author: Casey, P. J.

text:
    Conrad Reinecke v. The People, etc.
    1. Penal statutes, how construed.—Penal statutes are to be ccn. strued strictly and are never to be extended by mere implication to either persons or things not brought within their clear meaning and intent.
    2. Intention, how ascertained.—Courts are not confined to the literal meaning of words in a statute in its construction, but the intention may be collected from the necessity or cause of the act and its words may be enlarged or restricted according to its true intent.
    3. Mining act construed.—The court is of opinion that in the “ Act to provide for the weighing coal at the mines ” (Laws, 1883, § 113) sections two and three are an abridgment or explanation of section one, and that the legislature intended the act to apply only to mines where the weight of the coal mined was to be taken as the basis of compensation to the miners, and where an operator of a mine pays his men by the day, he is not obliged, to purchase a “ stock scale.”
    Appeal from the Circuit Court of St.Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed October 10, 1884.
    Messrs. Wildeeman & Hamill, for appellant;
    that penal statutes must be strictly construed and never extended by implication, cited Potter’s Dwarris on Statutes, 245; Edwards v. Hill, 11 Ill. 22; Waddle v. Duncan, 63 Ill. 223; Raplee v. Morgan, 2 Scam. 561; People v. Peacock, 98 Ill. 172.
    Statutes must be interpreted according to the intent and meaning, and not always according to the letter: Potter’s Dwarris on Statutes, 144, 175; People v. Canal Commissioners, 3 Scam. 153; Hamilton v. State, 102 Ill. 367; Zarresseller v. People, 17 Ill. 101; Stribling v. Prettyman, 57 Ill. 372; Castner v. Walrod, 83 Ill. 178; Perry County v. Jefferson County, 94 Ill. 220; People v. Hoffman, 97 Ill. 236; Holmes v. Carley, 31 New York, 290; People v. Utica Ins. Co., 15 Johns. 380, 381.
    Mr. R. D. W. Holder, for appellee;
    that the operation of a coal mine is a business affected with a public interest and may be regulated by statute, cited Daniels v. Hilgard, 77 Ill. 642; Cooley’s Const. Lim. 714; Dunne v. People, 94 Ill. 121.
   Casey, P. J.

Appellant was indicted in the Circuit Court of St. Clair county; there are eight counts in the indictment.

The material averments are that appellant was on the 2d day of July, 1883, the operator of a certain coal mine situate in that county and that there was a railroad switch and track adjacent to and connected with said mine. That appellant unlawfully failed, neglected to furnish, procure and place upon the said railroad track, adjacent to said mine,-a track scale, of standard manufacture, upon which to weigh the coal hoisted from said mine. The indictment charges a failure on the part of appellant to conform with the provisions of an act of the general assembly of this State, entitled “ An act to provide for the "weighing coal at the mines,” approved June 14, 1883, in force July 1, 1884. Laws of 1883, 113. The cause was heard before the court and a jury, and the jury returned a verdict of guilty against appellant. A motion for a new trial was made and refused by the court and appellant was fined §25.

Exceptions were taken to the ruling of the court and the case is brought into this court by an appeal. Upon the trial of the cause the defendant was sworn as a witness in his own behalf, and in answer to a question, stated that he operated the mine in question for over two years, and for the last year had been mining the coal with machinery. Objection was made to this testimony by the State’s attorney, because it was immaterial. The objection was sustained and appellant excepted to the ruling of the court.

Appellant’s counsel then “ offered to prove by the witness that at the time the law went into effect, July 1, 1883, the defendant had no coal miners employed in his mine; that he was mining coal solely by machinery. That men were employed exclusively to operate the machinery, and that he paid the men operating said machinery in said mine since the first day of July, 1883, and for a year prior to that time, two dollars and fifty cents a day, and that their wages had no relation to the quantity or weight of the coal taken out of the mine. That there have been no persons employed in this mine since July 1, 1883, whose business it is to dig or mine coal, and whose wages can be or are fixed by the quantity or weight of coal taken out of said mine. That a pair of track scales would cost from eight hundred to one thousand dollars, and that they would be of no use whatever at this mine, as at present operated, as there are no coal miners, or coal miners whose business it is to mine coal, employed in said mine.” Objection to this testimony was made by the State’s attorney. The objection was sustained by the court, and the defendant excepted to the ruling of the court.

A proper decision of this question involves a construction of the intent and meaning of the act of the general assembly above referred to, which is substantially as follows:

The first section of that act provides “ that the owner, agent or operator of each and every coal mine or colliery in this State shall furnish or cause to be furnished and placed upon the switch or railroad track adjacent to said coal mine or colliery, a track scale ’ of standard manufacture, and shall weigh all coal hoisted from said mine or colliery, before or at the time of being loaded on cars, wagons or other vehicles of transportation,” etc.

By section 2, all coal produced in this State shall be weighed on the scales as above provided; and the weight so determined shall be considered the basis upon which the wages of persons mining coal shall be computed.”

Section 3 provides, “it shall be lawful for the miners employed " in any coal mine or colliery in this State to furnish .a check weigher, at their own expense, whose duty it shall be to balance said scales and see that the coal is properly weighed, and beep a correct account of same, and for this purpose he shall have access at all times to the beam box’ of said scales, while such weighing is being performed,” etc.

The provisions of the act are made to apply only to coal mines doing business on and shipping coal by railroad or by water.

This enactment of the legislature lias already received a construction by tlie Supreme Court, in the case of Jones v. The People, etc. In that case the miners were paid “ forty cents a box for each box of coal mined or taken from said mine.”

The ease now under consideration is, in principle, similar .to the one referred to. This is a penal statute, and it is a well recognized principle that penal statutes are to be construed strictly and are never to be extended by mere implication to either persone or things not brought within their terms, within their clear meaning and intent. Waddle et al. v. Duncan, etc., 63 Ill. 223; Edwards v. Hill, 11 Ill. 22; The People, ex rel., v. Peacock, 98 Ill. 172.

As to the construction of statutes in Potter’s Dwarris on Statutes, page 144, it is said statutes must be interpreted according to the intent and meaning and not always according to the letter. A thing within the intention is within the statute though not within the letter, and a tiling within the letter is not within the statute unless within the intention. In the case of The County of Perry v. The County of Jefferson, 94 Ill. 214, the letter of a statute was disregarded and the intent followed and allowed to prevail, to obviate an absurd result;'and it was then expressly held, that it was sufficient authority to warrant a departure from the words of the statute, when to follow them would lead to absurd consequences. The People, ex rel., v. Hoffman, 97 Ill. 234; Perry v. Skinner, 2 M. W. 471; The People, etc., v. Canal Com’rs, 3 Scam, 153; Holmes v. Curley, 31 N. Y. 290.

Courts are not confined to the literal meaning of words in a statute in its construction, but the intention may be collected from the necessity or cause of the act, and its words may be enlarged or restricted according to its true intent. Castner et al. v. Walrod, 83 Ill. 171.

In Walker v. The City of Springfield, 94 Ill. 364, it was held, that when it becomes necessary to reject one or two words in a statute and to substitute another, to give force to the meaning of the laws, it should be that which best effectuates the legislative intention, and the courts should look to the object in view of the law makers.

Then what was the legislative intent in the enactment of the law of 1883 above referred to? For what wrong or mischief was it intended or designed to create a remedy? The first section of the act is very general. If Construed literally it is a sweeping provision that would require the “ owner, agent or operator of each and every coal mine or colliery in this State ” situated on a railroad, to furnish a “ track scale ” upon which all coal hoisted from said mine shall be weighed, before or at the time of being loaded in cars, etc.

The second section, we think, may fairly be construed as a limitation or an abridgment of the general provisions of the first section. That it explains the reason of the enactment and the intent of the legislature.

It is, First, that the coal shall be weighed.

Second, the weight having 'been so determined, that weight shall be considered the basis upon which the wages of per.•sons mining coal shall be computed and paid.

The general assembly evidently considered that some wrong had been or might be done to the persons who mine coal when the weight of the coal is taken as a basis of the payment for services rendered.

And as a remedy for that wrong either then existing or in anticipation, they provided for “ track scales.”

This intent on the part of the framers of the law, is, we think, still further shown by the third section of the act.

That section provides that the miners engaged in mining coal may select one of their own number as a “ check weigher,” a person engaged in mining in the same mine, who may be present when the coal is weighed, see that it is fairly and honestly done, keep a correct account of the weights, and at times have free access to the “ beam box ” of the scales “when such weighing is being performed.”

This “ check weigher,” is to be paid by the miners, and it is made the duty of the operator to furnish him with a written permit, that shall entitle him to enter and remain in the room or place where the accounting by him of the weights of coal is to be done.”

Regarding sections two and three as an abridgment or explanation of section one, we may fairly conclude that the legislature intended the act to apply only to mines where the weight of the coal mined was to be taken as the basis of compensation to the miners. Any other construction would seem to lead to “absurd consequences.” We can not presume that the legislature intended that the operator ” of a coal mine should have expended a thousand dollars for a “ track scale,” when not a person about the mine was interested in the weight of the coal mined, unless it might be the operator himself, and it is fair to presume that the operator could take care of his own interest.

Neither can we presume that the legislature intended that those engaged in the mine, or the coal miners, should be required at their own expense, to employ one of their number to be present when the coal was weighed, keep an account, etc., when it was wholly immaterial to them whether one thousand pounds or ten thousand pounds of coal were taken from the mine or weighed. This view of the case would undoubtedly lead to “ absui’d consequences.” We think, therefore, that it was error to sustain the objections to the testimony offered by the defense, and for that reason the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

The same question arises in the cases of Gartside v. The People, Knecht v. The People, Skillett v. The People, Daniels v. The People, Toch v. The People, as in the foregoing case, Reinecke v. The People, and the judgment of the circuit court is reversed and the cause remanded in each of said causes.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Albert J. Becker v. Amelia Becker.
    1. ALIMONY PENDENTE LITE—PETITION AND NOTICE.—While it ÍS the better practice in case of a decree for alimony pendente lite that a separate petition containing averments of the necessary and particular facts should be filed and notice of the motion for temporary alimony he given the opposite party, the statute does not require such petition and notice, and error assigned therefor can not be sustained.
    2. Question within discretion of court.—Ad interim alimony and money for the payment of solicitor’s fees and other expenses of the court is given, not as a strict right to the wife, but it rests largely in the sound discretion of the court; and when that discretion is exercised fairly and without abuse by the trial court after hearing testimony, it will not ordinarily be interfered with on appeal.
    3. What necessary to prove. —Before' alimony pendente lite can be awarded, the alleged marriage and the ability of the husband to pay such 'imn as may be decreed must be admitted or proved; and the decree in such cas?, so far as that question is considered, is final, and is tobe treated as a final decree as in any other case in chancery; since there is no evidence in the record of the ability of the husband to pay the alimony awarded in this case the cause must be reversed.
    4. Decrees for alimony, how enforced.—Decrees for alimony may be enforced by execution, as other decrees, or in any other mode consistent with the practice in chancery. A court may enforce decrees for the payment of alimony, by sequestration of real or personal estate, by attachment against the person, by fine or imprisonment or both, this power subject, however, to the limitation imposed by the constitution.
    Error to the City Court of East St. Louis; the Hon. ¥m. P. Launtz, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. M. Millard, for plaintiff in error;
    as to necessity of notice and petition, cited Puterbaugh’s Ch. Pr. 518.
    Before temporary alimony may be awarded, the marriage must be admitted and proved and there must be some evidence of the ability to pay: 2 Bishop on Marriage and Divorce, § 496; Wright v. Wright, 3 Tex. 168.
    Mr. E. B. Davis, for defendant in error;
    that the matter of allowing temporary alimony pendente lite is within the sound discretion of the court and will not be disturbed unless such discretion has been abused, cited Blake v. People, 80 Ill. 11.
   Casey, P. J.

The defendant in error instituted suit against the plaintiff in error for a separate maintenance in the City-Court of East St. Louis. Afterward the defendant in error, having obtained permission from the court, amended her bill, charging her husband with extreme and repeated cruelty, habitual intoxication for the period of two years, and praying for a divorce.

To the amended bill an answer was filed, denying the allegations as to extreme and repeated cruelty and intoxication and replication to the answer.

During the pendency of the suit the defendant in error, by her counsel, entered a motion for alimony pendente lite. ETo separate petition for alimony of that character was filed, and it is claimed by counsel for plaintiff in error that no notice of the motion was given. The motion was allowed and a decree entered, allowing the sum of one hundred dollars to the defendant in error for the support of herself and child during the pendency of the suit, and the sum of twenty-five dollars, decreed to her as a fee to her solicitor. It was further ordered that if the sum was not paid within ten days an execution should issue. That branch of the ease is brought to this court by a writ of error and the errors assigned are:

1. The court erred in allowing alimony without a petition for that purpose being filed, and notice.

2. There was no testimony showing complainant was entitled to temporary alimony or that defendant was able to pay it.

3. It was error to award an execution for its collection.

The first error assigned can not be sustained. The statute authorized the court to decree alimony pendente lite in such cases, and while perhaps it is the better practice that a separate petition should be filed, containing averments of the necessary and particular facts, the statute does not require it to be done; more especially is this so where the original bill shows all the facts necessary or that might be alleged in a separate petition.

Heithcr does the statute require that notice of the motion for temporary alimony should be given to the opposing party; he is brought into court by the summons and must take notice of motions entered upon the record.

In regard to the second error assigned, the ad interim alimony and money for the payment of solicitors’ fees and other expenses of the court, is given, not as a strict right to the wife, but it is a question resting largely in the sound discretion of the court. When that discretion is exercised fairly and without abuse by the trial court, after hearing testimony, it will not ordinarily be interfered with on appeal, but it will be when substantial rights have been impaired.

The alleged marriage and the faculty of the defendant, that is, his ability to pay such sum as may be decreed, must be admitted or proved before alimony pendente lite can be awarded. Bishop on Marriage and Divorce, Yol. 2, Sec. 496.

The court, upon a hearing of that question, must enter its decree finding in favor of the complainant or the defendant, and the decree of the court, so far as it regards that question, is not interlocutory—it is final. The decree in this case, then, is to be treated as a final decree in any other case in chancery; and so regarding it, the question arises: is the decree sufficient in the cause, or is it supported by the evidence? The decree as rendered shows that the parties complainant and defendant appeared by their attorneys respectively, and that “ the court hearing evidence and argument of counsel, finds that the complainant has no means of support or money to maintain or prosecute her suit against the defendant. It is therefore ordered, adjudged and decreed, that the defendant pay to the complainant, within ten days from this date, the sum of one hundred dollars, and in the same time that the defendant pay to the complainant the further sum of twenty-five dollars for the use of her solicitor.” The decree further provides, as before stated, that in case the money is not paid within the ten days, that an execution shall issue. Ho evidence whatever is to be found in the record, unless it may be in the finding of the court, that the complainant is poor and unable to prosecute her suit. As to the faculty or ability of the defendant to pay the amount of alimony awarded, there is no testimony whatever, and it does not appear from the decree that the court heard evidence on that subject. It is a well established doctrine that the facts upon which a decree is based must appear somewhere in the record, either by bill of exceptions, by a certificate of the evidence, or by a recital in the decree that certain facts were found.

It must appear from the record that the court heard evidence and found the allegations in the bill to be true. Davis v. Davis, 30 Ill. 180; Wilhite et al. v. Pearce, 47 Ill. 413.

If the court below had found in its decree that the material allegations in the bill, as to this question, were true, this court in such case would presume that the court heard testimony that justified such a decree, although the evidence was not preserved in the record, except by the findings of the court. Driscoll et al. v. Tannock et al. 76 Ill. 154; Ward v. Owens et al., 12 Ill. 283; Trenchard v. Warren, 18 Ill. 142.

The testimony upon which a decree is rendered must appear in the record in some manner, or the facts may in some cases be admitted in the answer. Grab v. Cushman, 45 Ill. 119.

The amount of property owned by the defendant was a material averment in the bill, and material on the hearing of the question as to alimony pendente lite. One that must be supported by the evidence. Upon this question, as we have said, there is no evidence in the record.

A decree will be reversed when there is no evidence to support it. Koeler v. Eaton, 52 Ill. 319.

In the same case the court say, as there was no evidence whatever upon which to base the decree, we will presume the case was heard ex parte and the decree was rendered under a misapprehension of the facts. There was no error in ordering an execution for the purpose of collecting the alimony.

Decrees for alimony may be enforced by execution as other decrees in chancery, or in any other modes consistent with the practice in the courts of chancery no doubt; the court may enforce decrees for the payment of alimony, by sequestration of real or personal estate, by attachment against the person, by fine or imprisonment, or both, in the discretion of the court. Blake v. The People, 80 Ill. 11.

While this extraordinary power is conceded to rest in the courts, it is subject to this limitation, imposed by the constitution, that a party may not be imprisoned, except in cases where it shall appear he has the pecuniary ability tb enable him to comply with the decree and his disobedience is willful.

For the reason that the decree in this cause is not sustained by the evidence, the judgment of the court below is reversed and the cause remanded.

Beversed and remanded.


text:
    Hannah Douglas v. William Hartzell.
    1. Forcible detainer—Evidence oe mental incapacity.—An action of forcible detainer was brought by plaintiff, who claimed possession by right of a quitclaim deed, made in 1876, by defendant’s mother, who by agreement was to remain on the premises during her lifetime. In 1880 the mother died, leaving defendant in possession. Upon the trial, defendant-offered to prove by several witnesses, that her mother, at the time of the execution of the deed, for a long time prior thereto, and until her death, was non compos mentis, to which evidence the court sustained an objection. Held, that this was error. If the grantor was incapable of understanding the transaction, it was not her deed, and this fact may as well be shown in. a court of law as equity.
    2. Law and equity jurisdiction.—In all cases arising out of fraud, equity has concurrent jurisdiction with courts of law. But parties will be referred to that forum where justice can be most effectually administered, and the right most satisfactorily established. As a general rule, it is better in all cases of a doubtful character, presenting a conflict of evidence, that the parties should be remitted to whatever remedy they have at law, although equity might entertain jurisdiction.
    Appeal from the Circuit Court of Randolph county; the lion. Amos Watts, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. A. G. Gordon and Mr. Alexander Hood, for appellant;
    that the title to property is not involved in this kind of an action, but possession must be shown, cited Johnson v. Baker, 38 Ill. 98; McCartney v. McMullen, 38 Ill. 237; Thompson v. Sornberger, 59 Ill. 326.
    The defense of fraud and that the party was non compos mentis can be set up: Rogers v. Brent, 5 Gilman, 573; Wing v. Sherrer, 77 Ill. 200; Caldwell v. King, 4 Cowen, 207.
    Courts of law as well as equity afford" protection to those who are of unsound mind: 1 Parsons on Contracts (5th Ed.), 387; Allen v. Hart, 72 Ill. 104; Clement v. Boone, 5 Bradwell, 109.
    Mr. J. B. Simpson and Mr. James J. Morrison, for appellee^
   Casey, P. J.

This was an action of forcible detainer heard in the Circuit Court of Randolph county on an appeal from a justice of the peace. The case is brought to this court by appeal. On the trial of the cause in the circuit court the plaintiff (appellee here) to establish his cause of action, introduced in -evidence a quitclaim deed made by Mary Douglas in June, 1876, conveying to appellee the property in question. The deed was duly acknowledged and recorded. The plaintiff further testified as follows: “ I am-the owner of the property and entitled to the possession of it. At the date of the deed I held Mary Douglas’ note for $775, and a deed of trust on the property. The note was dated July 18, 1862.

“In the fall of 1875, I told her the Statute of Limitations would soon run against the note and deed of trust, and unless she made me a deed I would foreclose.

“ I told her the principal and interest amounted to twice as much as the property was worth, but that if she would make me a deed, I would obligate myself to let her remain on the property as long as she lived free of rent.

“ The deed was made in June, 1876, and delivered to my agent.

“ In the fall of 1876 Mary Douglas told me she had made the deed and gave it to Chestnutwood, my agent, and I told her again that she could live there as long as she lived and would make it in writing if she wanted it, but she said she would take my word for it. Mary Douglas died in 1880, leaving Hannah Douglas, appellant, (her daughter) in possession of the premises.' I never rented to Hannah Douglas.” On cross-examination he stated the amount due on the note of principal and interest at the time the deed was made was $1,800. Demand for possession was shown.

Upon the trial the defendant offered to prove by several witnesses that “ Mary Douglas at the time of the execution of the deed and for a long time prior thereto and from that time until her death was old, an imbecile, and incompetent to transact any business on account of mental incapacity, or to know or understand what she was doing when she executedthe deed offered in evidence.”

To which evidence the plaintiff objected and the court sustained the objection. Exceptions were taken by the defendant to the ruling of the court. And the second error assigned in this court is, the court erred in not allowing the defendant to show that Mary Donólas, at the time of the execution of the deed to William Hartzell, was non com.jpos mentis. We think the error is well assigned, and that the court erred in refusing to allow the defendant to show that Mary Douglas, because of mental infirmities, was incapable of transacting that character of business when the deed was made. This is not an action to try the title to the premises, but simply to ascertain who is entitled to the possession of the premises.

The plaintiff claimed possession because of the 'deed, and tmdei' the statutes of forcible entry and detainer, as amended in 188lj lie is enabled to bring this action. If it was an action of ejectment, the defendant would be allowed to show that the deed was a forgery. In Wing et al. v. Sherrer, 77 Ill. 200, it is in substance said that in all cases arising out of fraud, equity has concurrent jurisdiction with courts of law. But parties will be referred to that forum where justice can be most effectually administered and the right most satisfactorily established. As a general rule it is better in all cases of a doubtful character presenting a conflict of evidence, the parties should be remitted to whatever remedy they have at law, although equity might entertain jurisdiction.

The general rule is that sanity is to be presumed until the contrary be proved. A deed made by a person non compos, mentis is not void, but voidable only.

When an act is sought to be avoided on the ground of mental imbecility, the proof of that fact devolves upon the person who makes the allegation.

If, however, a general mental derangement be once established or conceded, the presumption is shifted to the other side, and sanity is to be shown. 2 Kent’s Com., 451; Jackson v. Vanduson, 443; Jackson v. King, 4 Cowen, 216.

If the grantor in the deed to appellee was insane or an imbecile at the time of the execution of the deed and was incapable of understanding the transaction, then it was not her deed. This fact may as well be shown in a court of law as equity. Appellee relies upon his deed for a recovery in this case. The defense is that Mary Douglas at the time of the execution of the deed was non compos mentis. We think that the testimony was competent and that the court erred in refusing to allow it to go to the jury.

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

Reversed and remanded.


text:
    Francis M. Cowling v. Benjamin F. Estes.
    1. Fraudulent conveyance.—The court is of opinion that the circumstances in this case clearly show that the conveyance by the debtor was made with the intent and design to defraud his creditors, and that the purchaser had notice of such fraud.
    2. Purchaser with notice.—When a debtor' has conveyed to a purchaser for value, with the intent and design to defraud his creditors, it is not necessary that the purchaser should have purchased with the intention of aiding the vendor in his fraudulent design, in order to enable the creditor of the vendor to have th > conveyance set aside as fraudulent. If the purchaser accepts the conveyance with notice of the fraudulent intent on the part of the grantor, the property so purchased may be subjected to the payment of the debts of the fraudulent vendor.
    3. Notice, huw established.—Notice to the purchaser may be established by proving direct and positive knowledge on his part, or the notice may be inferred from the existence of certain facts and circumstances, that would place a man of ordinary prudence on inquiry with reference to the conduct of the vendor.
    4. Sale hindering and delaying creditors.—A sale of a debtor’s property upon a long and unusual credit has a tendency to hinder and delay creditors by interposing a legal title between them and the debtor and consequently is a badge of fraud.
    5. Fraud, how proved.—While it is true that fraud can not be inferred, yet like all other facts it may be proved by circumstances. Circumstances when proved which convince the mind that the fraud charged has been perpetrated, is all that is necessary.
    Appeal from the Circuit Court of Wabash county; the Hon. C. S. Congos, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. S. Z. Landes, Messrs. Bass & Lemma and Messrs. Patton & Watson, for appellant;
    cited Bump on Fraudulent Conveyances, 79, 80, 81, 86, 89, 90, 94, 96.
    As to notice to a purchaser of a fraudulent vendor: Baker v. Bliss, 39 N. Y. 70; Johnson v. Harvey, 2 Penn. 82; Ringgold v. Waggoner, 14 Ark. 69; Knox v. Hunt, 18 Mo. 174; Bump on Fraudulent Conveyances, 478; Boies v. Henney, 32 Ill. 140; Steere v. Hoagland, 50 Ill. 377; Zuver v. Lyons, 50 Ill. 377; Jones v. Hetherington, 45 Ia. 681.

      As to proof of fraud: Bullock v. Narrott, 49 Ill. 62; Strauss v. Kranert, 56 Ill. 254; Nesbitt v. Digby, 13 Ill. 387; Bryant v. Simoneau, 51 Ill. 327.
    Messrs. Bell & Gbeen, for appellee;
    that the fact that Morrow was heavily indebted at the time of the sale to appellee, is no evidence of fraud, for if his creditors had no liens on the stock of merchandise, Morrow had the right to sell to whom he pleased, cited Nelson v. Smith, 28 Ill. 495; Hessing v. McCloskey, 37 Ill. 341, Miller v. Kirby, 74 Ill. 242; Holbrook v. National Bk., 10 Bradwell, 140.
    Both vendor and vendee must be shown to have intended to commit the fraud before the deed can be avoided: Ewing v. Runkle, 20 Ill. 448; Myers v. Kinzie, 26 Ill. 36; Gridley v. Bingham, 51 Ill. 153; Hatch v. Jordan, 74 Ill. 414.
   Casey, P. J.

This was an action of trespass, brought by appellee against appellant in the Circuit Court of Wabash county. The defendant filed four pleas: First, the general issue; second, that the defendant was the sheriff of Wabash county, and that he took the goods and merchandise described in the declaration by virtue of certain writs of attachment issued by the clerk of the Circuit Court of Wabash county, at the instance of various parties, creditors of W. Morrow & Co., and that the goods and merchandise were not the property of the plain tiff.

The third plea shows a license upon the part of plaintiff to take the goods, etc.

The fourth plea is the same as the second except that there is an additional averment, that the goods and merchandise attached were, on the 2d day of January, A. D. 1884, fraudulently transferred to the plaintiff by Win. Morrow & Co. for the purpose of hindering and delaying their creditors; that the plaintiff participated in the fraud. Issue was found on these pleas. The cause was by agreement submitted to the court, a jury being waived. The court found for the plaintiff, and entered a judgment for the plaintiff and against the defendant for the sum of $4,55U and costs. A motion for a new trial was entered by the defendant and refused by the court. Exceptions were taken to the ruling of the court and the case is brought to this court by appeal. The only question for consideration is, was the transaction between Morrow and appellee fraudulent?

The principal and material facts are, that in July, 1883, Wilson Morrow removed from Gallatin, Illinois, to Mt. Carmel in said State with a stock of dry goods and began business in Mt. Carmel. On the 8th day of September, 1883, Morrow formed a partnership with Geo. W. Hicks in the mercantile business. At that time the goods held by Morrow were invoiced in the sum of $2,300. Most of the goods were in a damaged condition, upon which Morrow owed $1,500 or $2,000. Hicks agreed to put $800 cash in the business. Morrow then stated that he was indebted for the goods, but did not owe any borrowed money. This firm was in existence sixty days, when Morrow, for some reason which does not appear on the record, became dissatisfied and induced Hicks to retire from the business. In the meantime the stock of goods had been largely increased and was at the time of the dissolution of the partnership valued at $9,500, upon which the firm was indebted in the sum of $5,700, none of which indebtedness was then due. When the partnership with Hicks was dissolved Morrow paid Hicks $150, and agreed to give him two promissory notes, one for the sum of $300 and the other for the sum of $350, due respectively in six and twelve months, with his brother and mother as sureties. Neither of these notes have ever been given so far as the record shows. On the 2d of January, 1884, Morrow claims to have sold and transferred the entire stock of goods and merchandise in question to appellee.

After a careful consideration of the testimony we do not entertain a doubt hut what Morrow intended to cheat, hinder and delay his creditors. His stock of goods when he removed to Mt. Carmel, as we have said, was very inferior and in a damaged condition. He formed'the partnership with Hicks and continued it in existence until he was enabled thereby to get a large stock of goods. His causes of disagreement witli Jlicks were imaginary and part of a preconcerted plan. The firm was then doing a good business. It was paying its indebtedness before maturity.

Immediately upon the dissolution of the partnership, Morrow ceased to pay anything on his indebtedness.

Before then the firm had been discounting its bills. He continued in business until his creditors became anxious in regard to their claims. They were pressing him. He then wrote to his kinsman by marriage, appellee, to come to see him, saying: “Come up here at once, I have something lean put you on there is money in.” The immediate sale to his kinsman by marriage, on long- time, without interest and without security, without a dollar being paid in cash, when he knew his creditors were entitled to their money in good faith, and when he knew he could not make a dollar on execution against appellee; the immediate transfer to his wife of the four notes of appellee first becoming due, amounting to the sum of $2,444.65, to pay her, as he claimed, for money borrowed some years before that, when he had stated to Hicks he did not owe anything for borrowed money,.and the transfer of the two notes of anpellee, maturing next after those he had giv'en his wife, amounting to $1,000, to his brother, to secure him as surety on his, (Morrow’s) notes to Hicks, when the notes were never delivered to Hicks; the sale without invoice or inventory, under the circumstances, to appellee, without a dollar in cash as aforesaid, and without the consent of his creditors, when they were pressing him for their money, for a less sum than the goods were worth, as shown by himself, by appellee, and by Hicks; his refusal to comply with the reasonable demand of his creditors to allow them to see his books until “they were fixed,” and his refusal to give his creditors any satisfaction or plausible excuse therefor, his immediate departure after the transfer, to Texas, as appellee supposed; the fact that Shannon offered to take the goods and pay the debts, the refusal upon the part of Morrow, the fact that Morrow refused to transfer to his creditors any of the notes received from appellee; that he offered his creditors twenty-five cents on the dollar when it was in his power to have paid the entire sum due. As we have said, all these facts and circumstances leave no doubt in our minds that there was clearly a premeditated attempt on the part of Morrow to cheat his creditors. It was a bald fraud.” There seems to be no doubt but that he had that object in view when he induced Hicks to retire from the business. He had used Hicks for the purpose of replenishing his stock of goods; then he sought his kinsman to aid him in perpetrating the fraud upon his creditors.

The only question about which there can be any difficulty or uncertainty, is, did appellee so far participate in the fraud perpetrated by Morrow, as to prevent him from being an innocent purchaser for a valuable consideration, or were the facts and surrounding circumstances such as to put an ordinarily prudent business man on his guard, and cause him to make an inquiry as to the honesty of the transaction on the part of Morrow. In regard to this point we have carefully examined the testimony, and are forced to the conclusion that appellee knew of the fraudulent intent of Morrow and that in fact he was knowingly aiding Morrow in defrauding his creditors.

The manner in which his invitation to Mt. Carmel came: “ I have something I can put you on there is money in,” was to say the least, unusual; subsequent events showed there was money in it if the fraud was not discovered. If the transaction was fair and honest there was no reason why Morrow should not have stated what it was there was money in.”

The fact that he knew Morrow was largely indebted for the merchandise, "would lead an ordinarily prudent man to inquire as to the amount, at least, of the indebtedness. It is true that appellee denies that he knew Morrow was indebted for the goods, but it is proven by two witnesses, who have no financial interest in the result of the suit; besides four of the neighbors of appellee testify that they would not believe him under oath.

The fact that appellee examined the books of Morrow, that he is a “ shrewd business man, ” and was getting goods, valued at $7,000 or $8,000, for a much smaller sum on long time, reaching two years, that he was giving his notes therefor without interest and without security, that appellee boarded with and stayed at the house of Morrow, that they frequently had secret and long conferences and confidential interviews, as we have said, force us to believe, not alone that appellee had sufficient information to put him on his guard, that he knew such facts as would excite the suspicions of an honest man, but, in fact he knew that Morrow was intending to swindle and defraud his creditors, if he could.

Appellee gave his note to Morrow for $6,400; the judgment in this case was for $4,550—more than eighteen hundred dollars less than the amount of his note. The goods seem to have been worth more than the amount paid by appellee. If appellee ever honestly expected to pay his note, it is very extraordinary that he did not accept or agree to the motion for a new trial by appellant.

From the relation, connection and circumstances surrounding the parties, as shown by the record, it is unreasonable to suppose that appellee was ignorant as to the evident intention of Morrow. The law in such cases is well established.

If the facts and circumstances were such as to place a man of ordinary prudence and business capacity upon inquiry with reference to the honesty of the transaction, he will not be justified in closing his eyes and refusing to investigate. If he pursues that course, he is not a purchaser in good faith, and is affected with any fraud upon prior creditors affected by the sale.

When a debtor has conveyed to a purchaser for value, with the intent and design to defraud his creditors, it is not necessary that the purchaser should have purchased with the intention of aiding the vendor in his fraudulent design in order to enable the creditor of the vendor to have the conveyance set aside as fraudulent,

If the purchaser accepts the conveyance with notice of the fraudulent intent on the part of the grantor, the property so purchased may be subjected to the payment of the debts of the fraudulent vendor, 11 Notice to the purchaser may he established by proving direct and positive knowledge on his part, or the notice may be inferred from the existence of eertain facts and circumstances that would place a man of ordinary prudence on inquiry with reference to the conduct of his vendor.”

The conduct of appellee in making the purchase, even if it was made without an inquiry as to the condition or intent of the vendor, did “ hinder and delay the creditors of his vendor,” and the sale can not be maintained.

Creditors are entitled to sell the property of the debtor, and any expedient adopted by the debtor with the clear intent to prevent that, is fraudulent.

It is a hindrance and delay within the meaning of the statute.

A sale of his property upon a long and unusual credit has a tendency to hinder and delay creditors by interposing a legal title between them and the debtor’s estate, and consequently is a badge of fraud; but if the debtor is insolvent and his intent is to coerce his creditors to accept notes drawn for a long time, or keep them at bay until the time of credit expires, the purpose is fraudulent. This is especially true when the sale is not in continuance with the debtor’s business, with an honest effort to retrieve his fortunes, but is made as an abandonment of his business. Bump on Frauds, 89, 90.

It is true that fraud can not be inferred. It can not be presumed. It must be proved. But like all other facts it may be proved by circumstances. It very seldom can be proved by direct and positive testimony. Circumstances, when proven, which convince the mind that the fraud charged has been perpetrated, is all that is necessary.

Circumstances which merely raise a suspicion are not sufficient, but when they are so strong as to produce conviction of the truth of the charge, although there may remain some doubt, then it is proved.

This is the extent of the rule that fraud must be proved. Bullock v. Narrott, 49 Ill. 62; Bryant et al. v. Simoneau et al., 51 Ill. 324.

Plans and conspiracies to cheat and defraud are concocted in secret, in secret interviews. No one concerned while the existing relations are friendly will proclaim them from the house top, and great industry, patience and sagacity is required to expose them.

Fraud loves deceit and strategem, and its inextricable windings often can only be discovered, traced and exposed by circumstances. Steere v. Hoagland, 50 Ill. 377; Strauss et al. v. Kraner, 56 Ill. 254.

The facts show in this case that the least inquiry by appellee of Morrow, or his clerks, or an inspection of the ledger, would have disclosed the whole facts of this fraudulent transaction. And the .evidence further shows that appellee did examine the ledger so that he can not be regarded as an innocent purchaser. Baker v. Bliss, 39 N. Y. 70; Ringgold v. Waggoner, 14 Ark. 69; Knox v. Hunt et al., 18 Mo. 174; Sugden on Vendors, Ch. 17, Sec. 2; 4 Kent’s Com. 179; Hanley v. Cramer, 4 Cowen, 718; Cutter v. Hart, 1 A. K. Marshall, 41; Williamson v. Buren, 15 N. Y. 362; Gray v. St John, 35 Ill. 227.

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

Reversed and remanded.


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    Samuel Neill et al. v. James Chessen.
    1. Consideration op deed.—The consideration passing between the parties to a deed may be shown to be different from that expressed on the face of the deed.
    2. Construction op contract.—When two instruments are executed as parts of the same transaction and agreement, whether at the same or different times, they will be taken and construed together.
    3. Evidence—Sale Op land—Reservation op rent.—When a party sells land that is held bv another by virtue of a lease, the grantee in the deed is entitled to recover the rents accruing after the execution and delivery of the deed, unless the rents are reserved by the grantor. But such reservation need not be expressed on the face of the deed. It may be shown by introducing the contract in regard to the sale of the land and in arriving at the intention or true meaning of the parties, the agreement and the deed should be considered together as well as all the circumstances in proof.
    4. Action for money had and received—Privity.—In order to sustain an action for money had and received there must be privity between the plain tilt and defendant. The law raises no implied prom se upon which an action can be maintained in respect of money had and received from the mere fact of one man's money having come into the possession of another.
    Appeal from the Circuit Court of Madison county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. J. H. Yager, for appellants;
    that it is competent to show a different consideration from the one stated in the deed as between the parties, cited Kinzie v. Penrose, 2 Scam. 519; Ayers v. McConnell, 15 Ill. 232; Kimball v. Walker, 30 Ill. 482; Booth v. Hynes, 54 Ill. 363; Primm v. Legg, 67 Ill. 500; Brown v. Pitney, 39 Ill. 468.
    Mr. James E. Dcnnegan and Messrs. Wise & Davis, for appellee;
    that where a party, selling leased lands, conveys the fee and makes no reservation of the rent, the accruing rent goes to the grantee of the fee, cited Crosby v. Loop, 13 Ill. 625; Dixon v. Niccolls, 39 Ill. 384.
    The warranty deed given by appellants to appellee supersedes all their prior negotiations and agreements in relation to the purchase of the land: Ely v. Ely, 80 Ill. 532.
   Casey, P. J.

This was an action of debt brought by appellee against appellants in the Circuit Court of Madison county. The declaration contained the common counts.

The general issue was filed to the declaration. A recovery is sought on the count for money had and received. In the circuit court a jury was waived, the cause was heard by the court and a judgment rendered in favor of the plaintiff. A motion for a new trial was entered and refused and the case is brought o to this court by appeal. Upon the trial of the cause the plaintiff introduced in evidence a deed made by the defendants on the 19th of November, 1881, conveying to the plaintiff a certain tract of land therein described by metes and bounds and situated in the county of Madison and State of Illinois. The consideration expressed on the face of the deed is the sum of four thousand and one hundred dollars.

The plaintiff further showed at the time of the making and delivery of said deed, the land was in the possession of Jacob Soring, who held it by virtue of a written lease and that said lease did not expire until the 24th of December, 1882. That after the deed was made and before the lease expired, Soring paid to O. A. Murray, agent for Samuel Neill, one of the defendants, the sum of $192, as rent for the premises described in the deed. This suit is brought to recover that rent. On the trial of the cause the defendants offered in evidence the folfo wing contract or memorandum:

“ Alton, Ills., Nov. 3, 1881.

“ We, the undersigned, agree to place iff the hands of the Alton National Bank, each of ns $200; whereas James Chessen has purchased of Samuel Neill sixty acres of land more or less at $65.00 and the said Neill is to have the crop of wheat for the year 1882, or until the expiration of the lease of Jacob Bering; when Mr. Neill delivers to the bank a deed of the land, then Mr. Chessen is to pay for same, and if either party refuses to come up to the agreement or backs out of it, the other party lias the $400 (four hundred dollars).

(Signed) “ James Chessen.

“Samuel Neill.”

The plaintiff objected to the introduction of this instrument as evidence. The objection was sustained by the court and defendants excepted to the ruling of the court. The defendants also proposed to show that the land referred to in the instrument or agreement was the same land as that described in the deed made by defendants to plaintiff. Objection was "made and sustained by the court. Defendant’s counsel also offered to prove bv the witness Caldwell that the plaintiff, by ' agreement made before the delivery of said deed, with Samuel Neill as the agent of the other grantors in the deed, that the said Chessen was not to have the rent of the premises mentioned in the deed, during the unexpired term of said lease (lease referred to by witness Bering), and that the plaintiff Chessen purchased the land upon that consideration. Objection was made and the court sustained the objection.

The defendant’s counsel also offered to prove by the witness Caldwell, that the said Neill was to have the crop of wheat for 1882, or until the expiration of the lease of the land to Jacob Soring, and that the land referred to in the agreement of the 3d of November, 1881, was the same land as that described in the deed.

Objection was made and the court sustained the objection.

Appellants excepted to the ruling of the court in refusing to hear the evidence.' The court erred in refusing to allow the written agreement to go in evidence. It was competent as a part of the contract, and it was proper to admit in evidence verbal statements, showing the connection, if any, between the written agreement and the deed.

When two instruments are executed as parts of the same transaction and agreement, whether at the same or different times, they will be taken and construed together. Stacey v. Randall, 17 Ill. 467; Reed v. Ellis et al., 68 Ill. 206.

The consideration passing between the parties to a deed may be shown to be different from that expressed on the face of the deed. Kimball v. Walker, 30 Ill. 482; Primm v. Legg, 67 Ill. 500; Booth v. Hynes, 54 Ill. 363.

The contract of the 3d of November shows the entire agreement of the parties in regard to the sale and purchase of the land.

The deed was not in conflict therewith, but was simply carrying into effect one of the provisions of the contract.

It is true that when a party sells lands that aie held by another by virtue of a lease, the grantee in the deed is entitled to recover the rents accruing after the execution and delivery of the deed, unless the rents are reserved by the grantor.

But the reservation need not be expressed on the face of the deed. It ¡ility be shown as in this case by introducing the contract iu regard to the sale of the land. This argument shows that “ Neill is to have the crop of wheat for the year 1882, or until the expiration of the lease of Jacob Senng” In arriving at the intention of the parties or the true meaning of the contract the agreement and the deed should be considered together, as well as all the circumstances in proof. Stacey v. Randall, supra.

The fourth error assigned is that the court erred in rendering judgment against all the defendants, whereas there is no evidence showing any indebtedness or liability on the part of Lady Neill, Joseph R. Neill and Emma Neill; as we have said the count relied upon in this case for a recovery is for money had and received.

There is no evidence in the record that any money was paid to the defendant for the use of the plaintiff. It is well settled that there must be some privity between the parties before this action can be sustained. In 1 Wheaton Selwyn 104, it is said: “In order to sustain an action for money had and received there must be privity between the plaintiff and defendant. The law raises no implied promise upon which an action can be maintained in respect of money had and received, from the mere fact of one man’s money having come into the possession of another.”

It is necessary to maintain this action that a certain amount of money belonging to one person should have improperly come into the hands of another, and that there should besóme privity between them. 3 Addison on Contracts, Sec. 1408.

When the money was delivered to the defendant for a particular purpose to which he refused to apply it, he can not apply it to any other, but it may be recovered back by the depositor under the count for money had and received. If it was placed in his hands to be piid over to a third person, which he agreed to do, such person assenting thereto may sue for it as money had and received to his own use. But if the defendant did not so consent to appropriate it, it is otherwise, there being no privity between them, and the action will lie only by him who placed the money in his hands. 2 Greenleaf, Sec. lie.

The person who receives money as his own from an execntor, who pays it under a mistaken interpretation of the will, is not liable to an action for money liad and received by a person who was entitled under the will to receive it. Moore v. Moore, 127 Mass. 22; Rand v. Smallidge, 130 Mass. 337; Trumbull v. Campbell, 3 Gil. 502; Hall v. Carpen, 27 Ill. 386; Carpen v. Hall, 29 Ill. 512.

As to the appellants, Lady Neill, Joseph R. Neill and Emma Neill, as we have already stated, there is no evidence whatever in the record showing that any money was paid by Bering to Murray for their use and benefit, or that they ever received any money as the rents or a part of the rents of the premises in question, or that Murray or Samuel Neill was their agent, so that in no event could the judgment in this case against them be sustained on the evidence as it now appears in the record.

It is also insisted by counsel for appellants, that the judgment in this case was informal and defective, and we are referred to the case of Bowden v. Bowden, 75 Ill. 111, in support of the view of counsel.

In view of the fact that the cause is to be heard again in the circuit court, we do not see that it is necessary to discuss that branch of the case.

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

Reversed and remanded.


author: Baker, J.

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    Leonhard Kunkelman v. J. B. Rentchler.
    Personal liability of stockholder.—In a suit brought to enforce the personal liability of a stockholder under the charter of the People’s Bank of Belleville, where the stockholder set up as a defense that judgments had been recovered against him in favor of creditors of the bank to an amount equal to the amount of his liability as a stockholder, and the judgments had been discharged for a less sum than the amount due, the sum actually paid should be regarded.

      Appeal from, the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. William C. Kueffner, for appellant;
    cited Gauch v. Harrison, 12 Bradwell, 458; Thompson v. Meisser, 108 Ill. 359.
   Baker, J.

This is a suit on a certificate of deposit for $700 to enforce thy personal liability of appellee under the charter of The People’s Bank of Belleville, as a stockholder in said bank. Appellee is the holder of thirty-seven shares of stock, amounting to $3,700, and in his second plea he sets up as a defense, that prior to the commencement of this suit judgments had been recovered against him in favor of creditors of the bank, to an amount equal in the aggregare to the amount of his liability as a stockholder. Appellant replied as to $1,460 of the liability, that these judgments, under an agreement with the judgment creditors, were fully discharged and satisfied by the payment of less, in the aggregate, than the amount of the personal liability, to wit, by the payment, in the aggregate, of $2,240.

On demurrer the circuit court held this replication to he bad, and rendered final judgment against appellant for costs.

The decision upon the demurrer was in conflict with the decisions of the Supreme Court and of this court. Thompson v. Meisser, 108 Ill. 359; Gauch v. Harrison, 12 Bradwell, 457; Meisser v. Karr, decided at the August term, 1883, of this court, hut not reported.

The latter case seems to be on all fours with this; and we there held that where the judgment has been discharged for a less smn than the amount due upon it, then the sum actually paid should be regarded.

For the error indicated, the judgment is reversed and the cause remanded.

Keversed and remanded.


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    James H. Means v. Sanders M. Earls.
    1. Failure cot guardian to insure—Liability.—The failure of a guardian to insure, even when he had trust funds with which he might effect the insurance, would not, under all circumstances, render him personally liable for subsequent loss by fire. But it would depend upon the inquiry whether or not, upon the circumstances of the particular case, he was guilty of culpable or gross negligence.
    2. Same.—Where, at the time of the assumption of the guardianship, the house in question, which was a frame one in the outskirts of the village, detached from any other, and was occupied by tenants at a small rental, was not insured, and the guardian insured it for three years, and although he had trust funds in his hands, did not renew the policy at the expiration of the three years, and six months later the house burned. Held, that the proofs in this case do not disclose such gross negligence as to charge the guardian personally for the loss of the house.
    Appeal from the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed October 10, 1884.
    Messrs. IIosmer & IIosmer, for appellant;
    cited 2 Kent’s Com. 228; Reeve on Domestic Relations, 2 Ed. n. 2, p. 322.
    Mr. J. A. Watts, for appellee.
   Baker, J.

This is an appeal from the final settlement of appellant as the guardian of appellee.

The ward owned a' house and lot in the outskirts of the town of Nashville; the house being isolated from other buildings, occupied by tenants at six dollars per month, and worth four or five hundred dollars.

At the time of the assumption of the guardianship, there was no insurance on the premises. Subsequently the appellant insured the house to the amount of §300, for a period of three years, and in his final settlement, he charges his ward with the premiums paid. Some fourteen months after the expiration of the policy the house was destroyed by fire; the guardian all the while having had money of the ward in his hands, with which he might have kept up the insurance.

The sole question at issue is as to the legal liability of appellant, under the circumstances of the case, to compensate appellee for the loss. The court below held him liable, and rendered judgment against him in that regard for $350.

In the absence of any statute imposing upon the guardian the duty of insuring the property of the ward, we may properly refer to some of the general principles of the law bearing upon the subject of the duties and liabilities of trustees.

A trustee must use the same care for the safety of the trust property and for the interests of the cestui qxie trust, that he uses for his own property and interests. 1 Perry on Trusts, Sec. 441. .

A , guardian is bound to use ordinary prudence and diligence in the management of his ward’s estate, and is liable for losses incurred through culpable indifference and negligence. 3 Wait’s Actions and Defences, 560.

Where a trustee exercises such prudence, care and diligence as men of ordinary prudence, care and diligence manifest in like matters of their own, he should not be held accountable for losses happening from his management of the trust property. Miller v. Proctor, 20 Ohio St. 442. All that a court requires of trustees is common skill, prudence and caution; and a guardian is not liable beyond what he receives unless in case of gross negligence; and when he acts as others do with their own property, and in good faith, he is not liable. Neff’s Appeal, 57 Penn. St. 91; Taylor v. Benham, 5 Howard, 233. He is bound to employ such diligence and such prudence in the care and management of the trust property as, in general, prudent men of discretion and intelligence in such matters employ in their own like affairs. Taylor v. Hite, 61 Mo. 142.

We may remark that a guardian, acting in good faith, would probably, under most circumstances, be justified in insuring the property of his ward and charging him with the premium. See 2 Perry on Trusts, Secs. 485 and 487. But it does not necessarily follow that the failure of the guardian to insure, even when he has trust funds with which he might effect the insurance, would, under all like circumstances, render him personally liable for a subsequent loss by lire. It would depend upon the consideration whether, under the circumstances of the particular case, there was an absence of ordinary care and prudence; in other words, upon the inquiry whether or not he was guilty of culpable or gross negligence. The mere fact the guardian himself, of his own motion, had insured the house for three years, did not impose upon him the absolute duty of continuing such insurance; and the circumstance, there had been no loss in these three years during which he had expended the ward’s money for premiums, probably influenced him, in connection with the other facts, to drop the insurance.

The house was a frame, was in the outskirts of the town, was detached from other buildings, and was occupied by tenants at a small rental. We are unable to say that common and ordinary prudence absolutely demanded it should be insured, and that a failure to insure was culpable or gross negligence.

It is probable that some prudent men would, while other equally prudent men would not have insured. Had there been an order of the county court directing an insurance, and a non-compliance with such order, then the conclusion might be otherwise. So, also, there are cases where the trustee would be liable, were he to permit a policy already upon the property, when he assumes the trust, to be forfeited for nonpayment of premiums; and there may be cases where such a state of facts exists as to make it the imperative duty of the guardian or trustee to effect an insurance.

The negligence to charge the guardian, must affirmatively appear; and we are unable to conclude from the proofs there was such want of ordinary prudence, care and diligence, and such supine and gross negligence as under the general rule respecting the liability of trustees would charge this guardian. See Hoff’s Appeal, ante. It would be bad policy to impose upon guardians and administrators, liabilities and burdens of an onerous and doubtful character, as it would greatly tend to discourage fit and responsible persons from assuming such trusts.

We think it was error to charge appellant with the $350 in question.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Rebecca Atteberry v. William R. Jackson, Guardian, etc.
    Assumpsit eor 'money had and received .—If a daughter of á deceased soldier malíes an application for a pension, stating that she is the only child, and the pension is paid to her until she is sixteen, and such statement is false, deceased having a younger son, the latter can not maintain against the former an action of assumpsit for money had and received, there being no privity between them. Such action can be maintained only by the government.
    Appeal from the Circuit Court of Wayne county; the Hon. C. 8. Congou, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. Edwin Reeoiieb, for appellant;
    that- where money has been reeived under a claim of right, and no right of a third party to the same is admitted, but denied, the one from whom it was received can aloue she to recover it back if it was improperly paid, cited Trumbull v. Campbell, 3 Gilm. 502; Hall v. Carpen, 27 Ill. 386; Carpen v. Hall, 29 Ill. 512; Moore v. Moore, 127 Mass. 22; Rand v. Smallidge, 130 Mass. 337; Patrick v. Metcalf, 37 N. Y. 332, 844; Butterworth v. Gould, 41 N. Y. 450, 461, 463; Sergeant v. Stryker, 1 Harrison (N. J.), 464, 466, 471; Cougar v. McFarlan, 3 Green (N. J.), 370; Tiernan v. Jackson, 5 Peters, 580.
    If the money was improperly paid to defendant the govern» ment can recover it back; Fenemore v. U. S., 3 Dallas, 357, 363; Sergeant v. Stryker, 1 Harrison, 466.

      Messrs. Robinson, Boggs & Johns, and Messrs. Creighton & Sibley, for appellee;
    that assumpsit will lie, cited Allen v. Stenger, 74 Ill. 119; Moore v. Mandlebaum, 8 Mich. 433; Johnson v. Johnson, 33 Ala. 284.
   Baker, J.

In March, 1863, the' first wife of Wm. H. Murphy died, leaving one child, then Rebecca Murphy, now Rebecca Atteberry, the appellant, who was then five years old. On the 16th of August, 1863, about five months after the death of his first wife, said William H. Murphy married Hattie Baird; and on the 2d of January, 1864, a son, the ward of appellee, was born of said Hattie. William H. Murphy then left his wife and went into the army, and died on the 29th of April, 1864, in the military service of the United States.

After a second marriage of Plattie Murphy, the widow, one Wm. A. Atteberry, guardian of appellant, applied for a pension for her, representing she was the only child of said Wm. H. Murphy, deceased, and received the pension up to September 11, 1878, when she was sixteen years old. The amount so received was $1,400, and was accounted for to her by her guardian after she became of age, less costs, and expenses of guardianship and of collection.

This suit is assumpsit for money had and received, brought against appellant by appellee, as guardian of the child born January 2, 1864, to recover two fifths of the pension moneys received. The inquiry whether or not the ward of appellee is the son of Wm. H. Murphy, deceased, is involved in the controversy; but, in the view we take of the case, it is wholly unnecessary to consider this and several other questions discussed in the briefs.

The judgment of the circuit court was for appellee for $670.27, and costs. Admitting all the facts as claimed by appellee and as found by the trial court, we are of opinion there is no cause of action. If the ward of appellee is legitimate, and the son of the deceased soldier, then the statement made in the application for the pension that appellant was the only child, was false, and the pension, or a part of it, was improperly obtained from the government by means of such false statement, and the right of property in the money being in the government at the time it was so obtained, the United States could sustain an action against appellant for money had and received, and recover such part of the pension as appellant was not entitled to. The law would raise an implied promise to repay the money to the government. If appellee can recover from appellant, it must be upon the theory that the general and absolute title to the money was and is in his ward, and that there was an implied promise to pay it to him.

As the general and absolute right of property in the same thing can not contemporaneously exist in several different and distinct persons, the law will not raise two or more implied undertakings to distinct persons, based upon the general, absolute and exclusive right of property in such thing. If there is a right' of action in the government, then there can be none in appellee. If money is placed in a defendant’s hands to be paid over to a third person, which he agrees to do, such person assenting thereto may sue for it as money had and received to his own use; but if the defendant does not consent to so appropriate it, it is otherwise, there being no privity between them; and the action will lie only by him who placed the money in his hands. 2 Greenl. Ev., Sec. 119.

The United States did not give appellee a right of action against appellant by paying her money which she claimed a right to, in opposition to appellee. If there was fraud or mistake, it was a fraud or mistake by which appellant improperly procured from the government the money of the government.

The money obtained was not the property of appellee or his ward, and it was paid to the guardian of appellant under a claim of a right thereto, and such claimed right was and is adverse to the claim of appellee. It was both paid and received expressly for the use of appellant and under no authority, or pretense of authority, from appellee or his ward. Whatever claim the latter had upon the government was not discharged by the payment to appellant, and if the government has a right of action against appellant, then a judgment in favor of appellee would be no bar to a recovery by it for the same money. We may say, without further elaboration, that the following authorities seem to justify the conclusion we have reached. Trumbull v. Campbell, 3 Gil. 502; