay certain indebtedness of another — construction —
when a right of action accrues. Where a party enters into a bond con-
ditioned to pay certain indebtedness of the obligee therein, and save and
keep him harmless from such indebtedness, the obligee is not bound to pay
1874.] Pierce et al. v. Plumb. 327
Opinion of the Court.
off such indebtedness in case the obligor fails to do so in order to maintain
a suit on the bond, but he may sue upon the bond and recover the amount
of such indebtedness as soon as it has matured, if not paid by the obligor
in the bond.
2. Specific performance — of contract respecting personalty. The
general rule is that equity will not entertain jurisdiction for the specific
performance of contracts respecting personalty.
3. Same — for mere payment of money. Equity will not decree specific
performance unless something more is to be done by it than mere payment
of money, or any thing which ends in the mere payment of money, be
cause the law is adequate to this.
Appeal from the Circuit Court of La Salle county ; the
Hon. Edwin S. Leland, Judge, presiding.
Messrs. Bickford, Bowen & Malony, for the appellants.
Mr. Samuel Picholson, and Messrs. Eldridg-e & Lewis, for
the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a bill in equity filed by appellants against the ap-
pellee.
The bill alleges, in brief, that the complainants, being railroad
contractors for building the Chicago, Pekin and. Southwestern
Railroad, were indebted to divers persons for materials and
labor, etc., and becoming embarrassed entered into an agree-
ment with Plumb, the defendant, whereby they turned over to
him their contract with the railroad company, and all their
property used in and about the construction of the road ; that
in consideration of this transfer Plumb agreed to pay all of
their indebtedness to their creditors as the same matured, and
transfer to the complainants $15,000 of stock of said railroad
company. That it was further agreed, that the creditors of
complainants should have no right to sue defendant, and that
he should not be liable to pay over $60,000 in satisfaction of
said indebtedness. That Plumb entered into a bond in the
penalty of $80,000, conditioned to pay the said creditors, and
328 Pierce et al. v. Plumb. [Sept. T.
Opinion of the Court.
further agreed to indemnify complainants against their said
indebtedness. That Plumb had not paid the indebtedness nor
delivered the railroad stock ; that some of the creditors, instead
of paying, he had compromised with, paying less than the face
of their demands ; that in consequence of the surrender of
their property to Plumb, complainants were unable, them-
selves, to pay their creditors, and the bill asked for a decree
that Plumb should pay them and deliver the railroad stock.
The bill set forth the bond, bearing date May 3, 1871, also a
further written agreement made at the same time, the condi-
tion of the bond, and the agreement, being as follows :
'; The condition of the above obligation is such, that whereas
the above bounden Ralph Plumb has purchased the entire in-
terest of said Pierce, Clark and Sharp in a contract or agree-
ment they made with the Chicago, Pekin and Southwestern
Railroad Company to construct and complete a road from
Pekin to Chicago, and has received an assignment and deliv-
ery of the same to him, and has also purchased their, and each
of their capital stock in said road, and has received an assign-
ment and delivery of the certificates thereof, and has also pur-
chased all of the personal property of said firm obtained by
them in and about and for the purpose of constructing said
road, and all rights and interests they have therein ; and
as a part consideration therefor has agreed to pay all of the
indebtedness created by them, as the same matures, to divers
parties, whether for labor and materials purchased, or money
borrowed, or for whatever purpose, providing such indebted-
ness or obligations were created for the use of said firm in
constructing said road ;
" Now, if the above bounden Ralph Plumb shall well and
faithfully perform his obligations, and shall pay and satisfy all
of the. indebtedness and obligations, then the above obligation
to be void ; otherwise, of force ; — it being specially agreed
that Ralph Plumb should not in any event be liable to pay
indebtedness exceeding the sum of sixty thousand dollars,
and shall not authorize the creditors of said firm to sue said
1874.] Pierce et al. v. Plumb. 329
Opinion of the Court.
Plumb — a schedule or schedules of said debts to be made as
soon as practicable, and in all cases the amounts of the differ-
ent items of indebtedness to be fixed by said Pierce, Clark and
Sharp."
" Rec'd, Chicago, Ills., May 3, 1871, of the firm of Pierce,
Clark & Sharp, the sum of five thousand dollars, in full for
all liabilities they may be put to in consequence of any suits
in relation to their affairs as contractors of the C, P. & S. W.
P. P. Co., and I agree to indemnify them from all costs,
damages and expenses whatever in relation to the same.
"Ralph Plumb."
The bill was demurred to. The court below sustained the
demurrer, and dismissed the bill, and the complainants appealed
to this court.
The transaction between the parties, as evidenced by the
writings entered into at the time, was a sale of the interest
and property of the complainants, for which Plumb gave his
bond conditioned to pay debts of complainants to the amount
of $60,000.
Plumb was not a trustee, and for aught we see, the com-
plainants have a complete remedy at law in an action on the
bond, and no sufficient reason for coming into a court of
equity.
It is urged on the part of the appellants, that the contract
of the defendant is an agreement to indemnify appellants,
and save them harmless against their liability to their credi-
tors ; that upon a contract of indemnity, the party indemnified
cannot maintain his action at law until damnified ; that ap-
pellants, on account of the transfer of their property to the
defendant, are unable to pay off their debts themselves, so as
to have recourse upon the indemnity, and that equity will
decree a specific performance of a general covenant to indem-
nify. Appellee insists that the separate indemnity agreement
has reference only to the liability of the contractors under
their railroad contract with the railroad company. Without
42 — 74th III.
330 Pierce et al. v. Plumb. [Sept. T.
Opinion of the Court.
stopping to consider how this may be, but assuming appel-
lants' construction to be the true one, that the agreement
extends to the debts of the contractors referred to in the bond,
we differ from appellants as to the force and effect to be given
to the whole contract. Taking the agreement and bond to-
gether, we look upon it as more than a mere contract of
indemnity ; as an agreement to pay the debts of appellants as
they matured, as the purchase price of the property sold to
appellee, and that after the maturity of the debts, appellants
would not have to wait until they had paid them, or suffered
damage in respect thereto, before they could have recourse upon
appellee ; but that upon appellee's failure to pay the indebted-
ness when it matured, he would then be liable to an action
upon the bond, not only for nominal damages, but where the
recovery might be the amount of the indebtedness. Some-
thing more must be held to have been intended than that
appellants should merely be saved harmless from their debts.
Suppose that after the execution of this bond, appellants'
creditors, moved by an impulse of generosity, had seen fit to
forgive them all their debts, would it be said that appellee was
relieved from all liability, and entitled to enjoy the property
sold to him without paying any purchase price therefor 1
In Ramlaugh v. Hayes, 1 Yernon, 189 (cited in Champion
v. Brown, 6 Johns. Ch. P. 405), where specific performance
of an agreement to indemnify was decreed, Lord Keeper North
compared the case to that of a surety in a bond, who, though
not molested for debt, yet, after the money is payable, the
court will decree the principal to discharge it, it being unrea-
sonable that a surety should always have such a cloud hanging
over him. But according to the view we take of the contract,
such a reason does not exist in the present case, and there is
no necessity of coming into equity to get rid of appellants'
cloud of indebtedness. They have their remedy at law in an
action on the bond, after the indebtedness matures, and with-
out the necessity of first paying it themselves, to recover the
amount thereof in damages, with which the indebtedness may
1874.] Pierce et al. v. Plumb. 331
Opinion of the Court.
be discharged. The decree in equity would be but to pay the
money, and a judgment at law for it would seem to be of
equal avail. It may be stated as one of the rules on this sub-
ject, that equity will not decree specific performance, unless
something more is to be done by it than mere payment of
money, or any tiling which ends in the mere payment, because
the law is adequate to this. 2 Pars, on Cont. 523.
Whatever question may arise in respect of the compromise
of debts, paying them in part instead of their full face may
be availed of as well at law as in equity. So far as respects
the debts mentioned in the bond, we are of opinion there was
a complete remedy at law, and that on that ground the demur-
rer was properly sustained.
With respect to the railway shares to be transferred by
appellee, the question is somewhat varied. The doctrine seems
well settled that a contract for the delivery of government
stocks, will not be specifically enforced in a court of equity,
on the ground that there can be no difference between one
man's stock and another's ; that with the damages recoverable
at law for breach of the agreement, the party may, if he
please, buy the quantity of stock agreed to be transferred to
him, so that the damages at law, calculated on the market price
of the stock, are as complete a remedy for the purchaser as
the delivery of the stock contracted for. 2 Story's Eq. Jur.,
§§ 717, 717a, 724 ; 2 Pars, on Cont. 528, 529 ; Cud v. Butter,
1 P. Wms. 570. There is a certain class of railroad stocks
which are the subject of every-day sale in the market, and
their prices of sale of daily quotation in the public prints pub-
lished at the chief commercial centers, to which we see no
reason why the same rule should not apply as to government
stocks.
This railroad stock, we presume, does not belong to that
class. Still the contract is one respecting personalty, and the
general rule is, that equity will not entertain jurisdiction for
a specific performance of such contracts, a compensation in
damages being supposed, in such cases, to furnish an adequate
332 .Boettcher v. Bock et al. [Sept. T.
Syllabus.
remedy. There is no showing whatever of any peculiar cir-
cumstances as regards this stock ; that it possesses any peculiar
value ; that appellants want it in specie, and that they cannot
otherwise be fully compensated. No ground of equitable
cognizance is shown, beyond the statement of the agreement to
assign and transfer, and its non-fulfillment ; not even an in-
junction being asked.
In line, we are of opinion that the bill does not show that
there is not an adequate and complete remedy at law, and
that the court properly sustained the demurrer and dismissed
the bill. The decree will be affirmed.
Decree affirmed.
Charles Boettcher
v.
Henry Bock et al.
1. Confession of judgment — what constitutes. Where the docket of
a justice of the peace shows that the defendant agreed that plaintiff should
have judgment for a given sum, and that the plaintiff accepted the judg-
ment tendered, this will be sufficient to show a confession of judgment by
the defendant, and no appeal will lie from the judgment.
2. Same — waiver of technical objections. A defendant, by confessing
judgment in a suit before a justice of the peace, waives all formal objections,
such as, that the docket, or transcript thereof, does not show the nature of
the plaintiff's demand.
Appeal from the Circuit Court of Cook county ; the Hon.
Henry Booth, Judge, presiding.
Messrs. M. Marx & Son, for the appellant.
Mr. John W. Kreamer, for the appellees.
1874.] Boettcher v. Bock et al. 333
Opinion of the Court.
Mr. Justice Scholfield delivered the opinion of the Court :
The question in the present case is, did the court below err
in dismissing the appeal on the ground- that the judgment be-
fore the justice of the peace was, in the language of the statute,
" a judgment confessed ? " This is the entry of the judgment
on the justice's docket, which must be taken as conclusive evi-
dence of the facts therein recited :
" In justice court, before R. C. Hammill, justice of the peace,
on change of venue from Francis Rolle, J. P., November 15,
1873. Case continued to November 17, 1873, at 2 o'clock,
P. M. November 17, 1873, at time set for trial, case called.
Five witnesses sworn, three witnesses examined on the part of
the plaintiffs, and, by agreement, and consent of parties, case
continued to November 18, 1873, at 7 o'clock, A. M., at which
time case called. Parties in court. After consultation between
parties and counsel, defendant agrees that plaintiff have judg-
ment for one hundred and sixty-three dollars and ninety-four
cents. Plaintiffs, by their attorney, accept the judgment ten-
dered by defendant. One witness sworn in behalf of defend-
ant, and, after hearing his evidence, judgment is rendered
according to agreement of parties, in favor of plaintiff and
against the defendant, for one hundred and sixty-three dollars
and ninety-four cents and costs of suit."
In Campbell v. R<indolph, 13 111. 314, the entry of judgment
recited : " The parties appeared, and the defendant filed his
set-off, but no proof being before the court, and the defendant,
by his counsel, admitting the plaintiff's account, judgment is
therefore rendered," etc. It was held that this was not a con-
fession of judgment, the court saying : " There was no judg-
ment by confession. The defendant admitted the plaintiff's
account. He dispensed with proof of its correctness. But he
did not thereby conclude himself from insisting that the claim
had been paid, or that he had just demands against the plain-
tiff. The admission left him at full liberty to make proof of
his set-off ; and, failing to establish it to the satisfaction of the
334 Boettcher v. Bock et al. [Sept. T.
Opinion of the Court.
justice, to remove the case into the circuit court. If a party
goes before a justice and consents that judgment may be entered
against him for a particular amount, he is not permitted to
prosecute an appeal from the judgment. He thereby solemnly
admits that he is justly indebted to the plaintiff to that extent,
and the law, for wise reasons, estops him from afterward con-
troverting it."
In Elliott v. Daiber, 42 111. 468, the entry shows the de-
fendant said he could not deny the plaintiffs demand, and
this was held not to be a confession of judgment. It was there
said : "To say, by a party sued, that he cannot deny the de-
mand, is in no sense a confession of judgment." * * *
" It does not follow, because a defendant says he cannot deny
the plaintiff's demand, that he is the plaintiff's debtor. The
defendant may have claims to set off which he may not choose
to litigate before the justice, but be willing the justice should
find against him, so that he may take an appeal to another
court and there litigate."
These are the only authorities cited by appellant on the
question, and it will be observed they fall far short of the
present case. Here, the defendant does not, as in those cases,
admit merely the plaintiff's demand ; he entirely excludes the
idea that he has any defense, by agreeing that the plaintiff
shall have judgment against him for $163.94, which plaintiff
accepts, and judgment is given accordingly. This is literally
within the language of the court used in Campbell v. Ran-
dolph, supra, in illustrating and showing what would be a
"judgment confessed," within the meaning of the statute.
No technical formality is required, under our statute, in the
practice in justices' courts, and when a party there formally
consents that judgment shall be given against him for a desig-
nated amount, and the judgment is thereupon so given, it is a
"judgment confessed." What possible difference in sense, or
in the result, can there be whether a party shall say, "I con-
fess judgment for $163.94," or "I agree that judgment shall
be given against me for $163.94 ? " In either case, all idea of
1874.] Biggs et al. v. Clapp et al. 335
Syllabus.
defense is excluded, and the judgment is rendered because the
party consents it shall be.
The fact that a witness was heard for the defendant, after
this admission, would seem to show that there was something
then to be litigated ; nevertheless, the record shows beyond
doubt that there was nothing to be litigated at that time, be-
cause the judgment agreed to by the defendant was accepted
by the plaintiff ; and it was upon that mutual consent and
agreement of the parties that the judgment was rendered.
We are, therefore, compelled to believe that this statement
should have preceded the statement of the agreement, and
that it was placed after it through inadvertence.
The objection that the justice's transcript does not show the
nature of the plaintiff's demand is not tenable. By confessing
judgment, defendant waived all objections of this character.
Judgment affirmed.
Samuel Biggs et al.
v.
William A. Clapp et al.
1. Statutes — rule of construction. If any part of a statute be intri-
cate, obscure or doubtful, the proper way to discover tbe intention is to
consider tbe other parts of the act, for the meaning of one part of a stat-
ute frequently leads to the sense of another ; so that in the construction
of one part of a statute every other part ought to be taken into consider-
ation.
2. Mechanic's lien — right of sub-contractors to payment w7ien work is
abandoned. The mechanic's lien law does not require that the owner shall
pay any thing to a sub-contractor, when he is compelled to exhaust the
original contract price, taking into account what he has rightfully paid the
contractor, to complete the building, in case of abandonment by the con-
tractor.
3. Same — payment made by consent of sub-contractor. Where a
sub-contractor, after serving notice of his lien upon the owner of a build-
ing, signs a writing, authorizing such owner to pay a certain other
336 Biggs et al. v. Clapp et at. [Sept. T.
Opinion of the Court.
installment, referring to it as due when certain work is done, this will not
be held conditional, but as indicating a particular installment, and the
owner may rightfully make such payment before it is due, without becom-
ing liable to the sub-contractor.
4. Instruction — assuming a paper to be conditional. An instruction
which assumes that a paper or writing in evidence is conditional, when it
is not, is properly refused.
Appeal from the Superior Court of Cook county ; the Hon.
John A. Jameson, Judge, presiding.
Messrs. Fuller & Smith, for the appellants.
Mr. Stephen F. Brown, for the appellees.
Mr. Justice Craig delivered the opinion of the Court :
This was a petition filed by appellants, in the Superior Court
of Cook county, as sub-contractors, against appellees to enforce
a mechanic's lien under the act of 1869.
A trial was had before a jury, which resulted in a verdict
against appellants. The court overruled a motion for a new
trial, and rendered judgment upon the verdict.
To reverse this judgment appellants have prosecuted this
appeal, relying mainly upon the ground that the court erred
in giving appellees' third instruction, and refusing the first,
second and fourth asked by them.
It appears from the evidence contained in the record, that
on the 12th day of July, 1872, appellees entered into a con-
tract with J. B. Smith & Son, by which the latter were to
furnish the material and erect a certain building for appellees,
for $13,300. The building was to be completed on or before
the 1st day of September, 1872. By the contract appellees
were to pay Smith & Son $1,000 when the wails of the base-
ment were all up and the joists in; $1,500 when the walls of
the principal story were up, the iron work set and the joists all
in ; $1, 800 when the walls of the second and third stories were
all up and joists all in ; $2,000 when the walls were all up,
joists all in, partitions set, cornices set and roof on ; $2,000
1874.] Biggs et ah. v. Clapp et al. 337
Opinion of the Court.
when the floors were all laid and plastering completed ; and
the balance upon the completion and acceptance of the entire
building.
The appellants contracted with J. B.. Smith & Son to furnish
certain cut stone for the building ; appellants furnished the stone
as they agreed to do, and there is a balance due them from J.
B. Smith & Son, of $1,675. On the 12th of September,
1872, appellants served appellees with notice, under the statute,
of a mechanic's lien as sub-contractors ; at the time the notice
was served, appellees had paid to J. B. Smith & Son, on the
contract, $6,300; on the 3d day of October, 1872, by written
permission of appellants, appellees paid J. B. Smith & Son,
the further sum of $2,000; upon receiving this payment J.
B. Smith & Son abandoned the work and appellees were com-
pelled to complete it at an additional cost of $5, 500, which made
a sum exceeding $500 paid by appellants to complete the build-
ing over and above the original contract price.
At the request of appellees, the court gave to the jury an
instruction as follows :
" 3. The jury are further instructed that the mechanics'
lien law is not intended to compel an owner to pay more than
the original contract price for constructing a building. If,
therefore, the jury find from the evidence that on the 3d day
of October, A. D. 1872, William A. Olapp, the defendant, had
rightfully paid the sum of $8,300, on an original contract
for constructing the building 159 Fifth avenue, Chicago, and
that the original contract price for constructing said building
was $13,300 ; that the original contractors abandoned their
contract on said building on the 3d day of October, 1872, and
that, after said abandonment by the original contractors, the
defendant was compelled to finish said building, and that in
finishing the same in the manner provided for in the original
contract, he has actually, and reasonably, and rightfully paid
out more than $5,000 over and above the amount previ-
ously paid on the original contract, then in this action the
plaintiffs are not entitled to recover."
43— 74th III.
338 Biggs et al. v. Clapp et al. [Sept. T.
Opinion of the Court.
It is insisted that the seventh section of the mechanics' lien
act of 1869 was entirely ignored by the court by this instruc-
tion to the jury.
In other words, as we understand the position of appellants,
they claim that under the seventh section, when the original
contractor abandons the work and the rights of sub-contractors
are involved, the owner is required to pay the full value of the
work actually done, deducting only what has been paid, re-
gardless of what it may cost to complete the building under
the contract.
By the seventh section of the act of 1869, Public Laws of
1869, page 257, it is declared, should the original contractor,
for any cause, fail to complete his contract, any person entitled
to a lien as aforesaid may file his petition, etc., etc., and decree
shall be entered against the owner, etc., for so much as the
work and material shall be shown to be reasonably worth
according to the original contract price, first deducting so much
as shall have been rightfully paid on said original contract by
the owner.
In placing a construction upon this section it will not do to
consider it alone ; it must be considered in connection with
other sections of the same act, to collect the legislative inten-
tion.
If any part of a statute be intricate, obscure or doubtful, the
proper way to discover the intent is to consider the other parts
of the act, for the words and meaning of one part of a statute
frequently lead to the sense of another, and in the construction
of one part of a statute, every other part ought to be taken
into consideration. Potter's Dwarris on Statutes, 188.
By reference to the first section of the act of 1869, and this
is the section which gives a sub-contractor a lien, the following
emphatic language will be found in the last clause of the sec-
tion : " But the aggregate of all the liens hereby authorized
shall not exceed the price stipulated in the original contract
between such owner or lessee and the original contractor for
such improvements ; in no case shall the owner or lessee be
1874.] Biggs et at. v. Clapp et al. 339
Opinion of the Court.
compelled to pay a greater sum for or on account of sucli house,
building or other improvement, than the price or sum stipu-
lated in said original contract or agreement."
When, therefore, section seven is considered in connection
with section one of the same act, we think it evident the
framers of the act never contemplated that the owner should
be required to pay a single dollar to a sub-contractor when he
had exhausted the original contract price in the completion of
the building.
The language of the statute is obvious. In no case shall the
owner be required to pay for or on "account of such building a
greater sum than the original contract price.
In this case appellees have been compelled, in the completion
of their building, to pay between five hundred and one thousand
dollars more than the original contract price, and yet appel-
lants insist they shall still pay more.
The position assumed is not just, neither can it be sustained
under a fair construction of the statute. The instruction given,
in our judgment, placed the law fairly before the jury.
This disposes of the question raised as to the refusal of the
court to give appellants' first instruction, as well as the giving
of the third one for appellees.
The next question presented is, the refusal of the court to
give the second and fourth instructions. The record does not
show any instruction No. 2; the instruction referred to as
No. 2 seems to be a part of the first instruction, which was
properly refused. The fourth instruction reads as follows :
u If the jury believe, from the evidence, that the $2,000 paid
October 3, 1872, was paid before the conditions of its payment
as to laying floors and completing plastering were complied
with, such payment cannot affect the rights of the plaintiffs in
this case."
It is shown by the evidence that on the 1st day of October,
1872, appellants executed and delivered to Smith & Son a
paper as follows :
340 Biggs et al. v. Clapp et al. [Sept. T.
Opinion of the Court.
" Mr. William A. Clapp : You are hereby relieved from the
effect of the lien notice heretofore served upon you, so far as
to be permitted to make payment of the installments due Smith
& Son, of $2,000 or thereabouts, upon completing the plaster-
ing and laying the floors of your building No. 159 Fifth avenue,
without prejudice to you for so doing, and as to such install-
ments our lien upon said building is released.
" Provided, this is no waiver of our lien as to other future
payments. Dated Chicago, Illinois, October 1, 1872.
" J. B. Clarke & Co."
Upon the presentation of this instrument by Smith & Son,
appellees paid the $2,000 therein specified. It is now claimed
by appellants that the document did not authorize the payment
of the amount therein named unless the plastering was com-
pleted and the floors laid. Even if the position taken was cor-
rect, the instruction wTas properly refused, for the reason it
assumed the paper was conditional.
But aside from this, the paper read in evidence could not>
by any fair or reasonable construction, be construed to only
authorize the payment of the money upon condition that the
plastering was completed and the floors laid. The language
used would seem to be words of description, indicating the
particular installment that was to be paid. We are, therefore,
of opinion the instruction was properly refused.
Upon examination of the whole record we perceive no sub-
stantial error. The judgment will therefore be affirmed.
Judgment affirmed.
1874.] Pitts., Ft. W. and C. Ky. Co. v. Powers. 341
Syllabus.
Pittsburg, Fort Wayne and Chicago Railway Co.
v.
Pierce Powers.
1. Measure op damages — injury to servant from negligence of the
master. In a suit by a servant of a railway company against the company
to recover damages for a personal injury received while in the company's
service, it is error to admit evidence that the plaintiff had a family and was
unable to support them by his labor since the injury. To admit such evi-
dence is virtually to impose upon the company the duty of supporting the
plaintiff's family, which the law does not require in the case of a servant
injured in its employ even by the negligence of the company.
2. Contract to labor on railroad track — construction. Where a person
is employed to labor on the track of a railroad, generally, it will be pre-
sumed that it shall be at any place the company may designate within a
reasonable distance from the place of employment, and the company should
not, for that reason, be liable for an injury received whilst at work at a
place different from that at which he had been accustomed to work.
3. Master and servant — duty to adopt reasonable rules and regulations
to protect employees. It is the duty of a railway company to make all reasona-
ble and proper regulations for the safety of its employees. And this being
an affirmative fact, it devolves on the company to show an observance of the
duty when sued by a servant for an injury received while in its service,
and negligence is shown. On such a showing the presumption will be that
the negligent act was done in violation of its rules, and the company will
not be liable for the act of its servants, disobeying such regulations, unless
the servant inflicting the injury was incompetent and the company knew
it, or had reasonable and proper means of knowing it.
4. Same — liability to servant for acts of co-servant. It has been repeat-
edly held by this court that a servant of a railway company may recover of
the company for an injury occasioned by the negligence of a fellow-servant,
where the two are not employed in the same line of business, or their em-
ployment is wholly separated and disconnected.
5. Same — whether servants are in same line of employment. Where a
servant of a railway company employed to work on the track, was run over
and injured by an engine through the carelessness of the engineer of the
company, it was held, that the servant injured was not engaged in the same
line of employment as the engineer, and might recover of the company for
the injury the same as any other person not in its service, if he acted with
prudence on his part.
342 Pitts., Ft. W. and C. Ey. Co. v. Powers. [Sept. T.
Opinion of the Court.
6. Instructions — must be based on evidence. Where there is no evi-
dence on which to base an instruction, it is not error to refuse the same,
but a judgment will not be reversed for giving an instruction containing an
abstract proposition of law, which this court can see did not mislead the
jury.
Appeal from the Superior Court of Cook county ; the Hon.
John Burns, Judge, presiding.
This was an action on the case, brought by Pierce Powers
against the Pittsburg, Fort Wayne and Chicago Railway Com-
pany, to recover damages for a personal injury received while
ditching the track in the defendant's yard. It appears that
this yard was filled with tracks, and trains were moving in all
directions on them. While the plaintiff was thus engaged,
with others, an engine was driven upon him without any
warning or signal of its approach. A trial was had which re-
sulted in a verdict and judgment in favor of the plaintiff for
$3,500.
Mr. F. H. Winston, and Mr. George Willard, for the appel-
lants.
Messrs. Dickey & Caulfield, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
In the month of October, 1866, appellee, whilst in the em-
ployment of appellants, and at work by order of his superior,
on the track of their road, was run over and injured by a loco-
motive of the company. The locomotive was being operated
at the time by one Davis, employed as an extra engineer, or a
person whose duty it was to take engines, on their arrival, to
the round-house, and to bring others therefrom to be used on
the road. The injury was received at the town of Yalparaiso,
in the State of Indiana. Appellee brought suit against the com-
pany to recover for his injuries. A trial was had by the court
and a jury, resulting in a verdict, and after overruling a mo~
1874] Pitts., Ft. W. and C. Ey. Co. v. Poweks. 343
Opinion of the Court.
tion for a new trial, a judgment was rendered against defend-
ants, from which they appeal to this court.
It is urged as ground of reversal that the court below erred
in admitting evidence that the defendant had a family and
was unable to support them by his labor since his injury. In
the case of the City of Chicago v. O'JBrennan, 65 111. 160,
it was held error to admit such evidence ; that the evi-
dence must be confined to the plaintiff, his injuries, capacity
for business and the probabilities of his recovery from the in-
juries received. Such evidence is well calculated to unduly
enhance the damages, and to influence the jury to give dam-
ages beyond what is a compensation for the injury received.
Appellants can in no case be required to support the family of
one of their employees who may be injured even by the neg-
ligence of the servants of the company. Such a rule would
be carrying the liability of such bodies beyond the liability of
other persons, and would not accord with the analogies or
principles of the law. And to permit such evidence would be
virtually to impose that duty upon the defendant. It is im-
possible for us to know what portion of the verdict in this
case was allowed because appellee had a family. The evidence
was before the jury for the purpose of enhancing the damages,
and we have no doubt it produced that result. This was mani-
fest error.
It is next urged that the court below erred in giving and
refusing instructions. The fifth of plaintiff's instructions was
wrong, inasmuch as it authorized the jury to consider all of the
circumstances of his case, a*s shown by the evidence. This
authorized them to consider the fact that he had a family,
which we have seen they should not have been permitted to
take into consideration. Had that evidence not been admit-
ted the instruction would have been proper. His second in-
struction was erroneous^ as there was no evidence that appellee
was emploved to work at any particular place, but it shows
that the section foreman has no power to so employ men, and
that it is customary to remove them from point to point as
344 Pitts., Ft. W. and C. E-y. Co. v. Powers. [Sept. T.
Opinion of the Court.
their labor may be needed in repairing the track. And this
mast be so from necessity. If employed to work at a specified
point, they could not, in case of an emergency, be required to
labor at any other point, which would compel the employment
of large bodies of men on some occasions when the force
already employed would be all that was required. Where a
person is employed to labor on the track of a road, generally,
the presumption would be that it should be at any place they
might designate within a reasonable distance of the place of
employment, and the company should not, for that reason, be
liable for an injury received by the servant whilst at work at a
place different from that at which he had been accustomed to
work.
It is urged that the third of appellee's instructions is wrong.
It no doubt contains an unnecessary statement as to the duty
of the company to provide reasonably safe machinery for the
protection of the hands. There was no question before the
jury as to the character of the machinery, and the proposition
was abstract and inapplicable to the case, but could not have
misled the jury. As to the remainder of the instruction, we
perceive no objection, as it is unquestionably the duty of the
company to make all reasonable and proper regulations
for the safety of their hands. Without such regulations, their
employees would be at the mercy of others whom they had no
election in employing, or over whose actions they have
no control. Human life and safety demand at least this
degree of care, and it must be exacted. And it should devolve
on the company to show that they had so observed the duty.
It is an affirmative fact that the company can readily show,
whilst usually the plaintiff could not prove its negative. The
plaintiff must no doubt prove negligence, and to exonerate
themselves the company should show that proper regulations,
to prevent it, had been adopted, and having shown them, the
presumption would be that the act was in violation of the rule,
and the company not liable, unless the servant inflicting the
injury was incompetent, and the company knew it, or they
1874.] Pitts., Ft. W. and C. Ry. Co. v. Powers. 345
Opinion of the Court.
had reasonable and proper means of knowing it. When the
rules are shown, it is for the court to say whether they are
reasonable.
We perceive no valid objection to the sixth of appellee's in-
structions. We are of opinion that it is not liable to the
criticism suggested by appellants. It was not probably under-
stood by the jury as they seem to suppose. It would have
been more accurate had it said, if the jury find the injury was
the result of such recklessness. In cases of this character,
instructions should be entirely accurate, and this would be
better with the amendment suggested.
It is urged that the court should have given defendants'
fifteenth and sixteenth instructions. On examination we find
no evidence in the record on which to base them. They were,
therefore, properly refused.
We have not been enabled, by a careful examination of the
other instructions of appellants, to find that the court erred in
modifying them before they were given.
Inasmuch as the case must be submitted to another jury, we
regard it proper to discuss the question whether appellee was
in the same line of employment with the engine-driver, and
whether his relation to the company was such as to necessarily
preclude his recovery for the injury sustained. The determin-
ation of this question is, we think, governed by our former
decisions. We have repeatedly held, that where an employee
of the company is hurt in an employment wholly separated and
disconnected from the servant who causes the injury, a recov-
ery may be had, where there is negligence, as in other
cases ; that a clerk at the depot, a carpenter employed in con-
structing or repairing cars in the shop, or other person discon-
nected with the management of the train and its officers, may
recover, where by carelessness of those running it he is injured.
The rule only applies, that a fellow-servant cannot recover for
the injury occasioned by the negligence of another servant,
where they are engaged in the same department of business.
And the object of the rule is to make each servant vigilant in
44 — 74th III.
346 Waerinek v. The People. [Sept. T
Syllabus.
seeing that the others are careful, prudent and faithful in the
discharge of their duty, and if not, that it shall be to their
interest to report all derelictions that occur.
Here, appellee was no nearer connected with the running of
the train or its engines, than is a clerk of the company em-
ployed in keeping the books in their office, or a carpenter,
smith, painter, or other mechanic employed in the car shop.
He was engaged in an entirely different department from that
of running trains, either in the yard or on the road. He did
not have, nor could he have any control over the engineer.
His means of doing so were not superior to that of an indi-
vidual entirely disconnected with the road and its management.
Thus it is seen that the reason of the rule fails when applied to
appellee, and the reason having failed, the application of the
rule should fail. We are of opinion that the rule should
not be applied to appellee.
He was employed by the company, was at work under the
orders of his superior, and it does not matter whether he was
performing the labor where he was employed to work, if he
acted with prudence, and the engineer was guilty of negli-
gence.
For the errors indicated, the judgment of the court below
must be reversed, and the cause remanded.
Judgment reversed.
A. C. Warriner
The People of the State of Illinois.
1. Criminal law — when indictment is good. When the offense is so
plainly stated in the indictment that the nature of it can be easily under-
stood by the jury, that is sufficient under our statute to constitute a good
indictment, upon which the judgment of the court can be rendered.
1874.] Warriner v. The People. 347
Opinion of the Court.
2. Same — conversion of proceeds of sale by commission merchant. On
an indictment against a commission merchant for converting the proceeds
of goods intrusted to him to sell on commission, to his own use, it is not a
sufficient defense that the agreement was that the commission merchant
was to send the consignor his check for the proceeds, and that he did send
his check, when it appears that there were no funds in the bank on which
the check was drawn, to pay it, and that the check was promptly pre-
sented and not paid.
3. In such case, if the defendant had funds in the bank at the time of
drawing the check, the burden is on him to prove it, and also to explain
why there were no funds there when the check was presented
Writ of Error to the Criminal Court of Cook county ;
the Hon. Lambert Tree, Judge, presiding.
Mr. Sidney Thomas, for the plaintiff in error.
Mr. Justice Breese delivered the opinion of the Court :
This was an indictment, in the Criminal Court of Cook
county, against A. C. Warriner, a commission merchant doing
business in Chicago, for failing and refusing to account for
and pay over to Harford and Company, of Mattoon, whose
goods he had received and sold on commission, and afterward
converted the proceeds to his own use. The jury found the
defendant guilty as charged, and the court, overruling a motion
for a new trial and in arrest of judgment, rendered a judg-
ment on the verdict, and assessed a fine against the defendant
of four hundred dollars.
To reverse th:~s judgment the defendant brings the record
here by writ of error, and assigns as error that the verdict is
against the law and the evidence ; that improper evidence was
admitted .on behalf of the people, and proper evidence on
behalf of the defendant excluded.
On the motion in arrest of judgment, it is urged the indict-
ment is insufficient.
We have first considered the motion in arrest of judgment.
The prosecution is founded on section 78 of the Criminal
Code, which is as follows :
34:8 Warrlner v. The People. [Sept. T.
Opinion of the Court.
" If any warehouseman, storage, forwarding or commission
merchant, or other person selling on commission, or his agent,
clerk or servant, shall convert to his own use any fruit, grain,
flour, beef, pork or other property, or the proceeds or avails
thereof, without the consent of the owner thereof, or shall
fail to pay over the avails or proceeds thereof, less his proper
charges, on demand by the person entitled to receive the
same, or his duly authorized agent, he shall be fined not ex-
ceeding one thousand dollars, or confined in the county jail
not exceeding one year, or both, and shall be liable to the
person injured in double the value of the property or amount
of the money so converted." R. S., 1874, p. 363.
We have carefully compared the indictment with this sec-
tion of the statute, and are satisfied it is drawn substantially
in compliance with it, and in the terms and language of the
statute creating the offense. At any rate, the offense is so
plainly stated that the nature of it could be easily understood
by the jury, and that is sufficient, under our statute, to consti-
tute a good indictment on which the judgment of the court
can be rendered.
The error of plaintiff's counsel consists in mistaking the
nature of the offense charged. The offense does not consist
in violating instructions, but in doing the acts specified in the
indictment The indictment charges facts made indictable
under the statute, when done by a commission merchant.
There is no objection to the indictment, and the motion in
arrest of judgment was properly denied.
As to the evidence, we are of opinion, as presented, it fully
sustains the finding. The prosecutor was, with his mother,
trading at Mattoon, in this State, under the firm name of E.
Hafford & Co., and had shipped to the defendant, as a com-
mission merchant, in August, 1873, and up to the fourth of Sep-
tember of that year, various articles of country produce, to be
sold by him on commission, he to account to them for the pro-
ceeds by sending his bank checks, which they could negotiate.
He did send these checks, but they were dishonored. That
1874.] Waumner v. The People. 349
Opinion of the Court.
they were presented in a reasonable time is not questioned,
and payment thereof was demanded more than once before
this prosecution was instituted. A demand of payment was
made on the defendant, and he distinctly informed if he did
not pay the amount due, admitted to be one hundred and
ninety-seven dollars and ninety cents, and admitted to be the
net proceeds of the sale of the articles sent him by the prose-
cutors, a prosecution would be instituted.
It is conceded defendant sent his checks to the consign-
ors, for the net proceeds of the sales, but they were
dishonored — they were not paid. It is contended that
as defendant sent checks in pursuance of instructions, this
was full compliance, but it was clearly the understand-
ing of the parties, and all persons would so understand
it, that the checks sent must be available checks, which, on
presentation at the bank on which drawn, would be met by
prompt payment. If not of that character, they would be of
no more value than so much blank paper. It is not sufficient
if a party draws his check on a bank in payment of a debt ; it
is incumbent on the drawer that he should have funds to meet
it when presented. The defendant should have deposited
these proceeds in the bank on which he drew his checks, and
should have had funds there to meet them. A witness for
defendant, Mr. Daviston, who was his book-keeper and sales-
man, testified that defendant had money in the bank at the
time those checks were drawn, and had every prospect of
keeping his bank account good to meet all of his checks.
Being asked to state the reason why he did not keep his bank
account good, so as to meet these particular checks, he replied,
defendant had received a draft on New York, which had been
deposited in bank to his credit. The bank transaction was
not a Boston matter, but a New York matter, and defendant
had drawn drafts on country dealers with whom he was deal-
ing, and who were owing him.
There is no evidence that this draft on New York was passed
to his credit for the purpose of meeting these checks, or that
350 Warriner v. The People. [Sept. T.
Opinion of the Court.
it could be so appropriated, or what was the amount of this
draft. It might have been for a very trifling sum, and appro-
priated to other purposes.
At this stage of the case, the court interposed this remark :
"I do not think this evidence is material. We do. not want
to hear a history of all their business. I think the witness has
said enough on this subject." To this, defendant noted an
exception, and it is now insisted, had the witness been permit-
ted to proceed, he would have shown by what means this draft
on New York became and was rendered unavailable.
It was certainly proper for the defendant's counsel, on this
intimation from the court, to state to the court that he
expected to prove this 'New York draft was of an amount
sufficient to pay these checks, but for a reason which he would
show, it could not be made available, and if the court ruled
this out, then he should have taken an exception and brought
the question directly before this court, to pass upon its rel-
evancy and materiality. Nothing of this was done, nor is any
thing shown why these checks were not properly provided for
by having funds in the bank ready to meet them, which all
business men, jealous of their commercial honor, seldom fail to
provide.
There is nothing in. this record to exculpate this party. He
has made no effort to take up these checks or save his credit,
after repeated demands. The prosecutor has been injured
by him to the extent of one hundred and ninety-seven dollars,
ninety cents, by a wrongful appropriation of the proceeds of
the sales of this property, which the prosecutor had in full
confidence intrusted to him. His case is clearly within the
statute, and it has been properly vindicated by this verdict and
judgment, which we, in all things, affirm. Giving to this
statute the strict construction it must receive, as held in
Wright v. The People, 61 111. 382, we are satisfied this case
comes fully within its provisions.
Judgment affirmed.
1874.] Rupley et al. v. Daggett. 351
Statement of the case.
Mr. Justice Scott and Mr. Justice McAllister dissent, on
two grounds :
First. That accused was indicted for converting the proceeds
of sale of goods confided to him to sell as commission mer-
chant. But his principals authorized him to send checks for
such proceeds. This created the relation of debtor and cred-
itor, and the conviction was for not keeping his checks good.
Secondly. If he could have been convicted for that, which we
deny, he should have been permitted to explain why he did
not or could not keep his bank account good.
Abeam Rupley et al.
John- F. Daggett.
1. Sale — mistake as to the price. Where there is a mutual mistake in
regard to the price of an article of property, there is no sale and neither
party is bound. There has been no meeting of the minds of the contract-
ing parties, and hence there can be no sale.
2. Thus, where the owner of a mare asked $165 for her, and the pur-
chaser understood the price asked to be $65, and took her home with him
and refused to pay more than the latter named sum, there being a clear
misunderstanding between the parties, it was held, that there was no sale,
and consequently no title passed.
3. Instruction. It is not error to refuse an instruction stating a cor-
rect abstract principle of law, when there is no necessity for it under the
facts of the case.
Appeal from the Circuit Court of Will county ; the Hon.
Josiah MoRoberts, Judge, presiding.
This was an action of replevin, brought by John F. Daggett
against Abram Rupley and Jacob Rupley, to recover a mare
which the defendants claimed they had bought of the plaintiff.
It appears that at the first conversation about the sale of the
mare, Rupley asked the plaintiff his price, the plaintiff swear-
352 Kupley et al. v. Daggett. [Sept. T
Opinion of the Court.
ing that he replied $165, while the defendant testified that he
said $65, and that he did not understand him to say $165. In
the second conversation Rupley says he told Daggett, that if
the mare was what he represented her to be, they would give
$65, and Daggett said he would take him down next morning
to see her. Daggett denied this, and says that Rupley said to
him, "Did 1 understand you sixty-five?" Daggett states that
he supposed Kupley referred to the fraction of the $100, and
meant sixty-five as coupled with the price named at the pre-
vious interview. He answered, " Yes, sixty-five.'' Both par-
ties, from this, supposed the price was fixed, Rupley supposing
it was $65, and Daggett supposing it was $165, and the only
thing remaining to be done, as each thought, was for Rupley
to see the mare and decide whether she suited him. The next
day Rupley came, saw the mare and took her home with him.
The plaintiff recovered in the court below, and the defendants
appealed.
Messrs. Fellows & Leonard, for the appellants.
Messrs. Hill & Dibell, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
It is very clear, from the evidence in this case, there was no
sale of the property understanding^ made. Appellee sup-
posed he was selling for $165, and it may be appellant was
equally honest in the belief that he was buying at the price of
$65. There is, however, some evidence tending to show that
appellant Rupley did not act with entire good faith. He was
told, before he removed the mare from appellee's farm, there
must be some mistake as to the price he was to pay for her.
There is no dispute this information was given to him. He
insisted, however, the price was $65, and expressed his belief
he would keep her if there was a mistake. On his way home
with the mare in his possession, he met appellant, but never
intimated to him he had been told there might be a misunder-
standing as to the price he was to pay for her. This he ought
1874.] Eupley et al. v. Daggett. 353
Opinion of the Court.
to have done, so that, if there had been a misunderstanding
between them, it could be corrected at once. If the price was
to be $165, he had never agreed to pay that sum, and was
under no sort of obligation to keep the property at that price.
It was his privilege to return it. On the contrary, appellee
had never agreed to sell for $65, and could not be compelled
to part with his property for a less sum than he chose to ask.
It is according to natural justice, where there is a mutual mis-
take in regard to the price of an article of property, there is
no sale, and neither party is bound. . There has been no meet-
ing of the minds of the contracting parties, and hence there
can be no sale. This principle is so elementary it needs no
citation of authorities in its support. Any other rule would
work injustice and might compel a person to part with his
property without his consent, or to take and pay for property
at a price he had never contracted to pay.
There was no error in refusing instructions asked by appel-
lants. The court was asked to tell the jury if they believed,
from the evidence, appellee had " sworn willfully and cor-
ruptly false in any material portion of his testimony, then
they are at liberty to disregard his entire testimony, except so
far as it may be corroborated by other evidence in the case."
Conceding this instruction states a correct abstract principle
of law, there was no necessity for giving it under the facts
proven in this case. The verdict was right, and appellants were
not prejudiced by the refusal of the court to give it.
All that was pertinent to the issues in the other refused in-
structions was contained in others that were given, and there
was no necessity for repeating it.
No material error appearing in the record, the judgment
must be affirmed.
Judgment affirmed,
45 — 74th 111.
354 Taylor et al. v. Gilsdorff et al. [Sept. T.
Opinion of the Court.
Frank C. Taylor et al.
v.
Henry Gilsdorff et al.
1. Mechanics' lien — where title to land is in trustee with power to build,
power to make contract, with the statutory incident of a mechanics' lien, is
implied. Where a deed by which land is conveyed to a trustee, to be held
for the use of others, gives authority to build upon and improve the land,
and to borrow money and mortgage the premises to secure it, for the pur-
pose of building, it follows that the power to make contracts for building
exists with the statutory incident belonging to such contracts, that of a
mechanics' lien.
2. A wife conveyed her real estate to a trustee in trust for herself during
the joint lives of herself and husband, with remainder over to the heirs or
devisees of the husband, and to the husband's heirs if he survived the wife
and their children. In the deed was a provision that the property might
be built upon and improved for the purpose of providing a revenue, and
giving the husband and wife the general management of the premises, act-
ing in concurrence and with the approval of the trustee, and for the pur-
pose of so building or improving ; power was given to sell any portion of
the premises, or to mortgage the same to secure any loan for that purpose.
The husband, in his own name, made contracts for the erection of build-
ings on the premises, and the buildings were so erected, with full knowl-
edge of the wife and trustee, and without any objection on their part:
Held, that the persons . performing labor and furnishing materials were
entitled to enforce a mechanics' lien against the whole estate.
A.ppeal from the Circuit Court of Cook county ; the Hon.
John G. Rogers, Judge, presiding.
Messrs. Howe & Russell, for the appellants.
Messrs. Woodbridge & Blanke, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a petition for a mechanics' lien, filed against ap-
pellants, for labor and materials furnished in constructing cer-
tain dwellings on lot 4, block 16, in Bushnell's addition to
Chicago.
1874.] Taylor et at. v. Gilsdorff et at. 355
Opinion of the Court.
The case was submitted to a jury in the court below, which
found the amounts due the several petitioners. Their ver-
dict on this point is not questioned. There was a decree
granting the prayer of the petition, and ordering sale of the
premises.
The premises were vested in a trustee, and it is urged as a
ground for a reversal of the decree, that the whole estate in
the premises could not be subjected to a mechanics' lien. The
condition of the estate was this : On the 13th of June, 1871,
Maria L. Taylor, wife of Frank C. Taylor, being seized in fee
of lot 4, conveyed it to Ira Scott, as trustee. Without now
dwelling upon the several provisions of the trust deed, it may
be considered as vesting the estate in the trustee, in trust for
Mrs. Taylor during the joint lives of herself and husband,
with remainder over to the heirs or devisees of the husband,
and to the husband himself, if he survived the wife and their
children. Frank C. Taylor made, in his own name, contracts
with the several petitioners for the improvement of the lot by
the erection of a block of houses. These contracts were made
while Scott was trustee. Afterward he resigned, and on a bill
tiled by Taylor and wife, one Milliken was appointed trustee
by the Superior Court of Cook county. Milliken, as trustee,
mortgaged part of the premises to Howe, to secure the pay-
ment of certain sums of money to the Franklin Savings Bank,
and sold part to George Taylor, who are all defendants to the
petition. The bill claims that the entire premises be subjected
to the lien of the petitioners ; that the rights acquired under
these conveyances are subject to their liens, and that the
whole estate be. sold to pay their demands.
The claim is, that the interest in remainder in this estate,
held by the trustee for the heirs of Taylor, cannot be subjected
to a mechanics' lien.
Section 1 of the lien act provides, " any person who shall,
by contract with the owner of any piece of land, furnish labor
or materials," shall have a lien, etc.
Section 17. " The person who procures the work or materi-
356 Taylor et al. v. G-ilsdorff et al. [Sept. T.
Opinion of the Court.
als to be done or furnished, shall be considered the owner, to
the extent of his right or interest in the premises."
Section 21. " Parties in interest shall include all persons
who may have any legal or equitable claim to the land."
There must be a contract with the owner. And it is con-
tended that it is only the real and beneficial ownership which
is subject to the lien ; that a trustee, who holds property for
another's use, is not the owner intended by the statute; that
the cestuis que trust are the real owners, and have the estate
that the statute intends.
The particular provisions of the instrument creating the
trust, must affect the question.
There is an express provision in this deed of trust, that the
whole or any portion of the premises may be built upon and
improved, for the purpose of providing a revenue, and giving
Frank C. and Maria L. Taylor the general management of the
premises, acting in concurrence and with the approval of the
trustee. And for the purpose of so building or improving,
power is given to sell any portion of the premises, or to mort-
gage the premises to secure any loan for that purpose.
There is no absolute equitable estate, created in behalf of
the children. Their estate is one, under the provisions and
conditions of the trust deed. It is expressly made subject to
be defeated by a mortgage for the purpose of building, and
in part, by a sale of any portion for that purpose. And we
do not see why, by clear intent, it is not made impliedly sub-
ject to be defeated by a building contract lien. Authority is
given to build. A contract for building is necessary. A
mechanics' lien is a statutory incident of such a contract.
The giving of the authority must be regarded as contem-
plating its ordinary incidents, and that they would exist. The
power to raise money by sale or mortgage, can only be cumu-
lative. It cannot be held to exclude the power to make con-
tracts for building, having the statutory incident belonging to
such contracts, that of a mechanics' lien. There is nothing
in the instrument to favor such an idea. For the purpose of
1874.] Taylor et at. v. Gilsdorff et al. 357
Opinion of the Court.
building, there may be created upon the whole estate, a lien
by mortgage ; and there appears no good reason why it may
not be created by a contract for building. Because Frank C.
Taylor made the contract, to hold that only his particular
equitable interest in the premises, or that of himself and wife,
should be subjected to the lien, is to take a too narrow view
of the statute, and give an unreasonable construction to the
trust deed. The improvement is not for the advantage of
Taylor and wife alone, but inures to the benefit of the whole
estate. The trustee owned the legal estate in the land, with
the right of improving it by building, and of charging it for
such purpose, by sale or mortgage.
