text:
    Thomas R. Harris v. Granville Atchinson.
    Promissory, Note—Signing as security—Agreement to procure another signer.—Appellee claimed that he signed .the note in question as security, with the understanding that another security should be procured, which was never done, and upon the evidence on this point a judgment was rendered for appellee in the court below. The evidence fails to support the theory of appellee’s defense, while appellant’s position is clearly supported. The finding of the court being against the weight of the evidence, the judgment must be set aside.
    Appeal from the County Court of Morgan county; the Hon. E. P. Kirby, Judge, presiding.
    Messrs. Morrison, Whitlock & Lippinoott, for appellant;
    that forbearance to sue on a doubtful demand is a good consideration for a promise to pay, cited Mulholland v. Bartlett, 74 Ill. 58; Knotts v. Preble, 50 Ill. 226; 1 Chit. Pl. 101.
    The proof must correspond with the allegation: Wheeler v. Reid, 36 Ill. 81; Murray v. Hanely, 70 Ill. 318.
    The consideration must be proved as laid: R. & W. R. W. Co. v. Rhodes, 76 Ill. 285.
    Messrs. Hummer, Brown & Russell, for appellee;
    that in pleading, a material statement not traversed is taken to be admitted, cited 1 Chit. Pl. 658.
    A note signed upon condition that another signer shall he procured before delivery, is without consideration if the other signer is not procured: Knight v. Hurlbut, 74 Ill. 133; Stricklin v. Cunningham, 58 Ill. 293.
   Lacey, J.

This suit was brought by appellant against appellee and J. W« Caldwell and W. W. Deatkerage, to recover on a certain promissory note signed by appellee as security for the other two defendants, for $791.66, dated October 19, 1875, and due one year from date, with ten per cent, interest per annum.

The defense set up by the appellee to said note was by his first plea, that the note was without consideration in this: that after the note was signed by his co-defendonts it was promised and agreed by and between them that if the appellee would sign the note as security for his co-defendants, they would procure some other person pecuniarily responsible other than appellee to sign the said note as security before it should be delivered by appellant as a binding obligation on appellee, which promise and agreement was the sole consideration upon which the said note was signed by appellee; that the appellee did sign the said note as security for his co-defendants, of all which the appellant had notice; that without the consent of appellee the note was delivered to appellant without the signature of the promised security, etc.

The 2nd and 3d pleas set up the same defense substantially, averring, however, that the note was deposited by appellant, or by his consent was deposited in the hands of J. E. Barrett, for the signature of the other security, and that without the consent of appellee the note was delivered to appellant without the signature of the other security, etc.

Issue was taken on all the allegations of these pleas except the allegation that appellant had notice of the above agreement, which latter allegation by issue not being joined must be taken as confessed. Default was entered, and judgment rendered against the principals on the note, and jury waived and trial had by the court as to appellee. The court found for appellee, and as to him rendered judgment against appellant for costs, who brings the case to this court on appeal, and assigns for error the refusal of the court below to render judgment against appellee for the amount of the note and the giving judgment against appellant for costs.

The undisputed facts, as appears by all rthe evidence in the case are, that appellant prior to the time the note in suit was executed, held a note of $2,000 signed by Caldwell and Deatherage, the co-defendants,-with appellee as principals and appellant as security. That the first note was given up and canceled, and at the came time Deatherage proposed to and did pay appellant $1,500 in cash, and agreed to give a new note with some names on it for the balance of the first note. The question whether any other person should sign the note as security, and whether such note should be operative unless such party did sign it, is disputed.

Appellant went to Jacksonville, and with Caldwell went to his attorneys’ office to get the old note, when Caldwell and his attorneys'calculated the amount of the old note and interest, and after taking out the $1,500 payment, the note in suit was drawn up and Caldwell signed it. Appellant then took the note back to Waverly, where he lived, and went with it to Deatlierage’s house, presented it to him, and Mr. D. paid him $1,500 in cash. Appellant then handed him both notes; he said he would get appellee to sign the note. The note was to be returned signed. About an hour afterwards Mr. D. met appellant on the sidewalk and handed him the note in suit as it now appears. The note was then deposited by consent of appellant with one Barrett at his store for another signature, where it laid for about two months and no signature was procured, when appellant called for the note and took it up.

It is contended by appellee that it was expressly agreed by him and his co-defendants, and that was the sole consideration of his signing the note, that before the new note should be delivered another good security snould be obtained on the note, and it is admitted by the pleadings that appellant had notice of whatever agreement was made. The appellant contends that he was satisfied with the security, and only left the note in Barrett’s hands for additional signatures, at the request of Deatherage and for the accommodation of appellee, and that the procuring of the other signature was not to be a condition precedent to the delivery of the note. What is the evidence on this point? Deatherage swears that he told appellant that he would give him two sureties; thinks he told him he would get appellee to sign the note, but was not certain; that as there had been some talk about their credit, he would not ask any one man to sign their note alone. He also testifies that he told appellee they were not in as good credit as they had been, and he got appellee to sign the note, and told him that he would get another good solvent man to sign the note before it should be delivered; and that appellee signed the note with that understanding. That the old note was paid in this way, and appellee released.

Appellee testified that Deatherage presented him this note and asked him to sign it; he told him that if he would sign it he would get another good solvent man to sign it before it was delivered—with that understanding he signed it—this was the consideration on which he signed the note. That he was willing, to the agreement to renew the old note, but Deatherage told him he would get another solvent man to sign it.

Caldwell testified that the old note was canceled and surrendered in consideration of the §1,500, and the execution of the new note. This was all the evidence going to sustain appellee’s pleas. Appellant testified that he only left the note with Barrett after it had been sigried and delivered to him for the additional signature, at request of Deatherage. He' had no conversation with appellee about it. That in August, 1877, in company with Frank Mechara, he asked appellee for payment of the note in suit. He said he would see his co-defendants about it. He made no claim that he was released. For the first time after this suit was commenced, appellant heard he was going to claim that another man was going to sign it. Appellant was satisfied with the signatures. Mechara testified that at the interview with appellee spoken of, the latter did not claim to have any defense to the note, but said “ it seems like they intend to let me pay it.” This is substantially all the evidence.

From all the facts and circumstances in evidence in this case, it seems to us clear the story told by appellant is the correct one; that really the agreement and understanding between the parties, was that the new note should be given for the balance of the old note; that the same parties should sign it, but for the accommodation of appellee, he being the sole security on the old note, and the principals being in failing circumstances, since having become insolvent, another security might be. obtained by Deatherage, if he could get one, for the accommodation of appellee alone to share the responsibility and risk with him, and not as a condition precedent to his liability.

To hold otherwise from all the evidence in the case, would be to believe that appellant, knowing the reputation of the principals in the note was not as good as it had been, deliberately canceled the old note, and delivered it up and released appellee; then placed the new note, signed as it was, in the hands of a third party, with the agreement that it should never take effect as to appellee, unless Deatherage, who would have no interest in doing so, would procure another security. According to this theory, tire appellant being chargeable with full knowledge of the agreement, deliberately released his security, for it could make no difference to Deatherage and Caldwell whether the additional security were obtained or not. If it was not obtained, appellee was released; if obtained, then he was responsible. The happening of the event, whether appellant should have any security, or should even retain the security he then had, was wholly in the breast of Deatherage. Such a transaction would be contrary to all our experience of human nature. We could not believe such a theory without the clearest proof.

On the other hand the theory of the appellant accords with reason. Before the old note was canceled the appellee was already liable for this debt; he could only be released at the will of appellant; he was placing himself in no worse position by signing the new note unconditionally than he was in before—in fact better, because $1,500 had been paid of the first obligation.

We think the position of the appellant in this caséis clearly supported by the evidence, and that the finding of the court below was so manifestly against the weight of the evidence that the judgment of the court below ought to be reversed and the case remanded, which is accordingly done.

Reversed and remanded.


source: Caselaw Access Project

author: Higbee, P. J.

license: Public Domain

text:
    Louisa C. Hartman v. B. C. Cochrane et al.
    1. Execution—When protection to the officer.—An execution in the hands of an officer is a sufficient protection to him when sued by the party against whom he holds the execution, but when he levies upon the goods of a third person, a stranger to the execution, he must produce the judgment as well as the execution to justify the seizure.
    2. Property purchased by wife—Possession.—The evidence showed that the property in question formerly belonged to the husband of appellant, and was by him mortgaged to B, who took possession under the mortgage, and afterwards sold it, appellant becoming the purchaser; but there was no proof that any funds belonging to the husband were used in payment of such purchase. This was not sufficient to warrant the jury in finding a verdict against appellant as to the ownership of the property; nor does the fact that appellant took possession of the property and returned it to the home, where she resided with her husband, she being the owner of the farm, aid in reaching such a conclusion; nor is it material that her husband may have used and taken care of the property, provided such use and care were not inconsistent with appellant’s rights as owner.
    Appeal from the Circuit Court of Christian county; the Hon. C. S. Zane, Judge, presiding.
    Mr. J. C. Essiok and Messrs. Thoenton & Hamlin, for appellant;
    upon the right of the mortgagee to foreclose the mortgage, cited Fox v. Kitton, 19 Ill. 519; Bailey v. Godfrey, 54 Ill. 507; Lewis v. D ’Arcy, 71 Ill. 648; Frisbee v. Langworthy, 11 Wis. 375; Welch v. Lockett, 12 Wis. 243; Spriggs v. Camp, 2 Speers, 181; Furlong v. Cox, 77 Ill. 293.
    Appellant could lawfully engage her husband to act as her agent: Brownell v. Dixon, 37 Ill. 187; Wortman v. Price, 47 Ill. 22; Pike v. Baker, 53 Ill. 163; Greenwood v. Jenkle, 68 Ill. 319.
    Possession as agent is not fraudulent: Peters v. Smith, 42 Ill. 417; Dreyer v. Durand, 80 Ill. 561.
    If appellant bought the property in good faith, for a valuable consideration, knowledge that it might defraud her husband’s creditors, will not affect her right to hold it: Hessing v. McCloskey, 37 Ill. 341; Gray v. St. John, 35 Ill. 222; Miller v. Kirby, 74 Ill. 242.
    Fraud will not be inferred because the sale was to the wife. It must be proved: Waterman v. Donaldson, 43 Ill. 29.
    To vitiate a sale, both vendor and purchaser must participate in the fraud: Brown v. Riley, 22 Ill. 46; Miller v. Kirby, 74 Ill. 242; Hatch v. Jordan, 74 Ill 414.
    Where instructions calculated to mislead the jury are given, the verdict should be set aside: Carter v. Carter, 62 Ill. 439; Adams v. Smith, 58 Ill. 417; Baldwin v. Killian, 63 Ill. 550.
    Mr. John B. Jones' and Mi*. J. C. MoQuigo, for appellees;
    that a man’s labor is valuable capital which cannot .be appropriated by his wife to the exclusion of his creditors, cited Wilson v. Loomis, 55 Ill. 352.
    The verdict will not be disturbed unless there is a manifest want of evidence to support it: T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; Chicago City R’y Co. v. Young, 62 Ill. 238.
    If it is manifest the jury were not misled by an instruction, though inaccurate, the verdict will not be disturbed: Potter v. Potter, 41 Ill. 80; Jarrard v. Harper, 42 Ill. 457.
    An erroneous instruction is cured by giving another not erroneous: Lawrence v. Hagerman, 56 Ill. 68.
    If there be any proof, though not direct, an instruction may be predicated upon it: Peoria M. & F. Ins. Co. v. Anapow, 45 Ill. 86.
   Higbee, P. J.

