author: Oasey, J.

text:
    A. R. Colborn et al. v. Samuel P. Barton.
    Replevin — Affidavit—Amendment.—Where an affidavit in an action of replevin was made by A as agent of appellant, and a motion to quash the writ of replevin was entered by appellee because the affidavit was insufficient, not containing the statutory requirements that the property in question was not held by virtue of any writ of replevin against the plaintiff, and a cross-motion was made for leave to file an amended affidavit which was granted, and such amended affidavit was sworn to by B as agent of appellant. Held, that the right to amend was undeniable, and it was immaterial whether the amended affidavit was made by the same agent malting the original affidavit or not.
    Appeal from the County Court of Lawrence county; the Hon. Phillip W. Babnes, Judge, presiding.
    Opinion filed October 10, 1883.
    Mr. William Robinson and Messrs. Bell & Green, for appellant.
    Mr. Ed. S. Wilson and Messrs. Huffman & Meserve, for appellee.
   Oasey, J.

Appellant sued appellee in an action of replevin in the County Court of Lawrence county. The affidavit in replevin was made by George R. Young, as agent of appellant. At the trial term of the court a motion was entered by the attorneys of appellee to quash the writ of replevin because the affidavit was insufficient.

The objection to the affidavit was that it did not contain the statutory requirement that the property in question was not held by virtue of any writ of replevin against the plaintiff.

A cross-motion was made on the part of appellant for leave to file an amended affidavit. The cross-motion was allowed, and an amended affidavit, sworn to by William Robinson as the agent and attorney of appellant, was filed. The motion to quash the writ for want of a sufficient affidavit was refiled and was sustained by the court and the suit dismissed. The court proceeded to hear evidence, and entered a judgment against the plaintiff for the sum of three hundred and seventy-five dollars damages for wrongfully suing out the writ of replevin.

To the rulings of the court, appellant excepted and the case is brought to this court by appeal.

The errors assigned are:

First. That the court erred in sustaining the motion to quash the writ of replevin and dismiss the suit.

Second. The court erred in assessing the defendant’s damages at the sum of three hundred and seventy-five dollars, and in rendering judgment against the plaintiff for that sum.

No objection is made to the form of the amended.affidavit, and we find upon an examination that it is a substantial compliance with the statute. The first affidavit was made by George R. Young as agent of appellant — the amended affidavit was made by William Robinson as the agent and attorney of appellant. We see no reason why the amended affidavit was not properly made by a different agent.

The statute provides that the affidavit may be made by an agent, as it was in this case, and it is entirely, immaterial whether the amended affidavit was made by the same agent making the original affidavit, so that it was a compliance with the statute, and as we have said, no formal objections are made to the affidavit.

In replevin, amendments are permitted as in other actions at law. And by the 24th section of the Practice Act very great latitude is given on the subject of amendments. We think, therefore, that the right to amend was undeniable, and it was immaterial which of the agents filed the amended affidavit.

This disposes of the whole case, so that it is not necessary to discuss the second error assigned.

The judgment of the county court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Wall, P. J.

license: Public Domain

text:
    A. F. Aten et al. v. John Brown et al.
    1. Actions ex contractu — Joint recovery. — In an action ex contractu against several defendants, the plaintiff must recover against all the defendants or none, except where a defense is interposed personal to the party making it — as infancy, coverture, lunacy, bankruptcy, and the like.
    2. Personal defense. — A defense, in an action on a note, that certain parties who had with others signed the note had been discharged, by arrangement of all parties, from their liability upon the note, and that as this occurred subsequently to the making of the note, it might be shown byway of defense without affecting the liability of their co-defendants, can not be regarded as a “personal ” defense.
    3. Joint contractors — Release of some — Pleading.—Ordinarily, where one of several joint contractors is released all are released; but where, by mutual understanding of the parties, some shall be discharged and the others held for another period, the old contract no longer exists, and the liability of the parties should be alleged according to the present effect and condition of the contract.
    Appeal 'from the Circuit Court of Jasper county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed October 10, 1883.
    Mr. J. M. Honey and Mr. D. Trexler, for appellants;
    that the court erred in rendering judgment against two when four were sued, cited Davison v. Hill, 1 Bradwell, 72; Griffith v. Furry, 30 Ill. 255; C. & St. L. R. R. Co. v. Easterly, 89 Ill. 158; Felsenthal v. Durand, 86 Ill. 232; Faulk v. Kellums, 54 Ill. 191; Gould v. Sternburg, 69 Ill. 532.
    Messrs. Gibson & Johnson, for appellee;
    that the judgment must be against all or none, unless a personal defense is established as to one or more of the defendants, cited Byers v. Bank, 85 Ill. 425; 1 Chittyon Pl. 44.
   Wall, P. J.

Brown brought an action of assumpsit against Jourdan, Ross, Aten and Henderson, declaring upon a promissory note made by the defendants jointly. The decíaration contained common counts also, but no proof was offered under them, and the case must be considered solely with reference to the cause of action alleged in the special counts.

Pleas were filed by Aten and Henderson jointly, and by Jourdan and Eoss jointly, and the case was tried by jury, resulting in a verdict for the plaintiff as to defendants Aten and Henderson, and against the plaintiff as to the defendants Jourdan and Eoss.

A motion for a new trial, interposed on behalf of Aten and Henderson, was overruled, and judgment was rendered against them and in favor of plaintiff on the verdict. The defendants Jourdan and Eoss were discharged with costs.

On the trial, plaintiff offered in evidence a note of the date and amount described in the declaration, which had been signed originally by Gr. "W. Nichols, D. E. Eobuck, and the four defendants, but the names of the defendants Jourdan and Eoss had been erased; and plaintiff also offered evidence tending to prove that Nichols was the principal maker and the other signers were his sureties; that he was unable to pay in full when the note came due; that by mutual arrangement the names of Jourdan and Eoss were erased for the purpose of discharging them, and that Aten and Henderson, by a written agreement, consented to remain liable on the note another year; After making this proof, the plaintiff was permitted to read this note to the jury, against the objections of Aten and Henderson that it was not the instrument set out in the declaration.

If the plaintiff’s theory of the proof was correct, it must be apparent that the instrument offered was not the one declared upon, for the legal effect of the transaction disclosed by the evidence was to cancel the contract originally made, and substitute for it another upon which Nichols and Aten and Henderson only were liable and which was to run another year.

This was not admissible under the declaration and against the parties to the suit as it was then constituted. The plaintiff might have amended his declaration and dismissed his suit as to the defendants Jourdan and Eoss by leave of the court and upon such terms as the court might have prescribed, but this was not done.

It is a well known universal rule that in actions ex contractu the plaintiff must recover against all the defendants or none unless where a defense is interposed personal to the party who is making it, as infancy, coverture, lunacy, bankruptcy and the like. It is urged that defendants Jonrdan and Boss had a personal defense, to wit, that they had been discharged by arrangement of all parties from their liability upon the note, and that as this occurred subsequently to the making of the note, it might be shown by way of defense as to them without affecting the liability of their co-defendants, Aten and Henderson, against whom judgment might go. °

W e have been referred to no definition of the term “ personal” as here used, but it will be found so far as we have examined the authorities that the expression “ such as infancy, • bankruptcy, coverture, lunacy and the like” is invariably used to illustrate the nature of the defense thus termed “personal.” Briggs v. Adams, 31 Ill. 486; Felsenthal v. Durand, 86 Ill. 232; Byers v. Bank, 85 Ill. 423.

Ordinarily, where one of several joint contractors^ released all are released, and it must be apparent that where this is not the case for any reason, and especially for the reason that by mutual understanding of the parties some shall be discharged and the others held for another period, a new contract may be said to exist, or at least the old contract does not exist, and that the liability of the parties should be alleged according to its present effect and'jcondition. It follows that it was not competent to admit under the declaration the proof which was offered against the objection of Aten and Henderson and that in admitting it an error was committed for which the judgment must be reversed and the cause remanded.