We cannot doubt, that he was such an owner, within the
meaning of the statute, that the entire estate in the premises
was capable of being subjected to a mechanics' lien.
It is next objected, that the trustee did not concur in, or
approve of, the contracts made by Taylor.
The objection arises under this provision of the trust deed :
" That the whole or any portion of the premises may be built
upon and improved, and that during the joint lives of the
said Frank C. and Maria L. Taylor, they shall have the gene-
ral management of said premises, acting in concurrence and
with the approval of the said Scott, and under the restrictions
and limitations of all the trusts and provisions herein made."
There was no express concurrence or approval ; all that there
wras, was only implied.
At the time of the making of the trust deed, Mr. and Mrs.
Taylor occupied the premises as a homestead. Mr. Scott lived
across the street from them. Before the buildings were com-
menced, Taylor informed Scott that he was going to build a
block of buildings upon the lot. The latter knew of the
buildings going up on the premises. He never objected, or
made hint of disapproval. But no express concurrence or
approval appears.
It is material to consider the position of the latter as trus-
tee. He was for the most part a passive trustee. He would
358 Taylor et at. v. Gilsdokff et al. [Sept. T.
Opinion of the Court.
seem to have had little more than a negative on the acts of
management of Taylor and wife. The general management
of the premises was in them, acting, it is true, in concurrence
and with the approval of Scott. In case of a sale of any por-
tion of the premises, it was to be on such terms and in such
manner as the Taylors should in writing request.
If there was to be a mortgage, it was only in case the Tay-
lors should so elect, and they must unite in the mortgage, and
it contain such covenants and provisions as they might deem
best. It was not designated what was to be the mode of con-
currence and approval, or how they should appear, except in
the case of a deed or mortgage. The trustee was to unite in
them. The general management of premises so situated
would involve the doing of many important and constantly
recurring acts, for the performance of which it could not be
reasonably expected that the express approval and concurrence
of the trustee should be obtained.
Express concurrence and approval were not required by the
trust deed.
The dwelling-house upon this lot, in which the Taylors
resided, had been burned.
To rebuild, the best interest of all concerned would seem
to require. The buildings were being erected by those intrusted
by the trust deed with the general management of the prop-
erty, whose own personal interests were chiefly involved, fur-
nishing a guaranty that the construction of the buildings
would be in a manner which would be most advantageous to
the estate. This, for the most part, passive trustee would
seem to have had no occasion to withhold his concurrence or
approval, and there is no pretense that he did. Having
been informed beforehand of the intended erection of the
buildings, and they going up before his own eyes, absence of
disapproval, under such circumstances, amounted to approval.
Concurrence and approval may be by conduct, as well as by
word. And especially would those entering into contracts
with Taylor for furnishing labor or materials, have the right
1874.] Taylor et al. v. Gilsdorff et al. 359
Opinion of the Court.
to infer the fact of concurrence and approval, from such con-
duct.
We are of opinion that there was sufficient evidence, from
which to infer the implied concurrence and approval of the
trustee, and that no more than that was here required.
Although the contracts were made by Frank C. Taylor
alone, the evidence shows that Mrs. Taylor knew and approved
of them, and gave directions during the progress of the work,
so that, so far as here may be necessary, she may be considered
as a party to the contracts.
One of the claims upon which a lien was allowed, that of
the Baumanns, is for services as architects and superintend-
ents, and it is insisted that they have not furnished either
labor or materials for erecting the buildings, within the mean-
ing of the statute, and so are not entitled to a lien. The claim
was not for services as mere architects, but as architects and
superintendents. The jury found in favor of the claim.
Without saying how it might be with a mere architect, who
simply drew a plan of the buildings, we cannot say that in the
work of superintendence of the buildings, the jury were not
authorized to find that there was such labor, which was within
the act which provides a lien for any person who shall " fur-
nish labor for erecting any building." Like views seem to
have been held elsewhere under similar statutes. The Bank
of Pennsylvania v. Gries, 35 Penn. 423 ; Mulligan v. Mul-
ligan, 18 La. Ann. 30.
Decree affirmed.
Mr. Justice McAllister, dissenting : The trust under which
Scott held the premises was not a mere passive, but an active
trust. So that the legal title was in him, notwithstanding the
statute of frauds. The provisions of the mechanics' lien law,
make an oral or implied contract valid for the purpose of a foun-
dation for proceedings which may divest title. In other words,
such a contract is thereby rendered valid, and, under the provis-
ions of the act, is one which relates to and affects an interest in
360 Taylor et al. v. Gilsdorff et al. [Sept. T.
Opinion of the Court.
real estate. But the statute requires, in order to give an oral
contract such an effect, that it be made with the owner. This
statute, for obvious reasons, has heretofore received, in this
court, a strict construction. By such a construction, the legal
title could only be affected by the contract on which the
Ken is predicated, by Scott becoming a party to it. It is not
pretended that he became a party to it. But the opinion of
the majority of the court goes upon the ground that knowl-
edge by the trustee of the fact of the improvements being
made, and the silence of the trustee, are equivalent to his be-
coming a party, and it is not placed upon or attempted to be
brought within the range of the principle of estoppel in pais.
I know of no doctrine or principle, aside from that of estoppel,
upon which his silence and non-action could, under any cir-
cumstances, be regarded as equivalent to his execution of the
written contract under which the lien is claimed to have arisen,
and most certainly, the doctrine of estoppel in pais has no
application to this case. His "concurrence," within the mean-
ing of the trust deed, should, if the contract for improvements
was in writing, have been manifested by writing ; if oral, by
being a party to it. In no other way could the title in him be
divested by proceedings based upon the contract. Conceding
that he was in no respect a party to the contract, and he
clearly was not, the mere fact of silence, of non-action, or inat-
tention does not constitute concurrence, which means more
than passive or implied acquiescence. But silence, where a per-
son is under no duty to speak or act, cannot be construed as
either concurrence or acquiescence. The trustee was in no
sense a party to the contract, nor did he have any agency
whatever in procuring work or materials to be done or fur-
nished. There is no view I can take of the case which brings
it within the lien law, so as to subject the legal or entire in-
terest in the premises to the lien.
Mr. Chief Justice Walker: I concur in the views ex-
pressed by my brother McAllister in this case.
1874.] Pltjmmer v. The People. 361
Syllabus.
John Plummer
v.
The People of the State of Illinois.
1. Statute — as to the title and change in the same. Unless a change in
the title to a bill in the two houses concurring in its passage is one of sub-
stance, and calculated to mislead as to the subject of the bill, it may be re-
garded as a clerical mistake in nowise affecting the validity of the law.
2. Where a bill passed the House entitled " a bill for an act to prevent
the keeping of common gaming houses," but when introduced in the Senate
it bore the title " a bill for an act to prevent the keeping of common gam-
ing houses, and to prevent gaming," by which title it passed that body and
was reported back, enrolled and approved, the body of the bill being iden-
tical in both houses, it was held that the change in the title did not render
the act void.
3. Same — title need not express necessary results. The constitutional re-
quirement in respect to the passage of bills is not, that but one subject shall
be expressed in the title, but that the act shall embrace but one subject,
which shall be expressed in the title. It is not necessary to express in the
title the incidental results expected to flow from the act, but if it does, it
will not render the act void.
4. Indictment — sufficiency of statement of offense. Although an in-
dictment may not state the offense in the language of the statute creating
the same, yet, if it is stated so plainly that it may be easily understood by
the jury, it will be sufficient.
5. Juror — ground of challenge — party to suit pending, etc. The fact
that a juror, whether of the regular panel or not, has a suit at law or in
equity pending, for trial in the same court, at the same term, whether
the same is actually tried or not at such term, is a good ground of chal-
lenge, and it is error to disallow the same.
6. Same — opinion from reports. The fact that a juror has formed an
opinion or impression based upon newspaper statements or rumors, about
the truth of which he has expressed no opinion, will not disqualify him, if
it shall appear from his statement, under oath, that he believes he can
render a fair and impartial verdict in accordance with the law and the evi-
dence.
7. But if the juror is unable to state that he can sit as an impartial
juror in the case, he is incompetent. If exposed to influences the probable
46— 74th III.
362 Plummer v. The People. [Sept. T.
Opinion of the Court.
effect of which is to create a prejudice in his mind against one charged
with crime, and which it will take evidence to overcome, he is not compe-
tent.
Writ of Error to the Circuit Court of Stephenson county ;
the Hon. William Brown, Judge, presiding.
Mr. J. M. Bailey, and Mr. J. I. Neff, for the plaintiff in
Mr. James S. Cochran, State's Attorney, for the People.
Mr. Justice Scholfield delivered the opinion of the Court :
Plaintiff in error was indicted and convicted under the " act
to prevent the keeping of common gaming houses, and to pre-
vent gaming," approved February 29, 1872 (Laws of 1871-2,
p. 462).
Evidence was given on the trial, showing that the title of
the bill for this act, as it passed the House of Representatives,
was, " a bill for an act to prevent the keeping of common
gaming houses ; " but when it was introduced in the Senate it
bore the title, " a bill for an act to prevent the keeping of
common gaming houses, and to prevent gaming," by which
title it passed that body ; and it was then reported back to
the House of Representatives, with the message, that the Senate
had concurred with the House in the passage of the bill, by
that title. Subsequently, the chairman of the committee on
enrolled and engrossed bills reported to the House, as properly
enrolled, " an act to prevent the keeping of common gaming
houses aud to prevent gaming," and by this title it was ap-
proved by the Governor, and his approval reported to the
House. The bill for the act was designated as " House bill
No. 769," and this designation was preserved unchanged in its
passage through both houses ; and it was likewise affixed to
the act when it was reported as enrolled, and also when it was
reported as approved by the Governor. The identity of the
body of the bill, through every step, from its introduction in
1874.] Plummek v. The People. 363
Opinion of the Court.
the House, until it was finally declared a law, is thus sufficiently
established ; and the only question in this regard is, does the
mere change that occurred in the title render the law void ?
It is claimed that the law cannot be sustained, because of
this change in its title, under section thirteen, article four of
the constitution, which reads : " No act hereafter passed shall
embrace more than one subject, and that shall be expressed in
the title. But if any subject shall be embraced in an act which
shall not be expressed in the title, such act shall be void only
as to so much thereof as shall not b'eso expressed." Formerly,
the title was considered no part of the statute, for it was usually
framed by the clerk of that house in which the bill first passed,
and was seldom read more than once. Potter's Dwarris on
Statutes, 102 ; Sedgwick on the Construction of Statutory and
Const. Law (2d ed.), 38. Nor can it now, in strictness,
be considered any part of the law, although the constitutional
mandate is to be observed, for this is simply to give notice of
the general subject of the bill, so that neither the public nor
the members of the Legislature shall be misled by the title.
And, therefore, there is not the same necessity that the precise
language of the title shall, with that formality and strictness
necessary in regard to the body of the bill, receive the concur-
rence of both houses. Unless the change in the title is one of
substance, and calculated to mislead as to the subject of the
bill, we are of opinion it may be regarded as merely a clerical
mistake, in nowise impairing the validity of the law. The
People v. The Supervisors, etc., 16 Mich. 25L
The requirement of the constitution, it will be observed, is
not, that but one subject shall be expressed in the title, it is,
" the act " shall embrace but one subject, which shall be ex-
pressed in the title. It is unnecessary to also express in the
title the incidental results expected to flow from the act ;
but, if it be done, it does not render the act void ; and
the additional words here added may, we think, be regarded
as an unnecessary specification of an object expected to be
attained by the act, for, if gaming-houses are prevented,
364 Plummer v. The People. [Sept. T.
Opinion of the Court.
it must follow as an incident that, to some extent, gaming will
likewise be prevented. It is impossible that any one, reading
the title of the act as it was when the bill passed the Senate,
should not understand that it was intended thereby to prevent
the keeping of gaming-houses, because the words "and to
prevent gaming" are not repugnant to, but, on the contrary,
are entirely consistent with that idea.
We feel, therefore, constrained to hold that the act is liable
to no constitutional objection on the grounds urged.
The objections to the form of the indictment, we think also
untenable.
The offense is stated, although not in the precise terms and
language of the statute creating the offense, yet so plainly that
the nature of the offense may be easily understood by the jury,
and this is all that is required. Kevised Statutes of 1874,
p. 408, § 6.
In empanneling the jury by which plaintiff irrerror was tried,
one John Hart was called as a juror, who, on being sworn and
examined touching his qualifications as a juryman, testified
that he was a party to a suit in chancery pending in that court
for trial at that term. Plaintiff in error objected to him as
incompetent to sit as a juror in the case, for that cause, but the
court overruled the objection, whereupon plaintiff in error
challenged him peremptorily. It appears from the record that
plaintiff in error exhausted all the peremptory challenges to
which he was entitled in selecting the jury, and it therefore
becomes material to inquire whether this ruling of the court
was erroneous.
The fifteenth section of the act relating to jurors, approved
on the 12th of March, 1874, and in force from and after its
passage, provides : " It shall be a sufficient cause of challenge
of a petit juror that he lacks any one of the qualifications men-
tioned in section two of this act ; or, if he is not one of the
regular panel, that he has served as a juror on the trial of a
cause in any court of record in the county within one year
previous to the time of his being offered as a juror ; or, that he
1874.] Plummer v. The People. 365
Opinion of the Court.
is a party to a suit pending for trial in that court at that term."
Laws of 1873-4, p. 117.
It is argued by the attorney for the people, that the objec
tion that the juror is a party to a suit pending for trial is, by
the language employed, limited to cases where he is not one of
the regular panel. We are unable to so read the section. We
understand this limitation applies only to jurymen who have
served as jurors on the trial of a cause in any court of record
in the county within one year, etc., and that the next clause is
entirely independent of this one.
The section plainly, to our minds, specifies three totally dis-
tinct and independent causes of challenge :
First. When the juror lacks any one of the qualifications
mentioned in section two.
Second. Where the juror is not one of the regular panel,
and has served as a juror on the trial of a cause in any court
of record in the county within one year previous to the time
of his being offered as a juror.
Third. Where the juror is a party to a suit pending for
trial in that court at that term.
Nor are we able to coincide with the attorney for the peo-
ple in his construction of the words " pending for trial in
that court at that term." He insists that it should appear not
merely that the case was expected to be, but that it was act-
ually tried at that term. This construction necessitates the
addition of words not found in the statute, and in many cases,
would entirely defeat the practical enforcement of the clause.
If the parties were before the court, so that the cause might
be tried at that term, it was pending for trial, whether it was
actually then tried or not.
The conclusion necessarily follows, that, in our opinion,
there was error in disallowing the challenge of plaintiff in
error of this juror, for cause.
With regard to the objections taken to the other jurors, it is
only necessary to observe, by the same section of the statute last
referred to, it is provided that in the trial of any criminal cause.
366 Plummer v. The People. [Sept. T.
Opinion of the Court.
the fact that a person called as a juror has formed an opinion
or impression, based upon rumor or upon newspaper statements
(about the truth of which he has expressed no opinion), shall
not disqualify him to serve as a juror in such case, if he shall,
upon oath, state that he believes he can fairly and impartially
render a verdict therein in accordance with the law and the
evidence, and the court shall be satisfied of the truth of such
statement.
We think the juror Sullivan was competent under this pro-
vision. Although he had heard rumors, and formed an un-
favorable opinion against plaintiff in error, he answers that he
does not think this would prevent his rendering a fair and
impartial verdict. His answers seem to be candid, and we
see no cause to doubt his integrity.
The juror Broubaker, we do not think was competent. He
is unable to state that he could sit as an impartial juror in the
case. He was, among others, asked this question : " You
think that you have heard reports which you believe to be true,
in respect to the defendant, which would have a tendency, in
some degree, to bias your mind in this respect?" And he
answered : " It may have."
Where the juror has been exposed to influences, the proba-
ble effect of which is to create a prejudice in his mind against
the defendant, which it would require evidence to overcome, to
render him competent it should clearly appear that he can,
when in the jury box, entirely disregard those influences, and
try the case without, in any degree, being affected by them.
The objections arising on the evidence, and the refusal of
the court to give certain instructions asked by plaintiff in error,
we do not consider well taken, but, for the errors indicated, the
judgment must be reversed, and the cause remanded.
Judgment reversed.
1874.] Harbaugh v. City of Monmouth. 367
Opinion of the Court.
Vinton Gr. Harbaugh
v.
The City of Monmouth.
1. City ordinance — effect of exceeding authority conferred oy charter.
Even if a city ordinance prohibiting sales of intoxicating liquors, embraces
a class of sales which the city has no power to prohibit, it may still be
enforced as to such sales as the city does possess the power to prohibit.
2. Exception — when it must be taken. When the record does not show
that exception was taken to the giving of instructions in the court below,
such objections come too late, and cannot be considered when made in
this court for the first time.
3. Evidence — in prosecution for selling liquor. Under an ordinance pro-
hibiting the sale of intoxicating liquors, except for certain purposes, it is
not incumbent on the prosecution to prove that the sale complained of was
not for the excepted purposes, but when a sale is proved, the burden of
proof is on the defendant to show that such sale was lawful.
4. Variance — between complaint and the proofs, before justice of the
peace, not material. On the trial of an appeal from a judgment of a justice
of the peace, upon a prosecution for violating a city ordinance, it is not a
matter of any consequence whether the original complaint is technically
correct or not, the only question being whether the ordinance was violated
or not, without regard to whether the evidence corresponds with the com-
plaint.
Appeal from the Circuit Court of Warren county ; the
Hon. Arthur A. Smith, Judge, presiding.
Mr. James W. Davidson, and Mr. M. M. Lucy, for the ap-
pellant.
Mr. James H. Stewart, Mr. William K. Stewart, and Mr.
D. P. Phelps, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action brought by the city of Monmouth against
appellant, to recover a penalty for selling spirituous liquors in
violation of the ordinances of the city of Monmouth.
368 Harbaugh v. City of Monmouth. [Sept. T.
Opinion of the Court.
The action was commenced before a police magistrate, before
whom the appellant was found guilty. An appeal was prose-
cuted to the circuit court, where a trial was had before a jury,
which resulted in a verdict against appellant for $200. The
court overruled a motion for a new trial, and rendered judg-
ment upon the verdict.
The appellant brings the record here, and relies mainly upon
the point, to obtain a reversal of the judgment, that the ordi-
nance offered in evidence was not authorized by the charter
of the city.
In the original charter of the city of Monmouth are con-
tained the following provisions :
" Article 5, section 7. The city council shall have power to
make regulations to insure the general health of the inhabi-
tants, to declare what shall be a nuisance, and to prevent and
remove the same.
"Article 5, section 20. To license, tax, restrain, prohibit
and suppress tippling-houses, and other disorderly houses."
In 1865, the charter was amended by an act of the legisla-
ture, as follows :
" Section 1. That in addition to the powers already vested
in the city council of the said city of Monmouth, by virtue of
the above entitled act, the said city council shall have power to
tax, restrain, prohibit and suppress tippling-houses, dram-shops,
gambling-houses, bawdy-houses and other disorderly houses
within said city, and within one mile thereof, but not to license
any house or place for the sale of intoxicating drinks of any
kind as a beverage.
" Section 2. To prevent and prohibit the introduction, keep-
ing, manufacturing or selling of any vinous, malt, spirituous,
mixed or intoxicating liquors within said city, and within one
mile thereof (except for medicinal, mechanical and manufac-
turing purposes), and to prohibit the giving the same away,
with a view to evade any penalty which may be provided for
the unlawful sale of such liquors."
Section 3 gives the city power to make all ordinances neces-
1874.] Harbaugh v. City of Monmouth. 369
Opinion of the Court.
sary for carrying into operation the powers specified in this act,
and the act to which this is an amendment.
Under the charter as amended, the city council enacted an
ordinance, sections 1, 3 and 8 of which were introduced in
evidence.
Section 1 is as follows :
" Section 1. That any person who shall sell, barter or ex-
change any spirituous, vinous, malt, fermented, mixed or
intoxicating liquors, or any lager beer, ale or porter of any kind,
containing intoxicating properties, within the corporate limits
of said city, or within one mile of said city, and each and every
person knowingly aiding or assisting therein as agent, servant,
clerk or otherwise, shall be adjudged guilty of a nuisance, and
on conviction thereof shall be fined twenty-five dollars for each
and every offense, and be imprisoned in the city prison of said
city, or in the county jail of Warren county, until the fine and
costs be paid."
Section 8 provides that the city council may license druggists
to keep and sell spirituous liquors for sacramental, chemical
and medicinal purposes, under certain restrictions.
Section 3 provides, the giving away spirituous liquors, for
the purpose of evading sections 1 and 2 of the ordinance, shall
be a sale, and punished accordingly.
It is not material to consider or determine whether the city
council had the power under the charter to pass the ordinance,
prior to the amendment of the charter made by the legislature
in 1865.
At the time the ordinance was adopted, there can be no
question but the city council had full and ample authority to
prohibit the sale of intoxicating liquors, and to declare and
punish the act of selling as a nuisance.
It wTas held by this court, as early as the case of Goddard v.
The Town cf Jacksonville, 15 111. 588, under a charter not
more comprehensive in its provisions than the charter of the
city of Monmouth, that the corporate authorities of the town
IT -71th III.
370 Harbaugh v. City of Monmouth. [Sept. T.
Opinion of the Court.
had the authority to declare the sale of intoxicating liquors a
nuisance.
The law, as declared in that case, has since been affirmed and
followed by numerous decisions of this court, and we must
therefore regard that question as fully settled.
It is, however, insisted by appellant, that the first section
of the ordinance offered in evidence is ultra vires and void, for
the reason that the charter authorizing the city council to pro-
hibit a sale contains the clause " except for medicinal, chemical
and manufacturing purposes," and, by the terms of the ordi-
nance, the sale is absolutely prohibited. But this prosecution
was for the sale of liquors as a beverage. It was not claimed
or pretended that appellant sold for medicinal or mechanical
purposes. He seems, from the evidence, to have kept a saloon,
and, as such, was in the traffic.
The question is not raised by this record whether the city
council could prohibit the sale for medicinal or mechanical
purposes.
The evidence contained in this record shows a clear violation
of the ordinance, and that, too, of a character that the counsel
of appellant concede the city have the power to prohibit.
Even were it true, as contended, that the ordinance embraced
sales that the council had no power to prohibit, we perceive no
reason why it may not be enforced to the full extent that the
city council had the power to legislate on the subject.
This question arose in the case of Kettering v. The City of
Jacksonville, 50 111, 39, and it was there held that an ordinance
might contain a provision not authorized, and yet be valid in
so far as authority was given to enact it. This decision is
conclusive of the question raised.
The objections taken to sections 3 and 8 of the ordinance
introduced it is not necessary to consider, as the plaintiff's
right of recovery did not depend upon them in the least ; and
as they could in no manner prejudice the rights of the appel-
lant, it was not error to permit them to be read to the jury.
It is also urged that the court erred in giving the second
1874.] Harbaugh v. City of Monmouth. 371
Opinion of the Court.
and fourth instructions for appellee. The record fails to show
that any exception was taken to these instructions when given,
and the objection comes too late when raised for the first time
in this court. Had the appellant desired to question the in-
structions, he should have excepted to them when given, and
preserved the exceptions in the record by a bill of exceptions.
It is also urged by appellant that the court erred in refusing
to give his first and second instructions, which were as follows :
" 1. Unless the jury therefore believe from the evidence that
the plaintiff has shown that said' liquor was not sold for
medicinal, chemical or manufacturing purposes, as charged in
the complaint, then they will find for the defendant.
" 2. The court instructs the jury that it is incumbent upon
the plaintiff to prove the material facts as charged in the com-
plaint, and if the jury believe that the complaint has not been
proven as charged, they will find the defendant not guilty."
In regard to the first instruction, when appellee established
a sale we are of opinion that then the burden of proof devolved
upon appellant to show the sale was lawful. A different rule
would require the plaintiff to prove a negative, which would
be burdensome, and in many cases almost impossible to do,
while on the other hand, if the defendant sold for medicinal
or mechanical purposes, he had the evidence at his command,
and could easily make the proof, and it is imposing no hard-
ship upon him to require that he should furnish the proof.
As to the second instruction refused, the court was
justified in refusing it upon two grounds, first, it did not
require the jury to believe the facts therein specified, from
the evidence, which it should have done, but aside from
this, on the trial of the cause in the circuit court it was
the duty of the court to have the cause tried on its* merits,
without regard to the complaint. It was a matter of no mo-
ment whether the complaint was technically correct or not;
the real question before the jury was, whether there had been
a sale by appellant in violation of law, without regard to
whether the evidence corresponded with the complaint or not ;
372 Hayward v. Kamsey. [Sept. T.
Opinion of the Court.
this was the real question for the jury, and no error was com-
mitted in refusing the instruction. Town of Jacksonville v.
Block, 36 111. 507.
As no substantial error is perceived in the record, the judg-
ment will be affirmed.
Judgment affirmed.
John Hayward
v.
John Ramsey.
1. Practice — appeal perfected less than ten days before court. An
appeal perfected before a justice of the peace less than ten days before
the next term of court, or whilst the appellate court is in session, must be
continued over to the next succeeding term for trial.
2. Same — rule of court cannot repeal a statute. A circuit judge is
absolutely powerless to repeal or abrogate any provision of the statute by
rule of court.
Writ of Error to the Circuit Court of Livingston county ;
the Hon. Nathaniel J. Pillsbury, Judge, presiding.
Mr. John Hayward, and Mr. D. E. Straight, for the plain-
tiff in error.
Mr. D. L. Murdock, for the defendant in error.
Mr. Chief Justice Walker delivered the opinion of the
Court :
This was an action of replevin, brought by plaintiff in error,
before a justice of the peace of Livingston county, against
defendant in error, for the recovery of personal property
claimed by plaintiff. A trial was had on the 12th day of
January, 1874, which resulted in a judgment in favor of de-
fendant. Plaintiff prosecuted an appeal to the circuit court
of that county, by filing an appeal bond before the justice of the
1874.] Hayward v. Ramsey. 373
Opinion of the Court.
peace. The justice transmitted the papers in the case and filed
them with the circuit clerk on the 14th day of January. The
circuit court was then in session, and had been for eight days.
At that term, on the 6th day of February following, the case
having been docketed, plaintiff was called, and, failing to
answer, the appeal was dismissed, the judgment of the justice
was affirmed and a procedendo awarded. To reverse that
judgment this writ is prosecuted, and the rendition of that
judgment is assigned for error.
The sixty-eighth section of the ac.t of 1872 (p. 536) declares
that u in case the appeal from the justice is perfected by filing
the papers and transcript and judgment ten days before the
commencement of the term of the court to which the appeal
is taken, the appearance of the appellee may be entered in
writing and filed among the papers in the case ; and if so en-
tered ten days before the first day of the term of court, the
case shall stand for trial at that term." The language of
this section so plainly excludes a trial of such an appeal per-
fected before a justice of the peace unless there has intervened
at least ten days before the first day of the term to which the
appeal is taken, that we are unable to see how any one could
mistake its meaning. The language can have no other reason-
able construction. To hold otherwise is a palpable violation
of the plain provisions of the statute. Under the provisions
of that section an appeal perfected less than ten days before
the next term of court, or whilst the appellate court is in
session, must be continued over until the next succeeding
term for trial.
Where a suit is brought in the circuit court less than ten
days before the next term of the circuit court, or during a
session of the court, no one would make the summons return-
able to that term and insist on a trial. The perfecting of the
appeal is like the commencement of a suit in the circuit court.
And the sixty-eighth section allows ten days for preparation
for trial after the court has acquired jurisdiction of the par-
ties.
374 • Haywaed v. Ramsey. [Sept. T,
Opinion of the Court.
Although the parties are bound to follow their case to the
circuit court where the appeal is perfected before the justice,
without further notice, still there must intervene ten days
from the perfecting the appeal till the first day of the next
term of the appellate court. An appeal taken less than ten
days before the term is like service of a summons in an origi-
nal case in the circuit court, not served ten days before the
return term. In such a case the defendant is bound to appear
and defend, but not at that term. In each of these cases the
court acquires jurisdiction, but not for trial at the first term.
To call an appellant and dismiss his appeal where the appeal
was taken less than ten days before the next term, or during
the session of the appellate court, is manifest error. We
should have regarded it supererogation to have more than
quoted the sixty-eighth section, had it not appeared that a
practice similar to that adopted in this case prevails in some
of the circuits. But with all we have said it does not appear
to us that we have made it plainer than it is by the language
of the statute itself.
But it is said that the statute requires the justice to return
to the clerk a transcript with the papers, and the clerk to
docket the case for trial. This is true, but when for trial %
Not until the appellate court has jurisdiction of the case and
the parties under the statute, or they shall voluntarily submit
to a trial.
It is also urged in affirmance, that the cases of Boyd v.
Kocher, 31 111. 295, and Allen v. The City of Monmouth 37
id. 372, apply to and govern this case. We are at a loss to
perceive in what particular they have any bearing on this case.
In those cases the appeals were perfected more than ten days
before the next term of the circuit court, whilst in this the
appeal was perfected whilst the term of the circuit court at
which the appeal was dismissed was in session. Those cases
stood for trial at the term at which the proceedings complained
of were had, whilst in this case it stood for continuance under
the statute.
1874.] Carney v. Tullt et al. 375
Syllabus.
Nor does the rule of court aid defendant in the slightest de-
gree. The circuit judge is absolutely powerless to repeal or
abrogate any provision of the statute by rule of court. His
powers, like those of other officers, are subject to and con-
trolled by the statute. No such power has been, even if it
could be, delegated to him. In this case the statute gave to
plaintiff in error the right to a continuance, and the circuit
judge could, neither by rule nor any judgment he could render,
deprive him of the right without his consent.
Counsel urge the merits of the case of defendant in error.
And to that we will say, there is no evidence in the record,
and we cannot decide the case on statements of his wholly out-
side of the record. We know nothing of the evi'dence before
the justice, or who was the principal witness on that trial, nor
can we know from any thing in the record, and hence we shall
not consider the case on any thing foreign to what is found in
the record. For the palpable error in dismissing the appeal,
the judgment of the court below is reversed and the cause re-
manded.
Judgment reversed.
George W. Carney.
v.
Thomas Tully et al.
1. Mechanics' lien — notice by sub-contractor. The notice provided in
the mechanics' lien law, to be given by a sub-contractor to the owner of the
property, to hold him liable, must be in writing, and must be served per-
sonally. Service by mail is insufficient to charge him.
2. Same — law strictly construed. The statute in relation to mechanics'
liens, being in derogation of the common law, those claiming its benefits
must bring themselves clearly within its provisions.
3. Evidence — jury bound to regard same. A jury has no right to dis-
regard the testimony of three witnesses as to a fact, in opposition to that
of one only, from mere caprice, but are bound to give it its just weight.
376 Carney v. Tully et ah. [Sept. T
Opinion of the Court.
Appeal from the Circuit Court of Cook county ; the Hon.
Henry Booth, Judge, presiding.
Messrs. Springer & Corwin, for the appellant.
Messrs. Runyon, Avery & Comstock, for the appellees.
Mr. Justice Breese delivered the opinion of the Court :
, This is an appeal from a decree rendered by the circuit court
of Cook county, in an action under the mechanics' lien law of
1869, to recover from Carney, the owner of the lot, for mate-
rials furnished. The contractors, O'Connor & Co., undertook
to erect the building, he having made default in the payment
for the same.
Both O'Connor and appellant were served with process, and
on trial by the court and jury, a decree was rendered against
both the defendants — O'Connor in the sum of seven hundred
and nineteen dollars and seventy-seven cents, and against
Carney in the sum of six hundred and fifty dollars and fifteen
cents.
To reverse this decree against himself, Carney appeals.
The only question to which we have directed our attention
is, have appellees, the plaintiffs in the action, brought them-
selves within the pro visions of the statute ? The act is amenda-
tory of the mechanics' lien law, and was designed to protect
sub-contractors, in which relation appellees stood to appellant.
The second section of the act provides, the party claiming
to have performed labor, or to have furnished materials to the
original contractor, shall cause a notice to be served upon the
owner or lessee, or his agent, of the fact of his having performed
labor, or furnished materials, and that he shall hold the house
or building and the owner's interest; in the ground liable
therefor. If, then, a contract was in writing between the
original contractor and sub-contractor, a copy of it, if obtain-
able, is to be served with the notice, and attached thereto, and
the same must be served within twenty days from the comple-
1874.] Carney v. Tully et al. 377
Opinion of the Court.
tion of the sub-contract, or within twenty days after payment
should have been made to the person performing the labor or
furnishing the material.
Section 3 provides for service on an absent owner. Sess.
Laws 1861), pp. 255, 256.
Appellant was a resident of the place where the building
was erected.
From the terms employed in the second section the conclu-
sion is irresistible, as the notice must be in writing, and the
form given, that there must be personal service. The statute
itself is in derogation of the common law, and those claiming its
benefits must bring themselves within its provisions. Service
of a written notice always means actual, personal service. The
notice, if any was served on appellant, was served on the 7th
of November, 1872, and by Thomas Tully, one of the appellees.
He states it was at appellant's house on Butterfield street, and
there were present in the room, besides appellant, two other
gentlemen, one of whom looked like appellant's brother.
Appellant denies in the most positive terms that any notice
was personally served upon him by either of the appellees,
Thomas Tully, nor by any one representing him, nor by his
brother. A notice being handed him, he stated he had seen
the notice before it was sent to him by mail.
Never saw Tully at his house but once — at the time he saw
him there he did not deliver to him a copy of such notice as
was shown him a moment ago — he, Tully, had another errand
at that time — he demanded the contract between witness and
O'Connor, which he refused to give him — his brother and a gen-
tleman by the name of Rawson were sitting in the room with
them the only time Tully called.
The person " who looked like appellant's brother " was Ed-
ward Carney, and he testified that he saw Thomas Tully at
their house on Butterfield street, and heai i a conversation be-
tween him and appellant — was there all the time until Tully
went away. There was nothing said about a notice for me-
chanics' lien at that time by Tully — he did not serve a notice
48— 74th III.
378 Caeney v. Tully et al. [Sept. T.
Opinion of the Court.
in writing for mechanics' lien on his brother at that time — an-
other man named Rawson was also present.
Rawson testifies he saw Tully at appellant's house — was
there all the time Tully was— heard all the conversation be-
tween them — Tully asked for a contract — appellant said he
would give him a copy, and sat down to write one — Tully went
out — nothing whatever was said at that time about the service
of a notice of a mechanics' lien. Tully did not leave with ap-
pellant a copy of any instrument or notice for mechanics' lien
or any other.
That this was the same collection of individuals spoken of
by Thomas Tully in his examination as a witness, there can be
no doubt. Their testimony disproves the statements made by
Tully about the service of a notice at that time. The evidence
greatly preponderates against him, and we know of no rule of
law or of reason why the jury should not have been influenced
by it. They had no right from mere caprice to discard this
testimony, but were bound to give to it its just weight. Had
they done so, they would have found there was no personal
service of notice upon appellant.
That a notice by mail reached appellant is established, but
that was not the kind of service the statute contemplates, and
the court should so have told the jury. It is impossible to say
what kind of service the jury found. If by mail, that was not
sufficient. If personal service at appellant's house, the weight
of the evidence is decidedly against any such service by Thomas
Tully, or any other person representing appellees.
For the want of service of notice the liability of appellant
to appellees, admitting their claim to be just against O'Con-
nor, had not accrued, and he was at liberty to make payment
to the principal contractor, notwithstanding the sub-contract.
For the reasons given the decree is reversed.
Decree \
Mr. Justice Scott : I do not concur in the reasoning or the
conclusions of this opinion.
1874.] Marshall v. Tracy. 379
Opinion of the Court.
Ephraim Marshall
v.
Addison L. Tracy.
New promise — after bankruptcy, renews original liability. A subse-
quent promise to pay a note barred by a discharge in bankruptcy, removes
the bar created by the discharge and renders it competent evidence under
the common counts as an original cause of action.
Appeal from the Circuit Court of Peoria county ; the Hon.
J. W. Cochran, Judge, presiding.
Mr. E. G. Johnson, and Mr. L. Harmon, for the appellant.
Messrs. Cratty Brothers, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
The declaration in this case is in assumpsit, and contains
only the common counts. Appellant pleaded his discharge in
bankruptcy as to the several causes of action, to which appellee
replied a new promise since the discharge, and on that plea
issue was joined. With the declaration an itemized account
was filed. Appellee offered, and read without objection at
the time, as evidence, a promissory note of appellee. He alsc
offered to read a chattel mortgage, which recited an indebted-
ness, but objections being interposed the same were sustained.
One question raised was, whether appellee could declare on
the original cause of action, or whether he was bound to declare
specially on the alleged new promise. Chitty, in his work on
Pleading, states the rule to be u when the subsequent promise
is effectual, it is sufficient to declare upon the original consid-
eration, unless where the promise is conditional, in which case
it seems to be necessary for the creditor to declare specially."
The authorities are not all harmonious on this question, but
the doctrine best sustained by authority is that the original
cause of action is not destroyed by the discharge in bank-
380 Marshall v. Tracy. [Sept. T.
Opinion of the Court.
ruptcj. The bar which the discharge interposes may be re-
moved by an unconditional new promise, and the debt revived
upon the original consideration. Shippey v. Henderson, 14
Johns. 178; Way y. Sperry, 6 Cush. 238; 1 Chitty's Plead-
ing, 54.
In Way v. Sjperry it was decided an unconditional promise
by the maker of a promissory note to pay the same to the
payee imparted to it again the quality of negotiability,
although the promise was founded on no new consideration,
and was not in writing.
In the case at bar the new promise to pay, if one was made,
removed the bar created by the discharge in bankruptcy, and
hence the note was competent evidence, under the common
counts, as an original cause of action. It was not necessary the
promise should be in writing. Way v. Sperry, supra. In
Graham v. Hunt, 8 B. Monroe, 7, to which our attention has
been called, as holding the doctrine that a promise to pay a
note barred by discharge in bankruptcy, to be valid must be in
writing, the indebtedness seems to have been secured by a
specialty, and it was held a mere parol promise to pay the debt
did not revive the specialty by which it was originally secured.
The case is not analogous, and can have no application to the
case we are considering.
The only question about which we can have any doubt is,
whether there was an unconditional promise on the part of
appellant to pay appellee the indebtedness which was due him
prior to the discharge in bankruptcy. The question was sub-
mitted to the jury on instructions sufficiently accurate to
enable them to comprehend the real issues involved, and it is
not perceived how we can do otherwise than regard the verdict
as settling the controverted facts.
The evidence, though slight, would justify the conclusion
reached. The verdict is not so palpably against the weight of
the evidence, as suggested, as would authorize a reversal of the
judgment for that reason alone.
The instructions to which exceptions are taken, though not
1874.] Fry v. Bidwell. 381
Opinion of the Court.
free from all imputation of unfairness in the manner of their
construction, when construed with those given for appellant,
could hardly be said to be of such a character as to mislead
the jury. The substance of all the charges is, the jury must be
satisfied from the evidence there was an unconditional promise,
after the discharge in bankruptcy, to pay the indebtedness, be-
fore a recovery could be had. We can regard the verdict in
no other light than as finding such a promise was made. This
fact would support the judgment, and it must accordingly be
affirmed.
Judgment affirmed.
Conrad J. Fry
v.
Orlando B. Bidwell.
Guardian's sale — notice of required. Where the statute requires notice
of the application of a guardian to sell real estate to be published in a
newspaper at least once in each week for three successive weeks, or to be
posted in three public places at least three weeks before the session of the
court at which the application is to be made, it is sufficient if the notice is
published for three successive weeks in a newspaper, and the first publica-
tion is made three weeks before the session of the court.
Appeal from the Circuit Court of Stephenson county.
Mr. Smith D. Atkin, for the appellant.
Messrs. Barton & Barnum, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This is an appeal from an order of confirmation of a guar-
dian's sale of real estate, where appellant was the purchaser.
The sole question is, whether the notice given by the guar-
dian of his intended application for leave to sell the real
estate, was published for a sufficient length of time.
382 Fey v. Bidwell. [Sept. T
Opinion of the Court.
The requirement of the statute is this: "Notice of such
application shall be given to all persons concerned, by publica-
tion in some newspaper published in the county where the
application is made, at least once each week for three success-
ive weeks, or by setting up written or printed notices in three
of the most public places in the county, at least three weeks
before the session of the court at which such application shall
be made."
The notice given by the guardian was, by publication in the
Freeport Journal, a weekly newspaper, stating that on the
third Monday of November, A. D. 1872, he would apply, etc.
The notice, as appears by the certificate of the publisher of
the paper, was published in every issue of the paper, commenc-
ing October 23, 1872, and ending November 13, 1872. It
was then published October 23d and 30th, and November 6th
and 13th. The court sitting on the third Monday of Novem-
ber, convened on the 18th of that month.
Appellant's counsel contends, that if the notice is given by
publication in a newspaper, the three successive weeks of such
publication must be completed, at least three weeks before
the session of the court at which the application is to be made ;
that is, that three weeks must intervene the third publication
and the session of the court.
We look upon this as a forced and unnatural construction of
the language of the act.
Two ways are provided of giving the notice :
First. It may be given by publishing in some newspaper,
etc., " at least once each week for three successive weeks,"
Second. It may be given by setting up written or printed
notices, etc., " at least three weeks before the session of the
court," etc.
The plain reading of the section seems to us to be, that all
that is required where the notice is by publication is, that it
should be at least once each week for three successive weeks ;
and that the clause, " at least three weeks before the session
of the court," does not apply to such publication, but applies
1874.] Fry v. Bidwell. 383
Opinion of the Court.
only to the giving of the notice by setting up the written or
printed notices. To give it the contrary construction con-
tended for by appellant, it would read, notice shall be given by
publication "at least once each week for three successive
weeks, at least three weeks before the session of the court at
which such application shall be made." Had the legislature
intended that the third one of the three successive publications
should be at least three weeks before the session of the court,
we cannot think they would have adopted any such awkward
form of phraseology as the above, but would have expressed
such intention in plain and intelligible terms. When the
notice is to be by " posting," there can be no question, that if
the notices are posted up three weeks before the sitting of the
court, that would be a sufficient notice. Could the legislature
have intended that, if the notice is given by publication, it
should be a six weeks' notice, twice as long as that by posting,
thereby implying the setting up of written or printed notices
the better form of notice ? We think not
The only room for any question, we think, is whether the
space of three full weeks should not elapse from the first pub-
lication to the sitting of the court ; as in this case, if the three
successive publications had been October 30, November 6th
and 13th, then, although it would have been published once in
each week for three successive weeks, yet notice would not
have been given for the space of three weeks before the ses-
sion of the court, as the first publication would have been
only nineteen days before the first day of the term. But that
question does not arise here, as twenty-six days elapsed from
the first publication to the sitting of the court. The judgment
of the court below will be affirmed.
Judgment affirmed.
384 The People ex rel. Miller v. Otis. [Sept. T\
. Syllabus.
The People ex rel. Henry B. Miller, collector, etc.,
James Otis.
1. Taxes and taxation — jurisdiction to render judgment. It is the
report of the collector that gives the court jurisdiction to act on an appli-
cation for judgment against delinquent lands for taxes and assessments
due thereon, and unless the law in respect to such report is substantially
complied with, the court will have no authority to act.
2. Same — law to he strictly construed. In summary proceedings to
divest owners of title to their property, the law under which the same is
sought, is to be strictly construed, and nothing is allowed to be taken by
intendment merely. This rule applies on application for judgment
against real estate for taxes and assessments due thereon.
3. Under the city tax act of 1873, the county collector, in applying for
judgment against real estate for unpaid taxes or special assessments, must
make a report of the delinquent list, verified by his affidavit, the same as
under the general revenue law, and if such report and affidavit are sub-
stantially defective, or different from that required, the court will acquire
no jurisdiction to render judgment.
4. Same — sufficiency of collector's affidavit. An affidavit of a county
collector, on application for judgment against delinquent lands and lots,
that his report shows a complete list, etc., " as shown by the returns made
by the city collector," to him, all of which taxes and special assessments
he has been " unable to collect for want of authority of law," is materially
different from the one required by law, and the court will acquire no juris-
diction to render judgment.
5. Same — statute construed as to errors and informalities. The 191st
section of the revenue law, as amended by the act, approved May 30, 1873,
authorizing amendments and obviating the effect of omissions, errors, etc.,
cannot be held to waive a substantial compliance with those steps which
are essential to give jurisdiction. It aids and obviates defects of form,
but not of substance.
6. The statement of the va] uation of the property upon which a tax is
extended, in the collector's report or return, and the oath or affidavit re-
quired to accompany it, are substantial requirements.
Appeal from the County Court of Cook county ; the Hon.
M. R. M. Wallace, Judge, presiding.
1874] The People ex ret. Miller v. Otis. 385
Opinion of the Court.
Mr. T. Lyle Dickey, and Mr. Francis Adams, for the ap-
pellant.
Messrs. Tuley, Stiles & Lewis, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court :
A number of cases are now before us, in which the questions
discussed are the same as in this, and which must, conse-
quently, be governed by the present opinion.
The questions arise upon an application by the county col-
lector of Cook county to the county court of that county, at its
July term, in 1874, for judgment for municipal taxes, special
assessments and water assessments, claimed to be delinquent,
and due to the city of Chicago. The several appellees ap-
peared and defended against the proceedings, specifying in
writing the particular causes of objection relied on. The
court sustained the objections and refused to render judgment
as asked by the county collector ; and from these rulings the
city caused appeals to be taken to this court.
The fifteenth section of the act entitled "An act in regard to
the assessment of property and the levy and collection of
taxes by incorporated cities in this State," approved April 15,
1873, which we shall hereafter, for convenience of designation,
refer to as " the city tax act," requires the city collector, within
such time as the city council may, by ordinance, provide, to
make a report or return in writing, to the general officer of the
county authorized and designated by the general revenue law
of this State to advertise and sell lands for taxes due the
county and State, of all the lands, town lots and real property
on which he shall have been unable to collect taxes, special
taxes and special assessments, due and unpaid respectively
thereon. And the sixteenth section provides "when said
general officer shall receive the report or return provided for
in the preceding section, he shall proceed to obtain judgment
against said lots, parcels of land and property, for said general
taxes, special taxes and special assessments remaining due and
49 — 74th III.
386 The People ex rel. Miller v. Otis. [Sept. T.
Opinion of the Court.
unpaid, in the same manner as may be by law provided for
obtaining judgments against lands for taxes due and unpaid
the county and State ; and shall, in the same manner, proceed
to sell the same for the said general taxes, special taxes and
special assessments remaining due and unpaid. In obtaining
said judgment and making said sale, the said officer shall be
governed by the general revenue laws of this State, except
when otherwise provided herein."
The general revenue law of 1872, in section 188, directs that
the collector shall file with the county clerk the list of delin-
quent lands and lots, which shall be made out in numerical
order, and contain all the information necessary to be recorded,
at least five days before the commencement of the term at
which application for judgment is to be made, and said clerk
shall receive and record the same in a book to be kept for that
purpose, which said book shall set forth the name of the owner,
if known, the proper description of the land or lot, the year or
years for which the tax or special assessment is due, the valu-
ation upon which the tax is extended, the amount of each kind
of tax or special assessment, the costs and total amount charged
against such land or lot. Section 190 of the same law is as
follows : "On the first day of the term at which judgment on
delinquent lands and lots is prayed, it shall be the duty of the
collector to report to the clerk all the lands or lots, as the case
may be, upon which taxes and special assessments have been
paid, if any, from the filing of the list mentioned in the fore-
going section up to that time ; and the clerk shall note the fact
in the book in which the clerk has recorded the list, opposite
each tract upon which such payments have been made.
" The collector, assisted by the clerk, shall compare and cor-
rect said list, and shall make and subscribe an affidavit, which
shall be, as nearly as may be, in the following form :
"<I, , collector of the county of , do solemnly
swear (or affirm, as the case may be,) that the foregoing is a
true and correct record of the delinquent lands and lots within
the county of , upon which I have been unable to collect
1874.] The People ex rel. Miller v. Otis. 387
Opinion of the Court.
the taxes (and special assessments, interest and printers' fees,
if any,) charged thereon, as required by law, for the year or
years therein set forth ; that said taxes now remain due and
unpaid, as I verily believe.'
" Said affidavit shall be entered on the record, at the end of
the list, and signed by the collector."
It is conceded that the delinquent list filed by the county
collector fails to conform to the requirement of section 188, in
that the valuation upon which the taxes and special assessments
are extended is omitted. The affidavit filed by the collector,
also, instead of conforming to section 190, is different, and, so
far as is necessary to be quoted, is as follows : " Also showing
a complete list of all the real estate, lands, blocks, sub-lots,
pieces and parcels of land upon which the municipal taxes,
special assessments and water assessments, heretofore assessed
and levied by authority of said city of Chicago, for the years
A. D. 1872, A. D. 1871, A. D. 1870 and A. D. 1869, respect-
ively, remain due and unpaid, together with the amounts of
such taxes, special assessments and water assessments for such
years respectively assessed and levied thereon, and so remain-
ing due and unpaid, and the names of the owners thereof, so
far as known, as shown by the return made by the city collector
of the said city of Chicago to the treasurer and ex-officio col-
lector of Cools county, Illinois, pursuant to law, all of which
taxes, special assessments and water assessments contained in
the foregoing list, I have been unable to collect for want of
authority of law, and which are this day reported to the county
clerk," etc.
It has been frequently held by this court, that the report of
the collector is what gives the court jurisdiction to act on the
application for judgment in such cases, and unless the law, in
this respect, is substantially complied with, the court can have
no authority to act in the case. Morrill v. Swartz, 39 111.
108 ; Charles v. Waugh, 35 id. 315 ; Fox v. Turtle, 55 id.
377 ; Marsh v. Chesnut, 14 id. 223.
But it is argued on behalf of the city, that the discrepancies
388 The People ex rel. Miller v. Otis. [Sept. T.
Opinion of the Court.
between the requirements of the law and the report of the
collector are not such as to affect the jurisdiction of the court,
because, it is said, where there is any fact which, by the gen-
eral revenue law, is required to be contained in the delinquent
list, on applicotion for State and county taxes, but which, by
the city tax act, is not required to be contained in the report
of the city collector, and which the county collector cannot
himself know, then such fact must, of necessity, be omitted
from the list filed by the county collector with the county
clerk, and such omission does not vitiate the return. And this
is claimed on the ground that the two laws, being in pari
materia, must be construed together, and the latter referring
directly to the former, the collector is only required to make
his application in conformity with the former, as near as may
be. If we comprehend the force of this position, it may be
more clearly but fairly stated thus : Although the city tax act
directs that the county collector shall proceed to obtain judg-
ment in the same manner as may be provided by law for
obtaining judgments against lands for taxes due and unpaid
the county and State, except when therein otherwise provided ;
and the general revenue law directs that, in order to obtain
such judgment, a certain report, verified by a prescribed affi-
davit, shall be filed, and the city tax act neither dispenses with
that report and affidavit, nor directs how the county collector
shall obtain information from which he can intelligibly and
truthfully make them, it must be held that it will be sufficient
for the county collector to make another and different report,
verified by affidavit, in accordance with the actual facts.
This assumes that the law must be sustained, and made to
conform to what we may suppose to have been the purpose of
its enactment, at all hazards, whether its provisions are prac-
tically adapted to that end or not. In our opinion, that is be-
yond any power with which courts are invested. In summary
proceedings to divest owners of title to their property, the law
is to be construed strictly, and nothing is allowed to be taken by
intendment merely. The city tax act does not authorize judg-
1874.] The People ex rel. Miller v. Otis. 389
Opinion of the Court.
ment to be rendered without the presentation of a report of
the delinquent property, nor does it authorize the county col-
lector to present the report of* the city collector, as made to
him, and have judgment upon that. It does not, as seems to
be supposed, authorize him to present a report verified by affi-
davit, " as near as may be" as required by the general reve-
nue law. That qualifying phrase only occurs in the clause in-
vesting the county court with jurisdiction to hear the applica-
tion, and directs that it shall proceed " as near as may be, as
upon application for judgment for State and county taxes ;"
and has no reference whatever to the steps to be taken by the
county collector, which are defined in a preceding clause. Nor
does the act prescribe what kind of report shall be presented
by the county collector for the purpose of obtaining judgment,
nor how any such report which he may present shall be veri-
fied. It is framed upon the hypothesis that the duties of the
county collector in these ' respects are clearly and sufficiently
denned, by the general revenue law, and allows neither the
collector nor the courts any discretion upon the question. It
must necessarily follow, therefore, if this hypothesis is not well
founded, and the requirements of that act, being strictly fol-
lowed, leave it impossible for the county collector to make the
report and affidavit required by the general revenue law, the
fault is in the law, and the remedy must be sought in the legis-
lature, which alone is invested with power to amend the law.
The affidavit of the county collector, as required to be made
by the general revenue law, in our opinion, clearly implies
that he had legal authority to collect, and that his inability to
do so, has resulted from his being unable to obtain that from
which collection could be made. The language employed, in
itself, would seem to imply this. In addition to this, however,
it is evident, if there were no authority to collect, the affidavit
would be wholly useless, since its sole office is to establish,
prima facie, the delinquency of the tax payer, and this re-
quires that he should have failed in his duty to pay. The
county collector is designated as the officer as to whom he is
390 The People ex rel. Miller v. Otis. [Sept. T.
Opinion of the Court.
to be shown as having been delinquent, yet if the county col-
lector had no authority to receive, as is to be inferred from
the affidavit filed, it is impossible that the tax payer could have
owed any duty to pay him, and so his delinquency could not
possibly be established by simply showing the county collect-
or's inability to collect.
The affidavit, as filed, departs materially from the language
required by the law, and conveys an entirely different mean-
ing. This we regard as a failure to comply with the law in
a respect which was vital to the jurisdiction of the court.
Nor do we think that section one hundred and ninety-one
of the general revenue law, as amended by the act approved
May 30, 1873, does, as claimed, obviate the objection. The
portion of that section claimed to have this effect is as follows :
" In all judicial proceedings of any kind, for the collection of
taxes and special assessments, all amendments may be made
which, by law, could be made in any personal action pending
in such court, and no assessment of property or charge for any
of said taxes shall be considered illegal on account of any ir-
regularity in the tax lists or assessment rolls, or on account of
the assessment rolls or tax lists not having been made, com-
pleted or returned within the time required by law, or on ac-
count of the property having been changed or listed in the
assessment or tax list without name, or in any other name
than that of the rightful owner ; and no error or informality
in the proceedings of any of the officers connected with the
assessment, levying or collecting of the taxes, not affecting the
substantial justice of the tax itself, shall vitiate, or in any
manner affect the tax or the assessment thereof; and any ir-
regularity or informality in the assessment rolls or tax lists,
or in any of the proceedings connected with the assessment or
levy of such taxes, or any omission or defective act of any
officer or officers connected with the assessment or levying of
such taxes, may be in the discretion of the court corrected,
supplied and made to conform to law by the court, or by the
1874.] The People ex rel. Miller v. Otis. 391
Opinion of the Court.
person, in the presence of the court, from whose neglect or
default the same was occasioned."
Broad and comprehensive as this language is, it cannot be
held to authorize the courts to waive a substantial compliance
with those steps which are essential to give jurisdiction.
The reasonable construction is, amendments shall be allowed
to the same extent with regard to such proceedings, that they
could be allowed in any and all personal actions in the court ;
and mere technical or formal errors and irregularities shall
not affect the validity of the tax or assessment. When, there-
fore, the record is defective and the facts do not authorize an
amendment to be made so as to make it conform to the re-
quirements of the law, the question is whether the defect is
one of substance or merely of form. If the former, it is not
aided by the section — if the latter, it is.
We can but regard the statement of the valuation of the
property upon which the tax was extended in the report or re-
turn of the collector, and the oath or affidavit required to
accompany his report or return, as substantial requirements,
and that the rights of tax payers might, in many instances, be
materially prejudiced by their omission. No attempt was
made to amend the record, in these respects, and make it con-
form to the requirements of the law, and, in our opinion, it
was impossible that such amendments could have been made
in conformity with the facts.
We express no opinion upon the other questions which are
discussed in the briefs before us, inasmuch as what has been
said is sufficient to affirm the judgment below.
Judgment affirmed.
392 Ashley v. Johnson et at. [Sept. T.
Opinion of the Court.
Harvey D. Ashley
v.
Hoeace I. Johnson et al.
1. Evidence — competent to prove the fact of the execution of a writing
by oral testimony. On the trial of an action for a false arrest, it is compe-
tent to prove, by the j ustice of the peace who issued the warrant upon
which the arrest was made, the fact that a written affidavit was made be-
fore him on which he issued the warrant.
2. Same — when contents of an affidavit may be proved by oral evidence.
Where a justice of the peace who issued a warrant for the arrest of a plain-
tiff in an action for false imprisonment, testifies to the fact that an affida-
vit in writing was made before him, upon which the warrant was issued,
and the loss of the affidavit is proved, it is competent to prove its contents
by oral evidence.
Appeal from the Circuit Court of Livingston county ; the
Hon. Nathaniel J. Pillsbury, Judge, presiding.
Mr. S. S. Lawrence, for the appellant.
Mr. William T. Ament, for the appellees.
Mr. Justice Craig delivered the opinion of the Court :
This was an action brought by Harvey D. Ashley against
Horace I. Johnson and O. C. Kilbury, in the circuit court of
Livingston county, to recover for an alleged false arrest.
A default was entered as to O. C. Kilbury, and the defend-
ant Johnson pleaded the general issue ; a stipulation was filed
that Johnson might introduce any and all evidence under the
general issue that might or could be introduced under special
pleas.
The cause was tried before a jury, and the defendant John-
son found not guilty, and the damages of plaintiff assessed at
$25, against Kilbury.
The plaintiff entered a motion for a new trial which the
court overruled, and rendered judgment upon the verdict.
1874.] Ashley v. Johnson et al. 393
Opinion of the Court.
The plaintiff brings the record here, and relies upon two
grounds to obtain a reversal of the judgment.
First. The court admitted improper evidence for the defend-
ant.
Second. The verdict of not guilty, as to Johnson, is against
the weight of evidence.
The facts, in brief, out of which this litigation grew are
these : On the 27th day of October, 1871, the plaintiff was
driving through Livingston county a large herd of cattle. When
near Fairbury, six head of cattle belonging to the defendant
Johnson, by some means got into the drove and were being
driven off with the herd. Johnson missed his cattle and fol-
lowed the plaintiff to Fairbury, and at that place made some
efforts to obtain them but did not succeed.
The plaintiff then went on with the drove, and when about
two miles from Fairbury he was again overtaken by Johnson
and a constable. Johnson obtained his cattle, and the plaintiff
was arrested by the constable and taken to the office of a jus-
tice of the peace in Fairbury, where he remained a short time
and left ; on the next day he was again arrested by the de-
fendant Kilbury and taken before the same justice of the
peace, where a trial was had and he was discharged.
The evidence admitted to which exception was taken, was
that of Ross, the justice of the peace. He was asked to state
if a written affidavit was made before him upon which he
issued the warrant under which the arrest was made.
We perceive no objection to this evidence. It was competent
for the witness to state the fact that an affidavit was made ;
this the court permitted, but did not at that time allow the
witness to state the contents of the affidavit.
After this, proof was introduced as to the loss of the affida-
vit, and the court allowed the contents of it to be proven. In
this we see no error, as the proof was not objected to on the
ground that the loss had not been established, but alone on
the ground that it had not been legally established that an affi-
davit had ever existed.
50— 74th III.
394 Peoria and R. I. Ry. Co. v. Mitchell. [Sept. T.
Syllabus.
In regard to the other point made, that the verdict as to the
defendant Johnson is contrary to the evidence. Without en-
tering upon a critical review of the testimony introduced be-
fore the jury, it is a sufficient answer to the position assumed,
that there is a clear and direct conflict of evidence, which it
was the duty of the jury so far as possible to reconcile. This
they did, and while we might be inclined to the belief that the
verdict should have been the other way, yet we cannot on that
ground disturb the finding.
This court has repeatedly held that where the evidence is
conflicting we will not disturb the finding, unless the verdict
is clearly against the weight of evidence. Such this record
does not disclose. The judgment will therefore be affirmed.
Judgment affirmed.
Peoria and Rock Island Railway Company
v.
Robert Mitchell.
1. Practice — change of venue. An application for a change of venue
should be made at the earliest opportunity, and where a party, knowing
all the time of the ground relied upon for a change of venue, delays mak-
ing his motion until towards the latter end of the term of court, and no
reason is shown why the motion was not made on the first day of the term,
a change of venue will not be granted.
2. Same — setting aside default discretionary. Setting aside a default is
a matter of discretion that this court will not control except in extreme
cases, and where it is manifest the discretion has been abused to the great
wrong and injury of the party complaining.
3. Judgment — when sufficiently definite and certain. A judgment
against a railroad company, on an appeal from an assessment of damages
for land taken by it, which refers to the verdict wherein the land taken is
properly described, is sufficiently definite and certain, as to the land for
the taking of which the judgment is rendered.
4. Execution — when should be awarded. Where the verdict of a jury,
on an appeal in a case of assessment of damages for land condemned by a
1874.] Peoria and K. I. Ry. Co. v. Mitchell. 395
Opinion of the Court.
railroad company, finds that the land has been taken by the company, and
not merely that it is proposed to be taken, it is proper to award execution
on the judgment.
Appeal from the Circuit Court of Stark county ; the Hon.
J. W. Cochran, Judge, presiding.
Messrs. Ingersoll & Puterbaugh, for the appellant.
Messrs. McCulloch, Stevens & Wilson, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
An application was made by appellant to the county court
of Stark county for the assessment of damages by reason of
the appropriation of a portion of appellee's lands for railroad
purposes. They were appointed, acted, and made their report
to the circuit court, as required under the provisions of their
charter. From the finding of the commissioners, so returned,
appellee appealed, and, on the case being called for trial, no
one appeared on behalf of appellant, and a default entered
and the damages were assessed ; a motion to set aside the de-
fault was entered, but overruled by the court. The record
is brought to this court on appeal, and a reversal is asked.
It is first insisted the court below erred in refusing to grant
a change of venue of the case. Even if it were conceded that
the affidavit contained sufficient grounds, the application was not
made in proper time. The affidavit states that the information
of the grounds alleged came to the knowledge of affiant at the
time the judge was appointed to his office, and the delay in
making the application was because negotiations for a com-
promise were pending. The record shows that the court con-
vened on the 7th day of April, 1873, and the motion for the
change of venue was not made until the 17th of that month.
The sixth section of the venue law provides that a change
shall not be allowed after the first term of the court at which
396 Peoria and E. I. Ey. Co. v. Mitchell. [Sept. T.
Opinion of the Court.
the party applying could be heard, unless he shall show the
causes have arisen, or come to his knowledge after such term,
and shall also give ten days' notice of his intention to apply,
except where the causes have arisen or come to his knowledge
within less than ten days of making the same. Eegular
practice required that the application should have been made
at the earliest opportunity, for a change of venue. The party
had no right to keep parties and witnesses in attendance till
toward the latter end of the term, knowing all the time of
the grounds relied on, and then make his motion. The stat-
ute contemplates no such practice. No reason is shown why
the motion was not made on the first day of the term, without
delaying ten days. The fact that propositions were pending
for a compromise of the case in nowise prevented appellant
from filing his petition and entering his motion. Nor was
the notice of the intended application given, although the
record shows that affiant knew of the grounds certainly ten
days before the motion was entered, and we presume for a
much longer period. This is a requirement of the statute,
positive in its character, and which cannot be disregarded.
There was no error in refusing to change the venue.
It is next urged that the court below should have set aside
the default. That is a matter of discretion, that this court
will not control, except in extreme cases, and when it is mani-
fest that the discretion is abused, to the great wrong and in-
jury of the defendant. In this case we can see no such abuse.
The affidavit states that counsel had set the cause for hearing
on Thursday of the first week, and on finding the day before
that he could not be present at the trial, he telegraphed to
opposing counsel to know if he would set the case for some
day the next week, when he replied he was willing to fix it
for any day of the next week, and appellant's counsel sug-
gested no day, nor did he even reply. This certainly fixed
no day, and it was left to the option of counsel to fix the day,
which he failed to do.
The opposing counsel had a right to know what day the case
1874.] Peoria and K. I. Ky. Co. v. Mitchell. 397
Opinion of the Court.
would stand for trial, that he might have his witnesses ready,
and not be required to keep them in attendance until someday
the following week appellant should indicate that they were
ready. Appellant's counsel should have replied, fixing a day.
Again, an attorney who was attending to other cases for ap-
pellant's counsel, when the case was called on Thursday, and
appellee's counsel said he was willing any day should be fixed,
so that he was sure of having a trial at that term, when the
court suggested there might be no jury the next week,,
agreed that the case should be set on Saturday, the day it was
tried. This attorney undertook to act for appellants, and oppos-
ing counsel was not informed that he had no power to act. We
fail to see that appellants have any right to insist they have not
been fairly dealt by in the matter. Their attorney could have
named a day, or the attorney who fixed the day could have
telegraphed him that it was fixed for Saturday, and he could
have reached Toulon in time to have tried the case. It was
all a matter of favor that consent was given to extend the time
beyond the call of the case on the docket. Clients have rights,
when insisted upon, their attorneys cannot concede for the
accommodation of others.
We do not have, nor can we have enough of the facts before
us to say whether or not the judgment is or not excessive.
That we cannot determine unless we had all the evidence
before us. It is, however, claimed that it should only have
been for not exceeding fifty dollars. But, even supposing the
jury allowed too much for the land taken, they found that
appellee had been damaged $75 over and above the land
taken, and from the counter affidavit, we think it was proper,
or, perhaps, very decidedly too small. It appears that the
witnesses varied in the price of the land from fifty to seventy-
five dollars per acre ; that forty rods of hedge was destroyed,
worth two dollars per rod, and about two acres more of land
were rendered almost useless, which should have enhanced the
damages. Both affidavits considered, we are not prepared to
398 Peoria and E. I. Ry. Co. v. Mitchell. [Sept. T,
Opinion of the Court.
hold that injustice has been done, or that the court below
abused its discretion in refusing to set aside the default.
It is urged that the judgment is indefinite and uncertain.
The verdict is specific. It describes a strip of land taken, as
one hundred feet wide, etc., as the same is laid out and sur-
veyed over a specified quarter of land. The judgment de-
scribes it as " the land taken by the defendant, and assessed by
the jury herein." The judgment refers to the verdict, and the
verdict to the tract of land and the survey, for a description,
and this is so certain that no one need mistake the premises
for which the assessment was made and that was condemned
for the use of the road. We do not regard the objection as
well taken.
It is lastly urged that the court erred in awarding execu-
tion. The charter provides that the jury impaneled to try
the appeal shall find the value of the land so taken as required
by the company, and the damages over and above the benefits
which shall accrue to the owner, and that the judgment of the
court shall be entered accordingly. According to this provis-
ion, the verdict contains all that is necessary, and the judg-
ment is not erroneous. The verdict finds that the land was
taken, and not that it was proposed to be taken by the com-
pany. And when it is already taken, what other judgment
could be properly entered? Surely not a judgment that the
company pay when they should take the land. Certainly not
a mere finding that appellee had sustained damage to the
amount found by the jury, and that the company pay the
amount, and leaving appellee to sue upon the judgment if not
paid. Appellant says, under the charter, the company have a
right to tender the money, and receive a deed. The award-
ing of an execution in nowise prevents appellant from ten-
dering the money, and if appellee refuses to receive it, the
court would stay the execution, but if they fail to make the
tender, he should have the power to obtain the money for the
land of which he has been deprived, and which the company,
without paying for, have appropriated to their use. And the
1874.] Illinois Central K. K. Co. v. Ebert. 399
Opinion of the Court.
only effectual means known to the law, is by execution for
the money, or proceedings to recover the land.
The judgment of the court below is affirmed.
. Judgment affirmed.
The Illinois Central Railroad Company
v.
Carl Ebert.
Negligence — injury resulting from, want of outlook on railroad cars
Where a person driving a team in a city on a very cold and
blustering day, being muffled up to protect himself from the severity of the
cold, while driving across a track near a public elevator, was struck by a
car being propelled by an engine in the rear, and severely injured, and
there was no one stationed on the car or on the ground to give warning, and
it appeared, if there had been, the injury might have been avoided, it was
held, that as the injury was the result of negligence on the part of the
company, it was liable in damages to the injured party.
2. Damages — whether excessive. A verdict of $10,000 damages in favor
of one severely injured by negligence of a railway company, when the
plaintiff was only a day laborer, and not wholly disabled, and the negligence
was not reckless, was held so excessive as to justify the inference the jury
were actuated by prejudice and passion, and should have been set aside.
But a remittitur of $6,000 having been entered, and judgment entered for
$4,000, it was held, that this was not so excessive as to justify a reversal.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Rogers, Judge, presiding.
Mr. Jno. N". Jewett, and Mr. Charles T. Adams, for the
appellant.
Messrs. Brandt & Hoffman, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
This was an action on the case, brought to the Cook circuit
court, by Carl Ebert against the Illinois Central Railroad Com
400 Illinois Central K. R. Co. v. Ebekt. [Sept. T.
Opinion of the Court.
pany, for an injury sustained by a collision of one of the trains
of that company. The jury found for the plaintiff, and as-
sessed his damages at ten thousand dollars. On motion made
by defendants for a new trial, the plaintiff's attorney remitted
six thousand dollars of the finding, whereupon the court over-
ruled the motion for a new trial, and rendered judgment for
the balance, being four thousand dollars, and the defendants
appeal.
The errors assigned are, that the verdict is against the law
and the evidence, and the damages excessive.
We are of opinion, after a careful perusal of the testimony,
that the evidence sustains a verdict against the defendants.
The accident happened on the grounds of the company, on a
cold, blustering, snowy day, in January, 1873 ; a day on which
one exposed to its blasts would use all the expedients at his
command to ward off, or at least temper its severity. So it was
with this plaintiff. He was employed hauling ice, and was
muffled up to protect himself from the cold, going along at a
slow pace with his load. On his route were several tracks of
the defendants, which it was necessary for him to cross. These
tracks, or some of them, ran into Buckingham's elevator, and as
he was about crossing track No. two, so called, about forty
feet from the elevator, a train of cars, not drawn, but pro-
pelled from the rear by an engine, ran into the wagon, pushed
the horses and plaintiff into the elevator, killing the horses
and seriously crippling the plaintiff, disabling him from the
performance of the labor to which he is accustomed.
There was no outlook upon the train ; no flagman at the
crossing, and no means used by the servants of the com-
pany to apprise plaintiff of the approach of the train, though
one or two witnesses testified the bell was rung, and one
Dormedy, an employee at the elevator, testified that he made
every effort he could, to notify plaintiff of the approach of the
train, but that he was unheeded. It does not appear that plain-
tiff made any special effort to see if any train was approaching
1874.] Illinois Central R. R. Co. v. Ebert. 401
Opinion of the Court.
on that track. He says he saw cars on it, but they were not in
motion.
It was great negligence of the company in failing to have
some person on the train on top of the. forward cars, or upon
the ground in front. It is no excuse that the day was cold
and stormy, and that a person posted on the top of the cars
would be exposed to danger. It is the duty of the servants of
the company to expose themselves to danger when necessary,
not to rush into danger recklessly, but to maintain their post
let what may happen. Had a vigilant man been on the front
car, it is not at all probable this accident would have occurred.
Indeed, it is quite certain it would not. The accident, then,
having been occasioned by the negligence of the company, they
must bear the consequences — they must respond in damages.
Were the damages properly assessed in the case % Do the
facts justify a finding so heavy % Ten thousand dollars is a
very large sum of money, in the possession of which very few
can boast. It is a small fortune, which few acquire in a life
of incessant labor. This the jury awarded to one whose pros-
pects in life did not extend beyond his wages as a day laborer,
and who has not been, by the negligence of the defendants,
wholly disabled. It is true, the company were at fault, but
not so greatly as to aggravate it to wilfulness. Compensatory
damages were all the jury were justified in awarding, under
the evidence. A verdict for ten thousand dollars is so enor-
mous as to justify the inference the jury were actuated by
prejudice and passion, not listening to the dictates of cool
judgment. The enormity of the finding so shocked the sense
of justice of the plaintiff's counsel that they at once remitted
more than one-half of the amount. We cannot but think the
verdict was the result of passion and prejudice, and it is none
the less so after the remittitur, for the incentives to the finding
abide as well in what remains as in the original amount found.
The verdict was for ten thousand dollars. That verdict was
the result of passion and prejudice. If those incentives
prompted the verdict they vitiate the verdict, and it should
5 — 74th III.
4:02 Barnes v. Ehrman. [Sept. T.
Syllabus.
have been set aside. But a practice has found place in our
jurisprudence which sanctifies an outrageous verdict by enter-
ing a remittitur, and it has so often received the sanction of
this court that it may be too late now to displace it.
The verdict, as it was made to be by the remittitur, is large,
but we cannot say it is so excessive as to warrant this court in
disturbing it. The judge before whom the cause was tried
thought it right; and he had a better opportunity of under-
standing the merits of the case from the facts than we can
have, and we must affirm the judgment. The instructions
fairly presented the law of the case.
Judgment affirmed.
Charles T. Barnes
v.
Benjamin F. Ehrman.
Mahribd women — may execute mortgage with power of sale. The stat-
ute which provides that " any married woman, being above the age of
eighteen years, joining with her husband in the execution of any mortgage,
conveyance, power of attorney or other writing of, or relating to the sale,
conveyance or disposition of her lands or real estate, or any interest therein,
shall be bound and concluded by the same, etc.," gives to a married woman,
by her husband joining with her in its execution, power to execute a mort-
gage or deed of trust containing a power of sale, and a sale under such a
power will effectually bar her equity of redemption.
Appeal from the Superior Court of Cook county ; the Hont
S. M. Moore, Judge, presiding.
Mr. James Dunne, for the appellant.
Messrs. Holmes, Rich & Noble, for the appellee.
1874.] Barnes v. Ehkmaet. 403
Opinion of the Court.
Mr. Justice Scott delivered the opinion of the Court :
The bill alleges that in March, 1873, Mary J. E. Foster was
the owner of the lands involved in this controversy ; that she
and her husband, Charles G. Foster, were indebted to appel-
lee in the sum of $7,500, for which they gave him their three
promissory notes, each for the sum of $2,500, payable in one,
two and three years, and for the better securing of such in-
debtedness, Mrs. Foster and her husband executed a mortgage,
or deed of trust, upon her separate real estate, as described in
the bill, which deed of trust contained a power of sale. De-
fault was made in payment of the first note, and appellee,
having advertised the property for sale, in accordance with the
terms of the mortgage, this bill was filed to enjoin the sale, on
the ground the power of sale contained in the mortgage, as
well as all other covenants therein contained, are inoperative
as to Mrs. Foster. Appellant is a purchaser from Mr. and
Mrs. Foster, and now insists the mortgage constitutes no lien
on the premises, and that he takes the property discharged
from the indebtedness secured thereon.
It is not claimed Mrs. Foster, by joining with her husband,
could not make a valid mortgage on her separate real estate,
but it is argued the power of sale and all other covenants con-
tained in the mortgage, beyond pledging her " interest in her
estate," are void as against her.
It will not be necessary to inquire what authority a married
woman had at common law, if any, to bind herself by cove-
nants in relation to her separate estate, for we are of opinion
the statute in force at the date of this transaction gave her,
by her husband joining with her in its execution, power to
execute a mortgage or deed of trust containing a power of sale,
and that a sale under such a power would effectually bar her
equity of redemption. That statute provides : " Any married
woman, being above the age of eighteen years, joining with
her husband in the execution of any mortgage, conveyance,
power of attorney, or other writing of or relating to the sale,
404 Derrick v. The Lamar Insurance Co. [Sept. T.
Syllabus.
conveyance, or other disposition of her lands or real estate, or
any interest therein, shall be bound and concluded by the
same in respect to her right, title, claim or interest in such
estate as if she were sole." 2 Gross' Stat. 53, § 90.
The power of sale usually contained in a mortgage or deed
of trust is an irrevocable authority to aid in the alienation of
the estate, and bears no analogy to covenants declared by the
common law to be inoperative in the deed of a married
woman.
It is a power of attorney in relation to the sale of her sepa-
rate estate, and having joined with her husband in its execu-
tion, it is authorized by the statute, and may be enforced against
her to the effectually barring of her equity of redemption in
the premises to be conveyed.
It will not be necessary to consider the point made on the
insufficiency of the notice. No sale was made under the notice
given, the same having been stayed by the temporary injunc-
tion. In case a sale shall hereafter be made, it must be done
after new notice given in accordance with the terms of the
mortgage.
The bill was properly dismissed and the decree will be
affirmed.
Decree affirmed.
Morris B. Derrick
v.
The Lamar Insurance Company.
1. Appeal — when may be prosecuted by one not named a party to the
suit. Where, on a creditor's bill, the cause is referred to the master in chan-
cery to take proofs of all claims against the estate of the defendant which
may he presented to the receiver, and a claim is sought to be proved before
the master by a creditor who is not a party to the bill, and the master re-
ports to the court that he has disallowed the claim, and upon exceptions
taken to the report the court overrules the exceptions and sustains the
1874.] Derrick v. The Lamar Insurance Co. 405
Opinion of the Court.
report, an appeal on behalf of such claimant will lie to the Supreme
Court.
2. Assignment — of insurance policy, may be 'vacated if obtained by mis-
representation. Where a policyholder who had sustained a loss of prop-
erty insured, was induced, by false representations of the officers of the
company issuing the policy as to the ability of the company to pay its
debts, to assign his policy for less than was due on it, to one who was act-
ing for the company in settling its losses, in concurrence with the officers
making the false representation, it was held that the assignment should be
annulled and the policyholder entitled to recover on his policy in a court
of equity.
3. Limitation — clause of as to suit, in insurance policy, waived by fraud
on part of company. A clause in an insurance policy limiting the right of
action on the policy to a specified period of time is waived if the company,
by fraud, or by holding out reasonable hopes of an adjustment, prevent the
assured from bringing suit within the time limited.
Appeal from the Superior Court of Cook county ; the Hon.
S. M. Moore, Judge, presiding.
Mr. F. C. Ingalls, for the appellant.
Messrs. Shufeldt, Ball & Westover, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
Edwin Burnham and Edward E. Burnham having before
recovered a judgment against the Lamar Insurance Company,
on the 23d day of October, 1872, tiled their creditor's bill against
the company and others, in the Superior Court of Cook county,
to obtain satisfaction of the judgment.
Such proceedings were had upon the bill, that on the 23d of
November, 1872, a receiver of the insurance company was
appointed by the court below, vested with all the rights and
property of the company, with power to prosecute and defend
all suits, collect all moneys due the corporation, and enforce all
liabilities of its stockholders. On the 18th day of January,
1873, the court decreed that the receiver, out of the proceeds
of collections made by him, pay the costs and expenses, and
then pay to the complainants, and to all other creditors of the
Lamar Insurance Company who should come in and file their
406 Derrick v. The Lamar Insurance Co. [Sept. T,
Opinion of the Court.
claims under that decree, pro rata, or share and share alike,
until all the demands against said company should be paid in
full. Upon the report of the receiver, showing that there were
divers claims against the company, and that he had no means
of determining their amounts and validity, it was ordered by
the court, May 1, 1873, that it be referred to the master to
take proofs " of all claims against the Lamar Insurance Com-
pany which may have been or may hereafter be presented to
the receiver," and ascertain the amounts thereof, and whether
the same are just and valid claims. Afterward, on October
31, 1873, the court ordered that all persons having claims
against the Lamar Insurance Company or its property present
and prove the same before the master within ninety days
from the entry of the order, or be forever barred from sharing
in the estate or assets of said company, and that the receiver
publish notice of the limitation. The notice was duly pub-
lished, and on December 3, 1873, the appellant, Morris B. Der-
rick, in pursuance of the order of the court, and within the time
therein limited, presented to, and made proof of, before the
master, a claim against the company for a loss by the fire of
1871, at Chicago, of $1,865 on property upon which he held
a policy of insurance in the Lamar Insurance Company for
$3,500.
On the 11th day of June, 1874, the master made report to
the court of the proofs and his finding thereon, and that from
the proofs he found against the claim of appellant, for the rea-
son that previous to his filing his claim before the master, he
had assigned his rights, under the policy of insurance and
proof of loss, to John H. Wise. Exceptions were taken to
the master's report, on hearing of which June 11, 1S74, the
court overruled the same, and adjudged that appellant's claim
be rejected and disallowed, wherefrom this appeal was taken.
It is objected that the appellant cannot maintain the appeal,
because he is not a partv to the suit or to the record. The
bill was not filed for the benefit of others as well as the com-
plainants, and it is true that appellant was not a party to the
1874.] Derrick v. The Lamar Insurance Co. 407
Opinion of the Court.
suit, nor had he filed a petition to be made a party and to
share in the benefits of the decree ; yet, appellant was a party
in interest, had rights to be adjudicated in the court below, and
he was properly there before the master, in pursuance of an
order of the court.
It is laid clown in Barbour's Chancery Practice, vol. 1, p.
382, that it is not necessary that the person who appeals should
be actually a party to the record, provided he has an interest
in the question which may be affected by the decree or order
appealed from ; and that even creditors coming in before the
master under a decree have been held entitled to appeal, al-
though not parties to the bill, because the decree affected their
interests, and that a creditor coming in before a master, and
having a claim disallowed on exceptions to the report, may
appeal from the order disallowing the exceptions. In Strike
v. McDonald, 2 Harr. & Gill, 191, there were two modes
recognized as being according to established practice in that
State, whereby other creditors could be permitted to come in
and participate in cases of this sort, namely, either by petition,
or by filing the vouchers of their claims. We accede to this,
as a proper rule of practice.
We are of opinion the appeal in this case lies.
It appeared from the proofs that the risks of the Lamar In-
surance Company had been reinsured by the People's Insur-
ance Company of San Francisco, which latter company was
made a party to the bill. The assignment of the policy from
appellant to John H. Wise, which was stated by the master as
the reason for rejecting appellant's claim, was under the follow-
ing circumstances. Wise was the vice-president of the Peo-
ple's Company, and acting on its behalf, in settling losses under
policies winch had been given by the Lamar Company and
reinsured by the People's Company. The sum received by
appellant for the assignment was $712.50, and he was induced
to make such compromise in consequence of the misrepresenta-
tions, as he testified, of the principal officer of the Lamar Com-
pany, of its resources and ability to pay its losses. The com-
408 Derrick v. The Lamar Insurance Co. [Sept. T.
Opinion of the Court.
promise and settlement were effected by the concurrent action
of the principal officers of the companies. The testimony on
that subject is that of appellant alone, and that quite clearly
makes out such a case of misrepresentation as should vacate the
compromise and annul the assignment, Wise appearing not to
be a bona fide assignee, but to have been acting on behalf of
the People's Company, so that the assignment should be
regarded as no more than an attempted form of extinguish-
ment of the policy. Here, as Wise had an apparent interest
as assignee, the more proper course would have been for appel-
lant to have proceeded by petition, making Wise a party, so
that he might have had an opportunity to assert whatever
rights he might claim, 'and that they might be bound by the
decree.
But as, according to the proofs made, appellant had a just
claim for relief, and the apparent interest of Wise was but
nominal and formal, if the latter was deemed a necessary party,
he should have been brought into court, instead of dismissing
appellant's claim.
It is objected that appellant's claim is barred by the limita-
tion clause in the policy limiting the right of action to one
year. In Peoria Marine and Fire Insurance Co. v. White-
hill, 25 111. 466, and Fire and Marine Insurance Co. v.
Chesnut et al. 50 id. 112, it was held that such a provision in
a policy would be waived if the company, by fraud, or by hold-
ing out reasonable hopes of an adjustment, deterred the assured
from bringing suit within the time limited. This supposed
fair compromise of the claim with the company, within the
year, and the non-discovery of its alleged unfairness until
eighteen months afterward, sufficiently accounts for not bring-
ing the suit within the year, and the company, by ifs own con-
duct, waived the provision, within the principle of the above
decisions.
We are of opinion there was error in the order and decree
of the court below, in overruling the exceptions to the master's
report, and disallowing the claim of the appellant, and such
1874.] Zearing v. Raber. 409
Syllabus.
order and decree are reversed, and the cause remanded for
further proceedings, with leave to appellant to tile his petition
to come in and prove his claim, making John H. Wise a party.
Decree reversed.
William M. Zeaking-
John Raber.
1. Street — lots sold in reference to. Where the owner of land has
the same platted, showing a street, and sells a part with reference to such
street, which is mentioned in the description in the deed, although the
street is not opened, or the map thereof acknowledged or recorded, this
will be an immediate dedication of the street as to such purchaser, and
the grantor and all persons claiming under him will be estopped from
denying the existence of the street.
2. If land is conveyed as bounded on a street, this is not merely a
description, but an implied covenant that there is such a street, and the
grantor and those claiming under him are forever estopped from disputing
the existence of such street.
3. Chancery jurisdiction — to preserve use of street. Where lots are
sold with reference to a street abutting the same, a court of equity will
interfere to prevent a party claiming under the original owner and grantor
from destroying the full use of such street as originally designed.
Appeal from the Superior Court of Cook county ; the Hon.
Samuel M. Moore, Judge, presiding.
This was a bill in chancery, by the appellee against the ap-
pellant, to prevent a threatened obstruction of the use of a
street or way. The facts appear in the opinion.
Messrs. Dent & Black, and Mr. W. M. Zearinq, for the
appellant.
Messrs. Rosenthal & Pence, for the appellee.
52— 74th III.
4:10 Zeaking v. Raber. [Sept. T.
Opinion of the Court.
Mr. Justice Soholfield delivered the opinion of the Court :
James, Springer and Green, being owners, as tenants in
common, of a certain out lot, south and in the immediate
vicinity of the city of Chicago (except a strip extending
through its center from north to south, used as railroad right
of way), laid out a street across such lot from east to west,
extending from State street to what was then called Thompson
street, but is now known as Wentworth avenue. They caused
ditches to be dug and a roadway thrown up along the street,
so far as it extended on their ground, and erected a fence on
its north side from State street to the railroad right of way.
They also prepared a map of the lot, showing the location of
this street, designated thereon u Green street."
The map, however, was neither acknowledged nor recorded
for the purpose of making a statutory dedication of the street.
One Walenta subsequently became the purchaser of a por-
tion of the lot, which was conveyed to him by deed from
James, Springer and Green, by the following description :
" Commencing at the south east corner of said lot 5, and run-
ning thence due north 152 feet to a street 66 feet wide, ex-
tending from State street to Thompson street ; thence due
west 672 feet, more or less, to land owned and occupied by
the Michigan Southern and Chicago and Rock Island rail-
roads; thence south 152 feet, thence east 672 feet, more or
less, to the place of beginning."
This property was subsequently conveyed to appellee, by
deed, by the same description. After the sale and conveyance
to Walenta, we may assume, for the purposes of the questions
to be determined, without critically noticing the several deeds
relating to his title, appellant became the owner of the resi-
due of the lot, except that part occupied as railroad right of
way. In the deeds under which he derived title, this language
occurs in describing the property conveyed to him : * * *
lot number 5, in section 16, township 38 north, range 14 east,
excepting and reserving so much of lot 5 as was sold to Ru-
1874.] Zearing v. Kaber. 411
Opinion of the Court.
clolph Walenta, October 4th, 1859, and described as follows : "
(as in said deed to Walenta) " the premises hereby conveyed,
containing 3 T8^ acres, more or less, subject to any and all
railroads, public streets, lanes, alleys or highways running
upon, along or through said premises, or any part thereof."
Aside from the language in the deeds, the evidence is clear
that Walenta, in purchasing from James, Springer and Green,
and appellee, in purchasing from him, did so with express
reference to the supposed existence of the street ; and that
when appellant purchased, he was fully informed of what had
been done to establish the street, and what rights had been
acquired on the faith thereof.
The question is, can appellant now be heard to deny the ex-
istence of the street ?
It is unimportant whether the public have so far accepted
the dedication as to be bound to keep the street in repair, since
the question involved is simply one of private right. Nor do
we conceive it necessary to determine where the fee in the soil
of the supposed street is ; whether it is in the adjacent prop-
erty holders to the center of the street, or remains in the orig-
nal owners until there shall be sufficient evidence of accep-
tance by the public. If appellee is entitled to have the street
kept open for use, it will be sufficient.
That appellant is, under the facts given, estopped from deny-
ing the existence of the street, can hardly admit of contro-
versy. The principle applicable is well stated by the editors
of Smith's Leading Cases (7th Am. ed., vol. 2, 154), in a re-
view of the authorities relating to the point ; and inasmuch as
what is there said covers the entire ground in controversy, and
meets with our approval, we shall content ourselves with tran-
scribing it.
" If one owning land exhibit a map of it, on which a street
is defined, though not as yet opened, and building lots be sold
by him with reference to a front or rear on that street, or lots
he conveyed being described as by streets, {Scheuler v. Com-
monwealth, 26 Penn. St. 62 and ed. 29) this is an immediate
412 ZtiARWG v. Raber. [Sept. T.
Opinion of the Court.
dedication of that street, and the purchasers of lots have a
right to have that street thrown open forever ; Wyman v.
Mayor, etc., 11 Wend. 487 ; Livingston v. Mayor, etc., 8 id.
85 ; and see the Matter of Twenty-ninth and Thirty-ninth
Streets, 1 Hill, (N. Y.) 189, 192 ; and this principle is not lim-
ited in its application to the single street on which such lots
may be situated. If the owner of land lays out and establishes
a town, and makes and exhibits a plan of the town, with various
plats of spare ground, such as streets, alleys, quays, etc., and
sells the lots with clear reference to that plan, the purchasers
of the lots acquire, as appurtenant to their lots, every easement,
privilege and advantage which the plan represents as belonging
to them as a part of the town, or to their owners as citizens of
the town. And the right thus passing to the purchasers is not
the mere right that such purchaser may use these streets, or
other public places, according to their appropriate purposes,
but a right vesting in the purchasers, that all persons what-
ever, as their occasion may require or invite, may so use them ;
in other words, the sale and conveyance of lots in the town,
and according to its plan, imply a grant or covenant to the
purchasers, that the streets and other public places, indicated
as such upon the plan, shall be forever open to the use of the
public, free from all claim or interference of the proprietor
inconsistent with such use. Rowan's Ex. v. Town of Port-
land, 8 B. Monr. 232, 237 ; see also Bowling Green v. Hobsen,
3 id. 478, 481; Ruber et al. v. Gazley et al. 18 Ohio 18;
Dummer v. Roe ex dem. Selectmen of Jersey City, Spencer,
86, 106; Wickliffe v. City of Lexington, 11 B. Monr. 163."
Other authorities, cited in appellee's briefs, will, on exami-
nation, be found fully sustaining this quotation. Thus in
Parker v. Smith, 17 Mass. 412, and in Thomas v. Poole, 1
Gray, 83, it is held that the general principle often recognized
in that State is, " If land be conveyed, as bounded upon a way
or street, this is not merely a description, but an implied cov-
enant that there is such a way, and the grantor and his heirs
are estopped to deny such a way as existing. So also a bound-
1874.] Zeabing v. Raber. 413
Opinion of the Court.
ary, on a passage-way two rods wide, which is to be laid out
between the premises and land of A, estops the grantor, and
those claiming under him, to deny the existence of the pas-
sage-way. Tufts v. Charlestown, 1 Gray, 271."
To the same effect is Hawley v. The Mayor, 33 Md. 280 ;
see also Smith v. Loch, 18 Mich. 56 ; Trustees et al. v. Walsh,
57 111. 368.
The principle is equally applicable to the portion of the
street lying west as to that lying east of the railroad right of
way, the description in the deed to Walenta expressly stat-
ing that the line of the property conveyed ran north to a
street sixty -six feet wide, extending from State street to Thomp-
son street; and the conveyances to appellant, in clear and direct
terms, excepting public streets, etc., running upon or through
said premises. What difficulties may be encountered in cross-
ing the railroad right of way, or in opening up the street
there, in nowise concern appellant. He has no right in the
streets laid out over the lot by his grantor, and appellee is en-
titled to have them as they were represented when his prop-
erty was conveyed to Walenta.
The only remaining question relates to the jurisdiction of a
court of equity, and upon this we entertain no doubt. The
evidence shows a threatened nuisance, tending to deprive
appellee and others of the full and free use of this street, as
he is entitled to have it used, and this is a well recognized
ground fur equitable interposition. 2 Story's Equity Juris-
prudence, § 927 ; Coming v. Lowrie, 6 Johns. Ch. 439 ;
Rowan's Ex._ v. Town of Portland, 8 B. Morir. 232 ; Hills
v. Miller, 3 Paige, 254.
We see no cause .to disturb the decree below, and it is there-
fore affirmed.
Decree affirmed.
4:14 Hatch et al. v. Jordon. [Sept. T.
Opinion of the Court.
John Hatch et al.
v.
William A. Jordon.
1. Fraudulent conveyance — both parties must participate in fraud.
In order to impeach a conveyance of land for fraud, both grantor and
grantee must be shown to have intended to commit the fraud as against
creditors of the grantor.
2. Same — fraud not presumed. Fraud against creditors in a convey-
ance of the debtor's property cannot be presumed, but must be proved.
3. When a debtor not in debt sells his interest in land to another and
receives payment in full, and after debts are contracted by the firm of
which he is a member, he conveys the land to the purchaser, neither he
nor his grantee having any knowledge of the indebtedness, the conveyance
cannot be impeached for fraud as to the creditors.
Appeal from the Circuit Court of Will county ; the Hon.
Josiah McRoberts, Judge, presiding.
Messrs. Olin & Phelps, for the appellants.
Messrs. Breckenridge & Carnsey, for the appellee.
Mr. Justice Craig delivered the opinion of the Court:
This was a bill in equity, exhibited in the circuit court of
Will county, by William A. Jordon, a judgment creditor of
John Hatch, against appellants, John "N. and Sabrina S. Hatch,
to set aside a deed made by John Hatch to Sabrina S. Hatch,
and to subject the land conveyed by the deed to the payment
of certain judgments.
The circuit court rendered a decree setting aside the deed
and subjecting the land to the lien of the judgments, to reverse
which the defendants to the bill have prosecuted an appeal.
The circuit court set aside the deed, on the ground that it
was fraudulent as against creditors, and the only question pre-
sented by the record is, whether the evidence upon which the
1874.] Hatch et al. v. Jokdon. 415
Opinion of the Court.
court based the decree was sufficient to establish fraud in the
conveyance of the land.
It appears from the evidence that in the year 1869, John S.
Hatch died intestate, leaving a widow -and son, appellants, as
his only heirs. His estate consisted of a homestead of twenty
acres, the land now in question, a ten-acre wood-lot, and some
$5,000 in bonds, notes and mortgages, and a small quantity
of personal property.
The estate being free from indebtedness, no administration
was had upon it.
The appellant John Hatch became of age in May, 1870 ;
in June following he formed a copartnership with one Edward
Jordon, a brother of appellee, in the hardware business. The
business was conducted in the firm name of Jordon & Hatch.
In 1871, the firm became indebted to appellee, and several
notes were given, signed by the firm, for the indebtedness.
The first was dated April 15th, 1871, due October 15th, 1871.
The last note dated July 1st, 1871, due July 20th, 1872.
Judgments were rendered upon a part of these notes August
the 20th, 1872, and upon the remainder in the month of De-
cember following.
Prior to the rendition of the judgments, and on the 2d day
of March, 1872, John Hatch conveyed to Sabrina S. Hatch all
interest he held in the homestead.
Thus far there is no dispute in regard to the facts. The
complainant examined several witnesses, but no new facts
were elicited from them which could impeach the fairness of
the conveyance.
Appellants were both examined as witnesses, and if the
decree is to be sustained, it must be done by the facts obtained
from their evidence.
Sabrina S. Hatch testifies, that in the spring of 1870 she
and her son agreed upon a division of the property. By
the arrangement her son was to take a $500 bond, one horse
and a wagon and the homestead ; and she was to have the
rest of the property. A few days after this division of the
416 Hatch et al. v. Jojejdon. [Sept. T.
Opinion of the Court.
estate was agreed upon, John Hatch conceived the notion of
forming a partnership with Jordon.
In order to raise funds to accomplish this purpose, he then
sold his interest in the homestead to the appellant Sabrina S.
Hatch, for $3,000, which she paid over to him. She remained
in possession of the land, but no deed was executed by John
to her until the 2d day of March, 1872.
The testimony of John Hatch in regard to the transaction
agrees in substance with that of his mother.
By what process of reasoning this evidence establishes
fraud in the conveyance of the land we are at a loss to under-
stand.
At the time the contract was made between appellants, and
when John Hatch received payment in full for the land, the
debt upon which judgment was subsequently rendered, was
not in existence, and at that time it is neither claimed nor pre-
tended that John Hatch was indebted to any person. When
the purchase money was paid and Sabrina S. Hatch was left
in the possession of the land, the sale was complete, and had a
court of equity been called upon, a conveyance of the land
might have been decreed.
There is another feature about this transaction that shows
the conveyance was not made for the purpose of defrauding
creditors.
The notes upon which appellee obtained judgment were not
signed by John Hatch, but they were executed by his partner
in the name of the firm. At the time the deed was executed
John Hatch testifies he had no knowledge of the existence of
the notes or the debt for which they were given ; he did not
know the firm was indebted to appellee, except upon one note
which was secured by mortgage on real estate ; that he had
no knowledge of these notes until a summons was served
upon him some five months after the deed was made to his
mother.
This being true, and there being no evidence in the record
to dispute it, upon what ground it can be insisted the deed
1874.] Hatch et al. v. Jordon. 417
Opinion of the Court.
was executed by appellant with an intent to defraud creditors
it is difficult to perceive.
At the time the deed was executed it does not appear that
Sabrina S. Hatch had any knowledge or suspicion that her
son was indebted in any amount whatever, on the contrary she
testifies she had no knowledge that he was indebted to any
person except the amount he owed her. If her evidence be
true, and we fail to find any thing in the record to impeach it,
she bought the land in 1870 and paid the purchase money long
before any debt was in existence ; that five months before any
suit was commenced against John Hatch to obtain a judgment,
she in good faith obtained a deed, without knowledge that he
was involved. Under such circumstances fraud could not be
imputed to her, even had it been established that her grantor
made the deed to place the property beyond the reach of
creditors.
„ We understand the rule to be well settled in this State that,
in order to impeach a conveyance for fraud, both vendor and
vendee must be shown to have intended to commit the fraud,
before the deed can be avoided. Gridley v. Bingham, 51 111.
153 ; Ewing v. RunMe, 20 id. 448 ; Myers v. Kinzie, 26 id.
36. It is also a well settled doctrine that fraud cannot be
presumed, but must be proven. Under this rule, and in view
of the doctrine announced in the cases cited supra, we do not
think the evidence before the court was sufficient to impeach
the conveyance of March 2d, 1872.
The record contains some evidence in regard to other prop-
erty, but it has no bearing upon the conveyance of the prop-
erty involved in the decree, and hence it is not necessary to
notice it here. The decree will be reversed and bill will be
dismissed.
Decree reversed.
53— 74th III.
418 Bowers v. The People. [Sept. T.
Opinion of the Court.
Aaron Bowers
v.
The People of the State of Illinois.
1. Credibility of witness — instruction may be based on statements
made out of court. Where a party as a witness has made statements out
of court different from those on the stand, an instruction that if he had
been successfully impeached, or had willfully sworn falsely as to any mat-
ter or thing material to the issue, then the jury might disregard his entire
evidence, unless corroborated by other unimpeached testimony, is not
erroneous, as it is for the jury to say what the statements amount to as
grounds of impeachment.
2. Same — rule for judging iceigJit of testimony. In weighing the evi-
dence, it is the duty of the jury to take into consideration the deportment
of the witnesses while testifying, as well as any interest they may have in
the result of the suit, and it is not error to instruct them to consider these
facts.
3. New trial — newly discovered evidence. When newly discovered
evidence is merely cumulative, and not of a decisive character, and the party
has shown no diligence in finding it before the trial, a new trial will not be
granted.
Appeal from the Circuit Court of Warren county ; the Hon.
Arthur A. Smith, Judge, presiding.
Mr. Harvey E. Shields, and Mr. John Porter, for the ap-
pellant.
Messrs. Hannaman & Willouqhby, for the People.
Mr. Chief Justice Walker delivered the opinion of the
Court :
This was a prosecution under the bastardy act, against Aaron
Bowers. The charge was that he was the father of a bastard child
by Hannah C. Johnson. He was bound over for his appear-
ance at the circuit court, where, on a trial, the jury found him
to be the father of the child. A motion for a new trial was
entered, but overruled by the court, and the judgment required
1874.] Bowers v. The People. 419
Opinion of the Court.
by the statute was entered, and this appeal was taken, and
various errors are assigned.
Amongst others, it is insisted that the court erred in giving,
refusing and modifying instructions to the jury. The first
instruction to which exceptions are taken was the first in the
series given on the part of the prosecution. It informs the
jury that if they believe that the witness named had been suc-
cessfully impeached, or had wilfully sworn falsely as to any
matter or thing material to the issue,, then the jury might dis-
regard his entire evidence, unless corroborated by other unini-
peached testimony. It is urged that there was no ground for
the instruction, but the evidence shows that he had made state-
ments out of court different from those he made on the stand.
It was for the jury to say what the statements amounted to as
grounds of impeachment. In this there was no error.
We fail to perceive any force in the criticism to the fifth instruc-
tion for the prosecution. It certainly asked no more than a party
has the right to require of the jury. In weighing the evidence it
is the duty of the jury to take into consideration the deport-
ment of the witnesses whilst testifying, as well as any interest
they may have in the result of the suit, and it was no error for
the court to instruct them that they should consider these facts
in reference to any one or all of the witnesses. If appellant
desired such an instruction regarding any witness on the part
of the prosecution, he should have asked it, and the court
would no doubt have given it. Nor can we see that the strik-
ing out of the word " real " before that of " father," in the first
and second of appellant's instructions, could have in the slight-
est degree operated to his prejudice. It did not change the
meaning in the slightest degree, and could not have misled the
jury.^
It is also insisted that the evidence does not sustain the ver-
dict. On examining it we find that it is irreconcilably con-
flicting, and it was for the jury to determine to which side
they should give the weight. The evidence was all fairly be-
fore them, and, seeing and hearing the witnesses testify, they
4:20 Scott v. Bryson. [Sept. T.
Syllabus.
had every facility to find the truth, and with its finding we are
not dissatisfied.
The affidavits filed in support of the motion for a new
trial, only disclose cumulative evidence, which is by no means
conclusive in its character. Even had it been before the jury,
we are not prepared to say the result would have been differ-
ent. All know that there is nothing in which all persons are
more liable to be mistaken than in the recollection of dates.
There are very few, if any, who can remember dates accurately.
Our experience has taught us that with the most retentive
memories, the most truthful and upright, such mistakes
are common. Again, appellant does not show diligence in en-
deavoring to procure this evidence. Whilst the evidence is
conflicting, several witnesses do say that the prosecuting wit-
ness, on the hearing before the justice, fixed the eleventh day
of December, on Monday of the week in that month, which
was the eleventh, as the time when the coition occurred. We
think the evidence clearly preponderates in favor of the fact
that she did so fix the day. If so, appellant was fully apprised
before the trial that it was on the eleventh, and not the six-
teenth, for which he would have to defend himself from the
charge. The entire record considered, we are not able to find
any error for which the judgment of the circuit court should
be reversed, and it must be affirmed.
Judgment affirmed.
Asa Scott
v.
Henry Bryson.
1. Trespass — when it lies. Trespass is a possessory action, and the
plaintiff must, at the time the injury is committed, have an actual or con-
structive possession as well as a general or special property in the chattel
injured, carried away or destroyed, in order to maintain the action ; and
1874.] Scott v. Bryson. 421
Opinion of the Court.
though the possession be tortious, yet trespass lies against a stranger whc
divests such possession.
2. Exemplary damages — in trespass. Where a landlord takes his ten-
ant's corn under an honest belief that he has the right to sell the same and
divide the proceeds, without any notice of a division by the tenant, exem-
plary damages should not be given against him in an action of trespass by
the tenant.
Appeal from the Circuit Court of Whiteside county ; the
Hon. W. W, Heaton, Judge, presiding.
Messrs. Dinsmoor & Stager, for the appellant.
Messrs. Kilgour & Manahan, for the appellee.
Mr. Justice McAllister delivered the opinion of the Court :
The declaration in this case was in trespass de bonis asvortatis,
for taking and carrying away a quantity of corn. Plea, the gen-
eral issue.
Trespass is a possessory action ; and the plaintiff must, at the
time of the injury committed, hav^e an actual or constructive
possession of, as well as a general, special, or qualified property
in, the chattel injured, carried away or destroyed, in order to
maintain the action ; and though the possession be tortious, yet
trespass may be maintained against a stranger who divests such
possession.
The theory of plaintiff, Bry son's, case was, that he worked
Scott's farm on shares, from the spring of 1872, and was to
have half the crops, the small grains to be divided at the ma-
chine, the corn to be divided in the field and put in cribs. He
testifies that this was the contract under which he tilled the
land, and that he divided the corn in the rows. Scott, the de-
fendant, took no part in the division, and did not know that
plaintiff had made one. The cribs were all under one roof,
were really one, but divided into several compartments. Scott
shelled the corn which plaintiff claims to have set apart as his
owh, and hauled it off, except about thirty-five bushels, to Ster
ling and sold it.
£22 Scott v. Bryson. [Sept. T.
Opinion of the Court.
The action was brought for taking away this corn. Scott
testifies that the agreement, under which the corn was raised,
was, that he was to furnish tools and seed and Bryson the labor
and teams. The latter was to live on the place one year, was
to raise the crops, etc., and put the corn in the cribs. That
the grain was all to be his, Scott's, when it was put into the
cribs, and he was to allow Bryson the prices at Sterling for one-
half of it. The defendant introduced evidence of the declara-
tions of Bryson to several persons to the same effect. These
declarations were denied by Bryson, and it appeared, by uncon-
troverted evidence, that the parties did, in fact, divide oats and
wheat in the manner Bryson testified they were to be divided.
Under these circumstances and this conflict of evidence the jury
found for the plaintiff, and assessed his damages at two hundred
and fifty dollars, and the court, overruling defendant's motion
for a new trial, gave judgment upon the verdict, from which
defendant took an appeal to this court.
The parties do not disagree in their testimony that Bryson
was to work Scott's land on shares, and was to have half the
crop. Nor does the defendant deny that by the agreement
the crops were to be divided as stated by plaintiff ; but his ver-
sion of the transaction was, that, when so divided, the whole
were to belong to him and he was to pay plaintiff, for his share,
the price at Sterling.
The bill of exceptions purports to contain all the evidence,
but contains no instructions, so that we cannot judicially know
what rule of law was laid down by the court as to the measure
of damages. The evidence, however, is uncontradicted that the
quantity of corn taken and sold by Scott, was just eight hun-
dred bushels, and that the market value was twenty-two cents
per bushel. Laying out of view, therefore, the defendant's
evidence, tending to show an agreement with the plaintiff that
he, the defendant, was to have the right to sell the corn and
allow the plaintiff the market price at Sterling, the judgment
exceeds the actual damages proven, by the sum of seventy-four
dollars. This finding can be justified only upon the ground of
1874.] Kelly v. Graves. 423
Syllabus.
the excess being for smart money or punitive damages. We
have examined this record with care, and find in the testimony
no basis for punitive damages. If Bryson made the division,
as he testifies, he gave Scott no notice, of the fact ; nor did he
inform him which compartment of the crib contained his (Bry-
son's) share and which Scott's. There is a strong preponder-
ance of evidence that Scott took the corn in question under a
claim of right, made in good faith. He testifies himself that
the original agreement was, that he was to have plaintiffs' share,
and allow him the market price at Sterling for it. Several other
witnesses testify to plaintiff's admissions to the same effect.
This evidence stands opposed only by plaintiff 's unsupported
testimony. Under such a state of the case it would be a per-
version of the principle upon which the rule allowing punitive
damages rests, to permit this verdict to stand. The court be-
low erred in not granting the defendant's motion for a new
trial, and for that error the judgment must be reversed and the
cause remanded
Judgment reversed.
John Kelly
v.
Gtilman Graves.
1. Assignment — proof to hold assignor liable. In order to hold the
indorser of a promissory note liable to the indorsee when no suit is brought
against the maker, it must be proved that the institution of such a suit
would have been unavailing.
2. Same — assignor not bound to point out property. The assignor of a
promissory note is under no legal obligation to give information of the
maker's property when requested by the assignee, and his failure to do so
will create no liability. The assignee must ascertain at his peril, the fact
of the insolvency of the maker.
Appeal from the Circuit Court of Livingston county ; the
Hon. N. J. Pillsbury, Judge, presiding.
424 Kelly v. Graves. [Sept. T.
Opinion of the Court.
Mr. C. C. Strawn, for the appellant.
Mr. L. E. Payson, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action of assumpsit, brought by Kelly against
Graves, as an indorser of a promissory note, made by Stephen
Halstead to Graves, for eighty-five dollars, bearing date No-
vember 22, 1872, and payable to Graves or order ten months
after date, with ten per cent interest, the declaration averring
the insolvency of the maker at the time of the maturity of the
note, and since, and that the institution of a suit against him
would have been unavailing. The suit was commenced Sep-
tember 26, 18T3.
Kelly recovered, and Graves has appealed for the purpose of
reversing the judgment.
It is insisted that the verdict was against the evidence, and
that there was error in the instructions to the jury.
There having been no suit against the maker, it was neces-
sary, in order to maintain the action, to prove that the institu-
tion of such suit would have been unavailing.
There was not much evidence upon that point, and it was
conflicting. Only the plaintiff himself, and the constable,
Payne, testified to the insolvency of the maker, and they do
not appear to have been very familiar with the actual state of
his circumstances and condition, in regard to property. And
the defendant, only, gave testimony to show the solvency of
the maker. But he evidently had better opportunity to know
the maker's actual circumstances, as the latter had been living
in the family of Graves a year or two prior to the maturity of
the note. From defendant's evidence, the jury were warranted
to find, that, at the time of the maturity of the note, the maker
owned a mare and the undivided half of a threshing machine.
These, together with one other mare, had been embraced in a
chattel mortgage, which Halstead, the maker, had given to
Graves, to secure the payment of the note.
1874.] Kelly v. Graves. » 425
Opinion of the Court.
This mortgage, with the knowledge of Kelly, had been re-
leased, leaving the property in Hal stead.
His interest in the threshing machine was subsequently sold
on execution. But Graves testifies that Halstead afterward
bought it back. One of the mares too had been sold on execu-
tion, leaving the other one remaining with Halstead.
Stress is laid by appellant on the fact that Graves did not
point out this property to Kelly, when the latter applied to
him, and said if Kelly would tell him of property that Hal-
stead had, he, Kelly, would not resort to Graves. But Graves
was under no legal duty to give information of Halstead' s
property. It was for Kelly, at his peril, to ascertain for him-
self the fact of the insolvency, and he was not entitled to
any aid from Graves ; and so long as the latter did not mislead,
and did nothing more than to decline furnishing any assist-
ance or information, no legal liability would result therefrom.
Its only significance must be as evidence tending to show the
want of property.
The finding of the jury against the plaintiff, upon the ques-
tion of insolvency, we do not think is so palpably against the
weight of the evidence as to require that it should be dis-
turbed.
This finding would necessarily determine the issue in favor
of the defendant, and we find it unnecessary to consider other
questions which were raised upon the evidence. We do not
perceive any substantial ground for complaint, in the giving
modifying, or refusing of instructions.
The judgment will be affirmed.
Judgment affirmed.
45 — 74th III.
4:26 Cunningham v. Ferry et ah. [Sept. T,
Opinion of the Court.
Michael Cunningham
Thomas W. Ferry et al.
1. Mechanics' lien — under implied contract. "Where the proof shows
that the petitioner for a mechanics' lien furnished the owner of a lot, lumber
for building a house thereon, that it was so used, and that it was furnished
within one year from the commencement of the work, this will entitle him
to a lien as upon an implied contract.
2. Answer — when two witnesses required to overcome. Where an answer
in chancery, though sworn to, states the material facts upon information and
belief, the rule requiring the testimony of two witnesses to overcome it does
not apply.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. Bennett, Kretzinger & Yeeder, for the appellant.
Messrs. Richmond & Condee, for the appellees.
Mr. Justice Scholfield delivered the opinion of the Court :
This was a proceeding to enforce a mechanics' lien, for lum-
ber furnished for the erection of a house.
The objection that there is a variance between the allegations
and the proofs, as well as the objection that the verdict of the
jury and the amount thereon decreed to be due the petitioners,
is unauthorized by the evidence, we do not consider well taken.
We have gone through the evidence carefully, and, without re-
peating it at length, we deem it sufficient to say that in our
opinion, there is no substantial variance — such as would
authorize a reversal — between the allegations and the proofs ;
and there is evidence sufficient to sustain the finding as to the
amount due.
The contract was an implied one, and the proof was sufficient
under the act of February 21, 1861 (Laws of 1861, p. 179). It
showed that the petitioners, at the request of the owner of the
1874.] Cunningham v. Ferry et al. 427
Opinion of the Court.
lot, furnished him with lumber for building a house on the lot,
and that it was used for that purpose ; and that the lumber
was furnished within one year from the commencement of the
work. The Chicago Art. Well Co. v, Corey et al. 60 111. 73.
The point is made that the petition was not filed or proceed-
ing instituted within six months after the last payment for the
lumber was due. Even if this objection could be urged by the
appellant, who is not a creditor or incumbrancer, but a subse-
quent purchaser with express notice of the lien of the peti-
tioners, the evidence does not support it. Appellees' evidence
shows the lumber was to be paid for in ninety days, that is, as
we understand, after delivery. The last was delivered Octo-
ber 17, payment for which was therefore due February 25,
and the petition was filed May the 3d, within less than three
months.
The objection that appellant's answer being under oath, is
entitled to be received as true, unless overcome by evidence
equivalent to that of two direct witnesses, is based on a misap-
prehension. The material facts put in issue by the answer are
stated "on information and belief," and not as of the knowledge
of the party, and the rule insisted on can, therefore, have no
application.
The instruction asked by appellant, and refused by the court,
states the law correctly ; but we do not perceive there was any
necessity that it should have been given.
The jury were previously instructed at the instance of ap-
pellees, that appellees' right to recover depended upon their
having proved precisely the same facts as contemplated by ap-
pellant's instruction. They had all the instruction in that regard
that was necessary.
We are of opinion there is no substantial error in the record,
and the decree will, therefore, be affirmed.
Decree affirmed.
4^8 Kelly v. Trumble. [Sept. T.
Statement of the case.
Michael R. Kelly
v.
Thomas W. Trumble.
1. Bond for deed — does not give right of possession. A contract or
bond for the future conveyance of land does not of itself necessarily imply
that the present possession shall pass. It may pass by the express terms of
such contract, but in the absence of appropriate language to indicate such
intention, the right of possession remains with the legal title.
2. Alteration — materiality. The addition of words to a bond for a
deed, giving a right of immediate possession, by the obligee, without
the knowledge or consent of the obligor, being a material alteration, avoids
the contract, even though such was the original intention outside the writ-
ten contract.
3. Parol evidence — to show sale of land when the written contract is
avoided by alteration. Where one party fraudulently alters a contract in a
material matter, without the consent of the other, so that it is not admissi-
ble in evidence, the other party may prove the original contract by parol,
when the statute of frauds is not pleaded, and have a specific performance
decreed.
Appeal from the Circuit Court of Whiteside county ; the
Hon. W. W. H eaton, Judge, presiding.
This was a bill in chancery, by Michael R. Kelly, against
Thomas W. Trumble, to remove a cloud from the title to lands
therein named, created by certain tax deeds, and for the cancel-
lation of a certain bond given by the defendant to the com-
plainant for a deed to the same land. The defendant filed
a cross-bill for the specific performance of the contract of sale.
On the hearing the court dismissed the original bill, and gave
the relief sought in the cross-bill.
Messrs. Woodruff Bros., for the appellant.
Messrs. Henry & Johnson, for the appellee.
1874.] Kelly v. Trumble. 429
Opinion of the Court.
Per Curiam : The bond offered in evidence by appellant
was properly excluded by the court. As executed by the par-
ties, there was no provision authorizing appellant to have the
present possession of the land. If the law would have sup-
plied the words added by appellant, the alteration would have
been immaterial, and it would not have affected the validity of
the bond. But a contract for the future conveyance of land
does not, of itself, necessarily imply that the present possession
shall pass. It may pass by the express terms of such a con-
tract, but in the absence of appropriate language to indicate
such intention, the right to possession remains with the legal
title. The words added were, " and I do hereby grant imme-
diate possession of the above-described premises to the said
Michael R. Kelly and Leander Smith, and said possession is
hereby surrendered." The evidence is clear they were added
subsequent to the making of the bond, by appellant, in the
absence of appellee and without his knowledge or consent. It
is not sufficient to cure this objection to say that the words
added expressed the real contract between the parties. This
would tend to show that the bond, as drawn, did not truly
declare the contract between the parties, but would afford no
justification to one of the parties, without the consent of the
other, to change its terms. One party to a written instru-
ment has no right, without the consent of the other party to
it, to reform its language, however inaccurately it may express
the real contract between them. Unless the parties shall
mutually consent to such reformation, it can only be effected
through the aid of a court of equity.
The bond being properly excluded as evidence, was it proper
for the court to render a decree under the cross-bill on the
parol contract ? That there was a contract, is not questioned.
The evidence of that contract was attempted to be reduced to
writing, but by the fraudulent act of the appellant that evi-
dence is virtually destroyed — that is. his fraudulent act in
changing its terms has rendered it inadmissible as evidence.
Under these circumstances, we see no reason why appellant
430 Parker et al. v. Platt et al. [Sept. T,
Syllabus.
should not be allowed to show, by parol, what the real contract
between the parties was. Parol evidence is always admissible
for the purpose of showing fraud or mistake in the execution
of an instrument, and in admitting it for this purpose, it
becomes necessary to show what was the real agreement of the
parties.
In Hunter v. Bilyeu et al. 30 111. 228, this court, after a
careful review of the authorities, held, where mistake in the
execution of an instrument is charged, parol evidence may be
resorted to for the purpose of proving what was the real
contract of the parties, and a court of equity may reform a
contract according to the evidence of the intention of the par-
ties, and decree its specific performance at the same time.
There is here no question under the statute of frauds. It
is not pleaded, and if it had been the evidence shows sufficient
part performance to relieve the' case from its operation.
We are of opinion, therefore, that the court did not err
in ascertaining from parol evidence what the contract was, and
decreeing its specific performance.
Appellant, by destroying the bond as an instrument of evi-
dence, did not deprive appellee of all evidence, nor was he
bound to resort to it for any purpose. He was authorized to
rely on his parol contract, entirely disregarding the written
evidence.
The decree is affirmed.
Decree affirmed.
Daniel Parker et al.
George Platt et al.
Contract — services — care and skill required. Where a person engages
to work for another he impliedly undertakes that he has a reasonable
amount of skill in the employment, and engages to use it and a reasonable
1874.] Parker et al. v. Platt et al. 431
Opinion of the Court.
amount of care, and a failure to do so will prevent him from recovering the
contract price, and limit him to what the work is reasonably worth, or the
employer may recoup all the damage he may sustain for the want of
reasonable skill and care in executing the work.
Appeal from the Circuit Court of Iroquois county ; the
Hon. N. J. Pillsbury, Judge, presiding.
Messrs. Blades & Kay, for the appellants.
Mr. M. B. Wright, and Mr. B. F. Shankland, for the ap-
pellees.
Mr. Chief Justice Walker delivered the opinion of the
Court :
Appellants entered into an agreement with George Platt to
bore them an artesian well, for which they were to pay nine
dollars per day. He was to furnish two hands and the tools,
and appellants the remainder of the help and to board the
hands. The work was commenced, and when the well had
been sunk one hundred and seventy feet the tools were broken,
and after considerable effort to get them out the well was
abandoned, leaving the auger and a part of the rods in the
hole. It was claimed that appellants were partners, but that
is denied by them. Payment was demanded, but resisted,
because it was claimed not to be due, and that by the careless-
ness of the appellees the rods were broken and the tools left
in the well, and that it thereby became useless to appellants.
They offered to pay if appellees would remove the tools, or
would sink another hole of the same depth, which appellees
declined to do ; but they offered to sink another well the same
depth, and if water was not obtained, appellants should pay for
both. This appellants declined, and thereupon this suit was
brought, and appellees, on appeal by appellants, recovered in
the circuit court a judgment for $52.13 ; from which this
appeal is prosecuted.
432 Parker et al. v. Platt et al. [Sept. T.
Opinion of the Court.
Whether or not the time had expired for the payment of the
money if appellants are liable, was a question for the jury.
On the question whether appellees observed reasonable care
and proper skill, we think the evidence clearly shows they did
not when the tools were broken. All persons impliedly un-
dertake, when they engage to do work, that they have a reason-
able amount of skill in the employment, and that they will use
it, and also engage for a reasonable amount of care, and a
failure in these respects prevents them from recovering the
contract price, but only what the labor is reasonably worth. Or
the employer may recoup all the damage he may sustain for
want of reasonable skill, or for the want of or the observance
of reasonable care in executing the work.
A skillful and experienced man in the business in that vicin-
ity, testified that he had sunk forty wells in that section, and
that he had broken but one set of tools; whilst appellees broke
theirs twice in sinking this one but one hundred and seventy
feet. He says, in hard-pan he only attempts to go five or six
inches without drawing his auger ; whilst here they were en-
deavoring to force it twelve inches, and it had penetrated about
two and a half inches when the rods broke. Again he says,
when he finds that the boring becomes hard he turns the auger
back until it is loosened. This does not seem to have been
done in this case. Again, one of the appellants, who was sit-
ting by, observed the strain, and warned the appellee, who had
charge of the work, of the danger of the rod breaking, not two
minutes before the occurrence. This appellant was not
skilled in the business, nor had he any experience in such busi-
ness. But the amount of resistance and the force applied ren-
dered the danger apparent to an unskilled person. And to this
evidence appellees introduced no rebutting testimony.
To this point there seems to have been but slight attention
given by parties in the court below, it rather being alluded to
than presented prominently by the instructions. We are there-
fore of opinion that the case should be presented to another
jury.
1874.] Elgin Hydraulic Co. v. City of Elgin. 433
Opinion of the Court.
As to the question of partnership, the parties will no doubt
be able to present evidence that will free that question from
all reasonable doubt.
The judgment of the court below is reversed and the cause
remanded.
Judgment reversed.
The Elgin Hydraulic Company
v.
The City of Elgin.
Action — right of corporation to sue for obstructing raceway to its mills.
Where it is made the duty of a corporation to keep a raceway leading to its
works in repair, though it does not own the way itself, if a city so constructs
a sewer as to deposit dirt and gravel in the raceway and obstruct the flow
of water therein, and the corporation is compelled to expend money to re-
move such obstruction, an action lies in its favor against the city to recover
the money so expended.
Appeal from the Circuit Court of Kane county ; the Hon.
Silvanus Wilcox, Judge, presiding.
Messrs. Botsford, Barry & Krlbs, for the appellant.
Messrs. Joslyn, Lynch & Clifford, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action on the case, brought by the Elgin Hy-
draulic Company against the City of Elgin, to recover for dam-
ages sustained and money expended in removing dirt, gravel
and refuse matter deposited in a certain raceway, constructed
to convey water from the mill-dam at Elgin to the mills, facto-
ries, etc., of the stockholders of the company, situate along the
raceway, to operate such mills, etc. ; the deposits having been
carried into the raceway through a certain sewer, built by the
55 — 74th III.
i34 Elgin Hydraulic Co. v. City of Elgin. [Sept. T.
Opinion of the Court.
city, having its outlet into the raceway. Upon a trial had be-
fore a jury, the court below, at the conclusion of the plaintiff's
testimony, instructed the jury to find the defendant not guilty,
which was accordingly done, and judgment rendered in favor
of the defendant, and the plaintiff appealed.
The declaration averred that the plaintiff was possessed of,
and in the exclusive use, control and occupancy of the raceway,
and that, by the provisions of the charter and by-laws of the
company, it was its duty, in the exercise of its corporate powers,
among other things, to maintain and preserve the raceway and
to do all other acts and things for the preservation and main-
tenance of the water power connected therewith, and the regu-
lation of the same for the use and benefit of the stockholders
of the company, with averments sufficient to show a cause of
action in other respects. The evidence showed that the Elgin
Hydraulic Company was composed of the owners of the water
power at Elgin, who were its stockholders ; that the company
did not own the race, but that it was built for the benefit of all
the owners of water power on the east side of Fox river ; that
the company had the exclusive possession, care and charge of
the race, and did all the repairs on the race and dam, and paid
for such repairs out of the treasury of the company ; that the
moneys were raised by assessment on the stockholders, except
what was raised by special assessment upon the property of
individual stockholders ; that the city constructed the sewer ;
that through it, dirt and gravel were deposited in the raceway,
which caused injury to the mill owners, etc. ; that the company
expended one hundred and seventy dollars in the removal of
the dirt and gravel, which was paid out of the treasury of the
company, and had been previously collected from assessments.
The objection taken to the sufficiency of the proof is, that
the race did not belong to the company; that it had no interest
in the race, but was a mere agency for the repair of it, and
hence had no right of action in itself, for the injury done to the
race. But the company was a corporation created for the special
purpose of keeping this raceway in repair, had the exclusive
1874.] Peoria and R. I. Ry. Co. v. McClenahan. 435
Syllabus.
charge of it for such purpose, was given power to raise money
therefor, and was given the right to sue. The obstruction of
the raceway in the manner shown, although the company had
no property interest in it, was a pecuniary damage done to the
corporation itself, in necessitating, in the performance of its
statutory duty, and actually causing, the expenditure of its own
money for the removal of the obstruction.
It is objected that as the evidence showed that the obstruc-
tion of the race caused damage to two certain mill-owners in
lessening their power, they would have a right of action there-
for, and if this action is sustained, the defendant would be
exposed to two recoveries by different persons for the same in-
jury. But this action is not for damage done to the owner of
any mill in lessening his power, but only to recover for the
expense of removing the obstruction. The mill-owners' dam-
age suggested would be a different one.
We are of opinion the evidence showed a cause of action
in the plaintiff, and that the jury were wrongly instructed.
The judgment will be reversed and the cause remanded.
Judgment reversed.
The Peoria and Rock Island Railway Company
George McClenahan.
1. Judgment — limited to amount claimed in justice's summons. In
actions originating before justices of the peace, the plaintiffs recovery is
limited to the amount of his demand indorsed on the summons.
2. Railroads — duty as to keeping excavations free from water or ice.
The law does not require a railway company to keep the excavations along
the sides of its track free from water and ice, and it will not be liable for
stock killed in consequence of ice therein, so as to prevent escape from the
track, over the same.
Appeal from the Circuit Court of Stark county ; the Hon.
J. W. Cochran, Judge, presiding.
436 Peoria and E. I. Ry. Co. v. McClenahan. [Sept. T„
Opinion of the Court.
Messrs. Ingersoll & Puterbaugh, for the appellant.
Per Curiam: This was an action originally commenced
before a justice of the peace, by appellee, to recover the value
of a cow and calf killed upon the railroad track of appellant.
The record discloses two errors, for which the judgment
must be reversed.
The first is, the judgment rendered in the circuit court
exceeded the demand of appellee, endorsed upon the back of
the summons.
The law is well settled that in actions commenced before a
justice of the peace, the recovery is limited to the demand en-
dorsed upon the back of the summons. In this case the de-
mand was $50, and the judgment rendered in the circuit court
was for the sum of $56.50.
At the request of appellee, the court gave to the jury the
following instruction : " If the jury believe from the evidence
that the said railroad company had made excavations along the
side of the track of their road, and had negligently suffered
said excavations to fill with water, and to freeze, so as to pre-
vent the escape of said cow from said railroad track, and said
cow was prevented from escaping in consequence thereof, and
was killed by the defendants' train, then the defendants are
liable to the plaintiff for the value of the cow and calf so killed,
deducting what said stock was worth after it was killed."
This instruction was erroneous. The law does not require a
railroad company to keep the excavations along the side of its
track free and clear from water or ice.
In the construction and keeping in repair of the road bed, ap-
pellant, no doubt, necessarily made the excavations on each side
of the track. In many instances it might be impracticable, if
not impossible, to keep the excavations free from water and
ice. To impose a requirement of this character upon appellant
would not be just, neither is it sanctioned by the law.
The instruction should not have been given. For the two
errors indicated the judgment will be reversed and the cause re-
manded. Judgment reversed.
1874.] Hall v. Hamilton. 437
Opinion of the Court.
J. K. Hall
v.
James Hamilton.
1. Release of errors — by attorney, on cognovit, binding. Where a
defendant, by his attorney in fact duly authorized, confesses judgment and
releases any and all errors, this will preclude him effectually from assign-
ing any error in the proceedings.
2. Cook county courts — judges must sit separately. Each of the
judges of the circuit and superior courts of Cook county, under the consti-
tution, is invested with all the powers of a circuit j udge, and may hold
court in a branch thereof, and it is error for more than one to preside at
the same time during the trial of any case, or to participate in any decision.
The record should show that but one judge presided.
3. But if the record shows more than one judge present, this is only an
error which does not affect the jurisdiction of the court, and may be waived
or released.
4. Same — judges of other circuits may preside. Judges of other cir-
cuits may hold branches of the Cook county circuit and superior courts,
and the statute authorizing this is not in conflict with any constitutional
provision.
5. Circuit judge — extra compensation when holding court out of his
circuit. So much of the act entitled " Courts " as provides for compensation
being paid to a judge holding a branch court out of his circuit, in addition
to his salary, is unconstitutional and void.
Writ of Error to the Superior Court of Cook county.
Messrs. Prentice & Hooke, for the plaintiff in error.
Messrs. Hiobee & Pltimmer, for the defendant in error.
Mr. Chief Justice Walker delivered the opinion of the
Court :
This was a confession of judgment in the Superior Court of
Cook county, at the June term, 1874. The declaration con-
cludes to the damage of the plaintiff $614, and the cognovit
confesses an indebtedness of $634, and judgment was rendered
438 Hall v. Hamilton. [Sept. T,
Opinion of the Court.
for that sum. The warrant of attorney, by virtue of which
this judgment was confessed, authorizes and empowers For-
rester, or any other attorney, to enter the appearance of the
defendant, to waive service of process, and confess judgment
on a note in favor of defendant in error for the amount due,
at any time after maturity, with an attorney's fee of twenty
dollars, and to file a cognovit for the amount due, with an agree-
ment that no writ of error should be prosecuted or appeal
taken, and to release all errors. The cognovit so agrees and
expressly releases all errors.
On such a record we are unable to comprehend by what
rule of law this writ may be maintained. Where the defend-
ant, in the most solemn and deliberate manner, waives of
record all errors that may have occurred on the trial of a cause,
it would be unheard of to permit him to assign as error that
which he had solemnly released of record. It would be an
act of bad faith on his part, that justice must forbid, and which
we can never sanction. If a party cannot be bound by his
deliberate admissions of record in open court, we would be at
a loss to know how he could be estopped. After a party has
thus deliberately waived all errors, we cannot but feel surprise
that the case should be brought to this court, and it must be
for purposes of vexation or some other equally wrongful pur-
pose.
Nor does the fact that the errors were released by his at-
torney in fact, in the slightest degree change the aspect of the
case. There is no pretense that plaintiff in error did not exe-
cute the warrant of attorney, and if he did, he solemnly gave
authority to him to release the errors as he did, and every
principle of good faith and justice requires that he should be
bound by the action of his attorney within the scope of his
authority. Such has always been the doctrine, and we are not
aware that it has ever been controverted ; nor do we see how
so elementary a principle could be. To hold otherwise would
overturn the business of the country, as much, if not the larger
portion, of the commerce of the world is transacted through
1874. J Hall v. Hamilton. 439
Opinion of the Court.
agents of various kinds. The release of errors in this case
was as effectual as if made by plaintiff in error in person.
It is urged that the cognovit was entitled in the circuit court
of Cook county and that it was error ' to file it and take the
confession in the Superior Court of that county. It may be that
this was technically an error, but we have seen that all errors
were released. Again, the confession was clearly within the
power conferred. The warrant authorizes the confession to be
made in any court of record and the Superior Court answers to
the description. We could not reverse for such a technical error
even if it had not been released. No court should be astute
in finding nice technicalities to hinder or prevent justice, and
such nice technicalities if allowed would have that effect.
It is also insisted that the Superior Court consists of only
three judges, and that from the placita to this record, it appears
that there were five judges present, and constituting the court.
By the 23d section of Art. YI of our constitution the county
of Cook is created a judicial circuit. And it provides that the
circuit court of Cook county shall consist of five judges, until
increased as therein provided. " The present judge of the
Recorder's Court of the city of Chicago and the present judge
of the circuit court of Cook county shall be two of said judges,"
and " The Superior Court of Chicago shall be continued, and
called the Superior Court of Oook county." The 25th section
provides that the judges of the circuit and Superior courts of
Cook county shall receive the same salaries, payable out of the
State treasury, as may be payable to the circuit judges of the
State. It is also provided by the 24th section that " Any judge
of either of said courts shall have all of the powers of a circuit
judge, and may hold the court of which he is a member. Each
of them may hold a different branch thereof at the same time."
From these constitutional provisions it is apparent that it was
intended that each of the judges of both courts should be in-
vested with all the powers of a circuit judge, and should/
alone, and independent of the others, perform all the func-
tions and discharge all the duties imposed by the constitution
440 Hall v. Hamilton. [Sept. T.
Opinion of the Court.
and legislative enactments, which pertain to the circuit judges
of the State. We are unable to perceive any provision of the
constitution which requires the judges of either or both courts
to act collectively or even a quorum on any question, nor has
it been required by the General Assembly. Whether the Gene-
ral Assembly might not require all or a majority of the judges
of each court or both courts to sit in bank and determine all
questions of law arising on pleadings, in arrest of judgment,
and in the decision of all motions for new trials, it is not ma-
terial to now consider, as no statutory requirement of the kind
has been imposed. Although called by different names, the
judges of each court are severally, under the law as it now
stands, in fact, but circuit judges. (See Jones v. Albee, 70
111. 34. And being circuit judges they should in all things
conform to the laws, usages and practice governing the circuit
courts of the State. When holding court each judge should
hold a separate branch, and keep and in all things perform the
duties of a circuit judge. The record should show that he alone
was presiding, unconnected with either or any of the other
judges of either court. The record of the business he may
transact should state that he was present holding a branch
court, and should not state that any other judge was present.
It does not matter whether the journal of the proceedings of
the several judges is entered in one or several books, so that it
shows what is done by each.
One judge may settle a portion of the pleadings, or decide
motions in a case, and another judge may settle other portions
of the pleadings and decide other motions, and another judge
may try the case, or all may be done by one judge, so the
record shows what was done by each judge in the case. There
is no law now in force authorizing all the judges to sit to-
gether, and try and decide cases. The law contemplates the
action of but one judge, sitting at the same time, in the trial of
a case. And it is error for more than one to sit at the same
time on the trial of the case, but it is only an error, that may
be waived or released.
1874.] Hall v. Hamilton. 441
Opinion of the Court.
In this case the placita to the record shows that three of
the judges of the Superior Court were present, as also two cir-
cuit judges. If the record is true in this regard, then the de-
cision of all questions was submitted to five judges instead of
but one, as contemplated by the law. If that number sat and
decided questions, they may have been decided by three of the
five, and the decision different from what it would have been
had but one judge sat. Hence such an organization of the
court is not such as litigants are entitled to have when their
causes are tried.
But the court thus organized is not without jurisdiction.
Either of the five judges had jurisdiction to try any and all
causes, and the association of the others with him did not de-
tract from or deprive him of the jurisdiction vested in him by
the constitution and the statute. The placita to all records in
that court, and to transcripts to this court, should show that
one judge sat on the trial, who it was, and that he was holding
a branch court. But being only error, which may be waived
or released, plaintiff in error released it with all others by the
cognovit filed by his attorney in fact.
As to the fact that two judges from other circuits sat in the
case, we have seen that did not oust the court of its jurisdic-
tion. In the case of Jones v. Albee, supra, it was held that
judges from other circuits might hold branches of the Cook
circuit and Superior courts ; that such action was not
prohibited by the constitution and was expressly sanctioned by
the statute. Nor do we see any reason to change the conclu-
sion there reached. If the legislature were to require these
courts in Cook county to sit separately in bank, then a very
different question would arise, whether judges of other circuits
could be authorized to participate in the transaction of business
required to be disposed of by a full bench.
We have seen that each of the judges is vested with the same
power, whether of the one or the other of these courts. The
thirty-ninth section of the chapter entitled " Courts," R. S. 1874,
p. 331, provides that "judges of the several circuit courts of
56 — 74th III.
44:2 Hall v. Hamilton. [Sept. T.
Opinion of the Court.
this State may interchange with each other and with the
judges of the Superior Court of Cook county, and the judges
of said circuit courts and of the Superior Court of Cook county
may hold court, or any branch of the court, for each other, and
perform each other's duties, where they find it necessary or
convenient." This section fully authorizes circuit judges to
hold branch courts for the Superior Court of Cook county, or
of the circuit court for that or any other circuit. Nor do we
see any provision of the constitution which prohibits judges
from interchanging with each other, or prevents the legislature
from authorizing judges to hold branch courts for each other.
The fortieth section of that chapter provides for compen-
sating judges who shall' hold court or a branch court for an-
other judge out of his circuit or judicial district, by authoriz-
ing an appropriation of ten dollars per day to such judge, out
of the county treasury. The sixteenth section of the judiciary
article of our constitution is this : " From and after the adop-
tion of this constitution, judges of the circuit courts shall re-
ceive a salary of $3,000 per annum, payable quarterly, until
otherwise provided by law. And after their salaries shall be
fixed by law they shall not be increased or diminished during
the terms for which said judges shall be respectively elected ;
and from and after the adoption of this constitution no judge
of the Supreme or circuit courts shall receive any other com-
pensation, perquisite or benefit, in any form whatsoever, nor
perform any other than judicial duties to which may belong
any emoluments." This language is as full, clear and compre-
hensive as could be well conceived to prevent Supreme and
circuit judges from receiving any other compensation than their
salaries, under any name or pretense whatever, for the dis-
charge of any duty pertaining to their offices. And it is pro-
hibitory on tk2 judges from receiving the compensation for
the performance of such duties except their salary. It also
prohibits the General Assembly from providing any other. But
the power to hold such courts as branch courts does not depend
upon the fortieth section of the chapter entitled " Courts."
1874.] Hall v. Hamilton. 443
Opinion of the Court.
The power is conferred by the thirty-ninth section of that act,
and if circuit judges choose under that section to go out of
their circuits to hold courts, or branch courts, for other judges,
without compensation therefor, we fail to see that it violates
any provision of the constitution. The power to perform the
duties in other than their own circuits in nowise depends up-
on the power to receive extra compensation therefor, as they
are still performing judicial duties.
The judgment of the court below must be affirmed.
Judgment affirmed.
Mr. Justice Scott : I concur in this decision, but not in
all the reasoning in the opinion.
The Superior Court of Cook county is composed of three
judges, and it is proper the placiia should show how many of
them may be present on the day fixed by law for the conven-
ing of the court, or at any other time during the term. This
is all the office the placita performs. The proceedings are' to
be had in the Superior Court, and hence any order made by
either of the judges in the trial of the cause will be presumed
to be authorized by law. Commonly, the bill of exceptions
will show before which judge the cause was tried. The fact
the clerk in making up the transcript may certify that auy par-
ticular number of judges were present, cannot vitiate the
record. It is sufficient if it shall appear by the record the
cause was heard before either of the judges of the Superior
Court, or any other judge authorized by law to hold a branch
of that court.
Mr. Justice Sheldon : I concur with Mr. Justice Scott.
444 Tuttle v. Garrett et al. [Sept. T
Opinion of the Court.
Eugene Tuttle
v.
Aueen Gaerett et al.
1. Res ad judicata — in Supreme Court. When on error to this court
certain facts are found. from the evidence, and the cause reversed, and re-
manded merely to supply proof of a particular fact, the facts found by this
court must be regarded as settled and not open to be questioned on a second
writ of error.
2. Guardian ad litem — for minor defendants. Where a person is sued
with certain minor defendants in chancery, as their guardian, and he ap-
pears, answers and defends in that capacity, and procures a reversal of the
decree against the minors, a second decree against the minors will not be
reversed because the record shows no appointment of a guardian ad litem,
or proof that such person was in fact guardian.
3. Costs — as against infants. On bill for a reconveyance of land against
the minor heirs of a grantee to whom the land was conveyed as security or
indemnity, it is error to decree costs against the infant defendants.
Writ of Error to the Circuit Court of Peoria county ; the
Hon. Onslow Peters, Judge, presiding.
Messrs. Wead & Jack, for the plaintiff in error.
Mr. H. B. Hopkins, for the defendants in error.
Mr. Justice Sheldon delivered the opinion of the Court :
This case has heretofore been before this court, and is re-
ported in 16 111., p. 354.
The bill was filed for a reconveyance of real estate alleged
to have been conveyed to John Tuttle, the father of appellant,
for the purpose of securing him against his liability as surety
for Garrett, and particularly upon an appeal bond in a certain
case, of Stevenson dc Wardwell v. Garrett, appealed by Gar-
rett from the circuit court to the Supreme Court, in which case
the Supreme Court rendered a decree against Garrett for over
$1,200, and also the costs in the circuit court. The bill averred
1874.] Tuttle v. Garrett et at. 445
Opinion of the Court.
that the demands for which Tuttle was liable as surety had been
paid.
The decree in the case when here before was reversed and
the suit remanded for the want of proof that the decree against
Garrett in the appeal case, rendered by the Supreme Court, had
been paid. *
After the cause was remanded to the circuit court, further
testimony was there taken for the purpose of supplying the
proof indicated by the former opinion of this court as wanting ;
and at the November term, 1855, of the court below, the cause
was again heard and a decree for a reconveyance was again
rendered in favor of the complainant. Upon this last decree
Eugene Tuttle, the youngest of the heirs, sues out a writ of
error.
It is claimed that the subsequent evidence which has been
taken to show that the Stevenson & Wardwell decree against
Garrett was paid by the latter, is not sufficient to prove that
fact. Upon an examination of the evidence we find that it
very satisfactorily establishes the fact of the payment in full of
that decree rendered in the Supreme Court, and of all the costs
in that suit in the circuit court. The proof, then, being supplied
which was found wanting in the record before, it would seem
to follow that the present decree should be affirmed.
But the further objection is made that the proof in the re-
cord is insufficient to establish that the absolute deed, on its
face, from Garrett to John Tuttle, was but a mortgage. That
fact in the former decision of this court was taken as estab-
lished, and it was there found that all the liabilities of Tuttle,
to secure against the payment of which the deed was given,
had been paid by Garrett except the decree in favor of Steven-
son & Wardwell, and for want of proof of the payment of that
decree the decision of the court below was reversed, no other
error in the record being intimated.
We must regard the fact of the deed being a mortgage as
settled by the former decision of this court, and that that ques-
tion is not now open to consideration.
446 Walker v. Oakrington et al. [Sept. T.
Syllabus.
It is also further objected, that no guardian ad litem was ap-
pointed for the minor defendants, that there is no proof that
James Taylor was in fact their guardian, and no proof of the
death of John Tuttle.
In addition to the same answer as above, to be made to these
objections, it appears that James Taylor -K^as sued with the
minors, as their guardian, appeared and answered for them in
that- capacity, denying knowledge of the allegations of the bill,
and calling for strict proof, and when the decree in the cause
was against the minors, he prosecuted the former writ of error
to this court, and procured its reversal. This was all that a
guardian ad litem could have done. The statute provides that
guardians, by virtue of 'their office as such, shall be allowed
in all cases to prosecute and defend for their wards. Under
such circumstances, we would hardly feel called upon to re-
verse a decree, because no formal order appears appointing a
guardian ad litem, and no letters of guardianship are shown to
have been given in evidence.
It was erroneous to decree costs against the infant defend-
ants. Fleming v. McHale et al. 47 111. 282.
The decree will be affirmed, except as to costs, and reversed
as respects them at defendants' costs herein.
Decree modified.
Nancy B. Walker
v.
Sarah Ann Carrington et al.
1. Fraud — proof of, against agent to avoid sale. Where a conveyance of
land is sought to be set aside, as having been induced by fraudulent repre-
sentations of an agent, whose duties were advisory only, with no power to
sell, the burden of proof lies upon Jthe complainant to establish by clear
and satisfactory proof that the agent acted in bad faith, and made material
statements to the grantor to influence the sale, which he knew to be false,
and that such statements influenced the sale.
1874.] Walker v. Carrington et al. 447
Syllabus.
2. Same — degree of proof as effected by lapse of time. After the lapse
of twenty years, when the principal parties to a transaction are dead, and
it is sought to be impeached for fraud, the most clear and satisfactory proof
of the fraud will be required to overcome the presumption of fairness and
innocence.
3. Same — false representations must be relied on. Where the representa-
tions of an agent, which are relied on to avoid a sale and conveyance, relate
to the quality and value of the land sold, and it appears that the grantors,
who were trustees, had actual knowledge of the facts from a personal
inspection of the land, and by information from the husband of one and
the father of the beneficiaries, it will not be presumed that the representa-
tions of the agent had any material influence upon their conduct as induc-
ing the sale.
4. Same — sufficiency of proof . Where an agent advised his principals,
in the winter of 1850-51, of an offer of five dollars per acre for land, and
stated that was the best offer that could be had, and advised a sale, proof
that he was offered ten dollars per acre in 1848 will not, after the lapse of
twenty years from the sale, be sufficient evidence to show actual fraud on
the part of the agent .
5. Married woman — husband may act as agent. Where property is
clearly that of a wife, her husband may act as her agent in its manage-
ment, either by the appointment of her trustee, or, since the married
woman's act of 1861, by her own appointment, and while his receiving the
rents of her land may be viewed with suspicion, it is not conclusive evi-
dence of fraud.
6. Purchaser — who may become. The fact that a purchaser of land is
a brother-in-law of an agent, even if the agent has power to sell, does not
imply that confidence as to preclude him from becoming the purchaser of
land, and much less so when the power of the agent is simply advisory.
7. Fraud — presumption against, after great length of time. Although
the acts and conduct of a party may be suspicious, yet if they can as well be
attributed to honest motives, and may be as well consistent with fair deal-
ing as with the reverse, they will be attributed to the former, especially
after a great length of time, when it is extremely difficult to give a full
and explicit explanation.
8. Agent — may acquire property after his trust is ended. While it is
true that a trustee or agent cannot be interested in a sale made by himself,
yet when he has fully discharged his trust and sold property to a third
person in good faith, having no interest in the same at the time, he may
afterwards acquire the title from the purchaser, and such fact, or the fact
that his wife acquires the title, will not afford ground for avoiding his
sale.
448 Walker v. Carrington et al. [Sept. T.
Statement of the case.
9. Laches — to bar equitable relief. Where a bill was filed to set aside
a conveyance of land, twenty years after the deed was made, on the ground
of fraud in the agent advising the sale, it was held that the claim was a
stale one, on the ground of laches, and that this was a good defense in
itself.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
This was a bill in chancery, by appellees against appellant
and one Cyrus Bentley, charging that appellant holds certain
land in trust for appellees, and praying that she be decreed to
convey title in the same, etc.
A brief statement of the facts alleged in the bill, shows, that
Charles Walker, now deceased, in his lifetime, and on the 7th
day of May, 1841, being the owner of a certain quarter section
of land in the town of Jefferson, in Cook county, which is the
land in controversy, together with his wife, the appellant, con-
veyed the same by deed to one Eliphalet Terry, of Connecticut,
who is also now deceased. Eliphalet Terry, by his last will and
testament, bequeathed $1,500 to Seth Terry, his brother, and
Charles Boswell, in trust for his sister Mary, and directed that
on her death it should be divided among his four children, one
of whom was the appellee Sarah Ann Carrington, and that her
interest should be held in trust by said trustees. He also be-
queathed to the trustees $5,000, to pay the income to the ap-
pellee Sarah Ann, for life, and at her death to divide the prin-
cipal equally among her children. The residuum of his estate
he directed should be divided into four equal parts, one of
which he bequeathed to -the trustees for the use of the appellee
Sarah Ann, upon the like trust as the $1,500. He also gave
the trustees full power and authority to sell and convey the
real estate.
Eliphalet Terry died in July, 1849, and his will was properly
proven and admitted to probate.
The appellees Edward and Sarah Ann Carrington are hus-
1874.] Walker v. Carrington et at. 449
Statement of the case.
band and wife ; and the other appellees, Catharine, Sarah and
Edwin T. Carrington, are their children.
On the 17th day of September, 1849, the heirs at law of Eli-
phalet Terry united in a deed conveying to the trustees named
in his will, the property in controversy, in trust, to hold the
same for the use of appellee Sarah Ann and her children,
with power to sell and convey the same.
After Walker conveyed the land to Terry, he continued to
look after it, as Terry's agent, and was authorized to ascertain
if he could make sale of it. This continued until some time
in 1847, when his agency was withdrawn.
After the death of Terry, and in 1850, the trustees appointed
Walker as their agent to look after the land, and assist them in
making sale of it. The appellee Edward Carrington, who re-
sided in Connecticut, was also, to some degree, assisting the
trustees, and had some correspondence with Walker in regard
to the sale of the land. On the 17th day of July, 1850, Wal-
ker wrote him he had made inquiry about the property and
could find no one to make an offer except Mr. Bentley, who
had made an offer two years before. He proposed to negotiate
with Bentley and others, for the sale of the property, and in-
formed them that Bentley would like to know if his offer was
accepted, so as to purchase elsewhere if rejected. The terms
proposed from Bentley were $600, in cash, or $200 in cash and
the balance $200 in one year, $200 in two years, and $200 in
three years from date. Walker also, in that letter, advised
Carrington, if they wanted to sell, the offer was a fair one, as
not more than half of the property could ever be plowed, that
the balance was very wet, and that the railroads made lands
twenty miles from the city, (Chicago,) worth more than this, in
consequence of having to go from it to the city, a distance of six
or seven miles, by wagon.
On the 18th of November, 1850, Walker again wrote to
Carrington that Bentley would take the land as he had offered,
adding :
" My opinion is, if you wish to sell, you had better take it.
57 — 74th III.
4:50 Walker v. Carrington etal. [Sept. T.
Statement of the case.
I find there is more of the low marsh than I supposed. The
prairie all lies vacant oat there, so wet the farmers do not like
to settle, and it will be a good many years before one-quarter
will be occupied, and forty to sixty acres of it will cost the value of
the land to drain it. ; you will do no better with him. I so
understood the offer the first time. If you wish to hold, you
may do better in five or six years, but at this time there are
two or three one hundred and sixty acres in that neighborhood
offered at five dollars per acre, on five years' credit, with no
buyer. If you make up your mind to take the offer, I will
close the contract with him, or you may make out a deed and
send it, and I will see to all the securities, and send you the
money paid."
The trustees authorized the trade to be accordingly closed
with Bentley, executed and forwarded to Walker the proper
conveyance, which bears date March 10th, 1851, and in due
time Walker returned to them Bentley's notes and mortgage
to secure the deferred payments.
On the 19th of February, 1868, Bentley, by deed, conveyed
the land to appellant.
Charles Walker died in June, 1868, leaving appellant Lis
widow.
Terry and Boswell resigned as trustees on the 14th of
October, 1851, and Jared Deming was appointed their suc-
cessor. Subsequently he resigned, and appellee Edwin T.
Carrington was appointed his successor.
Seth Terry died in 1865 or 1866.
The bill charges that the representations made by Walker, in
his letter of the 18th of November, 1850, were false, and
known by him to be so when made ; that the trustees placed
entire confidence in these representations, and believed them
to be true ; that appellees have, within a recent period, dis-
covered that the sale was made by and through Walker, as
agent of the trust estate, really to and for appellant, his wife,
or for himself ; and that he or his wife was the real party pur-
chasing, and paid the purchase money, and not Bentley. It
1874.] Walker v. Carrington et at. 451
Statement of the case.
further charges misrepresentation and design upon the part of
"Walker, in the letters and correspondence, to mislead the trus-
tees touching the value of the property ; that at the time of
the sale it was, to Walker's knowledge, worth from $2,500 to
$3,000 ; and that the trustees believed Walker to be acting in
good faith, and relied solely upon the truth of his representa-
tions, as contained in his letters, in making the conveyance.
It is also denied that either the trustees or appellees had any
knowledge that Bentley was purchasing for Walker or his
wife, but they were induced to and did believe, from Walker's
representations, that Bentley was buying for himself.
It is also further charged by the bill that appellees and the
several trustees are, and have been since the execution of the
deed to Bentley, non-residents of the State of Illinois, and un-
acquainted with the value of lands in Cook county.
The answer of appellant and Bentley admits the convey-
ances by the trustees, Terry and Boswell, to Bentley, and by
Bentley to appellant ; alleges that Bentley, for the period of
seven successive years, and from his purchase until his convey-
ance to appellant, was possessed of the land by actual residence
thereon by tenants, and having a connected title in law, deduci-
ble of record from the United States ; that from and after the
conveyance by Bentley and wife to appellant until the filing
of appellees' bill, and during all that time and for more than
seven successive years next before the bringing of the suit,
Bentley and appellant, as his assigns, were possessed of all and
singular the said land and premises, by actual residence by
their tenants respectively and continuously, — having a con-
nected title at law and in equity, deducible of record from
the United States and that at the time of exhibiting the bill,
and for a long time previously, appellant claimed to be, and
was, and still is, the legal and equitable owner of said prem-
ises ; and they severally further set up the provisions of sec-
tions 8, 9 and 10 of chapter 66 of the Kevised Statutes of
1845.
The answer further alleges, that, respecting the pretended
4:52 Walker v. Carrington et al. [Sept. T.
Opinion of the Court.
rights and claims of the appellees, and the several matters and
alleged grounds of relief stated in their bill, appellant is
the legal and equitable owner of the premises for a valuable
consideration, and in good faith, without notice of the matters
alleged in the bill, and that the matters on which appellees pre-
tend to found their supposed right in the premises occurred near
twenty years before the filing of the bill ; that since that time
the said Charles Walker has died, and that they are unable to
make proof as to what he did or did not communicate to the
parties who sold and deeded the premises to Bentley ; that the
said transactions have, long since, become and are obscured by
lapse of time, and that the alleged rights of appellees are stale
and antiquated ; and that appellees ought, consequently, to have
no relief, etc.
The answer further denies all charge of fraud, etc., and all
other allegations of the bill.
The court decreed in favor of the appellees.
The errors assigned are :
1. That the court erred in not dismissing the bill of com-
plaint of the said complainants.
2. That the court erred in decreeing relief to the complain-
ants upon the evidence in this case, and in not dismissing the
said bill of complaint out of court.
Messrs. Lawrence, Winston, Campbell & Lawrence, and
Messrs. Ayer & Kales, for the appellant.
Messrs. Lyman & Jackson, and Mr. E. A. Small, for the
appellees.
Mr. Justice Scholfield delivered the opinion of the Court :
Appellees charge both actual and constructive fraud upon
Charles Walker, while acting as agent for the trustees, Terry
and Boswell ; and it is essential to the success of their claim
that it shall appear that either actual or constructive fraud is
clearly proved.
1874.] Walker v. Carrington et al. 453
Opinion of the Court.
Walker had nothing to do in determining that the land
should be sold, the time when the sale should be made, nor
the price for which it should be sold, any further than his ad-
vice may have affected the trustees in these respects. He was
employed to look after the land and find a purchaser for it.
The discretion of determining whether and when the land
should be sold, and, if sold, at what price, was vested in the
trustees, and there is no proof that they attempted to delegate
any portion of this discretion to Walker. His duties were
simply advisory; and the charge made imposes the burden on
appellees of establishing, by clear and satisfactory proof, 1st,
that he acted in bad faith and made material statements to the
trustees to influence the sale, which he knew to be false ; and
2nd, that they, in making the sale, were influenced by those
material and false statements. In examining the evidence it is
proper we should take into consideration that the suit was not
commenced until nearly twenty years had elapsed after the
transaction which is to be investigated ; that more than that
time intervened the taking of much of the evidence and the
occurrences to which it relates, and that Walker, whose conduct
is sought to be impeached, and Terry, the trustee who acted
most prominently in the transaction, had both been dead for
several years before the bringing of the suit was contemplated.
If, indeed, it is clearly established there was fraud as charged,
and that the knowledge of it was concealed from appellees,
these circumstances may be of no importance ; but they are
quite important in determining whether the fraud charged has
been sufficiently proved. The observations of Mr. Justice
Story in Prevot v. Grate, 6 Wheat. 497, 498, in discussing
the sufficiency of evidence introduced to prove fraud, under
like circumstances, are quite as pertinent here as they were
there. He said : " But length of time necessarily obscures all
human evidence ; and as it thus removes from the parties all
the immediate means to verify the nature of the original trans-
action, it operates by way of presumption in favor of innocence,
and against imputation of fraud. It would be unreasonable,
454 Walkek v. Caeeington et al. [Sept. T.
Opinion of the Court.
after great length of time, to require exact proof of all minute
circumstances of any transaction, or to expect a satisfactory ex-
planation of every difficulty, real or apparent, with which it
may be incumbered. The most that can fairly be expected in
such cases, if the parties are living, from the frailty of human
infirmity, is, that the material facts can be given with certainty
to a common intent, and, if the parties are dead, and the case
rests in confidence, and in parol agreements, the most we can
hope is to arrive at probable conjectures, and to substitute gen-
eral presumptions of law for exact knowledge. Fraud or
breach of trust ought not lightly to be imputed to the living ;
for the legal presumption is the other way ; and as to the dead,
who are not here to answer for themselves, it would be the
height of injustice and cruelty to disturb their ashes, and violate
the sanctity of the grave, unless the evidence of fraud be clear
beyond a reasonable doubt."
The representations made by Walker, which are claimed to
be fraudulent, are found in certain letters written by him in
regard to the sale of the land, and particularly in two addressed
by him to Edward Carrington, who was corresponding with
him on behalf of the trustees, in which he represented that he
could find no one to make an offer for the property except
Bentley, who proposed to purchase it at $600 cash, or $800 in
payments of $200 in cash, $200 in one year, $200 in two years
and $200 in three years ; that if they wanted to sell, the offer
was a fair one ; and, in the last of these letters, which was
written on the eighteenth of November, 1850, the following
was added :
" The prairie all lies vacant out there, so wet the farmers do
not like to settle, and it will be a good many years before one-
quarter will be occupied, and forty to sixty acres of it will cost
the value of the land to drain it. You will do no better with
him. I so understood the offer the first time. If you wish to
hold, you may do better in Hve or six years ; but at this time
there are two or three one hundred and sixty acres in that
neighborhood offered at five dollars per acre, on five years'
1874.] Walker v. Carrington et al. 455
Opinion of the Court.
credit, with no buyer. If you make up your mind to take
the offer, I will close the contract with him," etc.
It appears from the evidence that Edward Carrington and
Seth Terry had both been upon the land before the sale, and
must, therefore, have had a personal acquaintance with its
location, and some general idea of the quality of the soil, and
what proportion was probably wet and what dry land. Car-
rington says he was in Chicago in 1845 and in 1846, and he
subsequently corresponded with Walker in regard to the sale
of the land, in the lifetime of Eliphalet Terry, and several
years before his correspondence with him was resumed on be-
half of the trustees. In the letter from Walker to him, from,
which we have quoted, Walker makes direct reference to Car-
rington's having been with him on or near the land, in these
words : "I find there is more of the low marsh than I sup-
posed when you and myself were out there." Noble says he
had an introduction to a man by the name of Terry — don't
know what his first name was. * * " The introduction w&s
made by Charles Walker. Terry and Walker were then upon
the property together ; that is, the property in this suit. It
was some time in the summer. * * * I made a bargain
with Terry for the grass on that same ground. Nothing was
said by Terry about selling it. He had only purchased it a
little time before that, or something about then. That was as
I understood," etc. He also says it was in the neighborhood
of twenty years before the time he was giving his evidence.
It is not pretended that Eliphalet Terry visited the property,
and the reasonable inference is that the Terry alluded to was
Seth Terry, the trustee, and the time subsequent to the death
of Eliphalet Terry in 1849, and before the negotiations for the
sale in the fall of 1850.
So far, then, as the trustees had actual knowledge from a
personal inspection of the land, and by information from
Edward Carrington, who was husband of one and father of
the other beneficiaries, it is not to be supposed the representa-
tions of Walker had any material influence upon their conduct.
£56 Walker v. Carrington et al. [Sept. T.
Opinion of the Court.
Seven witnesses were introduced by appellees, who testified
the value of the land was, at the time of the sale, ten dollars
or more per acre.
But one of these, however, Gray, testified to any circum-
stance tending directly to show knowledge in Walker that the
land was of that value. He says he endeavored to buy it of
Walker in 1848 ; that he called on Walker and inquired if he
was the owner of the property. Walker said he was. Wit-
ness asked him if the property was for sale. He said it de-
pended on what he could sell it for. He finally made a condi-
tional offer, and in respect to this he uses this language: "I
did not consider it binding on his part, or on mine, to sell it
for ten dollars an acre. I afterwards called, and he told me it
was not for sale."
We are inclined to the belief that the witness, though doubt-
less actuated by honest convictions, is mistaken — most proba-
bly by assigning the conversation to too early a period by sev-
eral years. It is apparent that such a mistake might well
occur — and, indeed, it is matter of common observation that
they frequently do occur, where the period over which the
memory is required to extend is much shorter than it was here.
A quarter of a century had elapsed between the time of the
conversation and the time at which the witness was called to
testify. The conversation had been productive of no practical
result, it appears to have been in no way connected with any
important event which we can suppose would be indelibly im-
printed on the memory ; and it is not shown that there was,
during this long time, any occasion for recalling or reviving
the recollection of the conversation. It is exceedingly improb-
able that Walker should have held such a conversation in
regard to the land, at the time stated by the witness.
It is shown by the evidence that Walker sold and conveyed
the land to Eliphalet Terry in May, 184:1 ; that he acted as
Terry's agent in looking after it and trying to get a purchaser
for it, until Edward Carrington, becoming dissatisfied with him,
had his agency withdrawn ; and there is no pretense that he
1874.] Walker v. Carrington et al. 457
Opinion of the Court.
had any tiling to do with the land between that time and his
subsequent appointment by the trustees in 1850. Carrington
says " I became dissatisfied with his management of it [the land]
and withdrew the agency from him." ' The last letter in evi-
dence from Walker to Carrington, written in the lifetime of
Eliphalet Terry, and which, from other evidence, seems to have
been the culminating cause of Carrington' s dissatisfaction, bears
date Sept. 20, 1847. That the withdrawal of the agency fol-
lowed this letter, at least before the end of the year, is clearly
shown by a subsequent letter written by Walker to the trustee,
Setli Terry, dated the 21st of February, 1851, in which, after
alluding to a certificate of purchase that had been given to
Farwell on a sale of the land for taxes, he says : " I succeeded
in buying the certificate, and got it assigned to me. This mis-
take is because Mr. C. took it out of my hands in 1847," etc.
Eo rational motive is shown, and none is perceived, why Wal-
ker should have professed to be the owner of land, over which
he did not even have an agency, when he must have known
that the records would have disclosed to any one examining
them the true state of the title. Had his purpose been to cheat
or defraud thereby, it is natural to suppose some attempt would
have been made to do so. He is made to appear to tell a false-
hood without an apparent purpose, and to encourage negotia-
tion merely for the pleasure of breaking it off.
But, aside from this, it does not follow because Gray may
have offered Walker $10 an acre for the land in 1848, Walker
knew he was advising that it be sold for less than it was worth,
in the fall and winter of 1850, '51. It is not shown that Gray,
or any one else, at that time offered $10 an acre for the land,
or that any one, other than Bentley, was willing and desiring
to buy it at any price. Walker may then have forgotten Gray's
offer, or, if recollecting it, may have been unable to find any
one who would make as good a one. Tin's is a charitable and
reasonable presumption which the law requires us to indulge,
unless it is inconsistent with the clearly proved facts.
As illustrative of the liability of persons in fixing an estimate
58 — 74th III.
458 Walker v. Carrington et al. [Sept. T.
Opinion of the Court.
of value, at a period of time far remote from that at which the
value is desired to be ascertained, to deceive themselves by mis-
applying dates, we may allude to the evidence of Noble who
gives it as his opinion the land at the time of the sale was worth
from $20 to $25 per acre. In giving his means of knowledge
of the value of real estate in the vicinity, at the time, he says :
" Knows of two sales before that, one was by Hayes, the other
by Wells. Wells sold ten acres to Clybourn for about $18 an
acre in 1847 or 1848, and Hayes sold for $22 an acre, he thinks
in 1848 or 1849." He also says, in a previous part of his evi-
dence, that he himself sold to Mrs. Chapron ten acres of land
for a thousand dollars in 1852 or 1853.
Now Mrs. Chapron swears, and the abstract of title confirms
her, that the sale by Noble to her, instead of having been
made in 1852 or 1853, was made on the 28th of November,
1855.
Hayes swears he was not in that country until in January,
1851, and he owned no land in Jefferson until in 1852 or 1853 ;
that he purchased a quarter section there as late as 1853.
And J. H. Clybourn swears the property sold by Wells was
to his brother, and that the sale was not made until m 1863.
There were six witnesses who testified on behalf of ap-
pellant, that gave it as their opinion, in substance, that the
land at the time of the sale was worth no more than Bentley
paid for it. All of them, although not, as most of the witnesses
for appellees were, residents of the town of Jefferson, were
familiar with the value of real estate there in 1850-51, and
knew the land in controversy. Some of them were, during
those years, largely engaged in buying and selling real estate
in the town of Jefferson.
As a reason why lands were cheap in that vicinity at the
time, they show that government lands could be bought in that
country, although not in that town, with land warrants, at less
than one dollar and a quarter an acre. Chicago did not have a
population exceeding twenty thousand ; the streets of the city
and the roads leading into it were in bad condition ; there was
1874.] Walker v. Carrington et at. 459
Opinion of the Court.
no gas, and but an inadequate supply of drinking water ; ad-
jacent to the city, and in almost every direction, there were
large tracts of land covered with water, and the country be-
tween Chicago and Jefferson was chiefly low, wet prairie, unfit
for general agricultural purposes without expensive drainage.
Mahlon D. Ogden, whose firm was doing a very large real
estate business at that time in this town, as well as elsewhere
in the county, says : " The country at that time leading to
Jefferson was what we considered very low, swampy, marshy
land ; roads bad, a great deal of land not fit for cultivation
without large drainage." He also says, in 1849, 1850 and 1851,
sales were very slow, not easily made, except to parties who
wanted to occupy ; no speculation. In 1851, 1852 and 1853
prices took an upward turn, and went on better up to 1856,
when they got high, and in 1857 they went low again.
Herbert, who was tenant on the land to appellant from
1858 to 1859, says when he went there no improvements were
on the land, except the street or road. There were forty-five
or fifty acres of what he calls dry, tillable land, about forty
acres of slough, and the balance was fit for cutting grass, and
some' parts of it for pasture. The land being lower than
other lands around it, was flooded by the water flowing from
them.
We cannot take the time to quote the evidence of all the
witnesses in full. It is sufficient that, after a careful perusal of
the entire evidence, in which we have not confined ourselves
to the abstract alone, we are clear in the conviction that the
charge of fraud is not proved with that degree of certainty the
law requires, in view of the death of Walker and the lapse of
so great a time.
If the question were simply, does the evidence preponder-
ate that the value of the land was, at the time of the sale,
greater than that for which it was sold, our conclusion might
be otherwise. But, while such a preponderance tends to show
Walker did know the value of the land was greater than he
represented it to be, it is by no means conclusive on that ques-
4:60 Walker v. Cabbing ton et al. [Sept. T.
Opinion of the Court.
tion. So many circumstances affect the value of lands which
different minds may look at in different ways, that it would be
grossly unjust to condemn an estimate as fraudulent, merely
because more persons should be found to say it was too low than
that it was fair and reasonable. Of those who are found sus-
taining the estimate of Walker, there are several men of large
experience in real estate transactions, who were well acquainted
with the land in controversy, and familiar with the value of
land in its vicinity at the time the transaction occurred, and
there is no attempt made to impeach the honesty of their
motives or the sincerity of their convictions. It is impossible
to say, from what appears in evidence, that Walker may not
have been equally honest and sincere in his estimate of the
value, and if so, even if inaccurate, his representations were
not fraudulent.
The great misfortune, as it seems to us, resulted to appellees
from the determination of their trustees to sell at an inoppor-
tune time. Had they waited, as suggested by Walker, four or
five years; or better still, twenty or twenty-five years, it would
have saved them what they now feel they have lost. But with
that Walker had nothing to do. There is no evidence showing
that he influenced the trustees, in the slightest degree, upon
that question.
But it is charged that Walker was interested in the sale to
Bentley, and therefore, although he may have been guilty of
no actual fraud, the sale was fraudulent in law. This, like the
preceding question, depends entirely upon the evidence.
It has already been observed that Walker conveyed the land
to Eliphalet Terry on the 7th day of May, 1841, and his subse-
quent agency in regard to it needs no further explanation. The
deed by the trustees to Cyrus Bentley was made on the 24th
day of April, 1851, and Bentley conveyed to appellant on the
19th day of February, 1868. Bentley was a brother-in-law of
Walker, and brother of appellant.
In a letter written by Bentley on the 11th of May, 1870, and
addressed to Jared Deming, who was for a time trustee
1874.] • Walker v. Carrington et al. 461
Opinion of the Court.
for appellees, for the purpose of having a formal release of the
mortgage which he had given to secure the deferred payments
for the land executed, he used this language : " Mrs. Charles
"Walker (widow of Charles) is the owner of this land, I (her
brother) held the title in my own name for her and gave the
notes and mortgage for part of the purchase money when the
land was purchased of Messrs. Terry and Boswell. Mrs. Wal-
ker being now about to sell some of this land, the purchaser
desires that the mortgage maj^ be released from the records."
This, the appellees allege and swear, was the first notice
they had that appellant had any interest in the land ; and it
undoubtedly led to the tiling of the bill.
Appellant and Bentley were both examined as witnesses and
their testimony, together with the letters of Walker and Bent-
ley, constitute the entire evidence on this branch of the case.
Appellees claim that the proof is complete that when the
sale was made it was in fact to appellant, and that Walker
knew it when he recommended the sale to Bentley. There is
no admission of any thing like this in the letters of Walker,
and the only thing claimed to have that effect in the letters of
Bentley is what we have quoted from his letter of May 11,
1870, to Deming.
This, in our opinion, is not an admission that when he pur-
chased he was purchasing for appellant, but simply that he held
the title for her as trustee. When he commenced to hold as
trustee he does not say. It is consistent, it is true with the idea
that he held it all the time as trustee, yet we do not think it
is inconsistent with the hypothesis claimed by appellant, that
some little time after the purchase, by an arrangement with her,
it was determined that she was to have the land, and that he
should hold it for her. The language of the letter is equally
as true under that hypothesis as the other. Indeed, in view of
the fact that the letter seems to have been unreserved, and
perfectly frank, in detailing the history of the transaction, it
would seem to have been more reasonable, if the purchase had
4:62 "Walker v. Carrington et al. [Sept. T.
Opinion of the Court.
been in fact made for appellant, that language would have been
used.
Bentley was twice examined as a witness, once by appellees
and ouce by appellant. In his first examination he said he
could not say, when he made the offer, whether he bought the
property for appellant or himself. After the purchase was
made, or at the time of its consummation, he determined it
should be for appellant.
In reply to this interrogatory — " When did you first tell
him (i. e. Walker) you had concluded to purchase for his
wife ? " — he answered : " I cannot remember positively, but
my impression is, after he had delivered me the deed and I
gave him the notes and mortgage for the deferred payments,
and was asked for the first payment. Could not state that be-
fore the sale was completed I did not inform Walker I was
purchasing the property for his wife. I might have done so,
but have no recollection of doing so, and my best impression is
I did not ; nor do I know whether Mrs. Walker did or did
not know I was going to purchase the property for her. I
have no recollection of having any conference with her on the
subject, and, according to my best recollection, I acted on my
own judgment and discretion in the premises, as I have done
in making investments for her."
Again, in answer to a subsequent interrogatory, whether he
did not inform Walker before the sale was consummated that he
intended to purchase the property for appellant, he said : " I
cannot, at this length of time, state what I did not do. I can
only state that my impression is that I did not until the sale
was consummated."
Upon being, at a subsequent day, examined on behalf of appel-
lant, he said : " I have felt delicate in this matter about testi-
fying to any thing very positive that transpired so many years
ago, but since giving my deposition I have thought a great
deal about it, trying to refresh my memory in various ways,
and I cannot recall a single instance or circumstance that leads
me to think or believe that I bought the property for Mrs.
1874.] "Walker v. Carringtoh" et al. 463
Opinion of the Court.
Walker. I had bought property of Mrs. Walker for myself
before. I recollect in this matter of the defective acknowledg-
ment, I insisted to Mr. Walker that if I took this property,
he and his wife must make a quitclaim deed to me, to correct
this defect in the acknowledgment of Mrs. Walker, and he
promised to do so. I insisted upon this at the time the ab-
stract was prepared, and when I was in treaty for the prop-
erty."
Appellant testified : " I have a remembrance that my brother,
Cyrus Bentley, made a purchase of the land in question ; re-
member having heard that he had bought it ; remember Mr.
Herbert, who lived in Chicago about that time. He was a
brother-in-law of Mr. Walker. I recollect of going out in com-
pany with Mr. and Mrs. Herbert to view this land. It was
after I had heard that Cyrus Bentley had bought it. I cannot
say exactly what time of year it was, but think it was either in
May or June of 1851. I fix the date in this way: it was not
very long before my husband's sickness in that year ; he was
sick in August, 1851, of the cholera. The circumstances under
which I came upon the ground at that time were, that my hus-
band said to me he thought he would like to have me go out,
together with Mr. and Mrs. Herbert, to see the land. Whether
I was then owning, or whether I was to have it, it was my
impression that he took me out at that time with Mr. Herbert
to see what they would think of it ; that it was perhaps op-
tional with me whether I would have it or not."
And again she said : " I had an impression something like
this : My brother thinks he can do better than to hold this
land, and, therefore, he turns it over to me. * * I remem-
ber, some time after this, my brother saying to me, ' I rather
think I missed it in letting you have this land ; I had better
kept it.' "
In answer to the question whether she and her husband had
any conversation relative to Bentley's buying the land for her.
she said : "I never recollect his talking with me at all. I re-
member of no conversation upon the subject relative to having
4:64 Walker v. Cakkington et al. [Sept. T.
Opinion of the Court.
an interest in the property prior to May or June, 1851, at the
time I went upon the ground. That was the first of my know-
ing or thinking, and I know of no conversation prior to that
time, in which I was to have an interest in the property."
This evidence, standing alone, cannot be regarded as suffi-
cient to prove that Bentley, at the time he purchased, was pur-
chasing for appellant, or that Walker, when he recommended
the sale, supposed that his wife was interested in it.
There are, however, a number of other circumstances which,
it is claimed, should be taken into consideration, which are in-
consistent with the idea that Bentley purchased for himself.
In a letter written by Bentley on the 23d of September,
1870, to Edwin T. Carrington, one of the appellees, who was
then trustee for his mother and sisters, in regard to the prop-
erty bequeathed by his grandfather, Eliphalet Terry, in allu-
ding to the notes and mortgage executed to Terry and Boswell
for the deferred payments on the land, he says : " These notes
were all paid through Charles Walker, who attended to the
business, and when Mr. Walker paid the last note I sup-
posed he got a release of the mortgage given on said one hun-
dred and sixty acres to secure said notes. Mr. W. died a
couple of years since, <and we find, since his death, no release
of said mortgage on record, and conclude if he obtained a re-
lease he neglected to record it, and the same is lost."
Bentley, in giving his evidence in his first examination, also
said: " As to the property in question, I had no active control
of it, except to visit it occasionally, and to know who occupied
it, and what improvements were made upon it. Mr. Walker had
the principal charge and management of it by an arrangement
with me. For several years the property was not occupied,
except that parties had the privilege of cutting hay for a com-
pensation ; afterwards it was improved and leased. Mr.
Walker gave them the privilege and received the compensa-
tion, and accounted to Mrs. Walker for the proceeds, keeping
an account upon his books, and the books of the several firms
of which he was a member, in the name of Mrs. Walker. I
1874. J Walker v. Carrington et at. 465
Opinion of the Court.
know this was done, and saw the accounts, and examined them
upon the books myself. * * * Primarily, Walker and his
firms received the rents and profits, and Mrs. Walker had the
benefit of them."
Transactions of this kind are always viewed with suspicion ;
still, where the property is clearly the property of the wife,
the husband may act a£ her agent in its management, either
by appointment of her trustee, or, since the act of 1861, re-
lating to the separate property of married women, by her own
appointment. Brownell v. Dixon, 37 111. 197 ; Wortman v.
Price, 47 id. 22 ; Pierce v. Hasbrouck, 49 id. 23 ; Dean v.
Bailey, 50 id. 481.
It appears from the evidence of Bentley that appellant had
an estate coming to her from their father, which she was de-
sirous should be preserved for her, separate from the property
of her husband, and in 1849, at her request, and with the con-
sent of Walker, he became her trustee for the management of
this estate. The agreement was by parol merely ; but Bent-
ley, from thenceforth until since Walker's death, acted as her
trustee, and no objection has ever been urged against the mode
of his appointment.
He swears that on the ninth of September, 1849, he loaned
Walker, for the use of his firm, Walker & Clark, $1,010, on
which interest was to be paid at the rate of twelve per cent
per annum, of appellant's money. This was the proceeds of
two notes, which their father had executed to appellant many
years before, in renewal of notes which he had given her be-
fore her marriage. The impression of the witness is, after
Walker delivered him the deed to the property, and he had
given the notes and mortgage, and when he was asked for the
first payment, he informed Walker that the purchase was made
for the appellant, and directed him to apply the amount due
from himself on account of the money borrowed from witness
belonging to Mrs. Walker, iu payment of the notes. He fur-
ther says, as a reason for appointing Walker agent to look after
the land, he felt that, inasmuch as he was rot proposing to
59— 74th III.
4:66 Walkek v. Carrington et al. [Sept. T.
Opinion of the Court.
charge any thing for his own services, and was engaged in the
active practice of the law, while Walker was engaged in busi-
ness which rendered it not inconvenient for him to discharge
the duties of the agency, and was, moreover, the husband of
appellant, it was not unreasonable to ask him to assume what-
ever of burden there was in the matter. It does not appear
that there was any circumstance to cause him to doubt Walker's
competency so to act, or the prudence of his selection. He
says Walker was a man of high character, he had had many
business transactions with him and never had cause to doubt
his integrity. That Walker owed the money to Bentley, as
trustee for appellant ; that it was agreed he should discharge
the debt by paying the notes given by Bentley ; and that he, as
trustee of appellant, in good faith, accepted the payment of the
notes as a payment of the debt due from Walker, can only be
doubted by discrediting Bentley's positive and uncontradicted
testimony. There is no pretense that the notes were not paid,
and the circumstance of the neglect to obtain the release of the
mortgage is evidence of negligence merely, and as consistent
with the good faith of the transaction as with its opposite ; in-
deed, it would seem more probable, if bad faith had existed,
greater care would have been used to have avoided every pre-
text for a subsequent examination into the transaction, than if
there had been no consciousness of danger to be apprehended
from that source.
We are unable to perceive any thing so unreasonable in the
nature of the fact testified to by Bentley, in this respect, as to
raise a presumption against his veracity. On the contrary, we
think they are capable of being reconciled as consistent with
good faith in all the parties concerned in the transaction.
The relationship, of itself, does not imply such confidence
between Walker and Bentley, even if the former had been the
trustee to sell, as would preclude the latter from becoming the
purchaser of the property.
Bentley says : " I cannot remember when my attention was
first called to the fact that the property was for sale. It was
1874.] Walker v. Carrington et al. 467
Opinion of the Court.
sometime before I purchased * *
* * * * * * Walker told me where- the
land was, and said something about the quality of it. As to
the value I can't remember particularly what he said, but my
impression is that he gave it as his opinion that the land was
worth about $5 an acre on a reasonable time for the payment of
it. * * My impression is he expressed the opinion that at
that price it might eventually prove to be a good investment ;
but he did not give it as his opinion that it would be a good in-
vestment at that price, with a view to converting it and turn-
ing it into money again in a short time, or until the lapse of
years.
" Regarding my reasons for making the purchase, I think
after a conference with others, though am not positive about it,
I came to the conclusion that it would be a good investment,
after the lapse of years, and as I had money that I could invest
permanently, without needing it again for years, I was induced
to purchase it ; I do not remember previously to have visited
the ground or land, but relied on Walker's statement as to the
situation and character of it, and I think I traced it on a map."
This is all there is in the evidence showing that Bentley pur-
chased under Walker's advice.
We discover nothing here which is necessarily inconsistent
with fair dealing. The object of Walker's agency was to find
a purchaser for the land, and what he said to Bentley is no
more than might have been said to any other possible purchaser.
He did not represent that the land could be obtained for less
than it was then worth, and his conjectures as to the profits to
be derived in the future from buying and holding it, in no
wise affected the duty he owed to the trustees. There is noth-
ing in the language from which we can infer he was intending
his wife should have the land ; and Bentley's evidence is ex-
plicit that he was ignorant of what Walker wrote to the trus-
tees in regard to the sale ; that there was no conversation be-
tween Walker and himself, or between anybody and himself,
for the purpose of regaining the property either from Walker
468 Walker v. Caeeington et al. [Sept. T.
Opinion of the Court.
or his wife ; and lie adds : " I acted independently of Walker,
and on my own judgment and responsibility, in making the
purchase, and not until after May 11th, 1870, did I hear any
allegations of fraud, nor had I the slightest conception that
anybody supposed there had been any in the sale and purchase
of this land ; nor do I know of any unfairness or concealment
having been practiced by any person or persons."
It appears from the letters of Walker to Edward Carrington,
in evidence, that on the tenth of July, 1847, Walker wrote
him : " I yesterday by contract sold your lot to William N".
Bentley, Jr., for $600, to be cash within six months, and prob-
ably all down. Mr. Bentley has found a customer for it by
the name of William D. Knapp. I have got of the money, so
as to make it sure, etc., and he directs the deed had better be
made to Knapp."
In a letter written to the same person on the twentieth of
September, 1847, Walker informs him that the man with
whom Bentley made the conditional bargain will not pay $800,
but will pay $750 and no more, and closes by advising him to
take it. It was after the receipt of this letter that Carrington
caused Walker to be removed as agent, as we have before
shown.
In the letter written by Walker to Carrington on the seven-
teenth of July, 1850, he informs him that he has made some
inquiry, and can get no one to make an offer for the land ex-
cept Mr. Bentley, who, he says, was the person that first made
the offer two years before.
In a subsequent letter Walker says : " Bentley 's name, the
purchaser of the land, is Cyrus."
Bentley made an abstract of title before closing the pur-
chase, from the records of Cook county, in which it appeared
that in the certificate of the acknowledgment of the deed from
Walker and wife to Eliphalet Terry the name of Walker's wife
was given as Mary instead of Nancy B. This seems to have
been an error of the recorder only, but it does not appear to
have been known to either Bentley or Walker at the time, and
1874.] Walker v. Carrington etal. 469
Opinion of the Court.
there was no certificate that the acknowledgment, which was
taken in the State of New York, was in conformity with the
laws of that State. The land had also been sold for taxes to
Farwell.
These objections were pointed out by Bentley to Walker ;
and in a letter written by Walker to Seth Terry on the twenty-
first of February, 1851, he used this language : u It has taken
me a long time to get Mr. Bentley to examine the title to the
land sold, as he was full of professional business. I found it
was sold and past redemption, and lost, if Mr. Farwell had not
been my particular friend. I succeeded in buying the certifi-
cate, and got it assigned to me. * * * I see that my deed
is informal to Mr. Terry, but I and my wife can quitclaim it
to Mr. Bentley, which will cover the tax title and all.
" Mr. Bentley shows you how you must deed to have the deed
good, and you will please make out the papers accordingly, in
strict compliance, and forward," etc.
From these letters and circumstances, appellees' counsel in-
sist these conclusions are to be deduced : First, there was, from
the first letters, written by Walker to Edward Carrington, a
design to repossess himself of this land, either by getting the
title in his own name or in that of his wife ; and secondly, to
conceal all knowledge of this design from the trustees.
The name of Knapp, they claim, was a myth, and Bentley
was to be used to assist him in accomplishing his design. The
letters, it is argued, show great artifice and adroitness in repre-
senting the difficulty of selling the property and in magnifying
trifling objections to the title, etc., so as to reconcile the trus-
tees to the sale and satisfy them with the small price for which
it was sold.
It seems to us this line of argument assumes what it devolves
upon appellees to prove. If we shall assume that Walker was,
all the time, laboring to get the title to the property in himself
or in his wife, and that he used Bentley as a mere instrument
to accomplish his end, we may discover much adroitness and
skill in the artifices to which he resorted.
4/70 Walker v. Carrinqton et al. [Sept. T.
Opinion of the Court.
But does the evidence necessarily tend to prove that such
was his design ?
If it is susceptible of an explanation, equally reasonable,
consistent with the fidelity and good faith of Walker as a trus-
tee, we must adopt it.
Appellant had a brother named William JST. Bentley, who
died in 1852, and appellant says she heard her husband talking
with him about the land, but she recollects of no conversation
relative to her having an interest in the property. Cyrus
Bentley says that in 1847 his brother William N". lived in
Beloit, but was frequently in Chicago, and between 1847 and
1850 was engaged in frequent real estate transactions with
Walker. There appears,' therefore, no insuperable difficulty
to his having made the offer represented ; nor, if made, why it
should not have been made in good faith. But who was
Knapp ? Walker and William K. Bentley, if alive, might tell.
It surely cannot be regarded as strange or suspicious that Wil-
liam ]ST. Bentley, twenty-five years before this evidence was
taken, knew a man to whom he could have sold the land, yet
who is unknown to the witnesses who have testified. It is not
shown there could have been no such person ; and in the ab-
sence of such proofs the presumption must be, especially after
the lapse of the great length of time that has intervened, that
the representation was correct.
The fact that Walker alludes to Cyrus Bentley as the same
person who had made the offer two years before, we think of
no importance. It was, manifestly, a mistake of his, resulting,
probably, from the fact that both were brothers of his wife.
But of what consequence was it, in the view claimed by appel-
lees, whether the last offer was made by the same person who
made the former offer or not ? It does not appear that it
would have been less objectionable to the trustees to convey to
Cyrus than to William E".
And as between persons occupying an apparently equally in-
different relation to the trust, the only question of importance
to them was evidently the price that was proposed to be paid..
1874.] "Walker v. Carrington et al. 471
Opinion of the Court.
So far as the objections urged by Bentley to the title are
concerned, we think they are precisely such as would have
been urged by any cautious and prudent man in purchasing for
himself.
That they were easily removed does not materially affect the
question. The record showed their existence, and it was but
the part of prudence to require that they should be corrected
before title was made and the transaction closed. It is, to our
mind, much more reasonable that, if he had at the time known
that he was purchasing for appellant, he would have made no
objection to the acknowledgment of the deed, so far as her
-name was concerned, knowing that it would be wholly imma-
terial.
It is insisted, waiving the question on the evidence, and con-
ceding that Bentley, in fact, purchased for himself, yet inas-
much as appellant shortly thereafter became invested with an
equitable interest in the property, in which Walker, by virtue
of his marital, relation, had rights, the sale was void, because,
it is argued, a sale made by an agent is invalid when it has been
made one day and upon a subsequent day the trustee or agent
becomes interested in the property, and Kruse v. Steffens, 47
111. 113, is referred to as sustaining the position. In that case
it was held : " The fact that the person entrusted by law to
make the sale becomes the purchaser, whether by direct or in-
direct means, creates such a presumption of fraud as requires
the sale to be vacated, if application is made in proper time."
The evidence showed that Schrieber was the auctioneer, and
bid off and knocked down the lands to himself as the pur-
chaser. He paid no portion of the purchase money, nor did
he execute note and mortgage on the premises to secure the
same. After the sale nothing was done until the deeds were
interchangeably executed by the administrator and Schrieber,
and it was said : " As the deeds were both executed at the
same time, the law will regard them as forming a part of the
same transaction. Considered in this light, the effect was pre-
472 Walker v. Carrington et al. [Sept. T.
Opinion of the Court.
cisely the same as if the administrator had conveyed the lands
to himself."
The question was one of evidence only. It was not said,
nor has it been held by this court, where the trustee has fully
discharged his duty and ended his trust, he may not subse-
quently negotiate for the ownership of the trust property. The
question was before us, and the reverse was held to be the law
in Munn et al. v. Burgess et al. TO 111. 604.
When Bentley determined to hold the property in trust for
appellant, Walker's duties as agent for its sale had been entirely
concluded. The property was sold, and what subsequently
became of it could in no possible way relate back to and affect
the question of its original value. Nor do we conceive that it
was a matter which Walker was under any obligation to com-
municate to the trustees when he was informed by Bentley of
the disposition he intended to make of the property. If, at
the time he recommended that the property should be sold to
Bentley, he had known Bentley was designing the purchase for
appellant, heshould undoubtedly have communicated that fact
to the trustees, for they were entitled to know of any interest
he might have in the sale which might affect the fairness and
good faith of his recommendation. But after the sale was con-
cluded no such consideration could apply.
We are, moreover, of opinion that the claim of appellees is
barred as a stale claim, upon the grounds of laches and long ac-
quiescence in the adverse right of appellant. As early as 1858,
and thence until the filing of the bill, appellant was in the open
and notorious possession of the land by her tenants. Her claim
seems to have been known in the neighborhood of the land
even at an earlier date by several years. The taxes, except for
the year 1863, were all paid in her name and for her. In 1864,
a deed from a former owner of the land to her was placed on
record, thus giving thenceforth constructive notice that she was
claiming as owner.
By the long delay in filing the bill and in consequence of the
death of Charles Walker and Seth Terry, many circumstances
1874.] Wilson v. Sawyer et al. 473
Opinion of the Court.
that might otherwise be susceptible of satisfactory proof, are un-
susceptible of proof, and, in this, delay has wrought injury to
appellant, which it is inequitable that appellees should profit by.
The rule applied in Carpenter v. Carpenter, 70 111. 457,
Dempster v. West, 69 id. 613, and recognized in Munn et al. v.
Burgess et al. 70 id. 604, is equally applicable here. The decree
will be reversed and the bill dismissed.
Decree
Mr. Justice Breese : Believing the theory of appellees is the
correct theory of this case, and that it is sustained by sufficient
proof, I am unable to concur in the opinion of the majority of the
court.
Robert L. Wilson
v.
Gteorge M. Sawyer et al.
Vendor's lien — waived by taking security. Where the vendor of land
takes the purchaser's promissory note with personal security for the un-
paid purchase money, and afterwards, by direction of the purchaser, con-
veys the land to a third person, and assigns the note, the presumption of
a lien will be repelled, especially after the lapse of several years.
Writ of Error to the Circuit Court of Whiteside county ;
the Hon. W. W. Heaton, Judge, presiding.
Messrs. Kilgour & Manahan, for the plaintiff in error.
Mr. J. E. McPherran, for the defendants in error.
Per Curiam : This was a bill by plaintiff in error to subject
certain lands owned by one Eliza M. Smith to a vendor's lien
for purchase money, and subject it to the payment of a certain
judgment recovered by one Silas B. Wilson against defendants
in error, Burditt and Sawyer. The bill is not sustained by the
60— 74th III.
4:74 Huston et al. v. Atkins. [Sept. T.
Syllabus.
proofs. It alleges a sale of the lands to Burditt and Sawyer
jointly, whereas the proof shows the contract of sale was en-
tered into March 20, 1858. It was in writing, under seal, and
was between plaintiff in error as vendor and Burditt as pur-
chaser. One hundred dollars was paid in cash and Burditt
gave his note for $293.68, payable in one year, with Sawyer's
name upon it. In September, same year, by Burditt's direc-
tions, plaintiff in error and wife executed a deed of this land to
the above named Eliza M. Smith, who has ever since owned it.
Plaintiff assigned said note to said Silas E. Wilson, who, in
1867, brought suit upon it and recovered judgment in his
name, on which he has sued out execution. This bill was filed
in January, 1870. We are of opinion that by taking Burditt's
note with the name of a third person upon it, presumptively as
a surety, conveying the lands to Smith and assigning that note
to Silas R. Wilson, the presumption of a lien is repelled. Es-
pecially is this so in view of the lapse of time. The decree of
the circuit court dismissing the bill is affirmed.
Decree affirmed.
Thomas Huston et al.
v.
John H. Atkins.
Jury — right of trial by. Upon objections being filed to the report of
surveyors in fixing disputed boundaries of land, denying its correctness, it
is error in the court to refuse a trial by jury when demanded, to try the
issues made.
Writ of Error to the Circuit Court of Henderson county *
the Hon. Arthur A. Smith, Judge, presiding.
Mr. C. M. Harris, for the plaintiffs in error.
Mr. John J. Glenn, for the defendant in error.
1874.] Bradley v. Barbour. 47£
Syllabus.
Per Curiam : This was a proceeding instituted by Atkins,
defendant in error, against plaintiffs in error, in the Henderson
circuit court, under the act, entitled " An Act to provide for
the permanent survey of lands," passed March 25, 1869.
Pursuant to the provisions of the act, a commission of sur-
veyors was appointed, who made a survey of the lands in ques-
tion, and filed their report in court, whereupon the de-
fendants below filed objections to the report denying its
correctness, and made a motion that a jury come to try the
issues so made. The court overruled that motion, to which
exception was taken. Judgment passed confirming the report
of the surveyors, on which the defendants brought error to this
court. Several errors are assigned ; but inasmuch as the denial
by the court of a trial by jury is fatal to the judgment, the
other errors assigned will be disregarded. The right of trial
by jury, in this class of cases, was expressly affirmed by this
court in Town-send ei at. v. Radcliffe et al., 63 111. 9. That
case is decisive of the one at bar. The judgment of the court
below will be reversed and the cause remanded.
Judgment reversed.
Craig, J., having been of counsel for defendant in error in
the court below, took no part in the decision of this case.
Chaeles Beabley
V.
John E. Baeboue.
Circuit court — branch held by another judge. Under the statute the
judge of any circuit court in this State is authorized to hold a branch terra
of the Superior Court of Cook county, and the statute infringes no constitu-
tional provision.
Appeal from the Superior Court of Cook county ; the Hon.
John Burns, Judge, presiding.
4:76 Knox et ux. v. Brady. [Sept. T.
Syllabus.
This was an action of assumpsit brought by John E. Bar-
bour against Charles Bradley and one Lott Frost. Bradley
alone was served with process and pleaded the general issue.
Messrs. Knowlton & Humphreyville, for the appellant.
Messrs. Scott & King, for the appellee.
Per Curiam : The question argued in this case is governed
by Albee v. Jones, 70 111. 34. It appears by the placita and
bill of exceptions, that trial was had before the Hon. John
Burns, one of the circuit judges of the State, while holding a
branch term of the Superior Court of Cook county. This,
in the case referred to, was held to be authorized by statute
and no infringement of any constitutional provision.
Judgment affirmed.
Thomas Knox et ax.
v.
Peter Brady.
1. Mistake — reforming deed of married woman. The deed or other
contract of a married woman respecting her separate property since the
passage of the act of 1869, in relation to conveyances, may be reformed foi
mistake, the same as if she were sole, and its execution may be proved,
and her contracts respecting her separate property specifically enforced in
equity; but as to the lands of her husband her contracts are void, and a
mistake in a conveyance of the same cannot be reformed as against her.
2. Married women — deed of, for husband's land. A married woman
can only relinquish her rights of homestead and dower in her husband's
lands by joining with him in the execution of a deed or mortgage. All
other contracts in relation thereto are void for want of capacity.
Writ of Error to the Circuit Court of Marshall county ;
the Hon. Samuel L. Richmond, Judge, presiding.
1874.] Knox et ux. v. Brady. 477
Opinion of the Court.
This was a bill in equity to reform a deed for land executed
by husband and wife, for a mistake in the description of the
property. The court below granted the relief sought.
Mr. G. O. Barnes, for the plaintiffs in error.
Messrs. Bangs & Shaw, for the defendant in error.
Mr. Justice Scott delivered the opinion of the Court :
Prior to the. passage of the act of 1869, amendatory of the
act of 1845, entitled " conveyances," it had been uniformly
held by the decisions of this court, the deed of a married woman
could not be reformed, no matter how clearly it might be estab-
lished, there had been a mistake in the description of the
property intended to be conveyed. Moulton v. Hurd, 20 111.
137 ; Spurck v. Crook, 19 id. 415 ; Martin v. Hargardine, 46
id. 322.
The principle underlying all the decisions on this subject
was the want of legal capacity in a married woman to contract
in regard to, and her consequent inability to release her interests
in lands except by the enabling laws of the state. A mere
contract either in relation to her own or her husband's lands
could not be enforced against her. Nor was the execution of
a deed by signing, sealing and delivering sufficient. To make
it valid and effectual to pass her interest in the lands, it was
indispensable it should be acknowledged before an officer de-
signated in the statute. Otherwise her deed was inoperative.
Accordingly, where the officer certified he had examined her
separate and apart from her husband, touching her willingness
to relinquish her dower, homestead or other interest in a tract
of land, the court could not afterwards take that relinquish-
ment and apply it to another tract, although it was the inten-
tion of all parties it should be embraced in the deed, and was
omitted by mutual mistake. She was bound by no contract in
relation to her own or her husband's lands, unless acknowledged
in the manner provided in the statute. Martin v. Hargardine,
46 111. 322.
478 Knox et ux. v. Brady. [Sept. T.
Opinion of the Court.
While the act of 1869, cited, may enumerate more instru-
ments a married woman may execute in relation to her interests
in lands by joining with her husband, it only differs materially
in the provision in regard to the proof of the execution of such
instruments, viz. : " the acknowledgment or proof of such deed,
" mortgage, conveyance, power of attorney, or other writing
may be the same as if she were sole." Under this latter act
we can readily conceive the execution of any deed or mortgage
or other writing in relation to the sale or other disposition
of lands, about which a married woman may legally contract,
is valid by signing, sealing and delivering without being
acknowledged before any particular officer. The proof " may
be the same as if she were sole." Proof of her signature would
be sufficient evidence of the execution of the deed in like
manner as that of a person under no disabilities.
But under our law, as it then was, a married woman could
only contract in regard to her separate estate or property. All
other contracts were absolutely void as at common law. The
statute of 1869, which we are considering, in relation to con
veyances, did not remove the disabilities resting upon her in
this regard. It does not purport to do so and we ought not by
judicial construction to hold that it did. So far as a married
woman could contract in regard to her separate property, since
the passage of that act no reason exists why her contract, as
well as that of a femme sole] may not be reformed according
to the agreement of the parties. The proof of the making of
the contract is the same, and it would be inequitable to permit
her to retain the consideration and still refuse to perform the
contract as she had made it. She would be liable upon such a
contract at law, and equit}^ may compel a specific performance.
As we have seen, however, all contracts of a married woman in
relation to her interests in her husband's land, such as dower
and homestead, being void for want of legal capacity in her to
contract, cannot be enforced against her. It is for the simple
reason such contracts are absolutely void. She could only relin-
quish such rights by joining with her husband in the execution
1874.] Knox et ux. v. Brady. 479
Opinion of the Court.
of the deed or mortgage in the manner provided by law.