This is a suit in replevin brought by appellant against appellees to recover the possession of personal property. Defendants justify the taking, as constables, under executions issued on judgment against Herman Hartman, husband of appellant, and placed in their hands for collection. On the trial in the court below, the executions described in the plea were read in evidence, but no judgments were offered or read.

Defendants then attacked the title of appellant derived from defendant in execution as fraudulent, and eviden ce tending to show his former ownership, and that her right was fraudulent as against creditors. A verdict was found for appellees, mo - tion for new trial overruled, and judgment rendered on the verdict, which is now assigned for error.

This finding and judgment cannot he sustained./ Mrs. Hartman’s title was good as against her husband, and when attacked by appellees as fraudulent as against creditors, a simple execution in the hands of .the officer is not sufficient; they must go further and show a valid judgment upon which the execution was issued.

An execution in the hands of the officer is a sufficient protection to him when sued by the party against whom he holds the execution, but when he levies upon the goods of a third person, a stranger to the execution, he must produce the judgment as well as the writ to justify the seizure. Herman on Executions, 217; Seldon v. Van Buskirk, 2 N. Y. 477; Lake v. Bellers et al. 2nd Ld. Ray 733; Martyn v. Podger et al. 5 Bun, 2631; High v. Wilson. 2 Johns. 47; Damon v. Bryant, 3 Pick, 413; Savage v. Smith, 2, Wm. Black. 1104.

If the officer seeks to impeach a sale on the ground of fraud, he must give in evidence not only the execution but also the judgment upon which it is issued. Jackson v. Hobson, 4 Scam. 412; Johnson v. Halloway, 82 Ill. 335.

The record in this case fails to show any judgment upon which the executions were issued, and without such proof the jury were not warranted in finding against the title of appellant to the property. It is also insisted that the verdict of the jury was manifestly against the evidence upon the question of fraud.

The evidence tends to show that Herman Hartman, the husband of appellant, had formerly owned the property; that- he was justly indebted to one J. H. Baldwin in a large amount, and to secure the same, executed to him a chattel mortgage on the property in controversy, which was duly acknowledged and recorded as required by law.

The mortgage contained the usual provisions that the mortgagor should retain possession until default in payment, and that the mortgagee might, in case he thought himself insecure, etc., take immediate possession. After the mortgage was recorded the executions came into the hands of defendants, but before a levy was made, Baldwin took the possession of the property and sold it to appellant.

There is no dispute that Herman Hartman was justly indebted to Baldwin, and that he owned the property when he made the mortgage, and that the debt remained unpaid when he took possession. That he had a right to reduce the property to his possession under his mortgage, and sell it to appellant, there can be no question.

True, she was a married woman, and the wife of the former owner of the property, but under the laws of this State she was competent to contract for the purchase of the property, and she did so purchase it, giving her own notes and a mortgage to secure the purchase price, no part of which had been paid when these executions were levied. Ho part of the husband’s money, property or labor had been used by Mrs. Hartman in payment for her purchase when the levy was made, and we are wholly unable to see upon what ground the jury should find her title was fraudulent and void.

It is said that her husband was apparently in possession of the property after her purchase, just as he had been before it was taken from him by Baldwin.

Mrs. H. had a deed to the farm, and the property was used on it; it was the home of both, and after she bought she claimed to own the property, and her husband disclaimed the ownership. Such a possession was all that she could have or take consistently with the nature of* the property and the uses to which it was applied, and all that the law requires under such circumstances. She was not required to move off of the place and live separately from her husband, to enable her to hold possession of the property, nor is it material that her husband may have used and taken care of the stock and other property, provided such use was not inconsistent with her rights as owner of the property.

It is also urged, however, that the husband cannot give his labor to his wife as against creditors, and that crops raised by his labor with his wife’s property on her farm are liable to the payment of his debts. It is a sufficient answer to this argument for the present, that no such state of case is presented by the record; no crops had been raised when this levy was made, but the levy was on the articles of property bought by her from Baldwin.

For these reasons the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Davis, J.

text:
    The Chicago, Burlington & Quincy Railroad Company v. Simon R. Clark.
    1. Master and servant—Injuries to servant.—An employee assumes all the ordinary hazards arising from the performance of the duties of his voluntary engagement, and if he is injured by any of the ordinary perils of the service, the law will afford him no remedy.
    2. Railroads—Lessor and lessee—Relation oe servants of the latter to the former.—Where a railroad company leases of another company its track, the trains of' the lessee being allowed to run over such track subject to the control, rules and orders of the lessor, by virtue of an agreement to that effect between the two companies, the lessor will be regarded as the common master of the servants of the lessee while running its trains upon the leased track, and the employees of the two companies as fellow servants of the lessor.
    Appeal from the Circuit Court of Adams county; the Hon. Joseph Sibley, Judge, presiding.
    Mr. O. H. Browning, for appellant;
    that the allegations and proofs must correspond, cited Blackburn v. Thompson, 15 East. 81; 1 Chitty’s Pl. 375; Hullman v. Bennet, 5 Esp. 226; Ill. Cent. R. R. Co. v. Middlesworth, 43 Ill. 64; Tracy v. Rogers, 69 Ill. 662; Guest v. Reynolds, 68 Ill. 488; Ill. Cent. R. R. Co. v. McKee, 43 Ill. 119; Quincy Coal Co. v. Hood, 77 Ill. 68; Hacket v. Smelsby, 77 Ill. 109; C. C. & I. C. R. R. Co. v. Troesch, 68 Ill. 548; T. W. & W. R. R. Co. v. Jones, 76 Ill. 311; I. B. & W. R. R. Co. v. Rhodes, 76 Ill. 285.
    To constitute a tort there must be actual or legal damage to the plaintiff, and a wrongful act or omission of the defendant: 1 Addison on Torts, 2; Harkins v. Standard Sugar Refinery, 122 Mass. 400.
    The injury of which plaintiff complains must be the result of the negligence of the defendant; the proof shows it was caused by the wrongful act of the servants of another road: Lesher v. Wabash Nav. Co. 14 Ill. 85; Hinde v. Wabash Nav. Co. 15 Ill. 72; C. St. P. & F. DuLac R. R. Co. v. McCarthy, 20 Ill. 385; O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; Ill. Cent. R. R. Co. v. Finnigan, 21 Ill. 648; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 106; Ill. Cent. R. R. Co. v. Kanouse, 39 Ill. 272; T. P. & W. R. R. Co. v. Rumbold, 40 Ill. 143; Railroad Co. v. Barron, 5 Wall. 90.
    It being shown that proper regulations had been adopted for the running of trains, the presumption was that the act was in violation of those rules and the company not liable: P. Ft. W. & C. R. R. Co. v. Powers, 74 Ill. 341.
    A recovery cannot be had. where the injury was caused by the negligence of a fellow servant: Wright v. N. Y. C. R. R. Co. 25 N. Y. 568; Rose v. Boston, etc. R. R. Co. 58 N. Y. 217; Ill. Cent. R. R. Co. v. Cox, 21 Ill. 20; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; C. & A. R. R. Co. v. Murphy, 53 Id. 339; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; C. C. & I. C. R. R. Co. v. Troesch, 68 Ill. 548; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; T. W. & W. R. R. Co. v. Durkin, 76 Ill. 398.
    Plaintiff had knowledge of the manner of running trains over the leased track, and he cannot recover for an injury arising from a danger to which he voluntarily exposed himself: Woodley v. Metropolitan R’y Co. 2 Law Times Rep. 384; I. B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; C. & N. W. R. R. Co. v. Ward, 61 Ill. 130; Gunderson v. Peterson, 65 Ill. 193; Harkins v. Standard Sugar Refinery, 122 Mass. 400.
    Damages must be the natural result of the act done: 1 Chi tty’s PI. 410; Sedgwick on Damages, 82; Clark v. Brown, 18 Wend. 229; 3 Parsons on Contracts, 178; T. W. & W. R. R. Co. v. Muthersbaugh, 71 Ill. 572; Bosch v. B. & M. R. R. Co. 44 Iowa, 402; Lowery v. W. U. Tel. Co. 60 N. Y. 198; Hoey v. Felton, 11 C. B. (N. S.) 142.
    Messrs. Wheat & Bonnet, for appellee;
    that the plaintiff was not a fellow servant with the employees of the leased road, and that defendant was liable, cited Swainson v. Northwestern R’y Co. 3 L. T. Rep. 102; Voss v. Lancanshire, etc. R’y Co. 27 L. J. 249; Warburton v. Great Western R’y Co. 15 L. T. Rep. (N. S.) 361; Valtez v. O. & M. R. R. Co. Sup: Ct. Ill. June T. 1877; C. & A. R. R. Co. v. Murphy, 53 Ill. 339; Smith v. N. Y. & H. R. R. Co. 19 N. Y. 127; Catawissa R. R. Co. v. Armstrong, 49 Pa. St. 186.
    The company leasing the road will be liable: Lesher v. Wabash Nav. Co. 14 Ill. 85; Hinde v. Wabash Nav. Co. 15 Ill. 72; C. St. P. & F. DuLuc. R. R. Co .v. McCarthy, 20 Ill. 385; O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 106; Ill. Cent. R. R. Co. v. Finnigan, 21 Ill. 648; Ill. Cent. R. R. Co. v. Kanouse, 39 Ill. 272; T. P. & W. R. R. Co. v. Rumbold, 40 Ill. 143; P. & R. I. R. R. Co. v. Lane, Sup. Ct. Ill. 1877; Vt. & Canada R. R. Co. v. Nelson, 26 Vt. 717; Bemen v. Rufford, 6 Eng. L. & Eq. 106; Great Northern R’y Co. v. Eastern C. R. R. Co. 12 Eng. L. & Eq. 225; Norwich v. B. & L. R. R. Co. 12 Eng. L. & Eq. 506.
   Davis, J.