Beversed and remanded.


text:
    John A. Prickett v. Madison County.
    1. Statement. — A controversy arising out of transactions in connection with the issuing and exchange of new bonds of a county for old ones. Appellant, chairman of the board of supervisors, insisted that he had passed over to the county treasurer bonds to the amount of $803,000, while the treasurer insisted that he had received no more than the receipts called for, namely, $301,000. The matter was made the subject of investigation by the board, and appellant being unable to produce the receipt, the board demanding the deficit should be made good by the treasurer or appellant, the latter, having nothing but his own memorandum to sustain him, finally paid the amount in dispute to the county. Subsequently appellant round, as he claimed, the missing receipt, and brought this action to recover back the money paid to the county.
    2. Evidence — Receipt mat be contradicted by oral testimony. —A receipt, so far as it goes only to acknowledge payment of money or delivery of property, is merely prima facie evidence of the fact, and not conclusive, and therefore the fact recited by it may be contradicted by oral testimony. It was competent for appellant, in narrating the whole transaction, to refer to the receipts, to say that such receipts were given, what was done with them, and, without attempting to recite their contents, to testify independently of them to facts of payment or delivery which they might show if produced.
    3. Admissions oe agent — When part oe the res gest^:. — Where the acts of the agent will bind the principal, the agent’s representations, declarations and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting part of the res gestee. Where the court excluded a certain written statement in the form of a memorandum, showing the amount of new bonds received by the treasurer and old ones turned over to the clerk, made by the treasurer while still in office, though not signed and sealed by him, and given to appellant as chairman of the board. Held, that this statement may be properly considered as a part of the res gestee, and should have been admitted.
    4. Payment voluntarily made. — Where one with a full knowledge of the facts makes a voluntary payment of money, without coercion and being under no duress, he can not afterward recover it, even though he may have paid under a mistake of law as to his rights in the premises. But when .the payment is made under a mistake of material facts which, if known, would have induced a different action, or under duress or coercion, the rule is otherwise. Where, by reason of the peculiar facts, a reasonably prudent man finds that in order to preserve his property or protect his business interests it is necessary to make payment of money which-he does not owe, and which in equity and good conscience the receiver ought not to retain, he may recover it back.
    5. Same. — If the payment in this case was made in ignorance of the fact that the receipt was in existence, or that it could be shown that it had existed, and if all the facts which were known to be capable of proof would not have been sufficient to rebut the presumption arising from the absence of the receipt, in view of the way the business had been transacted, then the payment was not made with that full knowledge which would be neeessary to constitute a voluntary payment, provided it is apparent that, had such facts been known at the time, the payment would have been withheld.
    6. Instructions. — Where a case is put to a jury by instructions upon certain recited facts, great care is necessary to state all the controlling facts fairly, and the safer course is merely to announce the rule of law applicable, without singling out and laying stress upon certain facts claimed to be proved, if there is any serious conflict as to them, or if they involve or are dependent upon other important facts not stated.
    7. Witness — When evidence not corroborated mat be rejected. —An instruction that contradiction and impeachment by the evidence in any material point will justify the rejection of all of a witness’ evidence not corroborated, is erroneous. The witness must have willfully sworn falsely on a material point to justify such an instruction.
    Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed October 10, 1883.
    Messrs. Happy & Travo us, for appellant;
    that the verdict was clearly against the weight of evidence and a new trial should have been granted, cited I. C. R. R. Co. v. Chambers, 71 Ill. 519; McGregor v. McDevitt, 64 Ill. 261; Fox River Mfg. Co. v. Reeves, 68 Ill. 403; Chicago v. Lavelle, 83 Ill. 482; C., R. I. & P. R. R. Co. v. Dingmon, 1 Bradwell, 162; Drury v. Dungan, 2 Id. 15; Dunton v. Chamberlain, 1 Id. 361; Boudreau v. Boudreau, 45 Ill. 480; Ammerman v. Teeter, 49 Ill. 400.
    The statement in the handwriting of the treasurer was rendered by him while he was still the agent of the county, and was in relation to the subject-matter of the agency, and should have gone to the jury as an admission against the defendant: Linblom v. Ramsey, 75 Ill. 246; Wagonseller v. Rexford, 2 Bradwell, 455; 1 Greenleaf on Ev., §§ 113, 462; Story on Agency, §§ 134-137; Burlington v. Calais, 1 Vermont, 385; Mathers v. Phelps, 2 Root, 150; Stockton v. Demuth, 7 Watts, 39; Gilson v. Wood, 20 Ill. 38; Mix v. Osby, 62 Ill. 192; Cook v. Hunt, 24 Ill. 539; M. C. R. R. Co. v. Gougar, 55 Ill. 503; Jenks v. Burr, 56 Ill. 452; La Salle Co. v. Burr, 55 Ill. 452; Burt v. French, 70 Ill. 254; Craig v. Rohrer, 63 Ill. 325; McCoy v. People, 71 Ill. 113; Grimshaw v. Paul, 76 Ill. 166; 2 Starkie on Ev., 5th Am. ed., 22.
    It was error to exclude all the evidence of appellant in reference to receipts and his having the treasurer’s receipts for the bonds: 1 Phillips on Ev. 587; Hinchman v. Whetstone, 23 Ill. 185; Scholes v. Ackerland, 15 Ill. 171; Keith v. Mafit, 38 Ill. 303; First Nat. Bk. v. Priest, 50 Ill. 321; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15; Snapp v. Peirce, 21 Ill. 157.
    As to instructions: C., B. & Q.R. R. Co. v. George, 19 Ill. 510;. Hosley v. Brooks, 20 Ill. 115; Calhoun County v. Buck, 27 Ill. 440; Pfund v. Zimmerman, 29 Ill. 269; Rice v. The People, 38 Ill. 435; Illinois Cent. R. R. Co. v. Benton, 69 Ill. 174; Bradley v. Parks, 83 Ill. 169; Nichols v. Bradsby, 78 Ill. 11; Lachman v. Deisch, 71 Ill. 59; Alexander v. Town of Mt. Sterling, 71 Ill. 366; I. & St. L. R. R. Co. v. Miller, 71 Ill. 463; Gibson v. Webster, 11 Ill. 483; Harnit v. Thompson, 16 Ill. 460; Bullock v. Narrott, 19 Ill. 62; Bailey v. Godfrey, 54 Ill. 507; Cushman v. Cogswell, 86 Ill. 62.
    Messrs. Metcalf & Beadshaw, Messrs. Wise & Davis and Mi*. J. H. Yagee, for appellee;
    as to the question of voluntary payment, cited Elston v. City of Chicago, 10 Ill. 514; City of Detroit v. Martin, 31 Mich. 170; Bradford v. City of Chicago, 25 Ill. 411; Stover v. Mitchell, 15 Ill. 213.
   Wall, P. J.

Appellant brought an action of assumpsit against appellee to recover the sum of $2,000.

The county of Madison had voted to fund its indebtedness by issuing new bonds bearing a lower rate of interest, and in pursuance of this vote the board of supervisors, on the 5th of February, 1877, passed an order providing for the preparation and authentication of the new bonds and their exchange for old ones.

It is unnecessary to state the details of this order, except the provision that the new bonds “ when issued, shall be placed “ in the custody of the chairman of the board, who, together “with the county treasurer, is authorized to exchange and “ dispose of the same, and out of the proceeds thereof to take up and cancel the bonds, in lieu of which the bonds “alone are to be issued, said bonds to be taken up, canceled, “ etc.”

The appellant was then chairman of the board, and Hugh E. Bavle was county treasurer, and out of the transactions in connection with the issuing and exchange of the new for the old bonds, has arisen the present controversy. Shortly after the passage of the order, the new bonds were placed in the custody of the plaintiff to the amount of $385,000.

They were then in blank and required the signatures of the chairman of the county board, county treasurer and county clerk and the impression of the county seal.

The process of exchange began. The plaintiff, as chairman of the board, would sign the new bonds as they were called for, hand them to the county treasurer, who would take them to the county clerk, who would sign and seal them and return them so signed and sealed to the county treasurer for his signature.

The treasurer would then give the clerk a receipt for the bonds, and these receipts were passed over by the clerk to the plaintiff and were held by the latter as his vouchers.

In December, 1877, the board of supervisors called for a statement, and a conference was held for that purpose between the finance committee of the board, the plaintiff and the county treasurer.

The plaintiff insisted that he had passed over to the treasurer, by the process above stated, bonds to the amount of $303,000, the treasurer insisting that he had received no more than the receipts called for.

The matter was made the subject of investigation by the board, and the plaintiff being unable to produce the receipt, the board demanded the deficit should be made good by the treasurer or the plaintiff; the latter having nothing but his own memorandum to sustain him, finally in March, 1878, paid the amount in dispute to the county, the payment being made to Rugger, who had succeeded Bayle in the office of county treasurer, Bayle’s term having expired in December, 1877.

Subsequently plaintiff found, as he claimed, the missing receipt, bearing date July 18, 1877, and brought this action to recover back the money paid to the county in March, 1878.

This is in substance the theory of the plaintiff’s case. The county resisted the demand, and upon a trial by jury, the issues were found for the defendant, and a motion for a new trial having been overruled, the plaintiff brings the record here, assigning various grounds of error. The evidence was conflicting- . .

. . The plaintiff testified in his own behalf, and Bayle was a witness for the defendant, denying that he had received more than $301,000 from the plaintiff, and there was other evidence tending to prove and disprove the plaintiff’s allegations. D"We are urged by the plaintiff to reverse the case, on the ground that the verdict was contrary to the evidence; but after carefully reading and considering all the testimony, we do not feel at liberty to do so. As the case will be again tried, we express no opinion as to the question of fact involved, and will only remark in this connection that there was such a conflict in the evidence as to call for great accuracy in the rulings of the court.

It seems to be conceded, that if the plaintiff’s theory of the facts was correct, he would be entitled to recover unless barred on the ground that his payment in March, 1878, was voluntary, and this assumes that the county, and not the plaintiff, must have borne the loss in the first instance, if it was in fact, as plaintiff alleges, chargeable to act of the county treasurer.

The defense is two-fold. First, the treasurer did account for all the bonds received from plaintiff, and second, the payment made by plaintiff was voluntary, and can not be made the basis of a recovery.

It is objected that the court erred in excluding from the jury a certain written statement made by Bayle, the county treasurer, to plaintiff as chairman, etc. This statement was in the form of a memorandum, merely showing the amount of new bonds received by Bayle and the amount of old ones by him turned over to the county clerk. It was made while Bayle was still in office, and though not signed or sealed by him, was made to plaintiff as chairman of the board, and during the process of exchanging the new tor the old bonds and was in reference to that matter. It seems to have been of some importance in connection with other evidence offered by the plaintiff.

It is also urged that the court erred in excluding from the jury certain evidence of the plaintiff in reference to the receipts given by Bayle to the county clerk, covering the $301,-000 of bonds which it is conceded were received by Bayle. These two assignments of error may be considered together, and for convenience we will examine them merely in their inverse order.

With reference to the receipts it may be stated that according to the plaintiff’s version, they were passed over to him by the county clerk, and held by the plaintiff as his vouchers until the said conference with the .finance committee in December, 1877, when they were returned to Bayle, as the amounts they called for were admitted as correct and audited, and they never afterward were in the plaintiff’s possession.

In his testimony the plaintiff made frequent reference to these receipts, by way of explaining the transaction, and to make his narrative connected and intelligible this was unavoidable. The defendant objected to these references at the time, and at the conclusion of the narrative moved the court to exclude from the jury “all the evidence of this witness, in reference to receipts and his having Bayle’s receipts for the bonds.” The court sustained this motion, and it is urged in support of this ruling, that the receipts are the best evidence, and the facts shown by them can not be proved by oral testimony. The receipts referred to were those covering the $301,000 of bonds which, as already stated according to the theory of both sides, were in fact received by Bayle.

The rule requiring the production of the best evidence, or as it is sometimes termed, primary evidence, is usually applied in those cases which relate to the substitution of oral for written evidence, and they may be arranged in three classes, including in the first class those instruments which the law requires to be in writing; in the second, those contracts which the parties have put in writing, and in the third, all other Writings, the existence of which is disputed, and which are .Material to the issue. 1 Greenleaf on Evidence, Sec. 85. The same author in further discussing the subject says, Sec. 90, that when the writing does not fall within either of these three classes, there is no ground for excluding oral evidence, and that the payment of money may be proved by oral testimony though a receipt betaken; and in Sec. 305, he lays down the rule that a receipt, so far as it goes only to acknowledge payment, of money or delivery of property, is merely prima facie evidence of the fact and not conclusive, and therefore the fact recited by it may be contradicted by oral testimony. In Hinchman v. Whetstone, 23 Ill. 185, it was held that proof of the payment of taxes might be made by oral testimony, though a receipt was given without accounting for the absence of the receipt. So here we think it was competent for the witness in narrating the whole transaction to refer to the receipts, to say that such receipts were given, what was done with them, and without attempting to recite their contents, to testify independently of them to facts of payment or delivery which they might show if present and produced.

The reference which he thus made was in no substantial degree a violation of the rules of evidence, and was so inseparably connected with his story that to strike out all his evidence in this respect, as is shown by the record was done, was error, and must have operated considerably to the prejudice of the plaintiff.

We think it was error also to reject the written statement given by Bayle to plaintiff.

The record shows that the .statement was objected to on the ground that it was not an official document, was not rendered to the board, and if the amounts mentioned therein are included in the receipts they are the best evidence of the facts shown by them.

As has been seen already the last objection is untenable. When the acts of the agent will bind the principal, then his representations, declarations and admissions respecting the subject-matter will also bind him if made at the same time and constituting part of the res gestee. 1 Greenleaf on Ev., Sec. 113.

Regarding Bayle as the agent of the county, this written statement made by him would be competent evidence if it is a part of the res gestee.

The area of events covered by the term res gestee depends upon the circumstances of each particular case. It will include all the circumstances and declarations growing out of the main fact contemporaneous with it and illustrating its character. The transaction may be. a continuing one and embracing many minor and incidental circumstances, and it is not necessary that every one of these should have occurred at the precise time when the principal part happened. Wharton thus defines the term: “Thews gestee may therefore be defined as those circumstances which are the undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one-concerned, whether participant or bystander. They may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act — necessary in the sense that they are a part of the preparations for, or emanations of such act, and are not produced by the calculated policy of the actors.” 1 Wharton on Ev., Sec. 259; 1 Greenleaf on Ev., 113; 1 Phillips on Ev., 201.

We are of the opinion the statement may be properly considered as a part of the res gestee and should have been admitted.

The plaintiff also assigns error upon the action of the court in modifying and refusing instructions asked by plaintiff and in giving instructions asked by defendant.

The first and fifth instructions asked by plaintiff were as follows:

1st. The court instructs the jury that if they believe from the evidence that in 1877 the plaintiff and the then county treasurer were authorized to exchange certain new county bonds of which plaintiff was made custodian for certain old county bonds; that said treasurer on July 18, 1877, received and gave a receipt for $2,000 of said new bonds to exchange as aforesaid, which receipt afterward became lost; that in the month of March, 1878, said new bonds were all accounted for except the amount represented by that lost receipt; that said treasurer denied getting said bonds of the 18th of July, 1877; that in consequence of such denial and his inability to produce said receipt, plaintiff was misled as to the real facts, and under the foregoing circumstances paid for the county $2,000 to redeem a like amount of said old bonds still outstanding, then the jury should find for the plaintiff.”

5th. “ That if they believe from the evidence the county treasurer received the $2,000 bonds on July 18,1877, and that the receipt given for the same was afterward lost or mislaid, and that Bayle denied getting said bonds, and under such circumstances plaintiff expended for the county $2,000 to make that amount up, then said payment would not be a voluntary payment.”

These the court refused to give as asked and modified them by inserting the words and did notTcnow before the words the real facts in the latter clause of the first instruction, and by adding the words hut not if he Tcnew all the facts conce7'nmg the transaction to the fifth. And the court refused the following asked by the plaintiff:

9th. “ If the jury believe from the evidence that the plaintiff, on the 18th day of July, 1877, turned over, as required, $2,000 in bonds, for which the county treasurer gave his receipt of that date, which receipt was afterward lost or mislaid, and afterward said county treasurer denied having received said bonds, and that by reason of the loss of said receipt and denial of said treasurer, the plaintiff was unable to prove or satisfactorily show that he had accounted for said bonds, and that a refusal under the circumstances to pay said amount would have cast suspicion and distrust upon him, and injured him in his business and standing as a banker, and under these circumstances the plaintiff paid out for the county the sum of $2,000, then the jury must find for the plaintiff.”

It is the law that where one with a full knowledge of the facts makes a voluntary payment of money without coercion, and being under no duress, he can not afterward recover it even though he may have paid under a mistake of law as to his rights in the premises. But where the payment is made under] a mistake of material facts, which, if known, would have induced a different action, or under duress or coercion, the rule is otherwise.

In such a case the party who has received the money may be compelled to refund. What amounts to a knowledge of the facts, and what to duress or coercion must always depend upon the peculiar features of the case in hand.

In our Supreme Court reports there are several cases which illustrate the general rule. The cases of La Salle County v. Simmons, 5 Gilm. 513, Bradford v. City of Chicago, 25 Ill. 411, C. & A. R. R. Co. v. C., V. & W. Coal Co., 79 Ill. 121, may be referred to among others. In the first of these cases the county board, without authority of law, advertised tlaat they would let a certain ferry franchise to the highest bidder, and the person then keeping the ferry offered the sum of five hundred dollars, which was accepted. He afterward sued to recover the money so paid and was permitted to do so. The court held, the law having fixed the maximum charge for such privilege, the commissioners had no right to impose any other conditions, and that as the plaintiff was anxious to retain the privilege, the illegal conduct of the commissioners put him in their power, and taking this advantage of him, the money thus obtained was not in a legal sense paid voluntarily and could be recovered.

In the second case the plaintiff recovered money paid to the city upon an invalid assessment, the court holding that he did not know that the legal objection existed when he paid, and as there was a total failure of consideration for the payment the money should be refunded.

In this opinion the court - cite and analyze many adjudged cases saying,in conclusion, that money maybe recovered back when it has been paid under a “ necessity which is a kind of moral duress,” and that “the action for money had and received may generally be maintained when the money of one person has, without consideration, got into the pockets of another.”

The case in 79th Ill. was where a shipper was suing a carrier for exacting more for the service rendered than was due under a contract which was binding upon the parties. It was urged that as the point was in dispute and the payment made with knowledge of all the facts, it was voluntary, and the money could not be recovered; but the court held that the shipper was “ under a sort of moral duress,” and that money paid under such circumstances ought not in equity and good conscience to be retained, and recovery was allowed. The principle to be deduced from these cases and the authorities cited in them seems to be that where by reason of the peculiar facts a reasonably prudent man finds that in order to preserve his property or protect his business interests, it is necessary' to make payment of money', which indeed he does not owe and which in equity and good conscience the receiver ought not to retain, he may' recover it, and so also when such a payment is made in ignorance of material facts which, if known, would llave led him to refrain from making the payment.

Recurring now to the modification of the first and fifth instructions, it will be seen that the jury were thereby advised to find against the plaintiff, if he knew all the facts, wholly ignoring the possible element of coercion or duress which may perhaps be regarded as a substantial feature of this case.

In a certain sense it may be said that the plaintiff did know all the facts. He knew or thought he knew he had in fact issued the bonds as shown by his memorandum, and in ageneral way it would be said that he knew whether his memorandum was true or false. Yet it must be apparent that according to his version of the matter, he had not a full knowledge of the facts, such a knowledge as would have justified a man in his position to risk the consequences of withholding the money.

He may have had great confidence that he was right, yet in the absence of the receipt, which, according to the course of business they had pursued, should have been forthcoming if he was right, he may, as a prudent man, have been uncertain, and finally come to the conclusion, which was no doubt entertained by the county board who were pressing for payment, that he had been mistaken and that he ought to make up the deficit; in other words he was ignorant of the existence of the receipt which, according to the course of dealing that had been adopted, was necessary to establish that he was not mistaken.

In view of the peculiar facts in this case to which the jury were required to apply the law as given in the instructions, we think the modifications should not have been made as they were. Considering the whole of each instruction, more especially the fifth, as thus modified, it would seem somewhat ambiguous and contradictory, and the jury were probably misled to suppose that if plaintiff knew he did not owe the money he should not have paid. Whereas we think the knowledge necessary to bar him should take a much wider range and embrace all the substantive facts, including the existence of the receipt, or that it had existed, and that such existence could be established. In this connection it is proper to refer to the second instruction given for defendant, which is obnoxious to the same objection, and we think that the jury in considering the whole series would naturally be induced to take a too strict and narrow view in this respect.

If the payment was made in ignorance of the fact that the receipt was in existence, or that it could be shown that it had an existence, and if all the facts which were known to be capable of proof would not have been sufficient to rebut the presumption arising from the absence of the receipt in view of the way the business had been transacted, then the payment was not made with that full knowledge which would be necessary to constitute a voluntary payment, provided it is apparent that had such facts been known at the time, the payment would have been withheld.

We are not prepared to hold that the ninth instruction should have been given as asked by the plaintiff. A man who holds a responsible public position and whose business relations to the community .are such that his standing for property and solvency are especially important and even essential to success, might he justified in making a payment to avoid suspicion in order to protect his business reputation, and the circumstances might be such that a payment so made would be regarded in the same light as a payment to release property from seizure or to enable one to carry on his regular business without interruption. Reputation is property — as much so as land or gold — and is the subject of legal protection. Perhaps the circumstances in this case might have been such as to justify the payment, but we think the instruction somewhat too argumentative and that it assumes with too much emphasis that the facts recited were the unquestioned and controlling facts in the case, whereas according to the theory of the defense this was not true. For instance it is assumed that a refusal to pay under the circumstances would have cast suspicion and distrust upon the plaintiff, and injured him in his standing as a banker. This may have been so, but we hardly think there is‘enough in the evidence, on this point, to warrant the court in calling the attention of the jury to it in the language of this instruction.

As has often been said by the Supreme Court, where a case is put to a jury by instructions upon certain recited facts, great care is necessary to state all the controlling facts fairly, and the safer course is merely to announce the rule of law applicable, without singling out and laying stress upon certain facts claimed to be proved, if there is any serious conflict as to them, or if they involve or are dependent upon other important facts not stated. We think the ninth instruction properly refused. Referring to the first instruction given for defendant, it will be found still more faulty in this respect and it should have been refused also. The third instruction given for defendant is criticized, as we think, with reason; because it seems to assume that the plaintiff was responsible to the county for any supposed default of the treasurer, and that in case of a loss through this cause his only remedy was against the treasurer.

The county treasurer was acting in pursuance of the order of the board, and unless the plaintiff remitted to him a part of the duties devolving upon himself, thereby making the treasurer his own agent as to that matter, it could not be said that the plaintiff should be responsible to the county for the act of the treasurer. So far as the treasurer was acting in pursuance of his duty as such, and under the order of the board, his acts were the acts of the county. The instruction assumes there was some sort of community of act or interest between the two officials, making the one responsible for the other, which is not supported by the evidence so far as we have been able to examine it.

The fourth instruction given for defendant is, as seems to be conceded by counsel for defendant, not accurate. It is as follows: “That although they may believe from the evidence that Hugh E. Bayle told John A. Prickett that he would pay him back the $2,000, still such promise of Bayle would not be binding on the county, and the jury should find for the defendant.” The plaintiff was of course not seeking to hold the county upon a promise made by Bayle and this evidence was not offered for that purpose, or at least not admissible for such purpose, and while it would be proper to so advise the jury, the final clause was improper, and was doubtless__a mere inadvertence.

The sixth for defendant was as follows: “That if they believe from the evidence that the plaintiff is contradicted and impeached by the evidence in any material point, then the jury will be justified in rejecting all his evidence wherein he is not corroborated by other evidence.” This announces a rule which, so far as we are aware, is without authority. When a witness willfully swears falsely as to some material point, the whole of his testimony may be rejected except wherein it is corroborated on the maxim, falsus in uno falsus in omnibus. City of Chicago v. Smith, 48 Ill. 108; Swan v. The People, 98 Ill. 610.

But it is essential that he must have willfully sworn falsely in a material point.

By this instruction the jury are told that contradiction and impeachment of the evidence- in any material point will justify the rejection of all his evidence not corroborated.

In other words, if evidence is produced to contradict and impeach a witness as to one material point, no matter w,hat may be the character of this impeaching or contradictory evidence, then the entire testimony of the witness must depend for its value upon, the support of other evidence, no matter how much the jury may be impressed by the candor and intelligence of the witness, and the general truthfulness of his story.

Tire credit due a witness depends usually upon his intelligence, his opportunity for knowing what he testifies to, his honesty, and his fairness or freedom from bias. He may,' as to part of his testimony, be mistaken, and from want of opportunity or intelligence commit a grave mistake, and the residue of his evidence may be entitled to great weight.

If, however, he is found to be dishonest, and it appears that he has knowingly perverted the facts as to a material point, his entire testimony is under a cloud and the law ydsely pro-, vides that it may all be disregarded unless supported by other and credible evidence.

For the errors indicated the judgment will be reversed and cause remanded.

Reversed and remanded.


author: Casey, J.

text:
    Wabash, St. Louis & Pacific Railway Company v. Julia Lavieux.
    1. Construction'op statute — Attorney’s eee. — Under section. 48, chapter 114, of the statute, the attorney’s fee may be recovered in the suit for damages for the stock billed, and the fee in such cases is not special legislation and is not in violation of the statute.
    2. When allowable. — The attorney’s fee is allowable only where the railroad company has failed to comply with the requirements of the statute, and such failure must appear from evidence in the record.
    Appeal from the Circuit Court of Lawrence county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed April 18, 1884.
    Mr. Samuel P. Wheeler, for appellant.
    Messrs. .Hueeman & Gee, for appellee.
   Casey, J.

In this case, it is insisted by counsel for appellant that the attorney’s fees are not due until suit has been , commenced, and can not be recovered in the same suit for damages, bnt that they constitute an independent cause of action, to he recovered in a separate suit; and it is further insisted by appellant’s counsel that the statute allowing attorneys’ fees in such cases is special legislation, and therefore in violation of the constitution. These points are both settled in the case of the P., D. & E. R. R. Co. v. Duggan, lately decided by the Supreme Court and published in “ The Legal Adviser” of April 9, 1884, in which case it is held that the attorney’s fee may be recovered in the suit for damages for stock killed, and that the attorney’s fee in such cases is not special legislation, and not in violation of the constitution. In that case the court says, “ This provision (referring to the statute allowing the fees) may be upheld as being in the nature of a penalty for non-compliance with the statutory duty of fencing. The requirement of the fencing of railroad tracks is not alone for the private benefit of owners of stock along their lines, but it has respect for the public welfare as well as a measure for the safety of travel on said railroads. As a police regulation for the promotion of the public safety in that respect, the legislature may well require the fencing of their railroad tracks by railway companies, and provide penalties for securing the performance of that duty.”

One of the assignments of error questions the right or power of the court to enter a judgment for a greater sum than that indorsed on the summons issued by the justice of the peace.

As the cause must be reversed and a new trial awarded, we express no opinion on that point, but suggest that counsel for appellee may, upon motion, be allowed to amend the indorsement on the summons by increasing the amount claimed.

This suit was instituted against appellant to recover damages caused by appellant in killing stock belonging to appellee. The judgment in the circuit court was for fifty-one dollars and costs. The record shows that fifteen dollars of the judgment was because of attorney’s fees incurred by appellee in prosecuting his cause before the justice of the peace and in the circuit court. Attorneys’ fees in such cases can only be recovered by virtue of the requirements of the statute.

Section 48, Chapter 114, Cothran’s Statute of 1881, provides that any railroad corporation shall, within six mouths after any part of its line is opened for use, erect and thereafter maintain on both sides of its road or so much thereof as is opened for use, suitable and sufficient fences to prevent cattle, liorses, sheep, hogs or other stock from getting on such railroad, except at the crossing of public roads and highways and within such portions of cities and incorporated towns and villages as are or hereafter may be laid but and platted into lots and blocks, * * * * and shall construct, when the same has not already been done, and thereafter maintain at all road crossings, now existing or hereafter established, cattle-guards suitable and sufficient to prevent cattle, horses, sheep, hogs and other stock from getting on such railroad, and when such fences or cattle-guards are not constructed as aforesaid, or when such fences and cattle-guards are not kept in good repair, such railroad corporation shall be liable for all damages which may be done by the agents, engines or cars of such corporation to such cattle, horses, sheep, hogs or .other stock thereon and reasonable attorney’s, fees in any court wherein suit is brought for such damages, or to which the same may be appealed, etc.”

There is no evidence in the record showing or tending to show that appellant’s railroad, or any part of it, had been opened for use six months, or that appellant failed to keep the fencing or cattle-guards in good repair, or that the stock in question was killed at a point on the railroad which appellant was required to keep fenced. These material facts may have been admitted on the trial of the cause in the circuit court, but it does not so appear in the record.

The attorney’s fee is allowable only where the ¿railroad company has failed to comply with the requirements of the statute, and such failure must appear from evidence in the record.

For this reason the judgment of the circuit court is reversed and the cause remanded.

Eeversed and remanded.


text:
    Wabash, St. Louis & Pacific Railway Co. v. Michael J. Murphy.
    As the same questions arise in this case as in the preceding one, the judgment is reversed for the same reason.
    Appeal from the Circuit Court of Lawrence county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed April 18, 1884.
    Mr. Samuel P. Wheelee, for appellant.
    Messrs. Huffman & Gee, for appellee.
   Casey, J.

The same questions arise in this case as in the case of the W., St. L. & P. By. v. Lavieux, decided at this term, and the judgment of the circuit court is reversed and the cause remanded for the same reason.

Beversed and remanded.


author: Casev, J.

text:
    Chicago & Alton Railroad Co. v. Bridget McKenna, Adm’x, etc.
    1. Negligence — When party must use extraordinary care.— When a plaintiff is himself in the wrong, or not in the exercise of a legal right, or was at the time enjoying a privilege granted without compensation or benefit to the party granting it and of whose carelessness complaint is made, plaintiff must use extraordinary care before he can properly and legitimately complain of the negligence of another.
    2. Walking on railroad track. — When a person voluntarily and without authority undertakes to walk upon a railroad track, he ought not to recover damages for an injury received unless it appears that the injury was caused by the wanton and willful misconduct of the employes of the defendant.
    3. Yerdict not sustained by the evidence. — Where deceased was improperly on the grounds of appellant and was therefore bound to use extraordinary care to prevent an accident before there could be a recovery, or it must appear from the evidence that the accident resulted from the wanton and willful misconduct of appellant’s employes, and there was no proof showing a want of proper care upon the part of appellant’s employes, and they were not charged in the declaration with wanton or willful misconduct and there was no evidence that deceased used even ordinary care to avoid injury. Held, that the evidence failed to show a cause of action against appellant.
    Appeal from the City Court of East St. Louis; the Hon. William P. Launtz, Judge, presiding.
    Opinion filed April 18, 1884.
    The court finds the facts in this case to be as follows: that appellant’s railroad runs north and south through the village of Venice, in Madison county, Illinois; that the deceased, Patrick McKenna, lived a short distance from and northwest of the depot or station of appellant’s road in said village; that between the depot and the residence of the said McKenna, there are five side or switch tracks on appellant’s switch yards that are constantly used for changing and placing cars, making up trains, etc.; that they were so used on the night of the accident which resulted in the death of McKenna; that there is no public or private crossing between the house of the deceased McKenna and the depot; that there is a public crossing a short distance north of the house of the deceased, running east and west, called the rock road, and that there is a public crossing a short distance south of the house of the deceased, running east and west, called Kerr street; that no'one except those operating the engine and switching cars was allowed to go in the switch yard occupied by these tracks; that the deceased on the night of the accident, when it was dark and snowing, started from his home to the depot; that after leaving home he was not again seen alive, but was found dead directly between his house and the depot, along the line of what is known as the main switch track of appellant; that at the time there was a switch engine running on these tracks, changing and placing cars, etc.; that the deceased did not go to either of the crossings referred to, but that he attempted to go directly across the side or switch tracks in the switch yard, where there was no private or public crossing; that the deceased, McKenna, knew this, and was not in any way connected with appellant so as to authorize him to cross the side tracks, or be upon the ground at the place where he was killed; that there was no wanton or willful negligence, or negligence of any kind on the part of the servants of appellant.
    And the court being of the opinion that on the foregoing facts there was no right of action in the plaintiff, it was ordered that the said judgment be reversed and the cause be not remanded.
    Mr. L. H. Hite, for appellant;
    as to negligence in crossing a railroad company’s right of way, cited I. C. R. R. Co. v. Godfrey, 71 Ill. 500; Aurora Branch R. R. Co. v. Grimes, 13 Ill. 585; Shearman & Redfield on Negligence, § 488; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; I. C. R. R. Co. v. Hetherington, 83 Ill. 510.
    If defendant’s servants after becoming aware of plaintiff’s danger, failed to use ordinary care to avoid injuring him, defendant would be liable: Galena & Ch. U. R. R. Co. v. Jacobs, 20 Ill. 478; St. L., A..& T. H. R. R. Co. v. Todd, 36 Ill. 409; Shearman & Redfield on Negligence, §§ 25, 36.
    Mr. George W. Green, for appellee;
    cited C., R. I. & P. Ry. Co. v. Clark, 108 Ill. 113.
   Casev, J.

This was an action on the case brought by appellee against appellant in the City Court of East St. Louis. In the declaration it is averred that in the life-time of Patrick Mc-Kenna, the defendant company was using and operating a railroad track with switches and side tracks in and through _ o the village of Yenice in Madison county, Illinois, and that while deceased in his life-time, to wit, January 2, 1882, was with all due care attempting to cross the switch tracks of defendant at a public highway, the servants of the defendant carelessly and recklessly ran a locomotive engine upon the said McKenna, causing his death, etc. To this declaration the general issue was filed, and the cause submitted to a jury. A verdict was returned by the jury in favor of the plaintiff, assessing her damages at the sum of five thousand dollars. A motion for a new trial was entered by the defendant, and one of the causes assigned for a new trial was that the verdict of the jury was contrary to the law and the evidence. The court refused the motion for a new trial. Judgment was entered on the verdict, and the case is brought to this court by appeal. One of the errors assigned is that the court erred in refusing the motion for a new trial. The question in this case is one of fact: Did the evidence in the court below show a cause of action against appellant?

The evidence shows that appellant’s railroad passes north and south through the village of Yenice, in Madison county, Illinois; that the deceased, Patrick McKenna, lived a short distance from and northwest of the depot or station of appellant’s road in said village; that between the said depot and the residence of the said McKenna there are five side or switch tracks in the switch yard of appellant, that are constantly used for changing and placing cars, making rip trains, etc., and were so being used on the night of this accident which resulted in McKenna’s death; there is no public or private crossing between the house of the deceased McKenna and the depot; that there is a public crossing a short distance north of McKenna’s house, running east and west, called the rock road, and a public crossing a short distance south of McKenna’s house called Kerr street. No one except those running the locomotive and engaged in switching cars was allowed to go on the ground occupied by these tracks. The testimony further shows that the deceased, on the night of January 2,1882, while it was snowing, started from his house to the depot of, appellant to meet his wife, who had been away from home and was expected to return that night. After leaving his house he was not again seen alive, so far as the testimony shows. He was found dead with both feet off on a line directly between his home and the depot of appellant and along a line of what is known as the main switch track. At that time there was a switch engine running on these side or switch tracks changing and placing cars. While it does not positively appear from the evidence, still there is no doubt but that the deceased was run over and killed by this switch engine, and there is no doubt from the evidence but that the deceased, instead of going to the crossing on the north or south of his residence, attempted to go directly across the side and switch tracks in the switch yard to the depot of appellant, and that while so doing he was run over and killed by the switch engine as aforesaid. The deceased was not in any way connected with appellant so as to authorize him to cross the side tracks or be upon the ground at the place where he was killed. There is nothing whatever in the record to show any wanton or willful misconduct on the part of the servants of appellant or indeed any negligence at all. Ho one saw the deceased at the time he was killed. It will be remembered that the charge in the declaration is that the deceased while in the exercise of due care and attempting to cross the switch track of appellant at a public highway, was killed, etc. It is impossible from the evidence that the deceased was attempting to cross the tracks at a public highway or crossing at the time he was killed. There is no testimony whatever in the record to support that position; on the contrary the testimony shows that the deceased was, as I have already stated, going from his house directly to the depot, and that there was no public crossing at that place. In the case of the I. C. R. R. Co. v. Godfrey, 71 Ill. 500, the Supreme Court say, in substance, that the right of way is the exclusive property of the company, upon which no unauthorized person has a right to be for any purpose. The place was one of danger, and such persons went there at their own risk and peril. For all the purposes of this suit the plaintiff stands in no more favorable condition than a wrong-doer and trespasser. When the plaintiff is himself in the wrong, or not in the exercise of a legal right, or was at the time enjoying a privilege granted without compensation or benefit to the party granting it, and of whose carelessness complaint is made, the plaintiff must use extraordinary care before he can properly and legitimately complain of the negligence of another. Butterfield v. Foster, 11 East, 60; Kennard v. Burton, 12 Shipley, 39; Pluckwell v. Wilson, 5 Carr. & T. 375.

"When a person voluntarily and without authority undertakes' to travel upon a railroad track, he ought not to recover damages for an injury received, unless it appears that the injury was caused by the wanton and willful misconduct of the employes of the defendant. Railroad Co. v. Norton, 12 Harris, 465; Shearman & Redneld on Negligence, 488; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; I. & St. L. R. R. Co. v. Evans, 88 Ill. 63.

It is an essential and necessary element in this character of case, that the deceased, or party injured, should at least exercise ordinary care; such care as a reasonably prudent person will always adopt for the security of his person and property. In this case the deceased, being improperly on the grounds of appellant, was bound to use extraordinary care to prevent an accident, before there can be a recovery; or it must appear from the evidence that the accident resulted from the' wanton and willful misconduct of the servants of appellant. There is no proof showing a want of proper care upon the part of the employes of appellant, and they are not charged in the declaration with wanton and willful misconduct or negligence.

We think that the evidence in this case fails to show a cause of action against appellant, and the judgment of the City Court of East St. Louis is reversed.

Judgment reversed.


text:
    John H. Smith v. John Forbes et al.
    1. Witness — Instruction.—An instruction which, authorizes the jury to discredit all of a witness’ evidence not corroborated if he has testified falsely on a point material to the issue, is not proper. The maxim falsus in uno falsus in omnibus should only be applied in cases where a witness willfully and knowingly gives false testimony.
    2. Costs where some of the defendants are acquitted. — Where three parties are sued together and two are acquitted, the defendants who are acquitted are entitled to a judgment against the plaintiff for their costs, and the plaintiff is entitled to a judgment against the defendant who was convicted for his costs, to the extent that costs were incurred in obtaining the judgment against that defendant.
    Error to the Circuit Court of Madison county; the Hon. "William H. Snyder, Judge, presiding.
    Opinion filed April 18, 1884.
    Messrs. Wise & Davis, for plaintiff in error;
    that a witness must knowingly and willfully testify to what is not true in order to reject his entire testimony, cited Prickett v. Madison Co., 14 Bradwell, 454; City of Chicago v. Smith, 48 Ill. 108; Swan v. The People, 98 Ill. 610.
    Messrs. Metcalf & Bradshaw, for defendants in error.
   Casey, J.

This was an action of trespass brought in the Madison Circuit Court by John H. Smith against John Forbes, Joseph Crawford and Robert M. Forbes. Hpon the trial of the cause in the circuit court the jury returned a verdict of not guilty as to John Forbes and Joseph Crawford, and a verdict of guilty as to Robert M. Forbes, and the plaintiff’s damages were assessed at five dollars. A motion for a new trial was entered by the plaintiff, which was refused by the court, and judgment entered on the verdict of the jury as follows:

“ It is therefore ordered by the court that the plaintiff have judgment for and recover of and from Robert M. Forbes the sum of five dollars, his damages, so as aforesaid by the jury assessed, and it is ordered that the costs be taxed as follows: The defendant, Robert M. Forbes, to pay one third, and the plaintiff to pay two thirds, and that execution issue,” etc. The case is brought to this court by a writ of error. The third error assigned is the giving of improper instructions for the defendants.

The fifth instruction given on the part of the defendant is as follows:

“ The court instructs the jury, that if they believe from the evidence that the plaintiff has been contradicted and impeached in his evidence on a point material to the issue, then the jury are justified in rejecting all his evidence, whenever it is not corroborated by other testimony.”

It was error to give this instruction. In the case of Brunam et al. v. The People, 15 Ill. 511, the Supreme Court, in passing upon a similar instruction, say: “ It authorized the jury to discredit the witness altogether if he swear falsely in a single particular. It does not follow merely because a witness makes an untrue statement that his entire statement is to be disregarded. This much depends upon the motive of the witness. If he intentionally swears falsely as to one matter, material to the issue joined, the j.ury may properly reject his whole testimony as unworthy of credit. But if he makes a. false statement through mistake or misapprehension they ought not to disregard his testimony altogether. The maxim falms in imofalsus in omnibus, should only be applied in cases where a witness willfully and knowingly gives false testimony.” Chittenden v. Evans, 41 Illinois, 251; City of Chicago v. Smith, 48 Ill. 107; Prickett v. Madison County, 14 Bradwell, 454.

The first and sixth instructions given on behalf of the defendants are objectionable, but when they are considered with other instructions given, we do not think that the jury was misled by them.

The ninth error assigned, questions the correctness of the judgment so far as it relates to costs. The statute provides that when several persons are made defendants to any action, and any one or more of them shall, upon the trial, be acquitted by verdict, every person acquitted shall recover his costs of suit in like manner as if such verdict of acquittal had been given in favor of all the defendants. Section 13, Chap. 33, Cothran’s Statute, 1881.

Under the provision of the statute, the two defendants who were acquitted were entitled to a judgment against the plaintiff for their costs, and the plaintiff was entitled to a judgment against the defendant who was convicted, for his costs, to the extent that costs were incurred in obtaining the judgment against that defendant. We do not consider it necessary to pass on other errors assigned.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


author: Caset, J.

text:
    John C. Stanley v. C. A. Robinson.
    1. Title in personal property — Delivery—Replevin.—R. agreed to furnish appellee with certain lumber which R. was to haul to appellant’s mill and there have it sawed, the amount to be paid for the sawing to be deducted from the purchase price to be paid R. Appellant refused to deliver the lumber to appellee until he paid the bill for sawing, and also an item of $3.00, due appellant from R. Appellee agreed to pay for the sawing hub refused to pay the $3.00 item. There was no evidence in the record tending to show that any part of the lumber had been delivered by R. to appellee, or that the am.ount to be purchased by appellee had been agreed upon. Held, that appellee could not maintain an action of replevin against appellant for the lumber. The title could not vest in him by force of the agreement to manufacture the lumber alone.
    2. When action of replevin may be maintained. — Replevin lies for specific property, capable of identification and actual return, and can not be maintained for an undivided interest or share, except in cases of fraud or .wrongful confusion of the property.
    Appeal from the Circuit Court of Jasper county; the Hon. William O. Jones, Judge, presiding.
    Opinion filed April 18, 1884.
    Messrs. Gibson & Johnson, for appellant;
    that in the sale of personal property, where anything remains to be done to complete the contract, such as ascertaining quantity, or delivering possession, the title does not pass, cited O’Keefe v. Kellogg, 15 Ill. 347; Schneider v. Westerman, 25 Ill. 514; Graff v. Fitch, 58 Ill. 373; Low v. Freeman, 12 Ill. 467; Updike v. Henry, 14 Ill. 378; Haverstick v. Fergus, 71 Ill. 105; Moriarty v. Stofferan, 89 Ill. 528.
    Mr. John H. Hallet, for appellee.
   Caset, J.

This was an action of replevin, heard in the Circuit Court of Jasper county upon an appeal from a justice of the peace; the facts as shown in the record are that appellee contracted with one Raef, who owned a saw-mill, for some lumber tobe used in constructing two hay presses. The lumber was to be furnished at $1.50 per hundred feet, at liaef’s mill, and he agreed with appellee to hauljthe logs to appellant’s mill and have them sawed there.

Appellee had agreed, on his part, to pay appellant for sawing the logs, and that amount was to be deducted from the purchase price to be paid ftaef for the lumber, and Kaef was to wait for the balance due him until appellee could manufacture and sell two hay presses. Raef, in pursuance of the agreement, hauled a number of logs to appellant’s mill to be sawed into lumber, and furnished appellant with a bill for the sawing.

Appellee informed appellant that he had purchased enough of the lumber to be made out of the logs to make two presses. Appellant at first agreed to allow appellee some time in which he might pay for sawing the lumber, that is, until appellee had manufactured and sold two hay presses. Subsequently he changed his mind and insisted that the bill for sawing should ■ be paid when the lumber was removed. It does not appear from the evidence what amount was required to make two hay presses, but it does appear that the lumber made from the logs hauled by Faef to appellant’s mill, was more than was required in constructing the hay presses.

After the lumber had been sawed, and when appellant was away from his mill, appellee called to get the lumber. The agent of appellant, who was at the mill at the time, as he had been directed, refused to allow the lumber or any part of it to be taken away until the bill for sawing the same had been paid, and also an item of three dollars owed by Iiaef to appellant. Appellee refused to pay the said sum of three dollars, but exhibited his pocket book which contained $85 as he stated, and proposed to pay for the sawing as fast as the lumber was placed in the wagon.

This proposition was refused by the agent of appellant, and appellee instituted this action of replevin to obtain possession of the property.

The whole amount of lumber made from the logs was replevied and at the trial before the justice of the peace, appellee tendered to appellant the sum of $8.68, due for sawing the lumber, and appellant accepted the money. The question is, did appellee, at the time of suing out the writ of replevin, have such a title or interest in the lumber in question as authorized him to maintain an action of replevin. There is no evidence on the record tending to show that any part of the lumber had been delivered by Raef to appellee, or that the amount to be purchased by appellee had been agreed upon. The title to personal property does not vest in the purchaser until the purchase is complete and nothing remains to be done under the agreement. The title could not vest in appellee by force of the agreement to manufacture the lumber alone.

To this rule there may be exceptions, arising from the evident intent of the parties at the time of contracting. But there is nothing in the record to show that this case is an exception to the rule announced. It does not appear that either Raef or appellee intended that the sale should be complete before the amount of the lumber was ascertained, or a delivery of the property purchased had been made. Schneider v. Westerman, 25 Ill. 517. If, in this case, Raef had refused to comply with his contract, and deliver the lumber, perhaps appellee might have sustained an action against him for damage because of his failure to comply with the contract; but because such an action will lie, it by no means follows that replevin may be maintained.

In this view of the case the action of replevin can not be sustained.

Another view is, that the most that can be claimed is that appellee is the owner of an undivided interest in the lumber. He did not purchase from Raef the whole amount of lumber manufactured from the logs hauled to the mill of appellant, but only so much as was necessary to make two hay presses. The lumber was without distinguishing marks, mixed and commingled with other lumber of the same kind and character, without any fault or wrong on the part of appellant.

Replevin lies for specific property capable of identification and actual return, and can not be maintained for an undivided interest or share except in cases of fraud or wrongful confusion of the property. McEldury v. Flannigan, 1 Haw. & Gie, 308; Hart v. Fitzgerald, 2 Mass. 569; Gardner v. Deitch, 9 Mass. 427; Reynolds v. McCormick, 62 Ill. 412. The fact, as the evidence shows, that upon the trial before the justice of the peace appellant received from appellee the amount due for sawing the lumber, is not important, because the question to be decided is, as we have stated, was appellee entitled to the possession of the lumber at the time the suit of rejfievin was instituted?

The judgment of the circuit court is reversed and the canse remanded.

Reversed and remanded.


text:
    City of East St. Louis v. M. Millard.
    1. Chancery jurisdiction — Mandamus proper remedy. — A hill in chancery, filed by defendant in error against a municipal corporation to enforce tbe payment of a judgment, and praying tbat an account be taken of the resources of the city, and that plaintiff in error he enjoined from paying illegal claims, that its officers be enjoined from drawing warrants against the levy of taxes of 1883, etc. Held, that a court of chancery has no jurisdiction, as defendant in error has an ample and complete remedy at law by mandamus to enforce the payment of his judgment. The averments of fraud in the bill are too uncertain and indefinite to give a court of chancery jurisdiction, if such jurisdiction could be maintained on that ground in a case of this character.
    2. Pleading — Charges op pbaud. — Charges of fraud must be clear and specific. The material facts upon which the allegations of fraud are based must be set forth, as well in chancery as in law pleading. If the averments of fraud are indefinite, uncertain and not material, a court of chancery does not obtain jurisdiction. There can be no relief beyond the specific and material allegations in a bill.
    3. Chancery practice — Decree pro conpesso — Writ op error.— Where a decree rendered gave to the defendant in error all, if not more relief than the averments in the bill justified, and was as to all intents and purposes a substantial adjudication of the rights of the parties, the objection that the decree made pro confesso was merely interlocutory and that there had been no such final disposition of the cause as would authorize the prosecution of a writ of error, was not well taken.
    Error to the City Court of East St. Louis; the IIon. William P. Launtz, Judge, presiding.
    Opinion filed April 18, 1884.
    Mr. George F. O’Melveny and Mr. A. S. Wilderman, for plaintiff in error;
    that courts of equity refuse to interfere by injunction with the action of municipal corporations, so long as they are acting within the bounds of the powers conferred upon them by law and their action is not tainted with fraud, cited Fitzgerald v. Harms, 92 Ill. 372; Andrews v. Knox Co., 70 Ill. 65; Morris v. Smedley, 6 Johns. Ch. 28; Town of Petersburg v. Mappin, 14 Ill. 194,
    "Vague and general charges of fraud in a bill are not sufficient, but the facts constituting the fraud must be specifically alleged: Town of Lemont v. Singer, 98 Ill. 94; Smith v. Brittenham, 98 Ill. 188; Slack v. McLagan, 15 Ill. 242; Newell v. Bureau Co., 37 Ill. 253.
    Unless the bill states sufficient facts to warrant the decree, it can not stand, and an injunction can not be decreed .for causes not alleged in the bill: German P. & P. Co. v. Ill. St. Zeitung Co., 55 Ill. 127; Rowan v. Bowles, 21 Ill. 17; Page v. Greeley, 75 Ill. 400; Conlin v. Carter, 93 Ill. 536.
    As to what is necessary to sustain a bill for an account: 3 Pomeroy’s Eq. Jur. § 1421; 1 Story’s Eq. Jur. §§ 458 a, 459; Craig v. McKinney, 72 Ill. 305; Clinton Co. v. Schuster, 82 Ill. 137.
    Mr. L. H. Hite, for defendant in error;
    as to when equity will assume control over municipal corporations, cited Hare on Discovery, 83; Clinton Co. v. Schuster, 82 Ill. 137; Ramsy v. County, 92 Ill. 225; Talcott Stove Co. v. Wheeler, 6 Bradwell, 225.
    As there has been no final disposition of this case, a writ of error does not lie: Hunter v. Hunter, 100 Ill. 519; R. & M. R. R. Co. v. F. L. & T. Co., 70 Ill. 249; Gayer v. Eich, 56 Ill. 298; Fleece v. Russel, 13 Ill. 31.
   Oasey, J.

This was a bill in chancery filed by the defendant in error against plaintiff in error in the City Court of East St. Louis. The material averments in the bill are, that the complainant, on the 31st of August, 1881, recovered a judgment against the defendant for the sum of $3,000 and costs; that the j udgment remains unsatisfied and that no part thereof has been paid; that the revenues of the defendant have been more than sufficient to meet its current expenses and pay this judgment; that John M. Sullivan, treasurer of defendant, has in his possession $7,000, which may at once be applied to the payment of said judgment; that L>. J. Cauty, city clerk, has a iarge amount of money belonging to the defendant, which can also be applied to the payment of the said judgment; that since the recovery of the judgment the revenues of the city have been wasted in paying illegal claims; that a large amount of illegal claims are pending before the city counsel of defendant which will be allowed and paid unless prevented by injunction; that there have been gross irregularities in collecting and disbursing the revenues, whereby the city has suffered great loss; that since 1877 the city has been indebted in excess of the legal limit. Prayer of the bill: That the defendant be enjoined from paying illegal claims; that the officers of defendant be enjoined from drawing warrants against the levy of taxes of 1883 for current expenses prior to the extension of such tax levy on the collector’s books; that defendant be enjoined from drawing warrants upon the treasurer unless the money is in his hands to pay such warrants; that the defendant be enjoined from di’a wing any warrants for the payment of any claim not allowed and ordered to be paid by the city council; that defendant be enjoined from expending any mox’e than is necessary for the economical maintenance of the city government; that an account be taken of the x’esoui’ces of the defendant for the purpose of ascertairxing whether there are any funds which may be applied in paying complainant’s judgment; that so soon as any money may be found available for the payment of said judgment, or not needed for necessary current expenses, that the same may be paid to complainant on said judgment.

On this bill a default was entered on January 25, 1884, and the court found the facts in the language of the allegations therein contained and as above herein set forth, and decreed that said D. J. Oauty, as such city clerk, pay over to the complainant on demand a sufficient sum out of the moneys in his hands to satisfy said judgment, or so much as he may have, and that in case he may not have sufficient funds for that purpose, that said John M. Sullivan, as such city treasurer, pay the complainant, on demand, the amount required to satisfy said judgment in full, whether paid by said Oauty or not; and further decreed that said city and its officers and agents be enjoined from drawing warrants to, or paying any illegal claims against said city; that said officers and agents be enjoined from drawing warrants against the tax levy of 1883 for current expenses accruing prior to the extension of such tax levy on the collector’s books; that said officers and agents be enjoined from drawing warrants on the treasurer, unless the money is actually in his hands to pay the same, and the indebtedness for which such warrants may be issued shall have been incurred while such money was in the treasury; that said officers and agents be enjoined from paying or drawing a warrant to pay any claim not allowed and ordered paid by the city council, except as required by this order; and that the cause be referred to E. 0. Ilhodes, as special master, to inquire into and state to the court whether there is any money in the hands of said Oauty, city clerk, and the said Sullivan, city treasurer, which may be applied in paying complainant’s judgment, etc.

The case is brought to this court by a writ of error. The plaintiff in error insists that the defendant has an ample and complete remedy at law by mandamus to enforce the payment of his judgment. If this position is well taken, it is fundamental and disposes of the cause.

The statute of 1874 placed the proceeding by mandarme on the same footing, or on equality with other actions at law, and it is the proper action to institute when the writ will afford a sufficient remedy. Prior to the adoption of the statute referred to, the Supreme Court of this State had uniformly held that a petition for a mandamus could not be sustained, where the petitioner had another specific legal remedy. The ninth section of chapter 87, act of 1874 (Underwood’s Statutes) was intended to meet and obviate these decisions and increases the cases in which mandamus may. be sustained.

Mandamus will lie to compel the officers of a municipal corporation to levy a tax to paya judgment against the corporation. People, etc., v. City of Cairo, 50 Ill. 154; The People, etc., v. Clark Co., 50 Ill. 213.

An execution can not be issued and levied upon the property of the inhabitants of a municipal corporation; therefore a mandamus is ordinarily the only adequate remedy. City of Olney v. Harper et al., 50 Ill. 453.

These cases in 50 Ill. were reported prior to the enactment of 1874, above referred to. In the case of Walkly v. City of Muscatine, reported in 6 Wall. (U. S.) 481, a bill in chancery had been filed to compel the authorities of the city of Muscatine to levy a tax upon the property of the inhabitants, to pay a certain judgment obtained by the complainant against the defendant. The bill showed that the judgment was for $7,000, that execution had been issued, and returned unsatisfied. It seems that under the statute of Iowa an execution may issue against a municipal corporation; that a demand for payment had been made and refused. The court in substance say: The complainant has mistaken his remedy; that the complainant had a full and ample remedy at law, that is, by mandamus, to enforce the collection of his judgment. We have not been able to find any case, authorizing the substitution of a bill in chancery and .the injunction for the writ of mandamus under any circumstances. It may be that such a, case might arise, but we have been unable to find one. An injunction most usually is a preventive and not an affirmative remedy. It is said that no court having proper jurisdiction and process to compel the satisfaction of its own judgments, can be justified in turning its suitors over to another tribunal for justice. It is no objection, whatever, to the use of this remedy, that the party might possibly obtain another remedy by commencing a new and different litigation in another tribunal. Board of Commissioners of Knox Co. v. Aspinwall et al., 24 Howard, 376. There is no other writ which can afford the party a remedy that the court is bound to afford, if within its constitutional powers, except that afforded by this writ of mandamus. Supervisors v. United States, 4 Wall. (U. S.) 435; Van Hoffman v. City of Quincy, 4 Wall. (U. S.) 535; Coy v. City of Lyons, 17 Iowa 1; State v. Keokuk, 9 Iowa, 438; State, ex rel., etc., v. City of Milwaukee, 20 Wis. 87. Very many other authorities sustaining this position might be referred to, if it was thought to be necessary. There can be no doubt butthatin this State mandamus is ordinarily, if not always, the proper remedy to enforce the collection of a judgment against a municipal corporation. The defendant in error insists, however, that the effect of these authorities is avoided by the averments of fraud in the bill. He has not referred us to any authorities sustaining that position, and if it can be sustained at all it is because fraud is one of the reasons for the intervention of a court of equity.

The bill alleges that illegal claims have been paid by the plaintiff in error, and that a large amount of illegal claims are pending and undisposed of before the city council, and that they will be allowed and paid. These are general averments of fraud and are too uncertain and indefinite to give a court of chancery jurisdiction. Charges of fraud must be clear and specific. The facts upon which they are predicated and which constitute the fraud must be averred and proved.

The material facts upon which the allegations are based must be set forth in the pleading, and this applies as well to chancery as to common law pleading: Slack v. McLagan, 15 Ill. 242; Smith v. Brittenham, 98 Ill. 188; Newell et al. v. Bureau Co., 37 Ill. 253; Klein v. Horine, 47 Ill. 430; Jones v. Albee, 70 Ill. 34; Cole v. Opera House, 79 Ill. 96.

Some specific reason must be shown to invest a court of equity with jurisdiction to manage and conduct the affairs of the plaintiff in error, or “to supervise and control the action of its officers so long- as they confine themselves to the powers conferred by the statute.”

It may be that affairs of plaintiff in error were badly, if not recklessly, managed; that its revenues were squandered, wasted and misappropriated by its officers; but that is not shown by the general allegations of fraud, or that illegal claims have been or will be paid. What illegal claims? In whose name have they been or will they be allowed? Who has or will present illegal claims? What is the nature or purport of the illegal claims that have been allowed and paid, or will be presented, allowed and paid? What amount specifically and in the aggregate of illegal claims have been paid? And what is the specific and aggregate amount of the illegal claims pending, etc.? What officer or officers of the plaintiff in error have been or will be unfaithful and betray the trust and confidence reposed in them by the people? These inquiries are pertinent and an answer to them would show the basis of the averments of fraud. So far as illegal claims have already been allowed and paid, that is a fact accomplished, and a court of chancery could not relieve the defendant in error.

As respects the allegations of fraud in the future, the averments are so general and uncertain as to not present a traversable issue.

To hold such averments sufficient is to destroy the very object of pleading, which is, in general terms, both at law and in chancery, to arrive at a specific, certain and material issue between the parties. If the averments in the bill are indefinite, uncertain and not material, it necessarily follows that a court of equity does not obtain jurisdiction, and that there can be no relief beyond the specific and material allegations in the bill. Morgan v. Smith et al., 11 Ill. 194; Kellogg v. Moore, 97 Ill. 282; Helm v. Cantrell, 59 Ill. 524

It is insisted by the defendant in error, that the decree made pro confesso is merely interlocutory, and that there has been no such final disposition of the cause in the court below as authorizes the prosecution of a writ of error. We think that this position is not well taken. The decree rendered gives to the defendant in error, all, if not much more relief than the averments in the bill justify, and is to all intents and purposes a substantial adjudication of the rights of the parties, and therefore final. It is true that the findings of the decree are quite inconsistent. In the first place it finds the sum of $7,000 in the hands of Sullivan, the treasurer, and a large amount of money in the hands of Cauty, the city clerk, which may be, and the decree directs that it should he, paid on the judgment of defendant in error. And in the concluding part of the decree the cause is referred to a specific master to ascertain and report to the court whether there is any money in the hands of the city clerk or treasurer, that may be applied to the payment of the said judgment. The decree so far as it affects the rights of the plaintiff in error is final, and if valid the treasurer might, as therein directed, pay the amount of said judgment to the defendant, and the provisions of the decree would be a protection to him; and if the treasurer failed or refused to pay said judgment on demand, he would he in contempt of the court, and might be proceeded against accordingly. In that proceeding there could be no inquiry as to the correctness of the decree.

The reference to the master may be considered as wholly superfluous and unnecessary. For the reasons given the judgment of the City Court of East St. Louis is reversed and the cause remanded.

Reversed and remanded.