Bressler v. Kent, 61 111. 426. It may be such a deed would
be good upon proof of signature of the maker without acknowl-
edgment. Whoever deals with a party under disabilities does
so at his peril, and although an error may occur by mutual
mistake of all parties in the description of the lands not her
separate property, to be embraced in the deed of a married
woman, the court possesses no power to reform it.
In the case at bar the lands which it is alleged should have
been embraced in the mortgage belonged to the husband,
at least it is not charged they were the separate property of the
wife. It is not alleged in the bill she ever agreed to release
her dower or homestead in the lands. But waiving that point,
and conceding she had agreed to do so, her contract in relation
thereto was absolutely void, and of course no court could com-
pel a specific performance. Russell v. Rumsey, 35 111. 362.
If she chose to relinquish her dower and homestead in lands of
her husband, either absolutely, as in a deed of bargain and sale,
or for the benefit of his creditors by mortgage, according to
the forms of the lawT, she had that privilege, if above the age of
eighteen years, by joining with her husband in the execution
of the deed or mortgage, but not otherwise. It is only by join-
ing with her husband in the execution of the deed or mort-
gage, she could be concluded at all in regard to such rights.
That is the plain meaning of this statute, and we are not author-
ized to enlarge its provisions by construction. That is the busi-
ness of the legislative and not the judicial department. Mar-
tin v. Hargardine, supra ; Rogers v. Higgins, 48 111. 211.
So far as the decree purports to reform the mortgage as to
Mrs. Knox it is erroneous and must be reversed and the
cause remanded.
Decree \
480 Young v. Adam. [Sept. T.
Opinion of the Court.
Henry Young
v.
William Adam.
County court —jurisdiction in contested election for city office. The
county court has no jurisdiction to try a contested election respecting a
city office unless the city is incorporated under the general law of the
State.
Appeal from the County Court of Will county ; the Hon.
Benjamin Olin, Judge, presiding.
Mr. George S. House, for the appellant.
Messrs. Breckinridge & Garnsey, for the appellee.
Per Curiam : This was a proceeding to contest an election
for the office of alderman for one of the wards of the city of
Joliet.
The only question discussed is, had the county court of
Will county jurisdiction to try the contest ? It is agreed if
that court had jurisdiction the judgment is to be affirmed,
and if not, it shall be reversed.
In Brush v. Lemma, 77 111. 496, which was a contest for
the office of mayor of the city of Carbondale in Jackson county,
and which was twice argued — the first time at the June term,
1874, and the last time at the June term, 1875, we held that a
contest for the office of mayor of a city could not be prose-
cuted by proceedings in the county court, unless it appeared
that the city was incorporated under the general law relating
to the incorporation of cities.
The city of Joliet is incorporated, as appears from the
record, under a special charter, and the case is, therefore, gov-
erned by Brush v. Lemma. The judgment is reversed.
Judgment reversed.
1874.] Ehrich v. White. 481
Opinion of the Court.
Deideich Ehrich
V.
Warren White.
New trial — finding against evidence. When the verdict of the jury
in an action on the case for selling intoxicating liquor to a minor is
clearly against the weight of evidence, a new trial should be granted.
Appeal from the Circuit Court of Kankakee county ; the
Hon. E". J. Pillsbury, Judge, presiding.
This was an action on the case, by Warren White against the
appellant, to recover damages for an alleged injury to plaintiff's
minor son by the sale of intoxicating liquors to him. A trial
was had, resulting in a verdict and judgment in favor of the
plaintiff for $25.
Mr. James ~N. Orr, for the appellant.
Mr. C. A. Lake, for the appellee.
Per Curiam : This was an action brought by Warren White
to recover for an injury sustained by his minor son, H. W. White,
alleged to have been caused in consequence of the sale to the
latter of intoxicating liquors. Plaintiff in the court below re-
covered, and defendant appealed.
The evidence was insufficient to show that the defendant fur-
nished to the son the liquor wherewith it was claimed he be-
came intoxicated.
The only evidence of the fact was that of the son, who testi-
fied that he bought and drank at the saloon kept by the
defendant four glasses of whisky or brandy, and had a pint
flask filled ; that he got the liquor of a son of defendant ; that
he treated and drank there with another son of defendant, and
that defendant was at the same time in the saloon or store
kept in connection with the saloon.
61— 74th III.
4:82 The People v. Tompkins et al. [Sept. T.
Syllabus. Statement of the case.
The sons of defendant testified, the one that he did not let
the witness White have any liquor whatever, the other that he
did not drink with White, and both that White was not in
the saloon on that day ; and the defendant testified that he
was not in the saloon that day, but was on his farm engaged
in work there. In addition, two other witnesses testified to
young White's admission to them that he did not get his liquor
at defendant's, but at another place. We think the verdict
was clearly against the weight of evidence. The judgment
must be reversed, and the cause remanded.
- Judgment reversed.
The People of the State of Illinois
v.
William F. Tompkins et al.
1. Surety — undertaking construed strictly. The contract of a surety-
is construed strictly and his liability will not be extended by impli-
cation.
2. Same — bond of grain inspector. The sureties of a chief inspector
of grain in a city, appointed under the " act to regulate public ware-
houses and the warehousing and inspection of grain, and to give effect
to article thirteen of the constitution of this State," are not responsible
for moneys collected by him for inspection, in a suit upon his bond, where
the duty of collecting and taking care of such fund is not imposed on
him before the execution of his bond.
Writ of Error to the Circuit Court of Cook county.
This was an action of debt by the People of the State of Illi-
nois against William F. Tompkins, as grain inspector, and
Aquilla H. Pickering, John B. Lyon, Wiley M. Egan, George
H. Sidwell and David H. Lincoln, his sureties upon his offi-
cial bond.
The following is a copy of the declaration, omitting the
formal parts :
1874.] The People v. Tompkins et ah. 483
Statement of the case.
" For that, whereas, the said Tompkins heretofore, to wit, on
the 3d day of July, A. D. 1871, was duly appointed and com-
missioned by the then governor of said State of Illinois, by and
with the advice and consent of the senate of said State, to the
office of chief inspector of grain in and for the city of Chicago,
in said Cook county, and that he, the said Tompkins, then and
there accepted the said appointment and commission to said
office, and entered upon the duties thereof ; and that the said
Tompkins as principal, and the said Pickering, Lyon, Egan,
Sidwell and Lincoln as sureties, afterward, to wit, on the 31st
day of July aforesaid, and upon the entering of him, the said
Tompkins, upon the duties of said office, executed and delivered
to the said plaintiffs, as the official bond of said Tompkins as
such chief inspector, the bond hereinafter described ; and that
he, the said Tompkins, on the day and year last aforesaid, upon
entering upon the duties of said office, took and subscribed in
due form of law an oath of office as such chief inspector of
grain ; and that on the day and year last aforesaid, in the
county aforesaid, the said defendants, by their writing obliga-
tory, bearing date of that day, and sealed with their seals, did
acknowledge themselves to be held and firmly bound to the
said plaintiffs in the sum of $50,000, to be paid to said plain-
tiffs ; which said writing obligatory was and is subject to a cer-
tain condition thereunder written, whereby, after reciting, to
the extent that the said Tompkins had been appointed and duly
commissioned chief inspector of grain for said city of Chicago,
it was provided that if he, the said Tompkins, should faith-
fully and strictly discharge the duties of said office of chief
inspector according to law and the rules and regulations pre-
scribing his duties ; and pay all damages to any person or per-
sons who might be injured by reason of his neglect or failure
to comply with the law and the rules and regulations aforesaid,
then said writing obligatory was to be void, otherwise to be
and remain in full force and effect, as by the said writing
obligatory and by the said condition thereof appears.
" And the said plaintiffs further complain and say that the
481 The People v. Tompkins et at. [Sept. T.
Statement of tlie case.
said Tompkins, on the day and year last aforesaid, in said
county, entered upon the discharge of the duties of said office,
and continued to discharge the same up to and till the 8th day
of April, A. D. 1873 ; and that, to wit, on the day and year last
aforesaid, said Tompkins was lawfully removed from said office
by the governor of said State, and one William H. Harper was
then and there duly and lawfully appointed and commissioned
to said office of chief inspector by the said last-named governor
in place and instead of said Tompkins ; and that the said
Tompkins then and there surrendered the said office of chief
inspector to said Harper as his successor, and ceased to act as
such chief inspector ; and that the said Harper then and there
entered upon the duties of said office as he lawfully might, and
has ever since continued to be and act as such successor to the
said Tompkins.
" And the plaintiffs aver that before the performance of the
acts and commission of the grievances hereinafter mentioned,
to wit, on the 2d day of August, A. D. 1871, and from time to
time subsequently thereto, the board of railroad and warehouse
commissioners fixed and regulated the charges for the inspec-
tion of grain in such manner as would, in the judgment of
said commissioners, produce sufficient revenue to meet the
necessary expenses of the service of inspection, and no more ;
and, also, to wit, on the 2d day of August, A. D. 1871, fixed
and regulated the manner in which such charges for inspection
should be collected, in pursuance of the statute in such case
made and provided ; that is to say, the board of railroad and
warehouse commissioners then and there adopted certain rules
and regulations whereby the said chief inspector of grain was
authorized to collect such charges for the inspection of grain as
might be established from time to time by the said commission-
ers, and therewith to pay for the services of all persons employed
in such inspection service or department, monthly, together with
such other additional expenses of office, rent, stationery, etc., as
might be necessary, etc.
" And said plaintiffs further complain and say that it became
1874.] The People v. Tompkins et al. 485
Statement of the case.
and was the duty of said Tompkins, as such chief inspector of
grain, during his continuance in said office, to faithfully, strictly
and impartially inspect, or cause to be inspected, grain in the
city of Chicago, and collect and receive the lawful fees for such
inspection, in accordance with the rules and regulations of said
board of railroad and warehouse commissioners ; and that the
said Tompkins did, during his continuance in said office of
chief inspector, inspect or cause to be inspected large quantities
of grain in said city of Chicago, and did then and there law-
fully collect and receive as lawful fees for such inspection a
large sum of money by virtue of said office of chief inspector ;
and that it was his duty, on his removal from said office as
aforesaid, to deliver and pay over to the said Harper, the said
successor of him, the said Tompkins, in office, all the fees which
he, the said Tompkins, then and there had in his possession,
arising and accruing from the inspection of grain, by and under
said Tompkins, as such chief inspector ; and that he, the said
Tompkins, at the time of his removal from said office as afore-
said, had in his custody and possession, in his official capacity as
such chief inspector, a large sum of money, to wit, the sum ot
$1,666.98, arising and accruing from the said fees for such in-
spection of grain, collected and received by him as such chief
inspector ; which said sum of money said Tompkins has not at
any time paid out to defray the expenses of said inspection ser-
vice; and which sum of money it was then and there the duty
of said Tompkins to deliver and pay over to said Harper on de-
mand therefor. Yet the said plaintiffs complain and say that the
said Tompkins did not then and there, and has not yet delivered
and paid over to said Harper said sum of $1,666.98, or any
part thereof, although he, the said Tompkins, was then and
there duly and lawfully required so to do by the said railroad
and warehouse commissioners, and requested so to do by the
said Harper, but hath converted the same to his own use. By
means whereof, and by reason of which said premises, an action
hath accrued to t]je said plaintiffs to demand, have and receive
of said defendants the said sum of $50,000 above demanded.
4:86 The People v. Tompkins et at. [Sept. T,
Opinion of the Court.
Yet the said defendants have not paid to said plaintiffs the said
last-named sum of money, or any part thereof, but refuse so to
do, to the damage of said plaintiffs of the sum of $1,666.98,
and therefore do said plaintiffs bring this suit," etc.
The court sustained a general demurrer to the declaration
and rendered judgment against the people for costs.
Mr. James K. Edsall, Attorney General, for the People,
made the following points :
1. That it was the duty of the chief inspector to receive the
fund in question.
2. That it was his duty, upon removal from office, to pay the
same over to his successor.
3. The sureties upon an official bond are liable for the dis-
charge of duties germane to the office which are subsequently
enjoined upon their principal, by competent authority, citing
Smith v. Peoria County, 59 111. 412, 425 ; Governor v. Eidg-
way, 12 id. 14.
4. The court erred in rendering judgment against the People
for costs, citing The People v. Cloud, 50 111. 439 ; The People
v. Pierce, 1 Gilm. 555.
Mr. S. K. Dow, and. Mr. Frank J. Smith, for the defendants
in error :
The words of an official bond must be construed with refer-
ence to its recitals, and to the nature of the office or appoint-
ment, and the nature and duties of the office must be learned
from the statute itself.
The liability of a surety cannot be extended by implication
beyond the terms of the contract.
Mr. Justice Scholfield delivered the opinion of the Court :
Unless the collection and custody of the fund involved in
this controversy can be held to have been fairly within the con-
templation of the parties at the time of the execution of the
bond, there can be no recovery, for no principle of law is
1874.] The People v. Tompkins et al. 487
Opinion of the Court.
better settled than that the contract of a surety is to be
construed strictly, and his liability cannot be extended by im-
plication beyond the terms of his obligation. As observed
by Story, J., in Miller v. Stewart et al. 9 Wheat. 680 :
" To the extent, and in the manner and under the circumstances
pointed out in his obligation, he is bound, and no further."
Reynolds v. Hall et al. 1 Scam. 35 ; People, etc., v. Moon, 3
id. 123 ; Governor, etc., v.- Ridgway, 12 111. 14; C. da A. R.
R. Co. v. Higgins et al. 58 id. 128 ; Smith v. Peoria County,
59 id. 425.
By the fourteenth section of the " act to regulate public
warehouses, and the warehousing and inspection of grain, and
to give effect to article thirteen of the constitution of this State,"
in force July 1, 1872, Laws of 1872, pp. 767-8, it is made the
duty of the governor, by and with the advice and consent of
the senate, to appoint a person having the qualifications therein
prescribed chief inspector of grain for every city in which is
located a warehouse of class A, who shall hold his office for the
term of two years, unless sooner removed. It is the duty of
the inspector thus appointed to have a general supervision of
the inspection of grain, as required by the act or the laws of
the State, under the advice and immediate direction of the board
of commissioners of railroads and warehouses. He is author-
ized to nominate to the commissioners of railroads and ware-
houses assistant inspectors, and such other employees as may be
necessary to properly conduct the business of his office, and
the commissioners are authorized to make the appointments.
Upon entering upon the duties of his office the chief inspector
is required to execute a bond to the people of the State in the
penal sum of $50,000, with sureties to be approved by the
board of commissioners of railroads and warehouses, conditioned
that " he will faithfully and strictly discharge the duties of his
said office of inspector according to law, and the rules and reg-
ulations prescribing his duties, and that he will pay all damages
to any person or persons who may be injured by reason of his
neglect, refusal or failure to comply with the law and the rules
488 The People v. Tompkins et al. [Sept. T.
Opinion of the Court.
and regulations aforesaid." The assistant inspectors are required
to execute bonds in the penal sum of $5,000, in form the same
as that of the chief inspector, and it is provided that suits may
be brought upon all such bonds for the use of any person in-
jured, but there is no provision expressly authorizing suits to be
brought thereon for the use of successors in office.
The bond follows the language of the statute, but neither in
its condition nor in any part of the statute is there language re-
ferring directly to the anticipated collection and custody of
money by the chief inspector, on any account. True, power is
conferred by the statute upon the commissioners of railroads and
warehouses to fix the rate of charges for the inspection of grain
and the manner in which it shall be collected, but it does not
designate the chief inspector, nor require that he shall be se-
lected as the collector and custodian of the fund thus to be
raised. The duty expressly enjoined upon the chief inspector is
to have a general supervision of the inspection of grain, as
required by the act or the laws of the State, which is to be dis-
charged under the advice and immediate direction of the board ot
commissioners of railroads and warehouses, who are empowered to
make all proper rules and regulations for the inspection of grain.
The sureties of the chief inspector, when executing the bond,
must have within their contemplation whatever may relate to
the supervision of inspection, but the collection of the charges
for inspection, and the custody of the fund thus to be raised are
distinct and independent acts, and the duty to perform them
cannot be necessarily implied from the duty to have supervis-
ion over inspections, for manifestly they might be performed
by some person other than the chief inspector, with equal pro-
priety. Undoubtedly, the chief inspector may be selected to
perform these acts, but it is impossible to foresee that he will
be selected until the board of commissioners of railroads and
warehouses have so indicated by their action.
When the bond of Tompkins was executed therefor, his
sureties were not chargeable with knowledge by the law that
he would be required to collect and have the custody of the
1874.] Keller v. Fournier et al. 489
Syllabus.
fund in controversy, and since the declaration shows that the
commissioners of railroads and warehouses did not, nntil after
the execution of the bond, adopt the rules and regulations by
virtue of which he did collect and obtain the custody of that
fund, it follows it cannot be held within the contemplation of
the parties in executing the bond that they were assuming any
liability on that account, and that the demurrer was properly
sustained.
Had the duty been enjoined upon Tompkins, as chief inspec-
tor, when the bond was executed, to collect this fund and re-
tain its custody, a different and much stronger case in favor of
the plaintiffs would have been presented. It is sufficient for
the present, however, that no such case is presented by this
record, and its merits need not be discussed.
The judgment against the People for costs was erroneous,
but this will be modified and the proper judgment rendered in
this court, the error being purely formal and incapable of pro-
ducing substantial injury to the people.
The judgment below is modified and affirmed.
Judgment affirmed.
Scott and Craig, JJ., dissenting.
Peter Keller
v.
Ernst Fournier et al.
Practice — bill of exceptions ; trial out of order. If a party assigns for
error, that the cause is advanced on the docket and tried out of its regular
order, the bill of exceptions should show that the objection was made in
the court below, and exception taken to trying the case out of its order.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. G-ary, Judge, presiding.
62— 74th III.
490 Puring-ton et al. v. Akhurst. [Sept. T.
Syllabus.
This was an action of assumpsit, brought by the appellees
against the appellant, upon a promissory note.
Mr. Thomas Shirley, for the appellant.
Messrs. McClellan & Hodges, for the appellees.
Per Curiam : This is an appeal from the Superior Court of
Cook county.
The error assigned is, that the cause was advanced under the
" five-day " rule of the court below, and tried by the court out
of its order on the docket, contrary to the provision of the
general practice act. It is sufficient to remark that the bill of
exceptions does not show that objection was made and excep-
tion taken to the trying of the case out of its order on the
docket. The bill of exceptions should show that to have been
done, in order to avail of the error assigned. The judgment is
affirmed.
Judgment affirmed.
George E. Purington et al*
v.
James H. Akhurst.
1. Mortgage — or a sale. Where a bill of sale is made of vessels, abso-
lute on its face for one-half interest therein, it will require evidence of the
clearest character to show that it was intended only as a mortgage to secure
a loan, or advances.
2. Evidence — contract not signed. A contract prepared by a party,
though not executed by either party, is entitled to great weight as evidence
in showing what was the real contract between them.
3. Practice in Supreme Court — as to errors assigned. If a party de-
sires to urge a ground of reversal he should state the same in his opening
argument, so as to give the other party a chance to reply. But if it is
specially assigned for error, this court cannot disregard it.
*This case was submitted at the Sept. Term, 1871, and by inadvertence omitted from
its proper place in the reports.
1874.] Purington et-al. v. Akhurst. 491
Opinion of the Court.
Appeal from the Superior Court of Cook county.
This was a bill in chancery, filed by George E. Purington
and Abner R. Scranton against James H. Akhurst, on the
grounds stated in the opinion, where. the material and leading-
facts appear.
Messrs. Hoyne, Horton & Hoyne, for the appellants.
Messrs. Rich & Thomas, for the appellee. -
Mr. Chief Justice Lawrence delivered the opinion of the
Court :
In August, 1868, the defendant, Akhurst, was in partnership
with one Clary, and the joint owner with him of certain canal
boats and two steamers plying on the Illinois river. Their
business became embarrassed and their boats were subject to
heavy liens for debts. Akhurst opened a negotiation with the
complainants, Purington and Scranton, who were partners as
ship chandlers, in Chicago, the result of which was that the
partnership of Akhurst and Clary was dissolved. The latter
executed to Purington and Scranton a bill of sale of his one-
half of the boat stock, and they formed a partnership with
Akhurst, in the transportation business, and agreed to advance
the funds necessary to pay the liens upon the boats. The new
partners did not agree, and in October, 1869, although the busi-
ness had made a profit estimated in the bill at $6,000, the
boats, in common with all property of that kind, had greatly
depreciated in value, and the complainants filed their bill ask-
ing a dissolution of the partnership, a statement of the account,
and that Akhurst be decreed to take the vessels and re-imburse
to complainants the amount of their advances. This decree is
asked upon the ground that the agreement between the parties
was, that the money should be advanced by complainants as
a loan, to be secured by the transfer of one-half the boat stock :
that the business should be prosecuted for one year, and that
at the end of that period, if complainants were not satisfied, the
492 Pukington et al. v. Akhurst. [Sept. T.
Opinion of the Court.
defendant should take back the property and refund the ad-
vances of complainants, who were to have one-half the profits
for the use of their money.
They claim to have had the option, for a year, to treat the
transfer of the boat stock either as an absolute sale or a mort-
gage, as they might elect, and that they exercised that option
within the year by giving notice to the defendant.
The defendant denies this agreement, and asserts that the
sale of the boat stock was absolute. Testimony was taken, and
the court found the sale absolute, and decreed an account to
be taken on this basis. By consent of parties the complainants/
prosecuted an appeal upon this interlocutory decree.
The oral testimony is that of the two con^lainants and their
clerk on the one side and of the defendant on the other. Other
persons testify as to collateral matters, but these are the only
witnesses whose testimony is of any importance as to the real
question in controversy. The two complainants and their
clerk swear positively to the agreement set forth in the bill,
and the defendant, with equal positiveness, testifies that the
sale was absolute.
The oral testimony preponderates in favor of appellants, but
there is certain documentary evidence in the record upon the
strength of which we presume the superior court based its find-
ing and which constrains us, though with a good deal of hesi-
tation, to substantially affirm the decree. We refer to the bills
of sale, which are absolute in their character, containing noth-
ing to indicate that the property was taken merely as security
for a debt, and to the instrument indicated in the record as
Exhibit E. This was an agreement of co-partnership drawn
by Purington himself, with the approval of Scranton, soon after
the new firm began business, and submitted to Akhurst, but
for some reason never executed by the parties. The reason
why this agreement was not signed is stated by the defendant
to have been that after it was read to him and approved it was
agreed, as it contained interlineations and erasures, that two
1874.] Purington et at. v. Akhurst. 493
Opinion of the Court.
fair copies should be made and signed, each party keeping one.
That agreement was as follows :
Articles of Agreement entered into this fifth day of Sep-
tember, A. D. 1868, between James H. Akhurst, Geo. E.
Purington and Abner R. Scranton, all of the city of Chicago,
and State of Illinois, witnesseth : That the said Akhurst,
Purington & Scranton have and by these presents do agree to
enter into and prosecute the business, under the name or style
of trading and freighting on canal and rivers, by steam and
canal boats, and such other business as may be deemed mutually
advantageous. And the said Akhurst agrees to contribute to
the capital stock the sum of Twenty Thousand dollars ($20,000),
and the said Purington & Scranton, agree to contribute to the
capital stock the sum of Twenty Thousand dollars ($20,000),
making the capital stock Forty Thousand dollars ($40,000);
and the said co-partners hereby mutually agree that they will
use their best efforts to advance their joint interests, and that
they will use the moneys and credits of their said firm, for their
mutual profit and for no other purpose. And it is hereby ex-
pressly agreed that neither of the said co-partners shall indorse
or otherwise become security for any person or firm during the
continuance of this agreement. The gains or losses accruing
to the business of said co-partners shall be divided equally, one-
half to J. IT. Akhurst and one-half to Purington & Scranton,
and all liabilities of every nature shall be borne in like manner.
The foregoing articles of agreement shall be in force for the
full term of one year.
It will be observed that this agreement comprises all that is
necessary to a complete contract of co-partnership, even pro-
viding for such matters of detail as that neither co-partner shall
become security for third persons, and yet contains not a sylla-
ble in reference to the refunding by the defendant of the
money advanced by complainants, though providing for the
distribution of the profits. The original instrument was left
by complainants in a drawer of their office-desk, and a copy was
subsequently taken by the defendant without their knowledge.
4:94: Purington et al. v. Akhurst. [Sept. T.
Opinion of the Court.
It was thus brought out upon the hearing. Some five or six
months thereafter another agreement, containing the disputed
provision, was prepared by complainants and submitted to
defendant, but he refused to sign it.
If the instrument first prepared by complainants had been
executed by the parties, it would have been undeniably conclu-
sive against the claim now made by complainants. They
would not have been permitted to incorporate into the written
articles of co-partnership, by parol evidence, a new stipulation
so materially changing their terms. Although this instrument
was not executed, and is not therefore an estoppel upon com-
plainants, yet as it was prepared by them on consultation with
each other, and as it shows upon its face that it was a completed
instrument, with the exception of dates and signatures, we are
constrained to give it very great weight as evidence, and to re-
gard it as showing the understanding of the parties, at the time
it was drawn, as to the terms of the partnership. In view of
this instrument and of the absolute bills of sale, which could
only be changed into mortgages by evidence of the clearest
character, showing, by collateral facts, that they were designed
merely as securities, we cannot say that the court below erred
in its decree.
Appellants' counsel, in their printed argument, in reply to
that of appellee, suggest a minor error in the finding of the
court as to the canal boat " Harry." If appellants desired to
urge this as ground for reversal they should have made the
point in their opening argument, and thus have given appellee
an opportunity to answer. Error, however, was specially as-
signed upon this part of the decree and we must therefore
notice it. The court finds that the complainants have no title,
ownership, or interest, whatever, in said boat. We are of opin-
ion the evidence shows an agreement by defendant to procure
the execution of a bill of sale for the Harry, by Douglass, a
joint owner, and himself, and in the further prosecution of the
case and final statement of the account, the complainants should
be treated as the equitable owners of one-half the Harry. The
1874.] Purington et at. v. Akhurst. 495
Opinion of the Court.
agreement to convey one-half the Harry, one-half the Storm and
one-half the Rockward was subsequent to the original arrange-
ment, and was made in consideration of further advances by
complainants. The Storm and Rockward have been transferred
by proper bills of sale and the Harry, should have been.
The decree is reversed in order to be modified as to the canal
boat Harry and the cause remanded.
Decree \
INDEX.
ABATEMENT.
Variance between writ and declaration.
A variance between the writ and declaration is a matter pleada-
ble in abatement, and where no attempt is made in the court lelow to
avail of it, it cannot be assigned for error in this court. Fonville
et al. v. Monroe et al. 126.
ACCESSORY. See CRIMINAL LAW, 4.
ACTION.
For obstructing raceway to a mill.
Liability of municipal corporation. Where it is made the duty
of a corporation to keep a raceway leading to its works in repair,
though it does not own the way itself, if a city so constructs a sewer
as to deposit dirt and gravel in the raceway and obstruct the flow of
water therein, and the corporation is compelled to expend money to
remove such obstruction, an action lies in its favor against the city to
recover the money so expended. Elgin Hydraulic Co. v. City of
Elgin, 433.
ADMINISTRATOR'S SALE.
Jurisdiction of court. See CHANCERY, 8.
ADMISSION.
By a demurrer. See PLEADING AND EVIDENCE, 4.
AGENCY.
Powers of agent.
1. Cannot bind principal beyond the scope of his agency. An
agent of a railroad company, appointed for the purpose of transacting
some limited or specified business for the company, cannot bind the
company outside of its legitimate business, or make contracts for it
which the company never authorized any one to make. Taylor v.
CJiicago & Northwestern Railway Co. 86.
2. Passenger agent cannot bind principal hy contract to look after
freight. The agent of a railway company, who is employed for the
sole purpose of soliciting passengers to patronize the road of the com-
pany, and who is not held out by the company as their agent for
63— Y4th III.
498 INDEX.
AGENCY. Powers of agent. Continued.
any other purpose, has no power to bind the company by a contract
to receive freight from another road, and transport it to the depot of,
and ship it on the road for which he is such agent. Ibid. 86.
Torts of agent.
3. Liability of principal. If a tort is committed by an agent in the
course of his employment while pursuing the business of his principal,
and is not a willful departure from such employment and business, the
principal is liable although done without his knowledge. Noble et al.
v. Cunningham, 51.
Agent acquiring interest in property.
4. After his trust is ended. While it is true that a trustee or agent
cannot be interested in a sale made by himself, yet when he has fully
discharged his trust and sold property to a third person in good faith,
having no interest in the same at the time, he may afterward acquire
the title from the purchaser, and such fact, or the fact that his wife
acquires the title, will not afford ground for avoiding his sale. Walker
v. Carrington et al. 446.
Husband as agent for his wife. See MARRIED WOMEN, 5.
ALTERATION.
Whether material.
And its effect. The addition of words to a bond for a deed, giv-
ing a right of immediate possession, by the obligee, without the
knowledge or consent of the obligor, being a material alteration,
avoids the contract, even though such was the original intention out-
side the written contract. Kelly v. Trumble, 428.
AMENDMENT OF RECORD.
At subsequent term of court.
Courts have no power or jurisdiction to amend their record of a
judgment in a criminal case, at a subsequent term of court. People
ex rel. v. Whitson, 20.
APPEALS AND WRITS OP ERROR.
Whether they will lie.
1. Proceedings for a contempt of court are on behalf of the people,
and in the nature of a criminal proceeding, and an appeal or writ
of error on the part of the people will not lie in such case. People
ex rel. v. Neil et al. 68.
Who may prosecute.
2. As to one not named a party to the suit. Where, on a creditor's
bill, the cause is referred to the master in chancery to take proofs of
INDEX. 499
APPEALS AND WRITS OF ERROR. Who may prosecute. Continued.
all claims against the estate of the defendant which may be presented
to the receiver, and a claim is sought to be proved before the master
by a creditor who is not a party to the bill, and the master reports to
the court that he has disallowed the claim, and upon exceptions taken
to the report the court overrules the exceptions and sustains the
report, an appeal on behalf of such claimant will lie to the Supreme
Court. Derrick v. Lamar Insurance Co. 404.
Appeals from justices.
3. Variance between complaint and the proofs, before justice of the
peace, not material. On the trial of an appeal from a judgment of a
justice of the peace, upon a prosecution for violating a city ordinance,
it is not a matter of any consequence whether the original complaint
is technically correct or not, the only question being whether the
ordinance was violated or not, without regard to whether the evi-
dence corresponds with the complaint. Harlaugh v. City of Mon-
mouth, 367.
4. Appeal perfected less than ten days before court. An appeal per-
fected before a justice of the peace less than ten days before the next
term of court, or whilst the appellate court is in session, must be con-
tinued over to the next succeeding term for trial. Hayward v. Ram-
sey, 372.
5. Setting aside dismissal, discretionary. Where an appeal is dis-
missed for want of prosecution, it is discretionary with the court to
allow or deny a motion to vacate the order of dismissal, and this
court will not interfere with the exercise of that discretion, except in
case of its flagrant abuse. Nispel v. Wolff, 303.
6. Negligence ground for refusal. On motion to set aside an order
dismissing an appeal, when the affidavit in support of the motion
fails to show diligence in prosecuting the appeal, as, that the attorney
was absent when the cause was called in its order, trying a case
before a justice of the peace, on the information of one of the clerks
that there was a trial pending, which would be likely to last the whole
day, there will be no error in refusing to vacate the order and rein-
state the case. Ibid. 303.
7. What is negligence. Where an appeal suit is set for trial on a
particular day, it is negligence for the appellant's counsel to leave the
court because there is a trial pending likely to occupy the whole day,
and no relief can be granted against the consequence of such neglect.
Ibid. 303.
Appeal from county to circuit court.
8. How tried. An appeal from the county to the circuit court can
500 INDEX.
APPEALS AND WRITS OF ERROR. Appeal from county to cir-
cuit court. Continued.
be tried alone on the record. The circuit court cannot try the case
de novo, either in whole or in part, but takes the record as presented.
Hulett v. Ames, 253.
9. Transcript of county court, matter of record in circuit court on
appeal. When a record of the proceedings is filed in the circuit
court, it becomes a matter of record in that court, and being a matter
of record then no bill of exceptions is necessary to get it before this
court, but only a certified transcript. Ibid. 253.
APPEARANCE.
What constitutes.
1. Where a defendant, not served with process, files a demurrer to a
special count and the general issue to the common counts, and the
demurrer is overruled and the plea stricken from the files, and
defendant, afterward, on ^his own motion, obtains an extension of
time to file a plea with an affidavit of merits, there is a full appear-
ance, and a judgment against such defendant is not erroneous. Fon-
ville et al. v. Monroe et al. 126.
Of a general appearance.
2. Entry of motion to set aside default. An appearance in the
entry of a motion by a defendant in an attachment suit, who has not
been personally served, to set aside a default entered against him upon
notice by publication, is not such a general appearance as will author-
ize a personal judgment. If any judgment is authorized in such case
it is in rem only. Jones v. Byrd, 115.
ASSIGNMENT.
Liability of assignor.
1. Where suit is not brought against the maker. In order to hold
the indorser of a promissory note liable to the indorsee when no suit
is brought against the maker, it must be proved that the institution of
such a suit would have been unavailing. Kelly v. Graves, 423.
2. The assignor of a promissory note is under no legal obligation
to give information of the maker's property when requested by the
assignee, and his failure to do so will create no liability. The assignee
must ascertain at his peril, the fact of the insolvency of the maker.
Ibid. 423.
ASSUMPSIT.
When the action will lie.
1. An action for money had and received will lie whenever a defend-
ant nas received money which injustice belongs to the plaintiff, and
INDEX. 501
ASSUMPSIT. When the action will lie. Continued.
which he should, in justice and right, return to the plaintiff. Allen v.
Stenger, 119.
2. Where the mortgagor in a chattel mortgage sells the mortgaged
property on a credit, the proceeds of which sale are to belong to the
mortgagee when collected, and after the death of the mortgagor, his
administrator collects the purchase money and deposits it with one
who is at the time apprised of these facts, an action for money had
and received will lie at the suit of the mortgagee against the party so
receiving the money on deposit. Ibid. 119.
ATTACHMENT.
Of the judgment.
Whether it should he personal or in rem. See APPEARANCE, 2.
Attachment for contempt. See CONTEMPT, 1.
BAILMENT.
Whether a sale or a bailment. See CONTRACTS, 10, 11.
BANKRUPTCY.
Of a new promise.
Renews original liability. A subsequent promise to pay a note
barred by a discharge in bankruptcy, removes the bar created by the
discharge and renders it competent evidence under the common counts
as an original cause of action. Marshall v. Tracy, 379.
BILLS OP EXCEPTIONS. See EXCEPTIONS AND BILLS OF EX-
CEPTIONS, 3 to 6.
BOOKS OF ACCOUNT.
As between partners.
Presumed to be correct. See PARTNERSHIP, 1.
BURDEN OF PROOF.
TO EXEMPT TELEGRAPH COMPANY FROM LIABILITY. See TELEGRAPH, 3.
To show death of principal in recognizance. See SCIRE FACIAS, 2.
As to loss or non-delivery of goods by carrier. See CARRIERS, 7.
CARRIERS.
Who is a common carrier.
1. One who for hire carries passengers and their baggage, and also
baggage alone, for all persons choosing to employ him, from, to, and
between railroad depots and hotels, and other places in a city, is a
common carrier of goods. Parmelee v. Lowitz, 116.
502 INDEX.
CARRIERS. Continued.
Extent of liability.
2. Generally. A common carrier of goods, who receives and un-
dertakes to carry a trunk from a railroad depot to the owner's resi-
dence, is answerable for all losses, except such as are inevitable, that
may occur whilst the trunk is in his possession, and until it is delivered
to the owner. Ibid. 116.
3. A common carrier of goods who receives and undertakes to carry
a trunk for one not a passenger with such carrier, is responsible for
the delivery of the trunk and its contents, notwithstanding the con-
tents consist of articles not usually carried as baggage, unless the
owner has been guilty of some fraud or deception. Ibid. 116.
AS BETWEEN CONNECTING LINES.
4. Duty as to transfer of freight. A common carrier by railroad is
not bound by law to watch for and ascertain the arrival of freight at
the depots or wharves 'of other common carriers, and transport the
same to its own depot, and is not bound by any agreement to do so,
made by an agent employed by it for the sole purpose of soliciting
passenger business. Taylor v. Chicago & Northwestern Railway Co. 86.
5. As to place of delivery. The rule in this State is, that where goods
are delivered to a railway company marked to a place not upon the
line of its road, but beyond the same, with no other directions or
without any express contract as to the place of delivery, the law will
imply an undertaking on the part of the carrier to transport and
deliver the goods at the place to which they are marked. Milwaukee
& St. Paid Railway Co. v. Smith, 197.
• BY WHAT LAW CONTRACT GOVERNED .
6. Where goods are delivered to a carrier in Wisconsin, the con-
tract to be performed there, the laws of that State will govern as to
the construction of the contract, and determine the extent of the
carrier's undertaking. Ibid. 197.
Burden of proof.
7. As to loss or non-delivery. In an action against a carrier, where
the loss or non-delivery of goods is alleged, the plaintiff must give
some evidence in support of the allegation, notwithstanding its nega-
tive character, 'but slight evidence will be sufficient. Chicago &
Northwestern Railway Co. v. Dickinson et al. 249.
8. Plaintiff not required to show non-delivery by a preponderance oj
evidence. In an action against a carrier for failing to deliver goods
shipped, the plaintiff is not bound to show non-delivery by a prepon-
derance of testimony. Slight evidence of that fact will be sufficient
to shift the burden of proof upon the carrier. Ibid. 249.
INDEX. 503
CARRIERS. Continued.
Measure of damages.
9. For loss of goods by carrier. See MEASURE OF DAMA-
GES, 2.
CHANCERY.
Of the right to dismiss a bill.
1. A complainant has the right, at any time before the decree is
rendered, to dismiss his bill, unless a cross-bill has been filed. After
decree he cannot, except upon consent. Moliler et al. v. Wiltberger,
163.
2. The effect of a reversal of a decree being to leave the cause
pending for hearing precisely as if no decree had been rendered, the
complainant may dismiss his bill after such reversal. Ibid. 163.
Proof to overcome answer.
3. When two witnesses required. Where an answer in chancery,
though sworn to, states the material facts upon information and belief,
the rule requiring the testimony of two witnesses to overcome it
does not apply. Cunningham v. Ferry et al. 426.
Proof in case of default.
4. Where an adult defendant is in court and is defaulted for failing
to answer in pursuance of a rule of court, a decree may be rendered
against him without evidence-; but when the decree recites that the
cause was heard upon the pleadings and proof, and also upon the
agreement of the parties filed, the recital of a hearing upon proofs is
conclusive in a collateral proceeding. Mason et al. v. Patterson et al.
191.
Specific performance.
5. As to contract respecting personalty. The general rule is that
equity will not entertain jurisdiction for the specific performance of
contracts respecting personalty. Pierce et al. v. Plumb, 326.
6. For mere payment of money. Equity will not decree specific
performance unless something more is to be done by it than mere
payment of money, or any thing which ends in the mere payment of
money, because the law is adequate to this. Ibid. 326.
To preserve use of street.
7. Where lots are sold with reference to a street abutting the same,
a court of equity will interfere to prevent a party claiming under the
original owner and grantor from destroying the full use of such street
as originally designed. Zearing v. Raber, 409.
Administrator's sale of land to pay debts.
8. Jurisdiction in chancery. A court of equity has no original juris-
504 INDEX.
CHANCERY. Administrator's sale of land to pay debts. Continued,
diction to order the sale of real estate of a deceased person to pay
debts, or for any other purpose, so as to bind the infant heirs' legal
estate. The power is derived from legislative authority, and does not
exist except in cases where the statute expressly confers it. Whit-
man v. Fisher, 147.
Construction or wills.
9. In equity. When purely legal titles are involved, and no other
relief is sought, a court of equity will not assume jurisdiction to con-
strue a will, but will remit the parties to their remedies at law ; but
if any trust is reposed in the executors, they may seek the aid and
direction of a court of equity in the management or execution of the
trust. Ibid. 147.
10. Where, by the terms of a will, the executors are charged with
the administration of the assets of the estate differently from that
directed by the statute,' this will create in them a special trust, and
in case of doubt as to the mode of its execution, a court of equity
will assume jurisdiction on application by the executors for a con-
struction of the will. Ibid. 147.
Decree.
Construed as to what interest passed by sale. See DECREE, 2.
Binding effect of decree. See same title, 3.
Change of venue. See VENUE, 1.
Chattel mortgages. See MORTGAGES, 5.
COMMON LAW.
How proved. See EVIDENCE, 5.
CONFESSION OF JUDGMENT. See JUDGMENTS, 6, 7, 8.
CONFLICT OF LAWS.
Penal or criminal laws of another jurisdiction.
1. The courts of this State cannot enforce the criminal or penal
laws of another State, or of the United States. Missouri River Tele-
graph Co. v. First National Bank of Sioux City, 217.
2. The courts of this State will not entertain jurisdiction in a suit
by a corporation created and doing business in another State, against
a National bank organized under the laws of the United States, for
the recovery of a penalty under an act of congress for receiving
interest over and above the rate allowed by the laws of 'the State
where the bank is located and transacts its business. Ibid. 217.
When the lex loci governs.
3. Where goods are delivered to a carrier in Wisconsin, the con-
INDEX. 505
CONFLICT OF LAWS. When the lex loci governs. Continued.
tract to be performed there, the laws of that State will govern as to
the construction of the contract, and determine the extent of the
carrier's undertaking. Milwaukee & St. Paul Railway Co. v. Smith,
197.
CONSIDERATION.
Of its necessity.
1. It is essential to every contract or promise that it be founded
upon a good consideration. McLean v. McBean, 134.
Whether there is a consideration.
2. Promise to pay devisor's debt. The devise of real estate to a party,
not creating any liability to pay tne devisor's debt, it not being shown
there was no personal estate left, a promise to pay the same by the
devisee, without any other consideration, is void, and cannot be en-
forced. Ibid. 134.
3. But even if the devise had created a legal liability to pay the
devisor's debt, a verbal promise by the devisee to pay the same, with-
out being released from liability under the statute, wi'l be without
consideration, and void. Ibid. 134.
4. Where the signature of another was to be procured. Where a note
was signed by two persons as sureties for their father, and delivered
to the payee who undertook to get the father's signature but failed to
do so, it was held that the note was given without consideration and
could not be collected by the payee. Knight v. Hurlbut et al. 133.
Forbearance to sue.
5. Whether a sufficient consideration. To make forbearance to sue a
good consideration for a promise to pay, there must be a well-founded
claim in law or in equity forborne, or there must be a compromise of
a doubtful right. Mulholland v. Barilett, 58.
6. When a person in a strange city, on being threatened with suit
upon the acceptance of a draft by a firm as a partner therein, when in
fact he was not a partner, and had no connection with such firm, and
so informed the holder of the draft, to avoid suit and to gain time
gave the holder his written promise to pay the draft, it was held that
there was no valid consideration for the promise. Ibid. 58.
CONSTITUTIONAL LAW.
Corporate taxation.
Limitation in respect thereto. See TAXES AND TAXATION, 1, 2.
Municipal subscription.
Construction of clause on that subject. See MUNICIPAL SUB-
SCRIPTION, 1.
64 — 74th 111.
506 INDEX.
CONSTITUTIONAL LAW. Continued.
Extra compensation to a judge.
When holding court out oj his circuit. See FEES AND SALA-
KIES, 1.
CONTEMPT.
Retaking property replevied.
A party from whose possession personal property has been taken by
an officer by virtue of a writ of replevin, is guilty of a contempt of
court if he forcibly retakes the possession thereof after the goods
have been by the officer delivered to the plaintiff in replevin. The
People ex rel. v. Neill et al. 68.
CONTRACTS.
Contract for services.
1. Care and skill required. Where a person engages to work for
another he impliedly undertakes that he has a reasonable amount of
skill in the employment, and engages to use it and a reasonable amount
of care, and a failure to do so will prevent him from recovering the
contract price, and limit him to what the work is reasonably worth, or
the employer may recoup all the damage he may sustain for the wan-
of reasonable skill and care in executing the work. Parker et al. v.
Piatt et al. 430.
Contract between village officers.
2. Of its legality. An officer of a village incorporated under the
act of July, 1872, in relation to cities and villages, is prohibited from
making any contract with the trustee to do work for the village, to be
paid for out of the treasury, and any such contract is void, and such
officer will be entitled to no compensation for any thing he may do
under such contract. Village of Dwight v. Palmer, 295.
3. Where a clerk of the board of trustees of an incorporated village
contracted to publish certain ordinances for $300, which was rescinded
before any work was done under it, and such officer then resigned his
office, but the contract was never renewed after acceptance of his
resignation : Held, that he was not entitled to compensation for any
ordinances he may have published afterward, as it was done without
authority. Ibid. 295.
TO EXTEND TIME OF PAYMENT.
4. Whether availing. A contract to extend the time of payment of
notes upon giving other notes secured by mortgage on good real es-
tate, is not a defense to a suit on the original notes when the mort-
gage is objected to as upon land of no value and for want of title in
the mortgagor, where these objections are not obviated or shown tc
be unfounded. Nispel et al. v. Laparle et al. 306.
INDEX. 507
CONTRACTS. Continued.
Building contract.
5. Right to damages for delay caused by the party claiming them.
Where a written contract for the building of a stable provides that
the work shall be completed by a specified day, and that the con-
tractor shall pay the sum of thirty dollars a day for each day's delay
after the date mentioned, the employer will have no right to exact
damages for a delay caused by his own act in stopping the work.
Marsh v. Kauff, 189.
Contracts construed.
6. To pay certain indebtedness of another — when a right of action
accrues. Where a party enters into a bond conditioned to pay cer-
tain indebtedness of the obligee therein, and save and keep him
harmless from such indebtedness, the obligee is not bound to pay off
such indebtedness in case the obligor fails to do so in order to main-
tain a suit on the bond, but he may sue upon the bond and recover
the amount of such indebtedness as soon as it has matured, if not
paid by the obligor in the bond. Pierce et al. v. Plumb, 326.
7. Agreement to work on railroad — as to place. Where a person
is employed to labor on the track of a railroad, generally, it will be
presumed that it shall be at any place the company may designate
within a reasonable distance from the place of employment, and the
company should not, for that reason, be liable for an injury received
whilst at work at a place different from that at which he had been
accustomed to work. Pittsburg, Fort Wayne & Chicago Railway Co.
v. Powers, 341.
8. As to sale of buffalo robes, construed as to quality. A contract for
the sale and delivery of a lot or collection of buffalo robes, which pro-
vides for the payment of half price for fifteen hundred, and that no
more than two hundred headless and mismatched robes shall be con-
tained in the collection, and that the assortment shall be of good quality,
does not mean that the quality shall be determined merely by compari-
son with other collections of the place where the vendors and vendees
expected the robes were to be obtained, but that it shall be an average
good collection as known to the trade, in the market. Boskowitz etal,
v. Baker et al 264.
9. Where a contract for the sale and delivery of an entire collection
of buffalo robes by an Indian trader provides for the payment of $6
for each robe on delivery, except fifteen hundred, for which $3 each
is to be paid, they " being supposed to be of an inferior quality," and
further provides that the " assortment :' shall be of good quality, those
of inferior quality will be limited to fifteen hundred, and a tender of
508 INDEX.
CONTRACTS. Contracts construed. Contained.
a greater number of inferior ones will not be a compliance with the
undertaking of the vendors. Ibid. 264.
10. Whether of sale or bailment. Where grain is received by a
dealer, into his warehouse, under a contract to pay the owner the mar-
ket price on any day he may choose to call for it, and such grain is
mixed with other grain in bins, from which shipments are being made
every day, the dealer becomes the owner of the grain and liable to
pay for it whenever called on, and is not a mere bailee. Richardson
et al. v. Olmstead, 213.
11. Where grain has been delivered to a dealer at his warehouse
under a contract on his part, to pay the market price for it when
called for, and he mixes it with other grain in bins, from which he is
constantly shipping, and after such grain has all been delivered, the
party delivering it not needing the money, and believing the price
will be higher, proposes to leave the grain in the warehouse of the
dealer until a specified time, to which the dealer agrees for a consid-
eration to be paid him, the title of the grain is in the dealer, and the
effect of the last contract is simply to give the party delivering until
the time specified to name the day on which he will take the market
price. Ibid. 213.
Contracts of married women.
12. Of their power to contract. See MARRIED WOMEN, 1 to 4.
CONVEYANCES.
What estate passes.
1. Whether in fee or for life only. A conveyance of land to an un-
married woman, to have and to hold unto her and the heirs of her
body forever, vests in her an estate for life only, and creates a con-
tingent remainder in favor of the heirs of her body who, when born,
will take the absolute fee. Frazer v. Board of Supervisors of Peoria
Co. 282.
Defeating contingent remainder.
2. By tenant for life. A grantor who conveys to an unmarried
woman real estate, to have and to hold to her and to the heirs of her
body forever, thereby deprives himself of all estate but a contingent
reversion, dependent upon the grantee dying without having had
issue, and it is not in the power of the grantee, by a reconveyance
before issue born, to defeat the contingent remainder in favor of such
issue. Ibid. 282.
Boundary.
3. If land is conveyed as bounded on a street, this is not merely
INDEX. 509
— — . : — p
CONVEYANCES. Boundary. Continued.
a description, but an implied covenant that there is such a street, and
the grantor and those claiming under him are forever estopped from
disputing the existence of such street. Zearing v. Rebar, 409.
CORPORATIONS.
Municipal corporations.
Limitation on power of taxation. See TAXES AND TAXA-
TION, 1.
Devoting funds to payment of debts. See same title, 3.
COSTS.
AS AGAINST INFANTS.
On bill for a reconveyance of land, against the minor heirs of a
grantee to whom the land was conveyed as security or indemnity, it
is error to decree costs against the infant defendants. Tuttle v. Gar-
rett et al. 444.
COURTS.
OF THE COURTS OF CoOK COUNTY.
1. Judges must sit separately. Each of the judges of the circuit
and superior courts of Cook county, under the constitution, is invested
with all the powers of a circuit judge, and may hold court in a
branch thereof, and it is error for more than one to preside at the
same time during the trial of any case, or to participate in any
decision. The record should show that but one judge presided. Hall
v. Hamilton, 437.
2. But if the record shows more than one judge present, this is
only an error which does not affect the jurisdiction of the court, and
may be waived or released. Ibid. 437.
3. Judges of other circuits may preside. Judges of other circuits
may hold branches of the Cook county circuit and superior courts,
and the statute authorizing this is not in conflict with any constitu-
tional provision. Ibid. 437.
4. Under the statute the judge of any circuit court in this State is
authorized to hold a branch term of the superior court of Cook
county, and the statute infringes no constitutional provision. Brad-
ley v. Barbour, 475.
County courts.
5. Jurisdiction in contested election for city office. See JURIS-
DICTION, 5.
COVENANTS FOR TITLE.
When action accrues for breach.
1. Where the owner of land conveys it to another and the heirs of
510 INDEX.
COVENANTS FOR TITLE. When action accrues for breach. Con-
tinued.
her body forever, and the grantee, before having issue, reconveys to
the grantor, he only acquires a life estate during the life of the grantee
in the first deed, and if he again conveys the land with covenants
that he is seized of a good, sure, perfect, absolute and indefeasible
estate of inheritance in the law, in fee simple, his covenant is broken
when made, and his grantee may sue and recover upon such breach,
notwithstanding he may have been put into possession of the land
under his deed. Frazer v. Supervisors of Peoria County, 282.
2. Measure of damages. See that title, 1.
Boundary.
3. Implies covenant from conveyance of land as bounded by a street.
See CONVEYANCES, 3.
CRIMINAL LAW.
Indictment.
1. Of its sufficiency, generally. Although an indictment may not
state the offense in the language of the statute creating the same,
yet, if it is stated so plainly that it may be easily understood by the
jury, it will be sufficient. Plummer v. The People, 361 ; Warriner v.
The People, 346.
Commission merchants.
2. Commission of proceeds of sales. On an indictment against a
commission merchant for converting the proceeds of goods intrusted
to him to sell on commission, to his own use, it is not a sufficient
defense that the agreement was that the commission merchant was to
send the consignor his check for the proceeds, and that he did send
his check, when it appears that there were no funds in the bank on
which the check was drawn, to pay it, and that the check was
promptly presented and not paid. Warriner v. The People, 346.
3. In such case, if the defendant had funds in the bank at the time
of drawing the check, the burden is on him to prove it, and also to
explain why there were no funds there when the check was presented.
Ibid. 346.
Accessory.
4. When one defendant shoots a person with a revolver, deliber-
ately and intentionally, a co-defendant present at the time, who in
any way or manner aids or advises, or encourages such shooting,
when not necessary, or apparently necessary, to save the defendants'
lives, or prevent their receiving great bodily harm, is equally guilty
with the one who does the shooting. Smith v. The People, 144.
INDEX. 511
CRIMINAL LAW. Continued. *
Of a reasonable doubt.
5. If the jury have a reasonable doubt of the guilt of one tried for
crime, they must acquit him. But this doubt must spring from the
evidence, and cannot be searched for outside of it. Ibid. 144.
6. An instruction "that a reasonable doubt means in law a serious,
substantial and well founded doubt, and not the mere possibility of a
doubt," and that " the jury have no right to go outside of the evidence
to search for, or hunt up doubts in order to acquit the defendant, and
arising out of evidence," or for the want of evidence, was held free
from any well founded objection except that the word "serious"
might have been omitted, as not improving it. Ibid. 144.
Op the law of self-defense.
7. To justify one in shooting at another in self-defense, it is essen-
tial that his apprehension of serious or great bodily injury be reasona-
ble. It is not proper to say in an instruction, if he had any such ap-
prehensions. Lawlor v. The People, 228.
8. The use of the words "serious bodily injury," instead of the
words "great bodily harm," employed in the statute, in instructing
the jury as to the law of self-defense, will not render the instruction
objectionable or erroneous. Ibid. 228.
Verdict of guilty as to part.
9. Is an acquittal as to balance of the counts in the indictment. A
verdict of guilty as to a part of the counts in the indictment is an ac-
quittal as to the other counts, and in such case it is necessary that the
verdict should specify upon which of the counts the defendant is
guilty. The People ex rel. v. Whitson, 20.
Of the judgment.
10. Second judgment — whether allowable. Where a defendant in a
criminal case has suffered punishment according to a legal sentence a
second judgment in the same case, even if rendered at the same term
of court, is void. Ibid. 20.
11. Only upon counts on which found guilty. It would be error tc
sentence a prisoner upon counts other than those upon which he is
found guilty. Ibid. 20.
Witnesses not named on indictment. See WITNESSES. 3.
DAMAGES.
Measure of damages. See MEASURE OF DAMAGES.
Exemplary damages. See same title, 4, 5, 6, 7.
Excessive damages. See NEW TRIALS, 4, 5.
512 INDEX.
DECREE.
Decree on default — estoppel.
1. Where a creditor's bill is filed to subject to sale the equitable
title of A and JB in real estate, owned by them under a contract of
purchase from C, and the cross-bill filed in the cause, C being a party
duly served, alleges full payment of the purchase money by A and B
to C, and C suffers a decree against him by default, and the interests
of A and B are sold under the decree, on bill by the purehaser against
C to compel a conveyance of the legal title, the latter will be estopped
by the default from asserting that he has any claim on the land for
purchase money, or for any other cause. Mason et al. v. Patterson et
al. 191.
Decree of sale construed.
2. As to whether sale under, passed title of one or two defendants.
Where a creditor's bill sought to subject the equitable interest of A
and B in land to sale for the payment of their debts as members of
a firm, and the decree ordered the sale of the property as prayed for,
and directed, that the master " upon the sale of said premises, or any
part thereof, make, execute and deliver to the purchaser or purchasers
thereof a deed of conveyance, conveying to the purchasers thereof
all the right, title and interest in said premises conveyed by the said
A; in and by the several trust deeds set forth in said original and cross-
bills herein," etc. : Held, that the direction to the master could not
have the effect to make the decree for the sale of A's interest only,
but that the reference to the deeds of trust was simply to identify the
property to be sold, and that a purchaser under said decree acquired
the interest of both A and B, and succeeded to their equitable right
to enforce the execution of a deed from the party holding the legal
title. Ibid. 191.
3. Whether made in term time or in vacation. Where a decree is
entitled as of a certain term of court, and is so certified in the record,
this will be conclusive evidence that the decree was made in term
time and not in vacation, and the record cannot be impeached. Ibid.
191.
DEDICATION.
What constitutes a dedication.
1. Sale of lots with reference to a street. Where the owner of land
has the same platted, showing a street, and sells a part with reference
to such street, which is mentioned in the description in the deed,
although the street is not opened, or the map thereof acknowledged
or recorded, this will be an immediate dedication of the street as to
such purchaser, and the grantor and all persons claiming under him
INDEX. 513
^
DEDICATION. What constitutes a dedication. Continued.
will be estopped from denying the existence of the street. Zearing
v. Raber. 409.
Acceptance.
2. A dedication of land to public use as a highway must be accepted
and appropriated to the uses intended, and until there is such accept-
ance the owner may withdraw his offer and appropriate the land to
any other purpose he may choose. Forbes v. Balenseifer, 183.
3. An acceptance of a dedication of a highway may be evidenced
by the public officers taking charge of the road and repairing it at
public expense : or, where it needs no repair, by placing it on the
map of roads for the proper district, and by its being used by the
public, but mere travel by the public is not evidence of acceptance.
Ibid. 183.
4. An instruction that if land was laid out as a public highway by
the owner, and the public recognized and accepted it, it would, in
law, be a public highway, is erroneous in not telling the jury what is
necessary to constitute an acceptance. Ibid. 183.
DEFAULT.
Setting aside default.
Discretionary. Setting aside of default is a matter of discretion
that this court will not control except in extreme cases, and
where it is manifest the discretion has been abused to the great
wrong and injury of the party complaining. Peoria and Rock Island
Railway Co. v. Mitchell, 394.
DEMURRER.
As an admission of facts. See PLEADING AND EVIDENCE, 4.
Judgment on, is an estoppel. See JUDGMENTS, 3.
DESCENTS AND DISTRIBUTION.
Of intestate's property.
As affected by his domicile. See DOMICILE, 1, 2, 3.
DOMICILE.
Defined.
1. In a strict legal sense, the domicile of a person is where he has
his true, fixed, permanent home and principal establishment, and to
which, whenever he is absent, he has the intention >f returning.
Actual residence is not indispensable to retain a domicile after it is
once acquired, but is retained by the mere intention not tc change it
and adopt another. Hayes et al. v. Hayes et al. 312.
65 -74th III.
514 INDEX.
DOMICILE. Continued.
Change of domicile.
2. To effect a change of domicile there must be an actual abandon-
ment of the first, coupled with an intention not to return to it, and
there must be a new one acquired, with actual residence in another
jurisdiction, coupled with the intention of making the last acquired
residence a permanent home. Ibid. 312.
3. A domicile in this State, within the meaning of the statute
respecting the descent and distribution of personal property, is not
lost or changed by the party residing iu another State owing to
domestic troubles, and by his voting in such other State when its
laws authorize him to vote on a residence of six months, or by his
purchasing property on speculation in such State, when there is no
intention of making a final home there. Ibid. 312.
EASEMENT.
Over the land of another.
Qan be acquired only by grant or prescription. An easement,
being connected with and appurtenant to real estate, so far par-
takes of the character of land that it can only be acquired by grant,
or prescription, which implies a previous grant. Forbes v. Balenseifer,
183.
EJECTMENT.
New trial under the statute. See NEW TRIALS, 1.
ELECTIONS.
Closing polls too soon.
Effect thereof. If an election has been in other respects fairly and
properly conducted, the votes cast will not be rejected simply because
the judges closed the polls an hour before the time prescribed by law,
when it does not appear that any voter offered to vote after the polls
were closed and before the lawful time for closing them> or was pre-
vented from voting by reason thereof. Oleland v. Porter, 76.
ESTOPPEL.
By judgment on demurrer. See JUDGMENTS, 3.
By decree entered by default. See DECREE, 1.
EVIDENCE.
Parol evidence.
1. To prove the fact of the execution of a writing. On the trial of
an action for a false arrest, it is competent to prove, by the justice of
the peace who issued the warrant upon which the arrest was made,
INDEX, 515
fc
EVIDENCE . Parol evidence. Continued.
the fact that a written affidavit was made before him on which he
issued the warrant. Ashley v. Johnson et al. 392.
2. To show sale of land when the written contract is avoided by altera-
tion. Where one party fraudulently alters a contract in a material
matter, without the consent of the other, so that it is not admissible
in evidence, the other party may prove the original contract by parol,
when the statute of frauds is not pleaded, and have a specific per-
formance decreed. Kelley v. Trumble, 428.
Secondary evidence.
3. When contents of an affidavit may be proved by oral evidence. Where
a justice of the peace, who issued a warrant for the arrest of a plain-
tiff in an action for false imprisonment, testifies to the fast that an
affidavit in writing was made before him, upon which the warrant
was issued, and the loss of the affidavit is proved, it is competent to
prove its contents by oral evidence. Ashley v. Johnson el al. 392.
Of a contract not signed.
4. As evidence, k contract prepared by a party, though not execu-
ted by either party, is entitled to great weight as evidence in show-
ing what was the real contract between them. Puringion et al. v.
AJchurst, 490.
Common law of another state,
5. How shown. The unwritten or common law of another state
may be proved by the testimony of competent witnesses instructed
in its laws. Milwaukee and St. Paul Railway Co. v. Smith, 197.
Weight and sufficiency of evidence.
6. On a question whether a piano was sold or leased, one party
introduced in evidence a printed form of a lease which he had partly
filled, and which he testified Was a copy, except as to numbers, which
fact was denied in the testimony of the other party, he insisting that
the printed form used was changed by striking out, and interlinea-
tions, before its execution. The court instructed the jury that they
were not bound to take the copy of the agreement as conclusive upon
the point whether a sale or lease was made of the piano, but in deter-
mining that question should consider the entire evidence in the case.
Held, that the instruction was unobjectionable, as a mere copy made
from recollection was not conclusive. Bauer et al. v. Bell, 223.
7. On bill by one partner against his copartner for an account, the
complainant, during the defendant's life-time, proved by a third party
who had examined the firm books, the amount of the profits and the
amount he found due the complainant. This the defendant never
attempted to explain or deny, though he had ample time, and after his
516 INDEX.
EVIDENCE. Weight and sufficiency of evidence. Continued.
death his administrator failed to explain or rebut it by testimony. It
also appeared that the complainant had no access to the books, which
the defense never proved. Held, that although the evidence was
somewhat unsatisfactory, yet, under the circumstances, it was suffi-
cient prima facie, to uphold a decree in complainant's favor. Albee
v. Wachter, 173.
To prove residence oe pauper. See PAUPERS, 4, 5.
Declarations op third parties.
When admissible. See PAUPERS, 5.
Burden of proof.
Prosecution for selling liquor. See INTOXICATING LIQUOR, 1.
To show death of principal in recognizance. See SCIRE FACIAS, 2.
As to loss or non-delivery of goods by carrier. See CARRIERS, 7.
To exempt telegraph companies from liability. See TELEGRAPHY, 3.
EXCEPTIONS AND BILLS OF EXCEPTIONS.
Exceptions.
1. When necessary to be taken. When the record does not show that
exception was taken to the giving of instructions in the court below,
such objections come too late, and cannot be considered when made
in this court for the first time. Harbaugh v. City of Monmouth, 367.
2. When a cause is, by consent, tried by the court without the
intervention of a jury, and no exception is taken to the finding of the
court and the judgment thereon, error cannot be assigned on such
finding and judgment, in the Supreme Court. David M. Force Manu-
facturing Co. v. Horton ei al. 310.
Bills of exceptions.
3. When necessary, and what they should contain. It is not sufficient
for the order allowing an appeal to the Supreme Court from a judg-
ment of the circuit court, to state that exceptions were taken to the
judgment appealed from. Such exceptions should appear in the bill
of exceptions. Ibid. 310.
4. Affidavits, notices, etc., made in the county court are not a part
of the record, unless made so by bill of exceptions, and cannot be con-
sidered in the circuit court, nor is it proper for the judge of the cir-
cuit court to make them a part of the record of that court by bill of
exceptions. Hulett v. Ames, 253.
5. Trial of cause out of its order. If a party assigns for error, that
the cause is advanced on the docket and tried out of its regular order,
the bill of exceptions should show that the objection was made in the
INDEX. 517
t'
EXCEPTIONS AND BILLS OF EXCEPTIONS. Bills of excep-
tions. Continued.
court below, and exception taken to trying the case out of its order.
Keller v . Fournier et al. 489.
6 . Not required, to preserve transcript of county court on appeal ,
See APPEALS AND WRITS OF ERROR, 9.
EXECUTION.
AS AGAINST AN ADMINISTRATOR.
It is error to award an execution against an administrator upon
a decree against the estate of his intestate.- The decree should require
the administrator to pay the sum found to be due, in the due course
of administration. Albee v. Wachter, 173.
ON ASSESSING DAMAGES FOR RIGHT OF WAY.
When awarded. See RIGHT OF WAY, 1.
FAILURE OF CONSIDERATION.
Pleading same. See PLEADING, 3, 4.
FEES AND SALARIES.
Extra compensation to circuit judge.
When holding court out of his circuit. So much of the act entitled
"Courts" as provides for compensation being paid to a judge holding
a branch court out of his circuit, in addition to his salary, is uncon-
stitutional and void. Nail v. Hamilton, 437.
FORECLOSURE. See MORTGAGES.
FRAUD.
Decree of proof required.
1. To show fraud oy false representations of an agent. Where a con-
veyance of land is sought to be set aside, as having been induced by
fraudulent representations of an agent, whose duties were advisory
only, with no power to sell, the burden of proof lies upon the com-
plainant to establish by clear and satisfactory proof that the agent
acted in bad faith, and made material statements to the grantor to in-
fluence the sale, which he knew to be false, and that such statements
influenced the sale. Walker v. Carrington et al. 446.
Sufficiency of proof.
2. Where an agent advised his principals, in the winter of 1850-51,
of an offer of five dollars per acre for land, and stated that was the
best offer that could be had, and advised a sale, proof that he was
offered ten dollars per acre in 1848 will not, after the lapse of twenty
518 INDEX.
FRAUD. Sufficiency of froof. Continued.
years from the sale, be sufficient evidence to show actual fraud on the
part of the agent. Ibid. 446.
Presumption — lapse of time.
3. Although the acts and conduct of a party may be suspicious, yet
if they can as well be attributed to honest motives, and may be as
well consistent with fair dealing as with the reverse, they will be
attributed to the former, especially after a great length of time, when
it is extremely difficult to give a full and explicit explanation. Ibid.
446.
Whether party affected by the fraud.
4. False representations must be relied on. Where the representations
of an agent, which are relied on to avoid a sale and conveyance, re-
late to the quality and value of the land sold, and it appears that the
grantors, who were trustees, had actual knowledge of the facts from
a personal inspection of the land, and by information from the hus-
band of one and the father of the beneficiaries, it will not be presumed
that the representations of the agent had any material influence upon
their conduct as inducing the sale. Ibid. 446.
Assignment of insurance policy.
5. Set aside if obtained by misrepresentation. Where a policyholder
who had sustained a loss of property insured, was induced, by false
representations of the officers of the company issuing the policy as to
the ability of the company to pay its debts, to assign his policy for less
than was clue on it, to one who was acting for the company in settling
its losses, in concurrence with the officers making the false represen-
tation, it was held that the assignment should be annulled and the
policyholder entitled to recover on his policy in a court of equity.
Derrick v. Lamar Insurance Co. 404,
FRAUDULENT CONVEYANCES.
Presumption.
1. Fraud as against creditors on a conveyance by the debtor of his
property, cannot be presumed, but must be proved. Hatch et al. v.
Jordon, 414.
Both parties must participate.
2. It is not sufficient to vitiate a sale of property that it was made
by the vendor to hinder, delay or defraud his creditors, but the pur-
' chaser must also have participated in the fraudulent intent or purpose.
Miller et al. v. Kirby, 242 ; Hatch et al. v. Jordon, 414.
INDEX. p ^19
FRAUDULENT CONVEYANCES. Continued.
Generally, whether conveyance is fraudulent.
3. Debt subsequently created by a firm — effect of 'prior sale by one
• of the partners. Where a person not in debt sells his interest in land
to another and receives payment in full, and after debts are contracted
by the firm of which he is a member, he conveys the land to the
purchaser, neither he nor his grantee having any knowledge of the
indebtedness, the conveyance cannot be impeached for fraud as to
the creditors. Hatch et al. v. Jordon, 414.
4. Party indebted may sell. A party, though in debt, may sell his
property to whom he pleases,, if no lien exists to prevent it, and if the
transaction be an honest one, made in good faith, and for an adequate
consideration, it matters not how many creditors may thereby be
prevented from reaching the property. Miller et al. v. Kirby, 242.
5. Sale on credit, etc. In case of an absolute and unconditional sale
of goods, the fact that the vendor was indebted at the time, that the
sale was on a credit, and that the notes taken for the unpaid price were
to be used in the payment of his debts, will not establish fraud in the
sale as to creditors. Ibid. 242.
6. Conveyance by father to daughter to defraud creditors. Where a
father transfers his propeny and notes to his daughter after incurring
indebtedness, it is immaterial whether it is a voluntary settlement or
founded on good consideration. In either case it will be void as to
existing creditors. Qujfin et al. v. First National Bank of Morrison,
259.
7. WThere a father, in consideration of the past services of his
daughter, who remained with him many years after becoming of age,
andkept house for him, and of her mere verbal promise to support
and take care of him the rest of his days, transferred to her all his
notes amounting to six or seven thousand dollars, it was held that
the transaction could be regarded in no other light than a voluntary
settlement, and fraudulent in law as to existing creditors, and that if
a secret trust was reserved in favor of the donor, it could be assailed
by subsequent as well as by then existing creditors. Ibid. 259.
8. And where the proof showed that the father, after such transfer,
collected the interest and renewed notes as before, and really depended
upon the property so transferred for his future support, and that the
transfe: was for his benefit to defraud creditors, it was held that the
transaction was void, both as to existing and subsequent creditors.
Ibid. 259.
Settlement upon wife.
9. Whether fraudulent as to creditors of the husband. See MAR-
RIED WOMEN, 6.
520 INDEX.
GUARDIAN AD LITEM.
Whether necessary.
Where a person is sued with certain minor defendants in chancery,
as their guardian, and he appears, answers and defends in that capac-
ity, and procures a reversal of the decree against the minors, a second
decree against the minors will not be reversed because the record
shows no appointment of a guardian ad litem, or proof that such per-
son was in fact guardian. Tattle v. Garrett et at. 444.
GUARDIAN'S SALE.
Notice of application.
Where the statute requires notice of the application of a guardian
to sell real estate to be published in a newspaper at least once in each
week for three successive weeks, or to be posted in three public
places at least three weeks before the session of the court at which
the application is to be made, it is sufficient if the notice is published
for three successive weeks in a newspaper, and the first publication is
made three weeks before the session of the court. Fry v. Bidwell,
381.
HABEAS CORPUS.
When party entitled to discharge.
Effect of mere error in order of commitment. If the judgment
upon which a prisoner is held in custody is merely erroneous and
subject to be reversed on writ of error, he will not be discharged upon
habeas corpus. But if the court had no power or jurisdiction to ren-
der such judgment, the prisoner should be discharged on habeas corpus.
People ex rel. v. Whitson, 20.
HEIRS.
Liability for an ancestor's debts.
An heir or devisee is under no legal liability to discharge the debt
of his ancestor or the devisor from whom he takes real estate, except
when the personal estate of such ancestor or devisor is insufficient to
pay the same. McLean v. McBean, 134.
HIGHWAY.
Dedication. See DEDICATION, 1 to 4.
HOMESTEAD.
Of its extent .
1, The intention of the legislature, in enacting the honestead
exemption law, was not to save a mere shelter for the debtor and his
INDEX. 521
HOMESTEAD. Of its extent. Continued.
. family, but it was to give him the full enjoyment of the whole lot of
ground exempted, to be used in whatever way he might think best
for the occupancy and support of his family, whether in the way of
Cultivating it, or by the erection of buildings upon it, either for car-
rying on his own business or for deriving income in the way of rent.
Stevens v. Hollingsworth et al. 202.
2. When a debtor owns a lot upon which he resides, and upon
which he has a mill, shop or other building, the whole property is his
homestead, and as such exempt from execution to the extent of one
thousand dollars. Ibid. 202.
3. Where the homestead of a debtor is sold on execution without
any division, although it may be worth more than one thousand dol-
lars, yet the purchaser acquires no title to any part of it which he
can make available in an action of ejectment, either as plaintiff or
defendant, whatever may be the rule in equity. Ibid. 202.
INDEMNITY.
To SURETY.
His rights and deed of trust. See SURETY, 3.
INDICTMEMT. See CRIMINAL LAW, 1.
INJUNCTIONS.
Enjoining suit at law.
1. The indispensable basis upon which a defendant to an action at
law may resort to a court of equity to restrain the prosecution of such
action is. that he has some equitable defense, of which a court of law
cannot take cognizance, either by reason of want of jurisdiction, or
from the infirmity of legal process. Bishop of Chicago v. Chiniquy et
al. 317.
2. An application to enjoin a suit at law concedes the plaintiff's
strict legal right to recover, but is based upon the fact that the de-
fendant has equities calling for the interference of the court, as clear
as the legal right it seeks to control. Ibid. 317.
3. Where an action of ejectment is sought to be enjoined on the
ground that the plaintiffs deed was never delivered and accepted so
as to pass the legal title, a court of equity cannot be invested with
jurisdiction to so declare by an allegation that the deed was subject
to a trust which the plaintiff is attempting to pervert. Ibid. 317.
4. A court of equity has no jurisdiction to enjoin the prosecution
of an action of ejectment on the ground that the conveyance relied on
by the plaintiff is absolutely void for want of delivery and acceptance,
or if delivered, it was procured through threats and duress, the defense
being complete at law. Ibid. 317.
66— 74th III.
522 INDEX.
INJUNCTIONS. Continued.
After long acquiescence.
5. Where owners of land which is overflowed by a dam acquiesce in the-
erection of the dam, and permit the party erecting the same to make
large expenditures in the same and in building and maintaining a
mill, and suffer the dam to be kept up for twenty-four years, their
acquiescence for so great a time will preclude them from enjoining
the rebuilding and repair of a part of the dam carried away. Vail et
al, v. Mix et al. 127 .
TO PREVENT A NUISANCE.
6. For a threatened injury to the public health, as by the erection
of a dam and the consequent overflow of lands, a court of equity will
not interfere at the suit of a few private individuals, unless it be shown
in the bill that their health is or will be directly affected by the nui-
sance. Ibid. 127.
INSTRUCTIONS.
Or THEIR REQUISITES.
1. Assuming facts. There is no error in refusing an instruction
which assumes the existence of a material fact which should be left
to the jury to find, or when its substance is contained in others given.
Morehouse v. Moulding et al. 322.
2. But if an instruction assumes the existence of facts not contro-
verted on the trial and which, under the circumstances, if assumed,
could not prejudice, there will be no error. Miller et al. v. Kirby,
242.
3. Assuming a paper to be conditional. An instruction which as-
sumes that a paper or writing in evidence is conditional, when it is
not, is properly refused. Biggs et al. v. Clapp et al. 335.
4. Must be based on evidence. Where there is no evidence on which
to base an instruction, it is not error to refuse the same, but a judg-
ment will not be reversed for giving an instruction containing an ab-
stract proposition of law, which this court can see did not mislead the
jury. Pittsburg, Fort Wayne & Chicago Railway Co. v. Poioers, 341.
5. It is not error to refuse an instruction stating a correct abstract
principle of law, when there is no necessity for it under the facts
of the case. Rupley et al. v. Daggett, 351.
6. On a state of facts which the evidence tends to prove. Where the
evidence tends to prove a certain state of facts, the party in whose
favor it is given has the right to have the jury instructed on the
hypothesis of such state of facts, and leave it to the jury to find whethei
INDEX. 523
INSTRUCTIONS. Op their requisites. Continued.
the evidence is sufficient to establish the facts supposed in the instruc-
tion . Kendall v. Broion, 232.
7. When based upon a tcrong theory of the case. Where a trial in
trespass against parties not present at the time and place where the
wrongful acts were committed, is conducted by the plaintiff on the
theory that the trespass was committed by the servants of the parties
by their direction and procurement, instructions on the part of such
parties defendant, based upon a subsequent ratification of the acts
done, are incorrect. Bauer et al. v. Bell, 223.
8. As to matters not in issue. An instruction embracing matters
not in controversy on the trial, and which cannot enlighten the jury
on the questions before them, is irrelevant and properly refused.
Smith v. The People, 144.
Instruction construed.
9. An instruction in a suit to enforce a mechanic's lien, that if the
petitioner was hindered and prevented by the defendant from finish-
ing and completing the work which had been entered upon, the
petitioner was not precluded from recovering because the work was
not completed entirely by him, is not open to the objection that it
authorized a recovery for all the work contracted to be done, and
for work not done by the petitioner. Heiman v. Schroeder, 158.
INSURANCE.
Description of property insured.
1. Variance between application and policy. Where an application
is for insurance " on hay in the stack and in the field," and the policy
issued upon the application is upon "hay in stack within fifty feet of
stable." the discrepancy is not such as to entitle the insured to rescind
the contract of insurance. Edwards v. Farmers' Insurance Co. 84.
Construction of policy.
2. Where a policy of insurance refers to an application, and by apt
words makes the application a part of the policy, the two instruments
will be construed together. Ibid. 84.
Limitation as to suit in policy.
3. Waived by fraud on part of company. A clause in an insurance
policy limiting the right of action on the policy to a specified period
of time is waived if the company, by fraud, or by holding out reason-
able hopes of an adjustment, prevent the assured from bringing suit
within the time limited. Derrick v. Lamar Insurance Co. 404.
Assignment of policy.
Set aside for fraud. See FRAUD. 5.
5^4 INDEX.
INTEREST.
When recoverable.
1. On value of stock killed. The owner of stock killed by a rail-
way company on its track, for want of a fence, is not entitled to
interest on its value from the time of the killing. Toledo, Peoria and
Warsaw Railway Co. v. Johnston, 83.
2. On money due for work done under contract. Where specific
sums of mone}^ are agreed to be paid for work by an agreement
in writing, the several sums will, under the statute, carry interest from
the times they become due. Heiman v. Schroeder, 158.
3. May be recovered without being claimed in 'pleading. Where inter-
est is an incident to a debt, it may be recovered though not claimed
as such in the petition or other pleading, if the sum claimed is large
enough to include the same. Ibid. 158.
INTOXICATING LIQUORS. *
Suit under ordinance.
Proof as to excepting. Under an ordinance prohibiting the sale of
intoxicating liquors, except for certain purposes, it is not incumbent
on the prosecution to prove that the sale complained of was not for
the excepted purposes, but when a sale is proved, the burden of proof
is on the defendant to show that such sale was lawful. Rarbaugh v.
City of Monmouth, 367.
JUDGE OF CIRCUIT COURT.
Extra compensation.
When holding court out of his circuit. See FEES AND SALA-
RIES, 1.
JUDGMENTS.
Sufficiency of judgment.
1. In action on penal bond — whether sufficiently certain as to amount.
When the verdict in debt upon a penal bond is for the debt and
$949.40 damages, and the plaintiff remits $54.50 of the damages, and
a judgment for the debt, to be fully satisfied upon the payment of
$894.90, the damages assessed by the jury, except amount remitted
together with costs, is sufficiently certain, as the exception will be
referred to the sum found by the jury and not to the sum of $894.90.
Hanson et al. v. Rounsavell, 238.
2. On assessment of damages as to right of way — certainty as to land
taken. A judgment against a railroad company, on an appeal from
an assessment of damages for land taken by it. which refers to the
verdict wherein the land taken is properly described, is sufficiently
INDEX. 525
JUDGMENTS. Sufficiency of judgment. Continued.
definite and certain, as to the land for the taking of which the judg-
ment is rendered. Peoria and Rock Island Railway Co. v. Mitchell,
394.
Judgment on demurrer.
3. Its conclusiveness. A judgment on a demurrer is equally conclu-
sive, by way of estoppel, of the facts confessed by the demurrer, as
a verdict finding the same facts, and facts thus established can never
afterward be contested between the same parties, or those in privity
with them. Nispel et al. v. Laparle et al. 306.
As to amount.
4. Limited to amount claimed in justice's summons. In action origi-
nating before justices of the peace, the plaintiff's recovery is limited
to the amount of his demand indorsed on the summons. Peoria and
Rock Island Railway Co. v. McCle?iahan, 435.
Judgment in favor of one not named in pleadings.
5. It is not error to render a judgment in favor of a plaintiff named
in the summons, although he is not named in the declaration, if no
question is raised in the court below on the variance. Fonville et al.
Monroe et al. 126.
Judgment by confession.
8. What constitutes. Where the docket of a justice of the peace
shows that the defendant agreed that plaintiff should have judgment
for a given sum, and that the plaintiff accepted the judgment tendered,
this will be sufficient to show a confession of judgment by the de-
fendant, and no appeal will lie from the judgment. Borttcher v. Bock
et al. 332.
7. Waiver of technical objections. A defendant, by confessing judg-
ment in a suit before a justice of the peace, waives all formal objec-
tions, such as, that the docket, or transcript thereof, does not show
the nature of the plaintiffs demand. Ibid. 332.
8. Release of errors. Where a defendant, by his attorney in fact
duly authorized, confesses judgment and releases any and all errors,
this will preclude him effectually from assigning any error in the pro-
ceedings. Hall v. Hamilton, 437.
Of a second judgment.
9. In a criminal case. See CRIMINAL LAW, 10.
JURISDICTION.
Of the state courts — generally.
1. From what source derived — foreign corporations. The courts of
this State derive all their power from the constitution and laws of
526 INDEX.
JURISDICTION. Of the state courts — generally. Continued.
this State, and do not, nor can they derive any power from the laws
of the United States or other source. Missouri River Telegraph Co.
v. First National Bank of Sioux City, 217.
2. Under the constitution of the United States congress cannot
confer jurisdiction upon a State court, or any other court which it has
not ordained and established. Ibid. 217.
3. The courts of this State have jurisdiction, under the power con-
ferred by our constitution, over all persons and things within its bor-
ders, and when persons or corporations, without reference to where or
when the latter are created, come into this State, they are within the
jurisdiction of our courts, which is then exercised by virtue of such
power, and not by virtue of any congressional action or Federal grant
of power. Ibid. 217.
4. Our courts will exercise jurisdiction in suits by or against cor-
porations, whether created 'by act of congress or by the laws of
another State, and whether doing business in this or some other State,
in all cases except where they will refuse to entertain jurisdiction in a
suit between natural persons. Ibid. 217.
CoUiSTTT COURTS.
5. In contested election for city office. The county court has no juris-
diction to try a contested election respecting a city office unless the
city is incorporated under the general law of the State. Young v.
Adam, 480.
Application by executor to sell land.
6. As to the day appointed. Where an executor gave notice of an
application to the circuit court, on a certain day in the next term,
being the fourth day, for an order to sell lands to pay debts, etc., and
filed his petition before the first day of such term, but no court was
held at such term, it was held that the proceeding was continued by
law, and the court had jurisdiction at a succeeding special term to
render a decree. Wliitman v. Fisher, 147.
EffeCt of finding as to due publication.
7. The finding of a court in favor of its jurisdiction is not conclu-
sive, especially when the record discloses the evidence of jurisdiction
upon which the court acted. Senichha v. Lowe, 274.
Presumption in favor of jurisdiction.
8. After the lapse of over twenty years from a sale and conveyance oi
land by an executor made under a decree of a court of competent
jurisdiction, for a full consideration to one buying in good faith, every
reasonable intendment will be indulged in favor of the jurisdiction of
the court making the decree, rather than to hold the sale invalid, and
INDEX. 527
JURISDICTION. Presumption in favor of jurisdiction. Continued.
the action of the court will be referred to its statutory or general
jurisdiction, as may be necessary to maintain its jurisdiction . Whit-
man v. Fisher, 147.
JURY
Right of trial by jury.
1. In the matter of fixing boundaries of lands. Upon objections
being filed to the report of surveyors in fixing disputed boundaries of
land, denying its correctness, it is error in the court to refuse a trial
by jury when demanded to try the issues made. Huston et al. v .
Atkins, 474.
Competency.
2. Party to suit pending, etc. The fact that a juror, whether of the
regular panel or not, has a suit at law or in equity pending, for trial
in the same court, at the same term, whether the same is actually tried
or not at such term, is a good ground of challenge, and it is error to
disallow the same. Plummer v. The People, 361.
3. Opinion from reports. The fact that a juror has formed an opin-
ion or impression based upon newspaper statements or rumors, about
the truth of which he has expressed no opinion, will not disqualify
him, if it shall appear from his statement, under oath, that he believes
he can render a fair and impartial verdict in accordance with the law
and the evidence. Ibid. 361.
4. But if the juror is unable to state that he can sit as an impartial
juror in the case, he is incompetent. If exposed to influences the
probable effect of which is to create a prejudice in his mind against
one charged with crime, and which it will take evidence to overcome,
he is not competent. Ibid. 361.
Exemption from service.
5. A mere gratuity to the citizen. The duty of serving on juries is
one of the inseparable incidents of citizenship, and can be exacted
whenever and however the sovereign authority shall command, and
all exemptions from such service are mere gratuities, which may be
withdrawn at the pleasure of the law-making power. In appeal of
Scranton, 161.
6. Only active members of fire companies are exempt from service.
Under the general law in force February 11th, 1874, the only exemp-
tion from service on juries on account of service in the fire depart-
ment is of active members of that department. Ibid. 161.
7. The general law on the subject of juries in force February 11th,
1874, repealed all local and special laws on the subject. Ibid. TBI.
528 INDEX.
JURY. Continued.
Cannot disregard evidence.
8. A. jury has no right to disregard the testimony of three, wit-
nesses as to a fact, in opposition to that of one only, from mere
caprice, but are bound to give it its just weight. Carney v. Sully et
al. 375.
LACHES . See LIMITATIONS, 4 .
LANDLORD AND TENANT.
Liability of landlord to tenant.
1 For, damage caused by tenant's own negligence. Where the
water pipes in a building are of the proper size and properly con
structed, a tenant occupying a room and having the use of the pipes
and water, and access to a crank by which to turn off the water to
prevent freezing, and who neglects to turn off the same, whereby it
freezes and bursts the pipe and damages his goods by leakage, cannot
maintain an action against the landlord for damage, on account of his
own negligence and want of ordinary care in not turning off the
water when likely to freeze. Tayler v. Bailey, 178.
2. Lease construed as to liability for leakage. A clause in a lease,
exempting the landlord from liability for damage to the tenant by
leakage of water, will not only be held to apply to leakage in the
story or room occupied by the tenant, when it appears that the water
pipes are in a room on a floor above and to which the tenant has
access and agrees to keep in order, but will also apply to leakage from
the pipes in such upper room. Ibid. 178.
LAW AND FACT.
Facts to invalidate a will.
A question of laic, and not to be left to a jury . What acts of
fraud or improper conduct in procuring the execution of a will, will
invalidate it, is a question of law, and ajury should not by an instruc-
tion be left at liberty to invalidate a will for what according to theii
own notions maybe improper conduct sufficient for that purpose.
Toe v. McCord, 33.
LEX LOCI.
As governing carrier's contract. See CARRIERS, 6.
LICENSE.
AS BETWEEN INDIVIDUALS.
1. What constitutes, and whether revocable. A verbal agreement be-
tween the several owners of several tracts of land, by which each
INDEX. 529
LICENSE. As between individuals. Continued.
gives to the others a right of way over his land, amounts to a mere
license, revocable at the will of either of the parties. Faroes v. Balen-
seifer, 183.
2. A verbal license to pass over the land of another may be
revoked either by express notice, by obstructing the land licensed to
be used, by appropriating it to any use inconsistent with the enjoy-
ment of the license, or by a sale of the land without reserving the
privilege to the licensee, and in all such cases the rights of the
licensee are terminated. Ibid. 183.
3. A license does not become executed and irrevocable merely
because the licensee has availed himself of the privileges of a license
and entered upon their enjoyment, but cases may arise where to pro-
voke would be a great wrong and oppression, and amount to a fraud
on the part of the licensor, and in such case a court will, to prevent
the fraud, hold the licensor estopped from revoking the license.
Ibid. 183.
LIENS.
Lien of money decree .
1. Where a decree finds a specific sum of money due from one
party to another, and orders a sale of specific property, and in case
not enough is realized from such sale to pay the amount, that an
execution issue, such decree is a money decree, within the meaning
of the fourteenth section of the chapter entitled Chancery, of the
Revised Statutes of 1845, and becomes a lien upon the real estate
of the party against whom it is rendered, the same as a judgment
at law. Barnes et al. v. Oermanie Tumi Verein, 54.
2. The lien of a money decree, like that of a judgment at law, only
continues for one year after it is rendered, unless an execution is
issued within that time. Ibid. 54.
Mechanics' lien.
3. Rule of construction. The statute in relation to mechanics' liens,
being in derogation of the common law, those claiming its benefits
must bring themselves clearly within its provisions. Carney v. Tully
et dl. 375.
4. Under implied contract. Where the proof shows that the peti-
tioner for a mechanics' lien furnished the owner of a lot lumber for
building a house thereon, that it was so used, and that it was fur-
nished within one year from the commencement of the woi'k, this
will entitle him to a lien as upon an implied contract. Cunningham
v. Ferry et al. 426.
67— 74th III.
530 INDEX.
LIENS. Mechanics' lien. Continued.
5. Where title is in trustee with power to build. Where a deed by
which land is conveyed to a trustee, to be held for the use of others,
gives authority to build upon and improve the land, and to borrow
money and mortgage the premises to secure it, for the purpose of
building it, it follows that the power to make contracts for building
exists with the statutory incident belonging to such contracts, that of
a mechanics' lien. Taylor et al. v. Q-iUdorff et al. 354.
6. A wife conveyed her real estate to a trustee in trust for herself
during the joint lives of herself and husband, with remainder over to
the heirs or devisees of the husband, and to the husband's heirs if he
survived the wife and their children. In the deed was a provision
that the property might be built upon and improved for the purpose
of providing a revenue, and giving the husband and wife the general
management of the premises, acting in concurrence and with the ap-
proval of the trustees; and for the purpose of so building or improv-
ing, power was given to sell any portion of the premises, or to mort-
gage the same to secure any loan for that purpose. The husband, in
his own name, made contracts for the erection of buildings on the
premises, and the buildings were so erected, with full knowledge of
the wife and trustees, and without any objection on their, part. Held,
that the persons performing labor and furnishing materials were en-
titled to enforce a mechanics' lien against the whole estate. Ibid.
354.
7. Payment made by consent of sub-contractor. Where a sub-con-
tractor, after serving notice of his lien upon the owner of a building,
signs a writing, authorizing such owner to pay a certain other install-
ment, referring to it as due when certain work is done, this will not
be held conditional, but as indicating a particular installment, and the
owner may rightfully make such payment before it is due, without
becoming liable to the sub-contractor. Biggs et al. v. Clapp et al. 335.
8. Notice by sub -contractor . The notice provided in the mechanics'
lien law, to be given by a sub-contractor to the owner of the prop-
erty,, to hold him liable, must be in writing, and must be served per-
sonally. Service by mail is insufficient to charge him. Carney v.
Tully et al. 375.
9. Payments after notice by sub-contractors. After notice to the
owner, of the claims of sub-contractors, the owner cannot rightfully
pay the original contractor so as to defeat the demands of the sub-
contractors, nor can he pay one sub-contractor in full and another
nothing, as his caprice or partiality may determine.
Moulding et al. 322.
INDEX. 531
LIENS. Mechanics' lien. Continued.
10. When balance due must be paid pro rata. When there is not
enough to pay all sub-contractors and materialmen after deducting ail
payments rightfully made, the balance is to be divided between the
several claimants entitled to liens in proportion to their respective in-
terests. Ibid. 322.
11. Might to retain payment to complete work. The owner of a
building has not the right to retain the balance due on the original
contract remaining in his hands, with which to enable the contractor
to complete the work, after notice of the claims of sub-contractors.
Ibid. 322.
12. Liability of owner to sub-contractors on failure to complete con-
tract. If the contractor for any cause fails to complete his contract,
the owner will be liable to the persons entitled to a lien under the
act of 1869 for so much as the work and materials are reasonably
worth according to the contract price, first deducting all payments
rightfully made, and damages, if any, occasioned by the non-perform-
ance of the contract, giving to each his ratable share, and the balance
he can retain with which to finish the work. Ibid. 322.
13. Bight of sub-contractors to payment when work is abandoned.
The mechanics' lien law does not require that the owner shall pay
any thing to a sub-contractor, when he is compelled to exhaust the
original contract price, taking into account what he has rightfully
paid the contractor, to complete the building, in case of abandonment
by the contractor. Biggs et al. v. Clapp et al. 335.
Vendor's lien.
14. Waived by taking security. When the vendor of land takes
the purchaser's promissory note with personal security for the
unpaid purchase money, and afterward, by direction of the pur-
chaser, conveys the land to a third person, and assigns the note,
the presumption of a lien will be repelled, especially after the lapse
of several years. Wilson v. Sawyer et al. 473.
LIMITATIONS.
When statute begins to run.
1. Against suit to recover money paid on voidable contract. In a suit
to recover back money paid on a voidable contract, the statute of
limitations begins to run from the time the contract is terminated
by one party or the other, and not before. Collins et al. v. Thayer,
138.
2. A verbal contract for the sale of land is voidable at the will of
either party, but not absolutely void, and the parties have a right to
532 INDEX.
LIMITATIONS. When statute begins to run. Continued.
rery upon each other to perform it, until some act is done by one or
the other manifesting an intention to terminate it. Ibid. 138.
3. But when any thing is done by either party, manifesting an
intention to terminate a contract voidable under the statute of frauds,
the statute of limitations will begin to run against an action to recover
money paid on such contract from that time. Ibid. 138.
Laches aside from the statute.
4. To set aside deed for fraud. Where bill was filed to set aside a
conveyance of land, twenty years after the deed was made, on the
ground of* fraud in the agent advising the sale, it was held that the
claim was a stale one, on the ground of laches, and that this was a
good defense in itself. Walker v. Carrington et al. 446.
Under clause in insurance policy.
5. Waived by fraud. See INSURANCE, 3.
MANDAMUS.
When it will lie.
1. Will not be awarded in doubtful cases. The writ of mandamus
is one of the extraordinary remedies provided by law, and should
never be awarded unless the party applying for it shows a clear right
to have the thing sought by it done, and by the person or body
sought to be recovered. In doubtful cases it should not be granted.
Springfield & Southeastern Railway Co. v. County Clerk, etc. 27.
Of the petition.
2. Its requisites. The petitioner in an application for a mandamus, ■
like a plaintiff in an ordinary case, is bound to state a case prima
facie good . Ibid . 27 .
3. When the law requires the trustees of a township to certify
the result of an election on the question of a donation to a railroad
company, to the county clerk, a petition for a mandamus to compel
the county clerk to extend a tax to pay such donation, which alleges
that a majority of the votes cast were in favor of such donation, and
that that fact was certified by the town clerk to the county clerk,
and that the town clerk was the proper officer to certify, is bad on
demurrer. Ibid. 27.
MARRIED WOMEN.
Power to make contracts.
1. Engaging in trade and creating debts. The right of a married
woman to engage in business in her own name with a separate prop-
erty necessarily implies the right to purchase goods with which to
carry it on, and to bind herself by contract to pay for such purchases,
INDEX. 533
MARRIED WOMEN. Power to make contracts. Continued.
and the law that authorizes this will compel her to abide by and
perform such contracts. Nispeletal. v. Laparle et al . 306.
2. Notes by, when binding. If a married woman gives her prom-
issory notes with her husband for goods bought by her as her own
property, for her own use, in her own business as a saloon keeper,
carried on by her in her own name, with her own means, and which
were used by her in such business for her own benefit, without the
interference of her husband, she will be liable to an action on the
note, notwithstanding her coverture. Ibid. 306.
3. Mortgage tcith power of sale upon husband's land. The statute
which provides that " any married woman, being above the age of
eighteen years, joining with her husband in an execution of any
mortgage, conveyance, power of attorney or other writing, of or
relating to the sale, conveyance or disposition of her lands or real
estate, or any interest therein, shall be bound and concluded by the
same," etc., gives to a married woman, by her husband joining with
her in its execution, power to execute a mortgage or deed of trust
containing a power of sale, and a sale under such a power will effect-
ually bar her equity of redemption. Barnes v. Ehrman, 402.
4. Release of rights on conveyance of husband's land. A married
woman can only relinquish her rights of homestead and dower in her
husband's lands by joining with him in the execution of a deed or
mortgage. All other contracts in relation thereto are void for want
of capacity. Knox et ux. v. Brady, 476.
Husband as agent of the wife.
5. Where property is clearly that of a wife, her husband may act
as her agent in its management, either by the appointment of her
trustee, or, since the married woman's act of 1861, by her own ap-
pointment, and while his receiving the rents of her land may be
viewed with suspicion, it is not conclusive evidence of fraud.
Walker v. Carringion et al. 446.
Settlement by husband upon wife.
6. Whether good as against creditors. A husband out of debt, or
when it does not injure existing creditors, may settle property on his
wife, either by having it conveyed directly to her, or to another in
trust for her, and subsequent creditors cannot reach it, and money
realized from the sale of such property will be hers. Lincoln v. Mc-
Laughlin, 11.
MASTER AND SERVANT.
Injury to servant.
1. Liability of master — duty to adopt reasonable rules and regula-
534: INDEX.
MASTER AND SERVANT. Injury to servant. Continued.
tions to protect employees. It is the duty of a railway company to
make all reasonable and proper regulations for the safety of its em-
ployees. And this being an affirmative fact, it devolves on the com-
pany to show an observance of the duty when sued by a servant for
an injury received while in its, service, and negligence is shown. On
such a showing the presumption will be that the negligent act was
done in violation of its rules, and the company will not be liable for
the act of its servants, disobeying such regulations, unless the servant
inflicting the injury was incompetent, and the company knew of it,
or had reasonable and proper means of knowing it. Pittsburg, Fort
Wayne & Chicago Railway Co. v. Powers, 341.
2. Liability to servant for acts of co-servant. It has been repeatedly
held by this court that a servant of a railway company may recover
of the company for an injury occasioned by the negligence of a
fellow-servant, where the two are not employed in the same line
of business, or their employment is wholly separated and discon-
nected. Ibid. 341.
3. Whether servants are in same line of employment. Where a ser-
vant of a railway company employed to work on the track was run
over and injured by an engine through the carelessness of the engineer
of the company, it was held that the servant injured was not engaged
in the same line of employment as the engineer, and might recover
of the company for the injury the same as any other person not in its
service, if he acted with prudence on his part. Ibid. 341.
MEASURE OF DAMAGES.
For breach of covenant for title.
1. Where there is a covenant in a deed of conveyance of real
estate, that the grantor, at the time of making the deed, was seized
of a good, sure, perfect and absolute and indefeasible estate of inher-
itance in the law in fee simple, and the grantor has in fact only a life
estate and a contingent reversion in the land, the grantee may, upon
reconveying or tendering a reconveyance, sue and recover for breach
of covenant, and in such case the measure of damages is the amount
of the consideration named in the deed, together with taxes paid on
the land, and interest, less the value of rents received or which could
have been received by the grantee from the land. Frazer v. Board
of Supervisors of Peoria Co. 282.
Failure of carrier to deliver goods.
2. The measure of damages in case of the failure of a carrier to
deliver goods according to contract, and which are lost, is their
market value at the time when and the place where they should
INDEX. 535
MEASURE OF DAMAGES. Failure of carrier to deliver goods.
Continued.
have been delivered, and such value is purely a question of fact for
the jury. Chicago & Northwestern Railway Co. v. Dickinson et al.
249.
Injury to servant from negligence of master.
3. In a suit by a servant of a railway company against the com-
pany to recover damages for a personal injury received while in the
company's service, it is error to admit evidence that the plaintiff had
a family and was unable to support them by his labor since the injury.
To admit such evidence is virtually to impose upon the company the
duty of supporting the plaintiff's family, which the law does not re-
quire in the case of a servant injured in its employ even by the neg-
ligence of the company. Pittsburg, Fort Wayne & Chicago Railway
Co. v. Powers, 341.
Exemplary damages.
4. Generally. Vindictive or exemplary damages should not be
awarded unless the injury complained of was done wantonly or
willfully. Miller et al, v. Kirby, 242.
5. Trespass for levying on strangers' property. In trespass by the
purchaser of goods, for levying upon and selling a part thereof, un-
der an execution against his vendor, when there was no violence
used, and no unusual noise or demonstration made, and the levy was
a reasonable one, and it appeared that the contest of the fairness
of the sale was not made in bad faith, it was held that exemplary
damages could not be allowed. Ibid. 242.
6. Stock killed by negligence. The damages for stock killed by a
railway company through negligence merely, as a neglect to fence
their track, is compensatory only. To authorize more, circumstances
of aggravation must be shown. Toledo, Peoria and Warsaw Railway
Co. v. Johnson, 83.
7. In trespass. Where a landlord takes his tenant's corn under
an honest belief that he has the right to sell the same and divide the
proceeds, without any notice of a division by the tenant, exemplary
damages should not be given against him in an action of trespass by
the tenant. Scott v. Bryson, 420.
MISTAKE.
Reforming deed of married woman.
The deed or other contract of a married woman respecting
her separate property since the passage of the act of 1869, in rela-
tion to conveyances, may be reformed for mistake, the same as if
536 INDEX.
MISTAKE. Reforming deed of married woman. Continued.
she were sole, and their execution may be proved, and her contracts
respecting her separate property specifically enforced in equity ; but
as to the lands of her husband her contracts are void, and a mistake
in the same conveyance cannot be reformed as against her. Knox et
ux. v. Brady, 476.
MORTGAGES HAD AND RECEIVED.
When action lies therefor. See ASSUMPSIT, 1, 2.
MORTGAGES.
Foreclosure — part of debt not due.
1. On foreclosure of mortgage the court may direct the whole
mortgaged premises to be sold, if most conducive to the ends of
justice in reference to the equitable rights of all parties, although a
part only of the mortgage debt has become due ; but the fact that
the premises are a meager and scant security, and are going to ruin
and decay, does not justify their sale for a debt not due. Blazey et al.
v. Delius etal. 299.
2. On bill to foreclose two mortgages, one of which embraces land
not included in the other, and where the whole debt is not due, the
decree found that the mortgagor was insolvent and the premises '
could not be sold in parcels without prejudice to the parties, when
there was no allegation in the bill to admit such proof, and authorized
a sale en masse for the whole debt due and to become due. Held, that
the decree was erroneous. Ibid. 2y9.
3. If a sale of mortgaged premises is ordered for the entire debt, a
part of which is not due, the decree should protect the rights of the
mortgagor, so that in redeeming he will not be compelled to pay
money before it is due under the contract. Ibid. 299.
Of several mortgages.
4. But not wholly upon same lands. Where two mortgages are
partly upon the same premises, but one including land not in the
other, it is error to decree the sale of the land not embraced in one
mortgage for its satisfaction, and thereby increase the burden upon
the premises in the other mortgage. Ibid. 299.
Whether a mortgage or a sale.
5. When a bill of sale is made of vessels, absolute on its face for
one-half interest therein, it will require evidence of the clearest
character to show that it was intended only as a mortgage to secure
a loan, or advances. Purington et al. v. Alehurst, 490.
Mortgage with power of sale.
6. By a married woman joining with her husband in mortgage upon
his land. See MARRIED* WOMEN", 3.
INDEX. 537
MUNICIPAL SUBSCRIPTION.
Of vote prior to new constitution.
1. As to donations and subscriptions. The object of the proviso to
the section of the new constitution relating to municipal subscrip-
tion, was, to save such subscriptions and donations voted in aid of
railroads and private corporations prior to its adoption. The saving
clause, by a reasonable construction, embraces donations as well as
subscriptions, and places them upon the same footing. Chicago &
Iowa Railroad Co. et al. v. Pinchney et al. 277.
Notice of election.
2. Of its sufficiency. Where the petition filed with the town clerk
for an election upon the question of the town donating its bonds in
aid of a railroad, stated the time the bonds were to run and the
interest they were to bear, as required by law, it was held, that an
omission in the notice of the election to state these facts, when the
notice recited that the petition was filed in the clerk's office, would
not vitiate the election, as the petition was subject to inspection of
any voter desiring to learn the facts. Ibid. 277.
Identity of proposition voted on.
3. Where the petition shows that two propositions were submitted
to the people of a town upon the question of a donation to a railroad
company, one for the levying of a tax, and the other for issuing bonds
to pay such donation if made, and that a majority of the votes cast
were in favor of "said proposition," a mandamus to compel the
county clerk to extend the tax mentioned in the first proposition will
not be awarded. Springfield & Southeastern Railway Go. v. County
Clerk, etc. 27.
NEGLIGENCE.
Negligence in railroads.
1. Injury resulting from want of outlook on railroad cars being
pushed. Where a person driving a team in a city on a very cold and
blustering day, being muffled up to protect himself from the severity
of the cold, while driving across a track near a public elevator, was
struck by a car being propelled by an engine in the rear, and severely
injured, and there was no one stationed on the car or on the ground
to give warning, and it appeared, if there had been, the injury might
have been avoided, it was held, that as the injury was the result of
negligence on the part of the company, it was liable in damages to
the injured party. Illinois Central Railroad Co. v. Ebert, 399.
2. Putting car in motion toithout means of stopping it. It is negli-
gence for persons engaged in loading cars on a railroad track to put
a car in motion without making any provision for stopping it, or
68— 74th J"
538 INDEX.
NEGLIGENCE. Negligence in railroads. Continued.
examining to see whether the brakes are in order, or examining to
see whether any person is on or about other cars on the same track
with which the one put in motion will necessarily collide, and if
injury results to one who is guilty of no negligence himself, the par-
ties putting the car in motion will be liable. Noble et al. v. Cunning-
ham, 51.
Of contributory and comparative negligence.
3. General rule. Where a party killed was guilty of contributory
negligence, his personal representative cannot recover unless the
neligence of the defendant contributing to cause the death, was gross,
in comparison with which the negligence of the intestate was slight.
Chicago, Turlington & Quincy Railroad Co. v. Van Patten, 91.
4. Contributory negligence on approaching a crossing. Where a per-
son is riding in a wagon drawn by a team under his control, and is
familiar with a railroad Crossing, and from the point where the wagon
road turns to cross the track, distant about four rods, an approaching
train is plainly visible for a distance sufficient to enable him to check
his team before crossing, and he does not look in the direction of the
approaching train, but keeps his head averted to an opposite direction,
and drives upon the track, where he is killed, he will be guilty of
contributory negligence. Ibid. 91.
5. Presumption as to care or negligence. In an action against a
railway for causing the death of a person through negligence, where
the proof clearly shows negligence on the part of the deceased, it is
error to instruct the jury that the law presumes that he exercised
proper care and caution on the occasion. If there was no proof of
his negligence, such an instruction might be proper. Ibid. 91.
6. Negligence in suffering stock to be at large. In an action by the
owner of stock against a railway company for killing the same, no
contributory negligence is chargeable to the owner in letting the
stock run at large when it breaks out of its pasture without his fault.
Toledo, Peoria & Warsaw Railway Co. v. Johnston, 83.
NEW TRIALS.
In ejectment under the statute.
1. When granted after the year. When a motion is made by a
party for a new trial, in open court, on the same day a judgment is
rendered in an ejectment suit, and he pays all the costs within two
days thereafter, and during the same term of court, he has done all
he is required to do to entitle him to a new trial under the statute,
and the court has power to vacate the judgment and award a new
trial in such case, even after the expiration of the period limited by
INDEX. 539
NEW TRIALS. In ejectment under the" statute. Continued.
the statute, and should do so at the request of the party. Stole etal.
v. Drury, 107.
Verdict against the evidence.
2. When the verdict of the jury in an action on the case for selling
intoxicating liquor to a minor is clearly against the weight of evidence
a new trial should be granted. Ehrich v. White, 481.
3. Duty of court beloic. A circuit judge who tries a case and sees
the witnesses on the stand, has superior opportunities of estimating
the value of the evidence, and the principal responsibility for the cor-
rectness of the verdict is upon him, and if the verdict is against the
weight of the evidence, it is his duty to award a new trial. Teutonia
Life Insurance Go. v. Beck, 165.
Excessive damages.
4. For expulsion of passenger from cars. In trespass against a
railway company for ejecting the plaintiff from a passenger coach
near a station, where no extreme violence was used, and no malici-
ousness or wanton recklessness was manifested, and the plaintiff was
not seriously and permanently injured, it was held that $2,500 dam-
ages, were excessive, and a new trial was awarded. Chicago, Rock
Island & Pacific Railroad Co. v. Riley, 70.
5. Personal injury from negligence on railroad. A verdict of $10,-
000 damages in favor of one severely injured by negligence of a rail-
way company, when the plaintiff was only a day laborer, and not
wholly disabled, and the negligence was not reckless, was held so
excessive as to justify the inference the jury were actuated by pre-
judice and passion, and should have been set aside. But a remittitur
of $6,000 having been entered, and judgment entered for $4,000, it
was held that this was not so excessive as to justify a reversal.
Illinois Central Railroad Co. v. Eoert, 399.
Newly discovered evidence.
6. When newly discovered evidence is merely cumulative, and
not of a decisive character, and the party has shown no diligence in
finding it before the trial, a new trial will not be granted. Bowers
v. The People, 418.
NUISANCE. See INJUNCTION, 6.
ORDINANCE.
Effect of exceeding authority.
May oe good in part. Even if a city ordinance prohibiting sale
of intoxicating liquors, embraces a class of sales which the city has
540 INDEX.
ORDINANCE. Effect of exceeding authority. Continued.
no power to prohibit, it may still be enforced as to such sales as the
city does possess the power to prohibit. Harbaugli v. City of Mon-
mouth, 367.
PARENT AND CHILD.
Right of child to recover of parent.
Services after majority. No principle is better settled than that
a son or daughter, after becoming of age, in the absence of a con-
tract, ban recover nothing for services rendered thereafter as a mem-
ber of the family ; and whatever the father may choose to give in
after years is nothing more than a mere gift. He is under no legal
obligation to make any recompense. Griffin et al. v. First National
Bank of Morrison, 259.
PARTNERSHIP.
Books as evidence on accounting.
1. Presumed to be correct. Partnership books of account are pre-
sumed to contain a true history of the business and a true record of
the transactions between the partners. In the absence of proof to
the contrary, reliance is properly placed on such books in stating the
partnership account. Stuart v. McKichan, 122.
Rights as between partners.
2. Credit for interest paid. Where one is taken as a partner in
a business on account of his financial credit, and to raise money to
prosecute the business, and he is credited by the book-keeper for the
interest paid by him in procuring loans, and the other partner, having
examined the books, makes no objection to such entries, they may
properly be allowed in stating the partnership account. Ibid. 122.
Application of partnership property.
3. First to the payment of firm debts, Where a merchant sells
an interest in his stock of goods to another who becomes a partner
in the business, debts contracted by the new firm must first be paid
out of goods afterward purchased before any portion of them can be
taken for debts of the former, and only his interest in such of the
old stock as remains on hand until levied upon, can be appropriated
to the payment of his prior debts. Hurlburt et al. v. Johnson et al.
64.
4. On a bill to subject partnership funds to the payment of partner-
ship debts, if it appears that any portion of the property on hand
had belonged to one of the partners before the formation of the part-
nership, and. was at that time put into the partnership business by
INDEX. 541
PARTNERSHIP. Application of partnership property. Continued.
him, his individual prior creditors will be entitled to have his interest
in such property as is still on hand, and can be identified, appro-
priated to the payment of executions against him, which have been
levied on the entire stock before the filing of the bill, but nothing
more. Ibid. 64.
PAUPERS.
Upon what town or county a charge.
1. A person who goes into a county or town and makes no arrange-
ment for a home, and who has no home or fixed actual residence, but
hires out and is employed by one or more persons, and so continues
for six months, and then becomes a pauper, comes within the second
class of persons named in the 15th section of the Pauper act of 1845,
and is a charge upon such town or county. Town of Bore v. Town
of Seneca, 101.
Residence.
2. Actual residence is determined by intention and acts, whilst
apparent residence consists of acts without intention coupled with
them. Ibid. 101.
3. A person being unmarried and employed away from his former
home, without any intention of returning, or of making the place
where employed his actual, fixed and permanent residence, has no
actual place of residence, but he has a residence at the place of such
employment within the meaning of section 15 of the Pauper law ol
1845. Ibid. 101.
Evidence to prove residence of pauper.
4. In a suit where the question is as to the place of residence of a
pauper, under the act of 1845, it is not improper to prove the state-
ments of the pauper as to where she considered her home previous to
the time she became a town charge. Ibid. 101.
5. Nor is it error in such case to prove what was said by the
brothers-in-law of the pauper, in reference to their making a bargain
for her wages witli those who employed her, as tending to show the
relation of the parties, and whether the brothers-in-law regarded
their houses as her home. Ibid. 101.
PAYMENT.
Application of payments.
1. A direction as to the application of a payment may be implied
from circumstances. An agreement before payment, or even the
expression of a wish on the part of the debtor as to how payment
542 INDEX.
PAYMENT. Application of payments. Continued.
shall be applied, will amount to a direction to that effect. Hansen et
al. v. Bounsavell, 238.
2. Where there is evidence tending to show a previous agreement
as to the application of payments, an instruction that if the debtor
gave no direction as to the application of certain payments, then the
creditor had the right to apply them on the oldest account due at the
time, is not so faulty as to justify a reversal. It would be better to
have used the word "agreement" than the word "instruction." Ibid.
238.
3. As to rights of surety. Where an obligor makes a general pay-
ment to his obligee, to whom he is indebted not only on a bond upon
which there is security, but otherwise, the surety of the obligor can-
not require that the payment shall be applied to the bond, unless
aided by circumstances which show that such application was in-
tended by the obligor. Ibid. 238.
Proof of payment.
4. Under the general issue. See PLEADING AND EVIDENCE, 3.
PLEADING.
Of the declaration.
1. In suit against devisee for debtor's debt. Where an action is
brought against an heir or devisee, under the statute, for the debt of
his ancestor or devisor, the facts authorizing such action must be dis-
tinctly set forth in the declaration. No recovery can be had under
the common counts for work and labor performed, etc. McLean v.
McBean, 134.
2. Interest recoverable without being claimed in the declaration. See
INTEREST, 3 .
Pleas.
3. Plea of failure of consideration — its requisites. A plea of total
failure of consideration must show all the elements entering into the
consideration, and a failure of each and every part of it distinctly
averred with as much precision as the allegations of a declaration.
Hough v. Gage, 257 .
4. A plea that the consideration of a note was the sale of an in-
terest in a certain patent right, which has wholly failed, the patent
being void, because the result therein claimed to be accomplished
could not be accomplished, is bad on demurrer as failing to show what
the result claimed to be accomplished was, and wherein it had failed,
Ibid. 257.
5. Plea to scire facias on recognizance. See SCIRE FACIAS, 1.
INDEX. 543
PLEADING. Continued.
EXPLICATION.
6. JDe injuria sufficient replication to plea of justification in trespass.
In an action by a married woman for trespass to her separate prop-
erty against an officer who levied upon it as the property of her hus-
band, and justifies under his writ, averring that the property belonged
to the husband, a replication de injuria is sufficient. Lincoln v. Mc-
Laughlin, 11.
Defective pleading after verdict.
7. Where the statements in a pleading, although imperfect and in-
sufficient in themselves, are yet of such a character as force the con-
clusion that all must have been proved on the trial, which ought to
have been stated in the pleading to procure the verdict, then the de-
fective pleading is aided by intendment after verdict, and the court
may render judgment. Heiman v. Schroeder, 158.
Variance between writ and declaration.
8. Must he pleaded in abatement. Sea ABATEMENT, 1.
PLEADING AND EVIDENCE.
Replication de injuria.
1. Proof as to abuse of authority by officer. Where a plea of justi-
fication to an action of trespass sets up that the supposed trespass
was committed under and by virtue of an execution against one
who owned an interest in the goods taken, if the defendant m execu-
tion had in fact no interest in the goods, a replication de injuria is
sufficient, but if he had some interest and the plaintiff desires to
rely upon an abuse of authority in making the levy, be should reply
specially setting up such abuse. Lincoln v. McLaughlin, 11.
2. Where a defendant, in an action of trespass for levying on
goods, justifies under an execution against the husband of plaintiff,
alleging that he owned the goods or an -interest in them, if the plain-
tiff replies de injuria, she takes' the hazard of proving title to the
goods wholly in her own self, and if she does so she must recover.
Ibid. 11.
Evidence under general issue.
3. Evidence tending to prove payment may be introduced under
the general issue. Kassing et al. v. International Bank, 16.
Admission by demurrer.
4. Obviating necessity of proof . By demurring to a pleading, such
as a replication, the part}7 admits the substantial facts alleged in the
pleading demurred to, and ro proof of them is necessary on a trial
upon other issues. Nispel et al. v. Laparle et al. 306.
544 INDEX.
PRACTICE.
EULES OF COURT.
1. Must conform to the statute. A circuit judge is absolutely power-
less to repeal or abrogate any provision of the statute by rule of
court. Hayward v. Ramsey, 379.
Bill of particulars.
2. What so considered. When the plaintiff, in a suit against a bank
for a balance of deposit, attaches to his affidavits the bank-book, con-
taining the entries made by the bank, and showing the balance due,
this will be a bill of particulars, notwithstanding its being sworn to,
so as to prevent a continuance. Bank of Chicago v. Hidl, 106.
Affidavit of merits.
3. By whom to be made. The statute does not require the affida-
vit accompanying the plaintiff's declaration to be made by the
plaintiff. If an affidavit is filed by any one showing the nature
of the plaintiff's demand and the amount due, the defendant is
required to file an affidavit of merits with his pleas. Ibid. 106.
4. Striking plea without affidavit from files. Where the statute
is complied with by the plaintiff, if the defendant files a plea with-
out affidavit of merits, it is proper to strike the same from the files.
Ibid. 106.
Filing additional pleas.
5. Discretionary toith the court. It is purely discretionary with
the court, whether to allow a defendant to file an additional plea
or not, after he has pleaded in bar to an action, unless it be a plea
puis darrein continuance, and it is not only no error for a court, to
refuse such leave after a jury has been impaneled to try the cause,
but it would be almost an abuse of discretion to grant it. Lincoln
v. McLaughlin, 11.
Special verdict.
6. Extent of the power of the court. If the court exercises its
discretion in instructing the jury to find specially in answer to cer-
tain interrogatories, its power is exhausted, and it is error to say
to them that if they are unable to answer interrogatories because
of the uncertainty of the evidence, they can so report. Chicago,
Burlington & Quincy Railroad Co. v. Van Patten, 91.
PRACTICE IN SUPREME COURT.
What may be assigned as error.
1 . The failure or refusal of a judge to sign a bill of exceptions can-
not be assigned for error, nor considered in the Supreme Court.
The remedy, where a judge wrongfully refuses to sign a bill of
exceptions, is by mandamus. Hnlett v. Ames, 253.
INDEX. 545
PRACTICE IN SUPREME COURT. Continued.
Of the argument.
2 . Gh'ound of alleged error should be stated. If a party desires to
urge a ground of reversal he should state the same in his opening
argument, so as to give the other party a chance to reply. But
if it* is specially assigned for error, this court cannot disregard it.
Purington et al. v . Akhurst, 490 .
Dismissal of appeal.
3. Unless pi'oper judgment be shown. Where the record does not
show any such judgment as the appeal professes to be taken from, the
appeal will be dismissed. Armstrong v. The People ex rel. 178.
Error will not always reverse.
4. Improper evidence. Even though evidence not strictly admis-
sible is introduced, yet if the court can see that such evidence could
not have misled the jury, and that their verdict is right, independent
of such evidence, the judgment will not be reversed. Teutonia Life
Insurance Co. v. Beck, 165.
5. Erroneous instructions. Where the right is so clearly with the
successful party that the result would have followed had the jury
been properly instructed, the judgment will not be reversed, but
where the right of the party is not clear, and there is error in the
instructions which may have influenced the jury, a reversal will be
had, and the cause remanded. Chicago, Burlington & Quincy Rail-
road Co. v. Van Patten, 91.
PRESCRIPTION.
Right to overflow land.
Row acquired. A right to overflow land, like easements in general,
may be acquired by an uninterrupted and adverse enjoyment for
twenty years, or for the period of time fixed by the statute of limita-
tions for the right of entry upon lands. Vail et al. v. Mix et al. 127.
PRESUMPTIONS.
Of law and fact.
1. Not adverse to proofs. Where there is clear proof of a fact, no
presumptions can be indulged except such as arise upon the proof.
Chicago, Burlington & Quincy Railroad Co. v. Van Patten, 91.
2. As to correctness of partnership books on settling partner £ accounts.
See PARTNERSHIP, 1.
3. As to negligence of plaintiff, in suit for alleged negligence of
defendant. See NEGLIGENCE, 5.
69— 74th III.
546 INDEX.
PROCESS.
Service and return.
In chancery cases. An indorsement of service of a chancery
summons, "executed by leaving copy with A, B, and C (the defend-
ants), this," etc., is sufficient to confer jurisdiction of the persons of
the defendants, its obvious meaning being that the officer delivered a
copy to each of the defendants . Whitman v . Fisher, 148.
PROMISSORY NOTES.
Payable on a contingency.
1. An instrument in writing for the payment of money six months
alter date, on condition its amount "is not provided for as agreed by
C D," not being payable absolutely and unconditionally, is not a
negotiable promissory note, and suit cannot be maintained on it in
the name of an assignee. Baird v. Underwood, 176.
By whom to be signed .
2. On condition that others should sign. The defendants, under
an agreement with the plaintiff, that they would sign their father's
note to the plaintiff as sureties, executed a note and delivered it to
the plaintiff, who agreed to get the signature of the father of the
defendants, who was to be the principal in the note. The plaintiff
never presented the note to defendants' father for his signature, nor
did the father ever sign it. Held, that as between the parties, the
note was not obligatory, not being signed by the father. Knight v.
Hurlbut et al. 133.
When executed by married woman.
3. Whether binding. See MARRIED WOMEN, 2.
PURCHASERS.
Who may become purchasers.
1 . Brother-in-law of agent. The fact that a purchaser of land is a
brother-in-law of an agent, even if the agent has power to sell, does
not imply that confidence as to preclude him from becoming the pur-
chaser of land, and much less so when the power of the agent is sim-
ply advisory. Walker v. Garrington et al. 446.
2. When agent selling 'property may afterward buy. See AGENCY, 4.
Reversal of decree.
3. Effect on rights of purchaser . The reversal of a decree con-
struing a will as authorizing the executor to sell and convey land at
private sale, for mere error in the proceedings, will not avoid a sale
made by the executor to a bona fide purchaser for value, this court
rendering the decree having jurisdiction of the subject-matter and of
the persons of those interested. Whitman v. Fisher, 147.
INDEX. 547
PURCHASERS. Continued.
As TO APPLICATION OF PURCHASE MONEY.
4. On sale by executor — purchaser need not look to it. Where power
is given by will to executors to sell real estate to raise funds with
which to pay legacies, as the legatees become of age, a sale and con-
veyance made after one of them arrives at majority, being in the
due execution of the trust created, will be valid, even though the
proceeds are applied in the payment of the testator's debts. The
purchaser is not required to see to the proper application of the pur-
chase money. Ibid. 147.
Right of purchaser to possession.
5. Under contract of purchase. See VENDOR AND PUR-
CHASER, 1, 2, 3.
RAILROADS.
Care required as to excavations.
1. To keep them free from water or ice. The law does not require
a railway company to keep the excavations along the sides of its
track free from water and ice, and it will not be liable for stock
killed in consequence of ice therein, so as to prevent escape from the
track, over the same. Peoria & Rock Island Railway Co. v. McClen-
ahan, 435.
Power to agent.
2. To bind the company. See AG-ENCY, 1, 2.
Liability for negligence.
3. Generally. See NEGLIGENCE, 1 to 6.
RECOGNIZANCE.
Of its validity.
1. Does not depend upon the original charge being the one for which
the indictment is found. It matters not whether the principal in a
recognizance was examined on the charge for which he is indicted or
some other, provided it was for a bailable offense. If examined for
any offense which is bailable, the recognizance will be good. The
People v. Meacham, 292.
2. Certificate of justice. The certificate of a justice of the peace to
a recognizance that it was taken, entered into and acknowledged
before him is sufficient. Ibid. 292.
RECOUPMENT.
As between vendor and purchaser.
In a suit by a purchaser of land, under a verbal contract which has
been terminated at the option of either party, to recover payments
t>4:8 INDEX.
RECOUPMENT. As between vendor and purchaser. Continued.
made on such contract, the vendor may recoup the value of the use
and occupation of the land, if it has been occupied by the purchaser,
unless he has been compelled by law to pay the same to the owner
of a paramount title. Collins et al. v. Thayer, 138.
RELEASE OF ERRORS.
On confession of judgment. See JUDGMENT.
RES ADJUDICATA.
Decision of Supreme Court.
When case again comes before it. When on error to this court cer-
tain facts are found from the evidence, and the cause reversed, and
remanded merely to supply proof of a particular fact, the facts found
by this court must be regarded as settled and not open to be ques-
tioned on a second writ of error. Tuitle v. Garrett et al. 444.
RESIDENCE.
Under the pauper act. See PAUPERS, 2 to 5.
REVERSAL OF DECREE.
Effect upon rights of purchaser. See PURCHASERS, 3.
RIGHT OF WAY.
Award of execution.
For damages assessed. Where the verdict of a jury, on an appeal
in a case of assessment of damages for land condemned by a railroad
company, finds that the land has been taken by the company, and
not merely that it is proposed to be taken, it is proper to award ex-
ecution on the judgment. Peoria & Rock Island Railway Co. v.
Mitchell, 394.
RULES OF COURT.
Must conform to the statute. See PRACTICE, 1.
SALES.
Mistake as to price.
1. Its effect on the contract. Where there is a mutual mistake in
regard to the price of an article of property, there ,-s no sale and
neither party is bound. There has been no meeting of the minds of
the contracting parties, and hence there can be no sale. Ruptey et al.
v. Daggett, 351 .
2. Thus, where the owner of a mare asked $165 for her, and the
purchaser understood the price asked to be $65, and took her home
INDEX. 549
SALES. Mistake as to price. Continued.
with him and refused to pay more than the latter-named sum, there
being a clear misunderstanding between the parties, it was held that
there was no sale, and consequently no title passed. Ibid. 351.
SCIRE FACIAS.
On recognizance.
1. Plea denying official character of justice. In a scire facias
upon a recognizance, a plea that the committing magistrate was not
a justice of the peace amounts to nothing. By entering into the
recognizance, the cognizor admits the official character of the person
making the commitment, which cannot be inquired into collaterally.
The People v. Meacham, 292.
Burden of proof.
2 . To show death of principal in recognizance. On a plea of the
death of the principal in a recognizance, the burden of proof rests
upon the defendant. Ibid. 292.
Sufficiency of proof.
On plea of nul tiel record to a scire facias upon a forfeited recogni-
zance, if the recognizance, with the certificate of the magistrate at-
tached and the indorsements on it, together with the indictment, and
the record of its return into court, and the judgment declaring a for-
feiture, are read without any specific objections, this will sustain the
issue on the part of the people. Ibid. 292 .
SELF-DEFENSE. See CRIMINAL LAW, 7, 8.
SET-OFF.
Whether allowable.
1. Claim against factor in suit for goods bought of him. Where a
factor or agent has the property of another in his possession, and a
person not having notice or chargeable with notice purchases
the property, supposing it to belong to the factor, the purchaser may
set off a claim he has against the agent. Stinson v. Gould et al. 80.
2. But where the property sold is not in the possession of the
agent when sold, or if the purchaser has notice or is chargeable with
notice that the person selling is not the owner of the property, then
he cannot set off any claim he may have against the agent. Ibid. 80.
3. Of joint claim against factors and others in suit for goods sold by
factor. Although a purchaser of property in the hands of a factor,
supposed by the purchaser to be the owner, may set off any claim he
may have against such factor, in a suit by the owner of the goods for
the purchase money, yet he cannot set off any claim he may have
against such factor and other parties jointly. Ibid. 80.
550 INDEX.
STATUTES.
Of the passage of laws.
1. As to the title and change in the same. Unless a change in the
title to a bill in the two houses concurring in its passage is one of sub-
stance, and calculated to mislead as to the subject of the bill, it may-
be regarded as a clerical mistake in nowise affecting the validity of
the law. Plummer v. The People, 361.
2. Where a bill passed the House entitled " a bill for an act to pre-
vent the keeping of common gaming houses," but when introduced
in the Senate it bore the title ua bill for an act to prevent the keep-
ing of common gaming houses and to prevent gaming," by which
title it passed that body and was reported back, enrolled and approved,
the body of the bill being identified in both houses, it was held that
the change in the title did not render the act void. Ibid. 361.
3. Title need not express, necessary results. The constitutional re-
quirement in respect to the passage of bills is not, that but one sub-
ject shall be expressed in the title, but that the act shall embrace but
one subject, which shall be expressed in the title. It is not necessary
to express in the title the incidental results expected to flow from the
act, but if it does,. it will not render the act void. Ibid. 361.
Construction of statutes.
4. If any part of a statute be intricate, obscure or doubtful, the
proper way to discover the intention is to consider the other parts of
the act, for the meaning of one part of a statute frequently leads to
the sense of another ; so that in the construction of one part of a
statute every other part ought to be taken into consideration. Biggs
et al. v. Olapp et al. 335.
Statutes construed.
5. The provision in the statute relating to mills and millers, which
prohibits the erection of a dam, etc., which will injure the health of
the neighborhood by the overflow of lands, has application only to
proceedings had under that statute, and does not apply on bill for
injunction to prevent the repair of a dam, long before erected. Vail
et al. v. Mix et al. 127 '.
6. Curing errors and informalities in assessment for taxation. See
TAXES AND TAXATION, 7.
STATUTE OF FRAUDS.
Parol sale of land.
1. Who may avail of the statute. The vendor of land, under a
verbal contract for the sale of real estate, may terminate it and re-
cover possession of the land, or the purchaser may terminate it and
recover payments he may have made, and this, too, without per-
INDEX. 551
STATUTE OF FRAUDS. Parol sale of land. Continued.
formance or an offer to perform the contract. Collins et al. v. Thayer,
138.
SURETY.
Contracts strictly construed.
1. The contract of a surety is construed strictly and his liability
will not be extended by implication. The People v. Tompkins et al.
482.
Sureties on grain inspector's bond.
2. The sureties of a chief inspector of grain in a city, appointed
under the " act to regulate public warehouses and the warehousing
and inspection of grain, and to give effect to article thirteen of the
constitution of this State," are not responsible for moneys collected
by him for inspection in a suit upon his bond, where the duty of col-
lecting and taking care of such fund is not imposed on him before the
execution of his bond. Ibid. 482.
Indemnity to surety.
3. His right under deed of trust given to indemnify him. Where a
surety on a note deposits with the holder a deed of trust executed by
the principal to indemnify him against his liability as surety, and
afterward, upon proceedings in bankruptcy against him, compromises
with the holder by giving other notes for a less amount, with personal
security, or in discharge from his liability on the original note, he will
be entitled to have the proceeds of a sale under the deed of trust ap-
plied to the payment of the notes so given in discharge of the origi-
nal note. Kassing et al. v. International Bank, 16.
SURGEON.
Liability for malpractice.
1. Shortening of fractured limb. Where a fractured limb is short-
ened by reason of the want of extension at the proper time, and the
extension of the limb could not well and safely be effected, nor the
means and appliances for that purpose be safely used before what is
called the bony union commenced, and the defendant surgeon treating
the case was discharged before such bony union, under proper treat-
ment, would and did commence, and another surgeon was employed,
it was held that the defendant was not liable in an action for the in-
jury, there being no other charge of unskillful treatment on his part.
Kendall v. Brown, 232.
Defining the care required.
2. There is no substantial difference in the use of the words " ordin-
ary " and "reasonable" in defining the care and skill required of a
surgeon or physician in his employment. Ibid. 232.
552 INDEX.
TAXES AND TAXATION.
Municipal taxation.
1. Constitutional limitations. Under the constitution of 1848, as
well as that of 1870, the legislature is prohibited from authorizing the
corporate authorities of counties, townships, school districts, cities,
towns and villages to assess and collect taxes for any other than cor-
porate purposes; and it is indispensable to the validity of all taxes
levied and collected for corporate purposes, that they shall be uniform
in respect to persons and property within the jurisdiction of the body
imposing the same. Sleight et at. v. The People, for use, etc. 47.
2. What is a " corporate purpose." A tax imposed for the payment
of a debt not incurred by the authority imposing the tax, and for the
payment of which it is in nowise responsible, is not for a corporate
purpose. Ibid. 47.
3. Devoting county taxes and township taxes to the payment of debt
of a particular town. A section in a railway charter provided that
the taxes to be collected from the company for county and township
purposes by the several counties and townships through which the
railroad ran, should be set apart by the county treasurer as a sinking
fund to redeem the principal of the bonds issued by any township or
townships in such county. It was claimed that the county taxes and
the township taxes levied upon the railroad by two townships, which
had issued no bonds, should have been set apart to create a sinking-
fund for two townships which had issued railroad bonds, but the
court held that this could not be constitutionally done, as its effect was
to devote taxes levied for county and township purposes to the pay-
ment of the debt of the townships which had issued their bonds, and
to that extent increased the taxes in the county and the other two
townships to make up the deficiency thus caused in their revenue,
and therefore the law was unconstitutional and void. Ibid. 47.
Application for judgment.
4. Strict construction of the statute. In summary proceedings to
divest owners of title to their property, the law under which the same
is sought is to be strictly construed, aud nothing is allowed to be
taken by intendment merely. This rule applies on application for
judgment against real estate for taxes and assessments due thereon.
People ex rel. v. Otis, 384.
5. Report by collector, of delinquent list, as a pre-requisite to juris-
diction. Under the city tax act of 1873, the county collector, in
applying for judgment against real estate for unpaid taxes or special
assessments, must make a report of the delinquent list, verified by his
affidavit, the same as under the general revenue law, and if sucn
553
TAXES AND TAXATION. Application for judgment
report and affidavit are substantially defective, or different from that
required, the court will acquire no jurisdiction to render judgment.
Ibid. 384.
6. Sufficiency of collector's affidavit. An affidavit of a county col-
lector, on application for judgment against delinquent lands and lots,
that his report shows a complete list, etc., " as shown by the returns
made by the city collector," to him, all of which taxes and special
assessments he has been ''unable to collect for want of authority of
law," is materially different from the one required by law, and the
court will acquire no jurisdiction to render judgment. Ibid. 384.
7. As to substantial requirements, and mere errors and informalities.
The 191st section of the revenue law, as amended by the act, ap-
proved May 30, 1873, authorizing amendments and obviating the
effect of omissions, errors, etc., cannot be held to waive a substantial
compliance with those steps which are essential to give jurisdiction.
It aids and obviates defects of form, but not of substance. The People
ex rel. v. Otis, 384.
8. The statement of the valuation of the property upon which a
tax is extended, in the collector's report on return, and the oath or
affidavit required to accompany it, are substantial requirements. Ibid.
384.
9. Of the notice and certificate of publication. A certificate of the
publisher printed at the conclusion of the list of delinquent lands,
and as a continuation of the same advertisement, without any sepa-
rate certificate made since the publication, is insufficient to give the
court jurisdiction to render judgment against lands for taxes. Se-
nichka v. Lowe, 272.
TELEGRAPHY.
AS TO UNREPEALED MESSAGES.
1 . Exemption from liability for mistakes. The usual regulations
exempting telegraph companies from liability for errors in unrepeated
messages, exempts them only for errors arising from causes beyond
their own control. Western Union Telegraph Co. v. Tyler et al. 168.
2. Requirements on blanks, no contract. The regulation requiring
messages to be repeated, printed on the blank on which a message is
written, is not a contract binding in law, as the duty arises to send
the same correctly upon payment of the charge required. Such regu-
lation is void for want of consideration, and as being against public
policy. Ibid. 168.
70— 74th 111.
554 INDEX.
TELEGRAPHY. Continued.
Burden ov proof.
3. To explain inaccuracy in transmission. Where the inaccuracy
in the transmission of a message is proved, the onus of relieving the
telegraph company sending the same, from the presumption of negli-
gence thereby raised, rests upon the company, by showing that the
error was caused by some agency for which it is not liable. Ibid. 168.
TRESPASS.
When the action will lie.
1. Trespass is a possessory action, and the plaintiff must, at the
time the injury is committed, have an actual or constructive pos-
session as well as a general or special property in the chattel injured,
carried away or destroyed, in order to maintain the action ; and
though the possession be tortious, yet trespass lies against a stranger
who divests such possession. Scott v . Bryson, 420.
2. In trespass to personal property, the plaintiff must show that
when the injury was committed he had an actual or constructive
possession of the goods, and also a general or qualified title therein;
but it is well settled that actual possession, though without the con-
sent of the real owner, or even adverse to him, will be sufficient, as
against a wrong-doer, or one who can show no better title . Miller
etal. v. Kirby, 242.
3 . If one gives a deed of trust upon goods to secure the pay-
ment of money, and it is provided therein that he shall have full
right to carry on the business of the store in his own name, make
sales and receive the proceeds, and have the management of the
business, such party, being in the actual possession, can maintain
trespass for the taking of any of the property, although the trustee
also may have had a constructive possession for the purpose of see-
ing that the proceeds of the sales were applied on the debt. Ibid.
242.
4. To make one liable for a trespass committed by his direction, the
place at which the direction was given is unimportant. It is not
necessary it should be given at the place where the trespass wag
committed. Bower et al. v. Bell, 223.
VARIANCE.
Between writ and declaration.
Must be pleaded in abatement. See ABATEMENT, 1.
VENDOR'S LIEN. See LIENS, 14.
555
VENDOR AND PURCHASER.
AS TO POSSESSION OF PURCHASER.
1 . Or of one by his permission. Where land is sold and in posses-
sion under a contract to convey upon the payment of the purchase
money, executed, and the purchaser let into possession, the purchaser
is in equity the owner, subject only to the lien of the seller for the
unpaid purchase money, and has a right to the free use and enjoy-
ment of the rents, issues and profits, so long as he. is not in default
under the contract. Baldwin et al. v. Pool, 97.
2. A vendor of land having let a purchaser into possession under
a contract to convey, cannot interfere with one having a privilege
from such purchaser in the enjoyment thereof, where there is no
default under the contract of purchase, and no lessening of the secu-
rity for the purchase money occasioned thereby. Ibid. 97.
3. As to right of possession. A contract or bond for the future con-
veyance of land does not of itself necessarily imply that the present
possession shall pass. It may pass by the express terms of such con-
tract, but in the absence of appropriate language to indicate such
intention, the right of possession remains with the legal title. Kelley
v. Trumble, 428.
VENUE.
Change of venue.
Right lost by delay. An application for a change of venue
should be made at the earliest opportunity, and where a party, know-
ing all the time of the ground relied upon for a change of venue,
delays making his motion until toward the latter end of the term of
court, and no reason is shown why the motion was not made on the
first day of the term, a change of venue will not be granted. Peoria
& Bock Island Railway Co. v. Mitchell, 394.
VERDICT.
Special verdict. See PRACTICE, 6.
WILLS.
Of the signing by the testator.
1. The statute does not require that a will should be signed in the
presence of two or more credible witnesses. It is sufficient if two
attesting witnesses heard the testator acknowledge that he signed it.
Toe v. Mb Cord, 33.
Of the attestation.
2. In the presence of the testator. If the witnesses to a will, while
signing their names thereto, as such witnesses, are in such a place that
556 INDEX.
WILLS. Of the attestation. Continued.
the testator can see them if he chooses, they are to be regarded as in
his presence, within the meaning of the statute; and it is not necessary
that they shall be in the same room with the testator, or that he shall
actually see them sign. Awbree v. Weishaar, 109.
3. Where a will was drawn and witnesses sent for at the request of
a testator, and after signing by him at his request, the witnesses went
from the bedroom where he was, into a dining-room to attest the
same, on account of the want of conveniences for doing so in the
bedroom, and he knew that the attestation was going on in the dining-
room, and approved it, and from the position he occupied in the bed
could have seen the witnesses while signing. Held, that the will was
attested in the presence of the testator. Ibid. 109.
Sound mind and memory.
4. If the testator's mind is sound, although his memory may be
impaired, he is of sound mind and memory, in the sense which the
phrase is used in law, and, in order to destroy the capacity of a per-
son to make a will on account of failure of memory, the failure must
be total or extend to his immediate family and property. Yoe v. Mc-
Cord, 33.
5. If the mind and memory of a testator are sufficiently sound to
enable him to know and understand the business in which he is en-
gaged at the time of executing his will, then he is of sound mind
and memory within the meaning of the law. Ibid. 33.
6. On the trial of the question as to whether a will shall be ad-
mitted to probate, an instruction that if the jury believe, from the
testimony of the subscribing witnesses, that the testator was of un-
sound mind or memory, they should find against the will, makes an
unwarrantable distinction between " sound mind " and " sound mem-
ory," calculated to mislead the jury, and should not be given. Ibid.
33.
Testamentary capacity.
7. Instruction to jury should oe general. The question as to the
capacity of a testator, when submitted to a jury, should be, had he
the capacity to make a will, not had he the capacity to make the will
produced. Ibid. 33.
Undue influence over testator.
8. Implies something wrongful. It is not unlawful for one by hon-
est advice or persuasion to induce a testator to make a will or influ-
ence the disposition of his property by will. To vitiate a will on
account of undue influence it must appear that there was something
wrongful, a species of fraud perpetrated. Ibid. 33.
index. 557
WILLS. Continued.
Proof on probate of will.
9. The statute requires a party producing a will for admission to
probate in the county court, to prove nothing but its formal execu-
tion, and that the testator was of sound mind and memory at the
time of its execution. Ibid. 33.
10. An instruction that signing and acknowledging a will is not
sufficient to entitle it to probate, but that it must further appear that
it was the actual deed of the testator, requires more than the statute,
and is for that reason wrong. Ibid. 33.
11. It is not necessary that a subscribing witness to a will should
state on oath in so many words, that he believed the testator to be
of sound mind and memory. It is sufficient if he so declares in legal
effect. Ibid. 33.
WITNESS.
Credibility.
1. An instruction may he based on statements made out of court
Where a party as a witness has made statements out of court differ-
ent from those on the stand, an instruction that if he had been suc-
cessfully impeached, or had willfully sworn falsely as to any matter
or thing material to the issue, then the jury might disregard his entire
evidence, unless corroborated by other unimpeached testimony, is not
erroneous, as it is for the jury to say what statements amount to as
grounds of impeachment. Bowers v. The People, 418.
2. Rule for judging weight of testimony. In weighing the evidence,
it is the duty of the jury to take into consideration the deportment
of the witnesses while testifying, as well as any interest they may
have in the result of the suit, and it is not error to instruct them tc
consider these facts. Ibid. 418.
In criminal case.
3. Not on indictment. On the trial of one for crime, the court, in
the exercise of a sound discretion, may allow a witness whose name
is not indorsed on the indictment to be sworn and testify for the
prosecution, though his name has not been furnished the defendant
before arraignment. Smith v. The People, 144.
WRITS OF ERROR. See APPEALS AND WRITS OF ERROR.
TABLE OF UNREPORTED CASES
SUBMITTED AT THE SEPTEMBER TERM, 1874.
Adams et al. v. The People ex rel. Rumsey. Appeal from the Circuit Court
of Cook county. Opinion Per Curiam. Judgment reversed.
Aiken v. Rumsey. Appeal from the Circuit Court of Cook county
Opinion Per Curiam. Decree affirmed.
Appleby v. Munson et al. Appeal from the Superior Court of Cook
county. Opinion Per Curiam. Judgment reversed.
Bailey et al. v. Seymour et al. Appeal from the Superior Court of Cook
county. Opinion ?er Curiam. Decree affirmed.
Barker v. Rumsey. Appeal from the Circuit Court of Cook county.
Opinion Per Curiam. Decree affirmed.
Bowen et al. v. Rumsey. Appeal from the Circuit Court of Cook county.
Opinion Per Curiam. Decree affirmed.
Burke v. Gifford. Appeal from the Circuit Court of Cook county. Opinion
by Scott, J. Decree affirmed.
Chicago City Railway Co. v. Howison et al. Appeal from the Circuit Court
of Cook county. Opinion by Scott, J. Decree reversed.
Chubley et al. v Van Allen. Appeal from the Superior Court of Cook
county. Opinion Per Curiam. Judgment affirmed.
Colehour v. Rumsey. Appeal from the Circuit Court of Cook county.
Opinion Per Curiam. Decree affirmed.
Cooley v. Rumsey. Appeal from the Circuit Court of Cook county. Opin
ion Per Curiam. Decree affirmed.
Cushman v. Thomas. Appeal from the Circuit Court of La Salle county.
Opinion Per Curiam. Judgment affirmed.
Downey v. Carter. Appeal from the Superior Court of Cook county.
Opinion Per Curiam. Judgment reversed.
Durham et al. v. Dunn et al. Appeal from the Circuit Court of Kankakee
county. Opinion by Scott, J. Judgment affirmed.
Dyche v. Rumsey. Appeal from the Circuit Court of Cook county. Opin-
ion Per Curiam. Judgment affirmed.
Ellis v. Rumsey. Appeal from the Circuit Court of Cook county. Opin
ion Per Curiam. Decree affirmed.
560 UNREPORTED CASES.
Emerson v. Rumsey. Appeal from the Circuit Court of u Cook county.
Opinion Per Curiam. Decree affirmed.
Follansbee v. The People ex rel. Rumsey. Appeal from the Circuit Court of
Cook county, Opinion Per Curiam. Judgment reversed.
Gardiner v. Hall. Appeal from the Circuit Court of Winnebago county.
Opinion by Sheldon, J. Judgment affirmed.
Oaylord et al. v. Chicago and Alton R. R. Co. Writ op Error to the Cir-
cuit Court of Will county. Opinion by Scott, J. Decree affirmed.
Harmon v. The People ex rel. Rumsey. Writ op Error to the Circuit
Court of Cook county. Opinion Per Curiam. Judgment reversed.
Harmon v. Rumsey. Appeal from the Circuit Court of Cook county.
Opinion Per Curiam. Decree affirmed.
Henderson v. Rumsey. Appeal from the Circuit Court of Cook county.
Opinion Per Curiam. Decree affirmed.
Herrmann v. Bernhard. Appeal from the Superior Court of Cook county.
Opinion Per Curiam. " Judgment reversed.
Hoyt v. Rumsey. Appeal from the Circuit Court of Cook county. Opin-
ion Per Curiam. Decree affirmed.
Kretsinger et al. v. The People ex rel. Rumsey. Appeal from the Circuit
Court of Cook county. Opinion Per Curiam. Judgment reversed.
Loch v. Nichols et al. Appeal from the Circuit Court of Livingston county.
Opinion by Sheldon, J. Judgment affirmed.
Leonard v. Easterbrook et al. Appeal from the Superior Court of Cook
county. Opinion by Sheldon, J. Judgment affirmed.
Loberg v. Olson. Appeal from the Circuit Court of Cook county. Opin-
ion by Scott, J. Judgment affirmed.
Moore v. Rumsey. Appeal from the Circuit Court of Cook county. Opin-
ion Per Curiam. Decree affirmed.
Oneida, City of, v. Voris et al. Appeal from the Circuit Court of Knox
county. Opinion Per Curiam. Judgment reversed.
The following seventeen cases were appeals from the County Court of
Cook county. Opinions Per Curiam, and judgments affirmed.
People ex rel. Miller v. Allen.
v. Armstrong.
v. Beebe.
v. Clark et al.
v. Cooper,
v. Oilmore et al.
v. Haaf.
v. Hardin.
v. Jarrett.
UNREPORTED OASES. 561
People ex rel. Miller v. Laflin et al.
v. Peacock.
v. Pittsburg, Fort Wayne and Chicago Railway Go. et al.
v. Smith.
v. Sweet et al.
v. Waite.
v. Wright.
Ragor v. Fisher. Appeal from the Circuit Court of Cook county. Opinion
Per Curiam. Judgment affirmed.
Ralph et al. v. Trustees of Schools. Appeal from the Superior Court of
Cook county. Opinion Per Curiam. Judgment reversed.
Rockford, Rock Island and St. Louis R. R. Co. v. Sail. Appeal from the
Circuit Court of Knox county. Opinion by Walker, C. J.
Judgment affirmed.
Robinson et al v. Russell. Appeal from the Superior Court of Cook county.
Opinion Per Curiam. Judgment reversed.
Swett et al. v. Clark et al. Appeal from the Superior Court of Cook county.
Opinion Per Curiam. Judgment reversed.
Taylor v. Rumsey. Appeal from the Circuit Court of Cook county.
Opinion Per Curiam. Decree affirmed.
Tolman et al. v. Daniels et al. Appeal from the Circuit Court of Du Page
county. Opinion Per Curiam. Judgment affirmed.
Yolk r. The People ex rel. Rumsey. Appeal from the Circuit Court of
Cook county. Opinion Per Curiam. Judgment reversed.
Walker v. Harris. Appeal from the Superior Court of Cook county.
Opinion Per Curiam. Judgment reversed.
Walker v. The People ex rel. Rumsey. Appeal from the Circuit Court of
Cook county. Opinion Per Curiam. Judgment reversed.
White v. The People ex rel. Rumsey. Appeal from the Circuit Court of
Cook county. Opinion Per Curiam. Judgment reversed.
Wilder v. Bouton et al. Appeal from the Superior Court of Cook county.
Opinion Per Curiam. Judgment affirmed.
71 — 74th III.
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