This action was brought by appellee to recover damages for injuries received by him in a collision of trains, on appellant’s road, January 1, 1877.

Appellee recovered a judgment below for $3,900, to reverse which this appeal is taken.

Appellee was a locomotive engineer, in the service of appellant, and on the day of the accident was running an engine with a passenger train attached, over appellant’s road, between Camp Point and Quincy. At the same time, a wild or extra freight train belonging to the Toledo, Wabash & Western Bail-way Co., was running over the same road, between Quincy and Camp Point, and about 9:50 p. m. the two trains collided, injuring appellee very seriously.

Appellant’s road, between Camp Point and Quincy, had been used continually as one road, jointly by the two companies, since 1859, under a lease from the Chicago, Burlington & Quincy Railroad Company, and by the arrangement existing between the two roads, the time table of appellant governed all trains between Quincy and Camp Point, and it was made the duty of all conductors to run by such time table. The rules adopted for the government of trains running over that part of appellant’s road between those points, were that conductors should await the arrival of an incoming train before another of the same class should go out; that inferior trains should wait for superior trains indefinitely; that a wild train had no business upon the road, except upon an order from the dispatcher of appellant’s road, and that first-class trains had rights over all inferior trains.

The accident was not caused by any fault of the appellee, or of any of the employees of appellant in charge of the passenger train, but was solely the result of negligence on the part of Gage, the conductor of the wild train of the Wabash road. By the time table of the C. B. &. Q., the passenger train was entitled to the right of way, and was within a few minutes of being on time, and was due in Quincy at 9:45 p. m. ; but was entitled to the right of way for twelve hours longer.

The wild train had run into Quincy from Camp Point about 7 ;30 p. m., and was to return the same evening, but it was made the duty of the conductor of that train by such time table, to await the arrival of the passenger train. Of this duty rand of all the information imparted by the time table, one of which was in his possession, he was fully aware, but for some unexplained reason, instead of waiting for the arrival of the passenger train, he left Quincy a few minutes before it was due, and collided with it within five minutes after leaving.

Appellee entered the service of appellant as a locomotive-engineer in 1859, and served as such until 1867, when he quit such service. From January, 1872, until September of the same year, he was in the employ of the Toledo, Wabash and Western Railway Company, and during that time ran over the road of the Chicago, Burlington and Quincy Company between Quincy and Camp Point, and was governed between those two places by the time table of appellant. .He again entered the service of appellant in September, 1872, and knew when he did so that the Toledo, Wabash and Western ¡Railway Company habitually ran its trains over the road of the C. B. & Q., and that it was governed by the time table of appellant whilst upon the road. Upon these facts, as shown by the record, it is clear that the relation which existed between the appellant and the Toledo, Wabash and Western Bail way Company as to that part of appellant’s road between Camp Point and Quincy, was that of lessor and lessee, aqd the O. B. & Q., as lessor, would undoubtedly be liable for all injuries done on its road to those not connected with the trains and employees of the Toledo, Wabash and Western Bailway Company, its. lessee. But in this case the question to be determined is, what relation did Gage, the conductor of the Wabash train, sustain to the C. B. and Q. road, and to the appellee at the time of .the collision ? Was he a servant of the appellant and fellow servant of appellee, or was he a servant of the Wabash road?

The same track being used by the two companies, a due regard for the safety of the traveling public and the proper dispatch of business, required that one of the two should have the sole control and government of all trains running over it, and to that end the agreement entered into between the two roads in 1859, permitted the Wabash to run its trains over the C. B. and Q. Boad on the time-table of the latter, and subject to the orders, rules and regulations, and under the sole control of the C. B. and Q., and although the employees of the Wabash road were engaged and paid by that company, yet from the time they entered with their trains upon, and while they remained on the road of appellant, the management and control of such trains and employees passed to and devolved upon the C. B. and Q. road, and it became liable for all damages which might result from injury caused by the negligence or mismanagement of the same. We think appellant must be regarded as the common master of appellee and of Gage, the Wabash conductor. Both were under the orders and control of appellant, so far as the road was operated between Quincy and Camp Point.

In the operation of that portion of appellant’s road, appellee and Gage were fellow servants; both controlled and directed by a common head, and required to obey a common will. The Wabash road had no charge of, or control over, the wild train while on appellant’s road, and the employees in charge, were as to the management of such train the servants of, and subject to, the orders of appellant alone. Gage, as the conductor of the wild train, and appellee as engineer of the passenger train, knew what their respective duties were, and what and whose orders they were required to obey. They both knew it was their duty to serve and obey the orders of the G. B. and Q. and that they were under the control and management of the same master while running between Camp Point and Quincy; and while they were acting under common orders and in the discharge of common duties the accident occurred.

We think also that the accident in which appellee was injured, was one of the ordinary hazards of the engagement which he voluntarily entered into with appellant.

When appellee re-entered the service of appellant, in September, 1872, he knew his engagement would require him to run his trains over the same road, to and from the same points, under the control and management of the O. B. and Q. road. He had been in the service of the two roads in the discharge of the same duties at different times, and was thoroughly acquainted with what his duties were, and what were the duties of the Wabash employees while on appellant’s road. He knew the hazards connected with the duty of his employment to pass the trains of the T. W. & W. road over the same track for the distance between Quincy and Camp Point, and was ignorant of no duty or risk attached to the position which he sought. He then with a full knowledge of all the facts and all the risks connected with- his employment, voluntarily entered the service of appellant, and remained in such service for about five years, discharging the same duties, and exposed to the same hazards, until the unfortunate accident occurred out of which this litigation has grown.

The rule seems well established, that an employee assumes all ordinary hazards arising from the performance of the duties of Ms voluntary engagement, and if he is injured by any of the ordinary perils of the service, the law will afford him no remedy. C. & 27. W. E. E. Co. v. Ward, 61 111. 131; I. B, & W. E. E. Co. v. Flannigan, 77 111. 365.

The judgment of the court below must be reversed.

Judgment reversed.


text:
    The Chicago, Burlington & Quincy Railroad Company v. Frank W. Van Hagen.
    Appeal from the Circuit Court of Adams county.
    Mr. O. H. Browning, for appellant.
    Messrs. Wheat & Bonnet, for appellee.
   Davis, J.

The evidence in-this case is substantially the same as in the case of the Chicago, Burlington & Quincy Railroad Company v. Simon E. Clark {ante y>.596], decided at the present term, and the decision must be the same.

Judgment reversed.


text:
    David P. Grier et al. v. Charles S. Stout.
    1. Trover—When it will lie.—To support the action of trover the plaintiff must, at the time of the conversion, have the possessory title or the right to the immediate possession of the goods.
    2. Sale—Bailment—Distinction.—When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and tlie title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another of equal value, he becomes a debtor to make such return and the title to the property is changed—it is a sale.
    Appeal from the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.
    Messrs. James & Jack, for appellants;
    that the receipt shows that the transaction was a sale, cited Story on Bailments, §§ 283, 439; Lonergan v. Stewart, 55 Ill. 44; Richardson v. Olmstead, 74 Ill. 213; Chase v. Washburn, 1 Ohio St. 244.
    To maintain trover, plaintiff must show a tortious conversion, and a right to immediate possession: 1 Chitty’s Pl. 167; Owens v. Weedman, 82 Ill. 417; Bertholf v. Quinlan, 68 Ill. 297.
    There must be a demand and refusal before there can be a wrongful conversion: Bruner v. Dyball, 42 Ill. 34.
    Mr. John B. Cohrs and Messrs. Prettyman & Son, for appellee;
    that a wrongful assumption of ownership in, or right to dispose of, the property, is a conversion, and renders a demand and refusal unnecessary, cited Bruner v. Dyball, 42 Ill. 36; Buckmaster v. Mower, 21 Vt. 204; Buxon v. Hubbard, 5 East. 407; 2 Hilliard on Torts, 101; 1 Chitty’s Pl. 142; Bristol v. Burt, 7 Johns. 254.
    When the second bailee claims by tort or by defective title under the first bailee, the bailor may recover against both: Story on Bailments, § 39; 2 Hilliard on Torts, 103.
    Appellee may recover his aliquot part of the corn, though mixed with other corn: Story on Bailments, § 40.
    Until payment the right of possession is in appellee, and trover will, lie: Owens v. Weedman, 82 Ill. 409; Bertholf v. Quinlan, 68 Ill. 297.
    If the sale was obtained by fraud of appellant’s agent, appellee may disaffirm the sale, and bring trover for the goods: Gray v. St. John, 35 Ill. 222; Newkirk v. Dalton, 17 Ill. 413.
    When property is sold to be paid for on delivery, and the purchaser refuses payment and appropriates the goods, trover will lie: Matthews v. Cowan, 59 Ill. 342; Conklin v. Leeds, 58 Ill. 180.
   Higbee, P. J.

This was an action of trover commenced by appellee against appellants to recover the value of sixteen hundred and fifty-three bushels of corn. On trial of the Cause in the court below before a jury, there was a verdict for appellee for the value of the corn and judgment thereon. To reverse this judgment plaintiffs appeal and assign several errors.

It appears from the evidence in the record, that on the '24tli day of February, 1877, and for several years prior thereto, appellants were engaged in the grain trade at Peoria, Illinois, where they had elevators for the purpose of storing and handling their grain. It further appears that at the time last mentioned and for some two years prior thereto, one James A. McComas resided at Manito, in Mason county, where he had an elevator and grain warehouse, and was engaged in buying and shipping grain to appellants at Peoria. During the two years he was so engaged, he purchased and shipped by rail and boats to appellants a large amount of grain, and received from them large sums of money therefor. Whether McComas purchased the grain on his own account and sold it to appellants, or purchased it for appellants as their agent, does not very clearly appear, nor do we regard it as very important in this case. In either event it was well known to all parties to this suit, that he received his money to buy with from Grier & Co. and shipped the grain purchased to them.

On the 24th day of February, 1877, appellee having finished delivery of the corn in controversy to McComas, took from him this receipt:

“ 1653 bushels. Manito, Ills. February 24, 1877.

Deceived of C. S. Stout, sixteen hundred and fifty-three bushels of corn in store, delivered by Hiram Keely, which I agree to pay lake market price, and further agree to pay one cent per month per bushel after thirty days.

J. A. McComas,

For Grier & Co.”

At the same time McComas delivered to appellee a draft on Grier & Co. for one hundred dollars, which was paid by them. At the time of this transaction appellee saw the corn put into the warehouse, and from there on to a boat, where it was mixed with other corn and 'shipped to Grier & Co. at Peoria, and although present, he made no objection to mixing his corn with a large quan'ity of other corn, or to its shipment to appellants. Appellee testifies that he did not sell the corn; that he left it to be stored; that the price did not suit him; that lie was to sell it when the price suited, but was not to pay storage if he sold within thirty days; if after that he was to pay one cent per month.

He also says the $100 was advanced on the corn, but he is very indefinite as to the precise terms upon which he received the money. He says he received the draft when the receipt was signed; that it was a payment on the corn; did not sell the corn, it was only an advance that was to be taken out of the full amount that was coming. It was so much money loaned on the corn.

Hothing more is heard of this transaction until the 21st of May following, when appellee went to Peoria and demanded of Grier & Co. pay for the corn, which they refused, and appellee brought this suit.

To support the action of trover the plaintiff must at the time of the conversion have the possessory title, that is, the right to the immediate possession of the goods. Whether appellee at the time he commenced this suit had such right of possession, depends upon the effect to be given to the transactions between McComas and himself at the time he parted with the possession of the corn.

If the receipt together with the other proof amounts to a sale of the corn to the Griers, the appellee could not maintain this action. If, as he claims, it was a bailment of the property only, and he had a right to the possession of the same corn when demanded, then the action is properly brought.

It is clear that when appellee received the receipt from McComas and saw this corn loaded on board of a boat mixed with other corn that he did not expect the same identical property to be returned to him, nor is there any evidence in the record that appellants or their agent ever agreed to return other corn of like quantity and quality, but the then price of the corn being unsatisfactory, he received a hundred dollars down and expected the balance whenever the price should be satisfactory, to be determined by himself thereafter. The corn when it reached Peoria went into appellants’ elevators with other corn. How long it remained there or what finally became of it does not appear.

These facts bring the case within the principles recognized by courts by which the character of such transactions is to be determined. That principle is, that 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 when there is no obligation to restore the specific article and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make such return, and the title to the property is changed; it is a sale. Lonergan v. Stewart, 55 Ill. 44.

The distinction between the obligation to restore the specific things, and the obligation to return other things of the like kind and value holds good in cases of hiring as well as in cases of deposits and gratuitous loans. In the former case it is a regular bailment.; in the latter it becomes a debt or innominate contract. Thus, according to Alfenns, if an ingot of silver be delivered to a silversmith to make an urn, the whole property is transferred and the employer is only a creditor of metal equally valuable, which the workman engages to pay in a certain shape; the smith may consequently apply it to his own use. But if it perish, even by unavoidable mischance or irresistible violence, he as owner of it, must abide the loss; and the creditor must have his urn in due time. Jones on Bailments, 105-6; Story on Bailments, Sec. 439; Hurd v. West, 7 Cowan, 752, note a; Newton v. Woodruff, 2nd Comst. 153; Ewing v. French, 1 Block. 353; Chase v. Washburn, 1 Ohio St. Rep. 244; Richardson et al. v. Olmstead, 74 Ill. 213.

It is not material that both appellee and McComas state that they did not regard it as a sale of the corn; the receipt and their evidence discloses the whole transaction; the law fixes its character from these facts, and it is impossible to regard it as a bailment in which the identical corn was to be returned to appellee.

Appellee not being entitled to the possession of the corn at the time of the supposed conversión, he cannot recover in this action.

Judgment reversed.


text:
    The City of Carlinville v. Ferdinand Taggart.
    Municipal taxes—Collection—Unconstitutionality oe act.—The act in regard to the assessment of property, and the levy and collection of taxes by incorporated cities, approved April 15, 1873, in force July 1, 1873, is unconstitutional and the collection of a tax under it cannot be enforced.
    Appeal from the Circuit Court of Macoupin county; the Hon. C. S. Zane, Judge, presiding.
    Messrs. S. S. & E. A. Gilbert, for appellant;
    that debt or assumpsit will lie for taxes, cited Town of Geneva v. Cole, 61 Ill. 397; Dunlap v. County of Gallatin, 15 Ill. 7; Dillon on Municipal Corporations, 750; Ryan v. Gallatin county, 14 Ill. 78.
    The county board may institute suit for taxes due on forfeited property: Rev. Stat. 1874, 896, § 230.
    Upon the rule of construction of statutes: Zarresseler v. The People, 17 Ill. 104; Bruce v. Schuyler et al. 4 Gilm. 221; Tyson v. Postlewaite, 13 Ill. 728; Chicago v. Quimby, 38 Ill. 274; Card v. McCaleb, 69 Ill. 314.

      The remedies given by statute for the collection of taxes are only cumulative: Dugan v. Baltimore, 1 Gill. & J. 383.
    The act authorizing the disconnection of territory from any city, is unconstitutional, and the fact that appellee’s land was disconnected from the city under that act, is no defense in this case: City of Galesburg v. Hawkinson et al. 75 Ill. 152.
    The decree of court authorizing such disconnection being void, may be attacked collaterally: White v. Jones et al. 38 Ill. 160; Campbell v. McCahan et al. 41 Ill. 46; Huls v. Buntin, 47 Ill. 396.
    Mr. Horace Gwnr and Mr. C. A. Walker, for appellee;
    that there must be a valuation of the property in order to create a valid assessment and levy of taxes, cited Constitution, Art. 9; Lebanon et al v. O. & M. Ry. Co. 77 Ill. 539.
    The evidence should show that the land taxed was within the corporate limits of the city: Cooley on Taxation, 15; Rev. Stat. 1867, 479; Dillon on Municipal Corporations, § 124; Greenleaf on Ev. 8.
    It must be shown that the tax was levied by the city council: Laws 1873, 51; Cooley on Taxation, 257.
    The tax should have been demanded before suit brought: Thomson v. Gardner, 10 Johns. 404; St. Anthony v. Greely, 11 Minn. 321.
    The statute of 1874 has overruled or modified the prior decisions of the Supreme Court, relative to proceedings for collection of the revenue: Chiniquy v. The People, 78 Ill. 570.
    Taxes are not debts, and statutory remedies only can be resorted to for their collection: Cooley on Taxation, 300.
   Higbee, P. J.

This was an action of debt commenced before a justice of the peace of Macoupin county, by the city of Carlinville, to recover from appellee a tax assessed against his land in his said city for the year 1873. After a trial before the justice of the peace, an appeal was taken to the Circuit Court of said county, where a judgment was rendered against the city, from which an appeal is taken to this Court.

We do not deem it necessary to decide upon the various errors assigned and discussed in the briefs in this case. The suit is brought to recover city taxes assessed, levied and attempted to he collected by the officers of the city under an ordinance passed in July, 1873, in pursuance of an act entitled “An act in regard to the assessment of property and the levy and collection of taxes by incorporated cities in the State,” approved April 15, 1873, and in force July 1,1873, known as the City Tax Act.”

The Supreme Court of this State, in the case of the People ex rel. v. Cooper, 83 111. 585, held this law to he unconstitutional and void, and that the collection of a tax levied under it by the city officers could not he enforced by law.

Since this decision of the Supreme Court the legislature has passed an act intended to enable cities to collect the tax of 1873, entitled “An act in regard to the assessment, levy and collection of the taxes of incorporated cities in this State for years prior to the year 1877.” Approved IVIay 5, 1877. See Session Laws 1877, p. 56. This act fully recognizes the inva. lidity of “ the City Tax Act,” and provides a new mode for the levy and collection of city taxes for said year.

The tax sought to he recovered in this suit having been levied without authority of law, cannot be collected by suit.

Judgment affirmed.


text:
    The Hartford Insurance Company et al. v. William A. Pennell et al.
    . Subrogation — Restraining settlement of suit. — Appellants insured the hotel of appellee and on its destruction by fire paid the amount of insurance. Subsequently appellee brought suit against a railroad company for damages for setting his hotel on fire, in which suit appellants asked leave to interplead as parties plaintiff, which was refused. Thereupon they brought a bill to restrain the collection or settlement of the claims against the railroad, and asking to be subrogated to the rights of appellee therein to the extent of their insurance. Held, that the injunction should have been allowed, and retained until the determination of the case against the railroad; that appellants were entitled to receive, to the extent of their insurance, any excess beyond appellee’s loss that might be recovered from the railroad.

      Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Stevenson & Ewing, for appellants;
    upon the right of insurance companies to be subrogated to the insured, cited Hart v. Western Railroad Co. 13 Met. 99; Monmouth Fire Ins. Co. v. Hutchinson, 21 N. J. 107; Bean v. A. & St. L. R. R. Co. 58 Me. 82; Ætna Ins. Co. v. Tyler, 16 Wend. 397; Randall v. Cochran, 1 Ves. Sr. 98; Comegys v. Vasse, 7 Curtis, 533; Hall et al. v. R. R. Co. 13 Wall. 367; Gracie v. N. Y. Ins. Co. 8 Johns. 246; Monticello v. Mollison, 17 How. 152; Honore v. Lamar Ins. Co. 51 Ill. 409; May on Insurance, 454; Wood on Fire insurance, § 473; 5 Digest Ins. Cases, 619.
    Where the property is destroyed by the negligence of a third person so that the insured has a remedy against him therefor, the insurer, by payment of the loss, becomes subrogated to the rights of the insured to the extent of the sum paid: 10 Am. Law Reg. 348; Monmouth Ins. Co. v. Hutchinson, 21 N. J. 107; Gracie v. N. Y. Ins. Co. 8 Johns. 245; Mason v. Sainsbury, 3 Doug. 61; Clark v. The Hundred of Blything, 2 B. & C. 254; Yates v. Wythe, 4 Bing. 272; Randall v. Cochran, 1 Ves. Sr. 98; Cullen v. Butler, 5 M. & S. 466; Monticello v. Mollison, 17 How. 152; Atlantic Ins. Co. v. Storran, 5 Paige Ch. 285.
    If the insured receives satisfaction for his loss from the insurer, his remedy against the wrong-doer is not defeated, yet he stands to the insurer in the relation of trustee to the amount paid: Wood on Fire Insurance, § 476; Collins v. N. Y. C. R. R. Co. 5 Hun. 503; Merrick v. Brainard, 34 N. Y. 208; Weber v. Morris & Essex R. R. Co. 35 N. J. 409; Hayward v. Cain, 105 Mass. 213; Perrott v. Western R. R. Co. 13 Met. 99; Traders Ins. Co. v. Roberts, 17 W. R. 631.
    Suit cannot be maintained in the name of the insurer, but must be in the name of the insured: Peoria Marine Ins. Co. v. Frost. 37 Ill. 333.
    Equity controls trustees in the discharge of trusts in regard either to real or personal property: Vant v. N. Y. Ins. Co. 7 Paige, 567; N. Y. Ins. Co. v. Ronlet, 24 Wend. 505; Williams v. Gibbs, 17 How. 239; Hill on Trustees, 42; Freeman on Judgments, § 190.

      The verdict in the case of Pennell v. the C. & A. R. R. Co. is decisive in this case as to the value of the property: Freeman on Judgments, § 273; Bigelow on Estoppel, 45; Harrett v Hampton, 7 T. Rep. 269; Stewart v. Randall, 53 Me. 149; Carr v. Woodruff, 6 Jones, 400; Kingsland v. Spalding, 3 Barb Ch 34; Rogers v. Higgins, 57 Ill. 244; 11 Serg. & Rawle, 422.
    Money paid to the mortgagee enures to the benefit of the mortgagor: Van Buren v. St. Joseph Co. Mut. Ins. Co. 23 Mich. 404; Clay Fire & M. Ins. Co. v. Huron Salt and Lumber Co. 31 Mich. 346; Hartford Fire Ins. Co. v. Davenport, Sup. Ct. Mich, unreported.
    A party dealing with a corporation is estopped to deny its corporate existence: Wood v. Kingston Coal Co. 48 Ill. 360.
    On an issue of nul tiel corporation, proof of actual existence and user is sufficient: Mendota v. Thompson, 20 Ill. 197; Marsh v. Astoria Lodge, 27 Ill. 420; Hart v. Western R. R. Co. 13 Met. 99.
    The right of subrogation is in the nature of an equitable assignment, and will support the right of the court to restrain the assignee from defeating it by settlement or release: Payne v. Rogers, 1 Douglas, 407; Whitehead v. Hughes, 2 Crompt. & Mees. 318; Phillips v. Cloggett, 11 Mees. & W. 84; Tinnan v. Leland, 6 Hill; Hill v. Railroad Companies, 13 Wall. 367; Brown on Actions, 105.
    Mr. W. S. Cot and Mr. W. E. Hughes, for appellees;
    contended that the owner of property destroyed by fire must be fully paid before the insurer can be subrogated to his rights, and cited Garnett v. Blodgett, 39 N. H. 153; Hollingsworth v. Floyd, 2 Har. & G. 90; Neptune Ins. Co. v. Dorsey, 3 Md. Ch. 338; Kyner v. Kyner, 6 Watts, 227; Newcomb v. C. Ins. Co. 22 Ohio St. 388; Union Bank v. Edwards, 1 Gill. & J. 365; Woodworth v. Ins. Co. 5 Wall. 89; King v. State Ins. Co. 7 Cush. 3; Suffolk Ins. Co. v. Boyden, 9 Allen, 123; Peoples Ins. Co. v. Stræhle, 2 Cin. Sup. R. 194; Bank of Penna. v. Potins, 10 Watts. 152; Hardcastle v. Bank, 1 Har. 374; Carroll v. N. O. J. & G. N. R. R. Co. 26 La. An. 447; Dixon on Subrogation, 122; May on Insurance, 556.

      The appeal in the case against 'the railroad company vacated the judgment below:' Stalfield v. Beattie, 36 N. H. 455; Keen v. Turner, 13 Mass. 265; Penhallow v. Drane, 3 Dallas, 87; Gale v. Butler, 35 Vt. 449; Paine v. Conden, 17 Pick. 142.
    Appellant’s claim is barred by the Statute of Limitations: Bank of Penna v. Potins, 10 Watts, 152; Fink v. Mehaffy, 8 Watts, 384; Rittenhouer v. Levering, 6 W. & S. 190.
    Appellee must be paid his whole loss with expenses of litigation before appellants have any claim against him: Woodworth v. Ins. Co. 5 Wall. 89; Newcomb v. Ins. Co. 22 Ohio St. 388.
    If appellants are subrogated to any rights, they are to the rights of the mortgagee: Nat. Ins. Co. v. Crane, 16 Mo. 285; Pratt v. N. Y. Cen. Ins. Co. 64 Barb. 589.
   Davis, J.

This was a bill in chancery, filed by appellants against William A. Pennell and the Chicago & Alton Bail-road company, for an injunction to restrain Pennell from compromising or settling a certain claim for damages against said railroad company, growing out of a loss by fire of the Normal Hotel, belonging to Pennell and insured by appellants, and from collecting or receiving any portion of such damages, and to restrain said railroad company from compromising, settling with, or paying to said Pennell any portion of such damages, until the further order of the court, and praying that appellants be subrogated to the rights of Pennell in and to the judgment obtained by him for such damages against said railroad company, and for other relief. A temporary injunction was granted, and on the hearing it appeared that appellants insured for Pennell the said Normal Hotel for $7,000. Of this risk the Hartford Fire Insurance Company and the NCtna Insurance Company, each took $2,500, and the Insurance Company of North America $2,000. The hotel was destroyed by fire on February 14, 1872, and shortly thereafter ap2>ellants paid to Pennell the full amount insured by them res2iectively, without any knowledge that the property insured was destroyed, or claimed by Pennell to have been destroyed, by or through the negligence of the railroad company. On Hay 8th, 1875, Pennell commenced a suit against the railroad company to recover damages for the loss of his hotel, claiming that the fire which consumed it was caused by the negligence of the railroad company. In that suit Pennell recovered a judgment for $13,625, from which judgment the railroad company took an appeal to the Supreme Court, where the case is now pending. Appellants, prior to the rendition of the judgment, filed their motion for leave to interplead, and to be made beneficial plaintiffs, and offering to assist in the prosecution of the suit, and to bear their fair share of the burthens of the same. The court overruled this motion, and in this cause appellants renew such offer in their bill, filed below. Pennell is notoriously insolvent, and executions cannot be collected from him. On the hearing of this cause, the court below rendered a decree dismissing the bill for want of equity, dissolving the injunction, and assessing Pennell’s damages at $75. To reverse this decree appellants appeal.

We think the court erred in dissolving the injunction, and dismissing appellants’ bill. When this cause was heard, the original case of Pennell against the railroad company was still pending undetermined in the Supreme Court, and until that case should be finally disposed of, no final action should have been taken in this cause, but the hearing should have been postponed until the case was in a condition to have been tried and disposed of on all the issues arising, so as to do full and complete justice to all the parties. Should the judgment rendered in that case be affirmed by the Supreme Court, then the court in this cause could determine whether any excess would remain to be distributed among the appellants and others interested, after making Pennell’s loss good. If the amounts paid by appellants and the other insurance companies, and the judgment obtained against the railroad company, if affirmed, should exceed the loss sustained by Pennell, the excess should be held in trust for those who had advanced their means in excess of what was necessary to make good that loss. Pennell is only entitled to be fully reimbursed for his losses and necessary expenses. To the excess he is not entitled, and that excess, if any there may be, should be paid back to the insurers who by their advances, created that excess; and as it appears that Pennell is insolvent, and if he should be permitted to recover the full amount of the judgment obtained against the railroad company, appellants might be unable to obtain from him their share of said judgment, he should be enjoined from collecting the damages recovered to the extent of $7,000, until this cause can be finally disposed of; and appellees should be restrained from settling or compromising the suit instituted by Pennell against the railroad company until the further order of the court below. If the case appealed to the Supreme Court should be reversed and remanded, this cause should be retained until that case is finally determined.

The decree is reversed and the cause remanded, with instructions to the court below to modify the injunction to conform to this decision, and to require a bond from appellants to cover any and all damages and costs which Pennell may sustain by reason of the granting of the injunction.

Decree reversed.

Lacey, J., dissenting.


author: Per Curiam.

text:
    John A. Ambler et al. v. Mary S. Traver.
    levy op execution—Taking frofebty op another—Justification —What must be shown.—Where an officer is sued in trespass by the defendant in execution, the production of the execution is a sufficient defense for his protection, but where the property levied upon is claimed by another, he must show that the execution is based upon a valid judgment.
    Appeal from the Circuit Court of Coles county; the Hon. J. B. Cunningham, Judge, presiding.
    Messrs. Wiley & Heal, for appellants;
    that the evidence fails to show that the property belonged to appellee, cited Patton v. Gates, 67 Ill. 164.

      Messrs. O. B. & A. 0. Ficklin, for appellee;
    upon the question of ownership of property, cited Wilson et al. v. Loomis et al. 55 Ill. 352.
   Per Curiam.

This was a suit in replevin by appellee against appellants, to recover certain personal property of which she claimed to be the owner.

Defendants attempt to justify the talcing by showing that they were constables, and took the property on executions in their hands issued against W. H. Travel*, husband of appellee, •and allege that the property in controversy was the property of defendant in said executions.

On the trial appellants failed to show that any judgments had been rendered against W. H. Travel*, upon which said executions were issued.

When the officer is sued in trespass by the defendant in execution the production of the execution is a sufficient defense for his protection. But when the execution is levied upon property claimed by a third party, to justify, he must show that the execution is based on valid judgment. Johnson v. Holloway, 82 Ill. 334; Hartman v. Cochrane, Appellate Court, 3d District, May Term, 1878, (2 Bradwell, 592;) Jackson v. Hobson, 4 Scam. 411.

Judgment affirmed.


text:
    Cyrus McFarland et al. v. The People, use, etc.
    Road tax—To whom paid when collected in 'village.—The tax for roacl and bridge purposes levied and collected within the corporate limits of a village, under the provisions of the second clause of section 81 of the load law of 1877, should be paid over to the treasurer of the village, and not to the treasurer of the commissioners of highways.
    Appeal from the Circti.it Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.

      Hr. Thomas J. Smith, for appellants;
    that the tax should be paid to the treasurer of the commissioners of highways, cited Laws of 1877,196, § 81.
    A proviso in a statute refers to what has gone before, not to what follows: Boon v. Juliet, 1 Scam. 258.
    As to the constitutionality of the act: O’Kane v. Treat et al. 25 Ill. 557; Hunsaker v. Wright et al. 30 Ill. 146; Cooley’s Constitutional Lim. 488; Constitution 1870, Art. 9, § 1.
    The column in which a tax is to be extended cannot control the purpose for which it is used: Thatcher v. The People ex rel. 79 Ill. 597.
    Mr. E. S. Smith and Mr. E. L. Sweet, for appellee;
    cited Baird v. The People, 83 Ill. 387; Laws of 1877, 196, §§ 81, 84; Galena v. Com’rs of Highways, 2 Bradwell, 255.
   Higbee, P. J.

The only question presented by this record is: Who is entitled to receive from the town collector the moneys levied and collected from property within the village of Bantoul under the provisions of the second clause of section 81, Statutes of 1877, concerning roads and bridges; the commissioners of highways, or the treasurer of the corporate town of Bantoul?

Sections 81 and 84 are as follows: Sec. 81, (Tax of Town or Village, &c., how paid—how extended). First. “The commissioners of highways of each town shall annually ascertain as near as practicable how much money must be raised by tax on real and personal property for the making and repairing of roads only, to any amount they may deem necessary, not exceeding forty cents on each one hundred dollars’ worth, as valued on the assessment roll of the previous year, and certify the same as hereinafter provided; Provided, That the tax on the property levied for road purposes lying within an incorporated village, town or city, in which the streets and alleys are under the •care of the corporation, shall be paid over to the treasurer of such village, town or city, to be appropriated to the improvement of roads, streets and bridges, either within or without said village, town or city, and within the township, under the direction of the corporate authorities of such village, town or city; Provided further, that when any of said tax is expended beyond the limits of said village, town or city, it shall be with the consent of the road commissioners of the township. Second. They shall annually ascertain, as near as practicable, how much money must be raised by tax on real and personal property, for the making and repairing of bridges, the payment of damages by reason of the opening, altering and laying out of new roads, the purchase of the necessary tools, implements and machinery for working roads; the purchase of the necessary materials for the building or repairing of roads and bridges during the ensuing year; and for the payment of any outstanding orders drawn by the commissioners on their treasurer, and shall levy a tax on all the real and personal property in said town, not exceeding forty (40) cents on the one hundred dollars ($100). And they shall give to the Supervisor of the township, and in Cook county to the county board, a statement of the amount as hereinbefore provided for, necessary to be raised, signed by said commissioners or a majority of them, on or before the Tuesday next preceding the annual September meeting of the board of supervisors, or the county board of. Cook county, who shall cause to be submitted to said board, for their action at such September meeting of said board, and said board shall cause the same to be extended on the tax-books.”

§ 84. (To whom tax paid when collected.) “ The tax so collected shall be paid to the treasurer of the commissioners of highways (except as provided in the first clause of section 81 of this act,) by the collector, as fast as the same is collected, except such rate per cent, as shall be allowed for collecting the same.”

The words for road pw'poses in the proviso to the first clause of section 81 are not limited to that clause in the section, but they refer to and include all taxes to be levied under that section, as well under the second as the first clause, and require all taxes collected under that section from property in the village, to be paid to the corporate authorities of the village.

The 84tli Sec. only requires the collector to pay to the treasurer of the commissioners of highways so much of the tax as is not excepted in Sec. 81, and this exception, we have seen, includes all the taxes collected under both clauses of the section from persons or property within the village.

It follows, therefore, that it was the duty of the collector to pay to the treasurer of the commissioners so much of the tax as was derived from property outside of the corporate village; and to the treasurer of the village of Rantoul that part which was collected from property within the corporation.

In this construction of the statute we are fully sustained by the case of Baird v. The People, 83 Ill. 387; West Galena v. White, 1st Appellate Court District, Oct. Term, 1878.

Judgment affirmed.


author: Lacey, J.

text:
    Jacksonville, North-western and South-eastern Railway Company. v. Robert Hall.
    1. Practice—Waiver.—An agreement by the parties that a cause may be tried on a day fixed, is a submission to the jurisdiction of the court, and a waiver of the right to move for a dismissal of the cause on the ground that the cost of a change of venue has not been paid.
    2. Contract—Variance—Parties.—Appellee declared against appellant as common carrier, alleging a contract to carry appellee’s cattle, etc. Appellant insisted that appellee, with one B, hired a car, paying a stated price for the same, and assuming all the risk of transportation in consideration that appellant would allow the servants of appellee and B. to take charge of the car. If the contract was as is insisted by appellant, it would vary from the one declared upon, as not being between the same parties or in the same terms. But if it should appear that the railroad company fixed the rate per car, and the interest and ownership of the cattle were several, and appellee’s cattle alone were injured, then the right of action would be in him.
    3. Evidence—Freight-book, way-bill, etc.—The freight-book kept by the agent of the railway company, showing a statement of the contract between the company and appellee, and the way-bill, were competent evidence as being part of the res gestee, and should have been admitted, as they tended to prove the contract as alleged by appellant.
    4. Instructions to jury—Release oe liability.—It was error to instruct the jury that the fact, if proven, that appellee’s servant was present and assisted in loading tho cattle, does not release the defendant from liability, unless they should also find that appellant agreed if the cattle should be so loaded he would release the defendant from liability. The jury should have been told that such fact might be taken into consideration, along with other evidence, in determining whether there was such an agreement or not. Ho express agreement to release need be proven, but such release would be the result if appellee had assumed the responsibility himself, for a consideration.
    Appeal from" the Circuit Court of Cass county; the Hon. Cteus Eplee, Judge, presiding.
    Messrs. Dummer, Browb & Russell, for appellant;
    that the motion to strike the case from the docket for failure to pay costs of change of venue, should have been allowed, cited Rev. Stat. 1874, chap. 146, § 13.
    Appellee cannot recover by reason of a variance between his allegations aud the proof: C. B. & Q. R. R. Co. v. Magee, 60 Ill. 530; C. M. R. R. Co. v. Rockafellow, 17 Ill. 541.
    The declaration must allege special damages, or evidence will not be allowed showing such damages: Olmstead v. Burke, 25 Ill. 87; Sherman v. Dutch, 16 Ill. 283; 1 Puterbaugh’s Pl. & Pr. 564.
    A common carrier is not liable where the loss arises from the default of the consignor: Williams v. Grant, 1 Conn. 487; 1 Bouv; Law Dict. 249.
    The sixth instruction given for appellee did not state the law correctly, and was calculated to mislead the jury: C. B. & Q. R. R. Co. v. Griffin, 68 Ill. 499.
    Where there is evidence tending to prove a fact, it is the duty of the court to give an instruction, properly framed, which is based upon it: Milliken v. Martin, 66 Ill. 13.
    Messrs. Moreisob, Whitlock & Lippikcott, for appellee;
    that where the interest in, or ownership of, the cattle was several and not joint, the right of action would be several, cited Cobb v. Steele, 80 Ill. 101; Robertson v. March, 3 Scam. 198; St. L. A. & R. R. Co. v. Coultas, 33 Ill. 188; 1 Parsons on Contracts, 26; Baggs v. Corten, 10 Serg. & Rawle, 211; Carlton v. Brown, 2 Leigh, 98.
   Lacey, J.

This was an action in assumpsit, the declaration containing two counts, in the first of which it was averred that defendants were common carriers, etc., on their railroad running from Jacksonville, in Morgan county, to Yirden, in Macoupin county. That appellee caused to be delivered to defendants for transportation, one bull, one1 cow and three heifers, to be transported by defendants, as common carriers, from Jacksonville, in Morgan county, to Yirden, in Macoupin county, and there delivered to appellee. That the appellants, through negligence and carelessness, allowed the stock to he injured and lost, to his damage of $1,500.

The second count is pretty near the same, except it was alleged that appellee, in connection with one Phillip A. Buraker, put • into the cars of the Peoria, Pekin and Jacksonville ¡Railroad, like common carriers, the said live stock to be carried with the live stock of said Buraker to Jacksonville, in Morgan county, and then and there to be taken by defendants over their road to Yirden, in Macoupin county, and there delivered to plaintiff; and for breach, avers that the defendants did not safely deliver the stock, hut through carelessness and negligence of defendants, the stock was injured, to appellee’s damage of like $1,500.

The case was twice tried in Morgan county, at one of which trials the jury failed to agree, and at the other the jury found for defendants. Plaintiff then took a change of venue to Cass county, but failed to pay the cost of the change, and defendants moved the court to strike the cause from docket for the above reason. The court denied the motion, and appellants excejried. This action of the court is assigned for error.

It appears from the record, though not abstracted, that on Feb. 26, 1878, by agreement of the parties, the cause was to be tried on the following Monday. On that day both parties appeared with their witnesses for trial, when this motion was made by appellants. We regard such an agreement as a submission to the jurisdiction of the court, and a waiver of the right to make such motion. The Circuit Court of Cass county committed no error in overruling the motion.

To the above declaration the appellants plead the general issue. The cause was tried, and resulted in verdict and judgment for appellee for $420.

From this judgment an appeal is taken to this court.

On the trial of the cause below, the appellants contended that the contract was not as declared on by appellee, but that they rented to appellee a car, without any reference as to how many cattle were to be put in it, for $40.

That appellee was to have full control of the car, and in consideration that appellee should send a man along with the cattle to care for them, such servant was to have transportation free, and that appellee was to assume all risk of damage resulting from the negligence of his own servant; in other words, that the appellants were to be freed and released from the care and oversight of the cattle in the cars while on the passage. It appears from the evidence that eleven head of cattle, six of appellee and five belonging to Buraker, were shipped in the car on the P. P. & J. E. E. from Little Indian station, in Gass Go., and sent to Yirden, and thence to be sent to Carlinville, to be exhibited at a-county fair Buraker was at the station and took the cars on 23 Sept., 1872, and Grier, the servant of appellee, and Buraker and Buraker’s son went off with the car, and that they fastened it up and had full control of it, and filled it up and loaded it. ¥m. Stevenson, the station agent of Little Indian, swears that he told Buraker to keep the little windows in the end of the car closed, but Buraker refused, and said the boys would be in there, and he would take the risk and keep them open. It appears further that Grier stayed in the car with the cattle, looking after them, till he reached Jacksonville, but then quit the car and rode in the passenger. That a few hundred yards before the train reached Franklin, a station on defendant’s road in Morgan Go., the car took fire, either from outside of the car, possibly from sparks from the locomotive, or from matches in a pine box containing a quantity of combustible articles, and placed on boards in the rear end of the car, near the roof, by Buraker, at the station whence the stock was shipped. By means of this fire four of appellee’s cattle were severely injured, and to recover for this injury this suit is brought.

It would seem from the evidence had Grier been in the car with the cattle at the time the fire broke out he could have extinguished it before any damage was done or have prevented its igniting. Were the contract between the parties, the appelpellants of the first part and Hall and Buraker of the second part, as contended for by appellants, it would be variant from the one declared on in that it would not be made between the same parties or in terms the same as appellee and Buraker would have assumed—the responsibility of looking after the cattle in the cars, assuming all risk arising from their own negligence; but on the other hand, if the evidence showed the facts to be that the P. P. & J. B. B. Co. fixed the rate per car and the interest and ownership of the cattle were several as between Hall and Buraker, and appellee’s cattle alone were injured, the right of action would be in him. Combs v. Steele et al. 80 Ill. 101; Robertson v. March, 3 Scam. 198; St. L. A. & R. R. Co. v. Coultas, 33 Ill. 188; 1 Par. Cont. 26, note; Boggs v. Carten, 10 Sand. R. 211; Carthon v. Brown, 3 Leigh, 98.

Appellee on cross-examination was asked by counsel for appellants whether he gave Grier any instructions as to where he should ride and whether he was not taken along as appellee’s hired man to take care of the cattle. Appellants also offered in evidence their freight book made by Stevenson, their station agent at Little Indian, showing statement of the agreement made with Hall and Buraker at the time of' the transaction, also ■ way-bill, an exact copy of which was forwarded to the next company and one to Hall and Buraker. The court excluded this evidence, and appellants excepted. This evidence tended to prove the contract to be in effect as contended for by appellants, and should have been admitted; nor was the freight-book and way-bill obnoxious to the objection of mere hear say evidence, for the reason that they were a part of the res gestes and one copy of ’the way-bill had been delivered to appellee.

The appellants also take exception to the action of the court below in giving appellee’s 5th and 6th instructions, among others.

The fifth instruction required the appellants to prove to the satisfaction of the jury that appellee agreed to have said Grier take charge of said cattle, and release appellants from his liabilities therefor, etc. This is error; a preponderance of the evidence is all that is required in a civil suit. The sixth instruction tells the jury that if the fact was proven that Grier was present at the time the cattle in question was loaded, and assisted in loading the same, yet the fact itself does not release the defendant from its liability as a common carrier, etc., unless the jury find from the evidence in this case, that the plaintiff or his authorized agent, at the time agreed, that in case the cattle should be so loaded, he would release defendant from its liability, etc. The instruction as it stands is well calculated to lead the jury to believe that the fact of Grier’s action set forth in the first part of the instruction would be no fact tending to prove the supposed agreement set forth in the latter part. It should be so modified as to tell the jury that such fact may be taken into consideration, together with all the evidence, in determining whether there was such an agreement or not. Again, no express agreement to release appellants from caring for stock in cars need be proven, but such release would be the result if the appellee assumed such responsibility himself for a consideration. Where the evidence is equally balanced the instructions should be accurate, and the jury should not be influenced by improper instructions. T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; Shaw v. People, 81 Ill. 150; Volk v. Rock, 70 Ill. 297.

For the errors above noted the judgment of the court below is reversed and the cause remanded.

Eeversed and remanded.


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    Abraham Sandusky et al. v. Polly Neal.
    Parties—Suit on bond—Must be in name of party having the legal interest.—In a suit upon a specialty, where .there is a covenant with one person to pay another a sum of money, the action should he in the name of the former. So where A. and B. executed their bond to C. in the penal sum of $1,000, conditioned among other things that they would take care of one P. so long as she should live. In a suit against them for a breach of said condition; held, that P. could not maintain an action in her own name upon the bond as plaintiff; that 0, the obligee in the bond, or his legal representatives in the case of his death, were the proper parties to bring suit for a breach of such condition.
    Appeal from the Circuit Court of Vermillion county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Mann & Calhoun, for appellants;
    that the plaintiff cannot maintain suit in her own name, cited 1 Chit. Pl. 3.
    Messrs. Evans & Swallow, for appellee;
    that the action was correctly brought in the name of the plaintiff, cited Bristow et al. v. Lane et al. 21 Ill. 194; Eddy et al. v. Roberts, 17 Ill. 505; Arnold et al. v. Lyman, 17 Mass. 401; Lawrence v. Fox, 20 N. Y. 268; Joslin v. New Jersey Car Spring Co. 26 N. J. Law, 141; Lamb v. Tucker, 42 Iowa 118; Putney v. Farnham, 27 Wis. 187; Bohanan v. Popc, 42 Me. 93; Brown v. Roger Williams Ins. Co. 5 R. I. 394; Carnegie v. Morrison, 2 Met. 381; Brewer v. Dyer, 7 Cush. 337; 9 Johns. 73; 12 Johns. 199; 8 Conn. 286: 13 Mass. 405; 6 Con. 261; 14 How. 453; Burr v. Beers, 24 N. Y. 178; Urquhart v. Brayton, 18 Albany Law Jour. 371.
   Lacey, J.

This was an action of debt brought in the Vermillion county Circuit Court by appellee against appellants, in which judgment was rendered in appellee’s favor for $1,000 debt and $229.50 damages, debt to be discharged on the payment of damages. From this judgment appellants appeal to this court. The foundation of the action was a bond in the following form:

“We, Abraham Sandusky, Jr., and Josiah Sandusky, are held and firmly bound unto Abraham Sandusky, Sen., in the penal sum of one thousand dollars, etc., which sum we jointly and severally agree to pay, and we hereby bind ourselves, our heirs, executors, administrators and assigns firmly by these presents. Sealed with our seals and signed by us, this 12, day of April, A. D. 1866. The condition of the above obligation is such that, whereas the said Abraham Sandusky has this day conveyed unto-all his personal property of every name and nature of which he is this day seized, for and on the following conditions: First, that we take care of him and pay all his debts and expenses so long as he shall live; second, that we take care of Polly, the black woman, so long as she shall live, then this obligation to be void, otherwise to remain in full force and effect.

“ Witness our hands and seals, the day and year above written.

“ Abraham Sandusky, [seal]

“Josiah Sandusky, [seal]

“ Witness,

“Jacob Yopp.”

The appellee averred in her declaration that she was Polly, the black woman, and that the condition made for her benefit had been broken by appellants, etc. That Abraham Sandusky, Sen., died on the 13th day of April, 1866.

The appellants demurred to the declaration. The court below overruled the demurrer, and appellees abiding by their demurrer, judgment was rendered as above stated. The action of the court in overruling the demurrer and rendering judgment is assigned for error. Was appellee the proper party to bring the suit?

The rule on this subject is thus laid down by Chi tty:

“ If a bond be given to A, conditioned for the payment of money to him for the use or benefit of B, or conditioned to pay the money to B, the action must be brought in the name of A, and B cannot sue for, or release the demand. In such case A is evidently a trustee and the obligatory part of the instrument and the acknowledgment of legal responsibility are to him.” 1 Chitty PI. 3.

The Supreme Court of this State have adopted the rule laid down in 1 Chitty PI. 4 and 5, in deciding the case of Gautzert v. Hoge, 73 Ill. 30. We will not recite the text referred to and set out at length in the opinion, but will give the conclusions arrived at by the court. They say: It is a well established rule that in case of simple contracts the person for whose benefit the promise is made may maintain an action in his own name upon it, although the consideration does not move from him. But there is a well understood distinction between simple contracts and specialities, In the latter case we recognize the rule to be as it appears to be recognized by Chitty, that where there is a covenant with one person to pay another a sum of money, the suit should be in the name of the former.”

We regard the rule in the text (1 Chitty Pl., 3,) above cited, still more applicable to the case at bar than that laid down by the Supreme Court, for the reason that the instrument sued on is a penal bond.

The facts in the case last cited were, briefly, that Gautzert being indebted to one Matthews in the sum of $1,150 for the purchase money on land, executed a mortgage to the latter on the same land, in which he covenanted that the land should be in mortgage for $600, borrowed money, by him, Gautzert, to be paid in one year, and another covenant to pay mortgage of $550, dated Sept. 1st, 1868, to William Hoge, due in two years, and given by mortgagee, Matthews, to Hoge. The Supreme Court decided the mortgage to be a deed-poll. That the covenant was not expressly nor generally to pay Hoge, but with Matthews to pay a debt the latter was owing to Hoge. The covenant was not in express terms with Matthews nor with Hoge. But as the mortgage was given to secure the balance of the purchase money with a covenant to pay $600, with covenant of title, and another providing for the sale of the land for failure to pay, or for breach of any other covenant therein, hence the court argues that as all the other covenants, though not expressly, are really with Matthews, that the covenant to pay the Hoge mortgage must be deemed to be with the same party.

The court then decided that the suit should have been brought in the name of Matthews and not that of Hoge.

We regard the case at bar as more clearly falling within the rule there laid down than the one then under discussion.

By the terms of the bond in this case, appellees agreed to pay to Abraham Sandusky, Sr., the sum of $1,000, in case they should fail to perform either of the following covenants: 1st. Take care of and pay the debts and personal expenses of the obligee in the bond, as long as he should live. 2d. Take care of appellee as long as she should live. Hence in case of a breach of either condition, it is not left doubtful by the terms of the bond to whom the damages should be paid. The thousand dollar penalty of the bond is payable by its express terms to the obligee named therein, not to the appellee at all. By the construction given to such instruments by the courts, the penalty named in the bond stands for the amount that may be recovered in case of a breach, limited by the actual damages, not exceeding the penalty named. But the agreement to pay the penalty to the obligee remains, and is not altered by any construction given to such instruments by the courts. The payment of the penalty would discharge every possible breach. This case also comes within the other rule laid down by 1 Chi tty PI. 3, above quoted. That is, in case of a bond made payable to A, conditioned for the payment of money to him for the use of B, or conditioned to pay the money to B, the action must be brought in the name of A. In such case, A is regarded as the trustee, and the obligatory part of the instrument and the acknowledgment of legal responsibility, are to him.

This rule is in harmony, and is analogous to that laid down by the Supreme Court in the case above cited. That is, even in case of a deed-poll where it may be fairly deduced from the whole instrument that the contract is made with one party, the snit should be brought in the name of that party.

The bond in question, if not strictly a contract inter partes, is in its nature and essence the same; for though in case of the bond in question it does not recite that appellants were parties of the first part and the obligee party of the second part, yet it does bind the appellants unto Abraham Sandusky, Sr., in the penalty of the bond, and it is in principle the same as the contract inter partes.

It follows, therefore, that Abraham Sandusky, Sr., the obligee in the bond, or his legal representatives in case of his death, should have brought this suit for the breach in case of the failure on the part of appellants to take care of appellee in accordance with the terms of the bond. We regard the error assigned well taken.

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

Reversed and remanded.


text:
    Robert Cox v. The City of Tuscola.
    Practice—Failure op appellee to pile bribes.—Where the defendant in error, or appellee fails to file his brief, in compliance with the rule of this court, the judgment or decree will be reversed pro forma, unless the court, on examination of the record, shall deem it proper to decide the case on its meiits.
    Appeal from the Circuit Court of Douglas county; the Hon. W. E. Kelson, Judge," presiding.
    Mr. Wm. A. Dat, for appellant;
    that the impounding of appellant’s animals was unlawful, cited Kinder v. Gillespie, 63 Ill. 88; Case v. Hall, 21 Ill. 635.
    All ordinances must be reasonable, and it belongs to the court to determine what are reasonable: Kip v. City of Patterson, 2 Dutch. 298; Paxon v. Sweet, 1 Green, 196; Commissioners v. Gas Co. 12 Pa. St. 318; Dunham v. Trustees, etc. 5 Cow. 462; Kinder v. Gillespie, 63 Ill. 88.
    To authorize impounding of animals, the owner must intentionally permit or suffer them to run at large: Kinder v. Gillespie, 63 Ill. 88; Case v. Hall. 21 Ill. 635.

      The city marshal, in impounding the animals, acted in obedience to an ordinance of the city, and the city is liable: Dillon on Municipal Corporations, § 766; City of Pekin v. Newell, 26 Ill. 320; Chicago v. McGraw, 75 Ill. 566; Allen v. City of Decatur, 23 Ill. 332; Wolf v. Boettcher, 64 Ill. 316.
    Retaining the money received for the 'impounding was a ratification by the city of the act of the marshal: McGary v. Lafayette, 4 La. An. 440; Wilde v. New Orleans, 12 La. An. 15; Lee v. Sandy Hill, 40 N. Y. 442; Thayer v. Boston, 19 Pick. 516.
    Payment of money by appellant to obtain possession of his animals, which he could not do by any other means, is a compulsory payment, and may be recovered back: Shaw v. Woodcock, 7 B. & C. 73; Irving v. Wilson, 4 T. Rep. 485; County of LaSalle v. Simmons, 5 Gilm. 513; Clinton v. Strong, 9 Johns. 370; Spaids v. Barrett, 57 Ill. 289.
    Messrs. McPherson & McPherson, for appellees;
    that a municipal corporation is not liable for an illegal seizure of property by one of its officers, cited Dillon on Municipal Corporations, § 770; Fox v Northern Liberties, 3 Watts & Serg. 103; President, etc. v. Schroeder, 58 Ill. 353.
    Police officers appointed by a city are not its agents, so as to render the city liable for their unlawful acts: Dillon on Municipal Corporations, §773; Buttrick v. Lowell, 1 Allen, 172; Pesterfield v. Vickers, 3 Coldw. 205; Ready v. Mayor, 6 Ala. 327; Stewart v. New Orleans, 9 La. An. 461; Dargan v. Mobile, 31 Ala. 469; Richmond v. Long’s Adm’r, 17 Gratt. 375; Roland v. Mayor, 1 Sandf. 27.
    Failure of the city attorney to refund the money, it not being in the line of his duty, constituted no ratification by the city: People v. Mayor, 11 Abb. 325.
    The city had no power to authorize the seizure of appellants’ animals: Kinder v. Gillespie, 63 Ill. 88; Case v. Hall, 21 Ill. 635.
    The ordinance was ultra vires and void, and no right of action exists against the city for acts done under it: Chicago v. Turner, 80 Ill. 419; President etc. v. Schroeder, 58 Ill. 353; Horn v. Baltimore, 30 Md. 218; Eastman v. Meredith, 36 N. H. 248; Mayor etc. v. Cunileith, 2 Comst. 165; Dillon on Municipal Corporations, §766.
   Per Curiam.

The appellant in this case has filed his abstract and brief, as required by the rules of this court and argued the case orally. The appellee has failed to file a brief, in the case, and on looking into the record we are not prepared to reverse the case on its merits without a further examination of its authorities, which should have been furnished by appellee. We do not feel it our duty to spend the time required to look up authorities which should have been furnished by appellee, and therefore reverse the case pro forma under rule 30 of this court and remand it for further proceedings.

Justice Laoet dissents, and is of opinion that the judgment of the court below should be affirmed on the authority of the case of the town of Odel v. Schroeder, 68 Ill.. 353.


text:
    W. T. Carnahan et al. v. The People, use, etc.
    Execution—Return—Re-deliyery after return made.—Where a constable received an execution, and two days thereafter returned it to the justice with his return endorsed on the back, it was a sufficient return of the execution, and it then became functus officio; and the fact that he afterward, at the request of the justice, took the execution again and retained it for several months, did not restore it to vitality, or render the constable liable on his official bond for not returning an execution during its life.
    Appeal from the Circuit Court of Logan county; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Beason & Blinn, for appellants;
    that the indorsement of a return on the execution and delivery of the same to the justice, was in law a return of the execution, cited Nelson v. Cook, 19 Ill. 440.

      Mr. E. Lynch, for appellee;
    that a failure of a constable to return an execution within ten days after its proper return day, raises a liability on his official bond, cited Rev. Stat. 1874, 654.
    Until an execution is actually deposited in the office from which it issued, it is not properly returned, and an indorsement thereon of a return is not sufficient: Nelson v. Cook, 19 Ill. 440.
   Higbee, P. J.

This suit is brought on the official bond of defendant Carnahan, as a constable, for a failure to return an execution issued by a justice of the peace of Logan county, and placed in his hands for collection. The defense made is that the execution was returned within the time required by law.

The execution was issued by the justice on the 23d day of .May, 1877, and placed in the hands of defendant Carnahan for collection on the day it was issued. On the 26 th day of May, 1877, Carnahan went to the office of the justice who issued the execution and returned several executions, and this one among them with the following indorsement upon it: “No property found, this the 26th day of May, 1877. W. T. Carnahan, constable.”

The constable laid the executions, including this one, on the justice’s desk in his office, and at the time said to the justice, in reference to this one, “ I may as well return this execution.”' The justice then took up the executions and examined them,, and when he came to this one he told the constable that he had received a letter from the plaintiff (who resided in Pike county),, and that he said he would be here before a great while, and either indemnify the constable, or point out property subject to execution, and wanted the execution kept alive. The justice in his testimony says: I requested him to take back the execution and hold it until Hathaway came. He took it and put it in his pocket.” The execution was not delivered to the justice again until the 24th day of August, 1877, when it was handed to him by the constable with the same return it had on it on the 25th of May. The only question to be decided is, was the execution legally returned on the 26th of May? We think the return sufficient. A proper return was made out on the hack of the execution, signed by the officer, and it was then delivered to the justice with the intent to return the execution. This is all the law requires to constitute a good return. Nelson et al. v. Cook, 19 Ill. 440.

The act of taking the execution back from the justice after it was legally returned, did not give it new vitality. By the return it became functus officio, and the constable by re-possessing himself of it, did not revive its vitality, and he could legally do no act with it which he could not do without it. Philips et al. v. Dana, 3 Scam. 551. It is probable that both the justice and the constable thought that delivering the execution back after it had been returned, would continue, it in force, but we do not so understand the law. An execution on'ce returned cannot be renewed by delivering it back to the constable. It was the duty of the justice to note the return, and issue a new one if further steps were to be taken. The execution having been legally returned within the time fixed by law, no cause of action accrued to plaintiff to maintain this suit against the constable and Ms sureties, and the judgment of the court below is therefore reversed and the cause remanded.

Reversed and remanded.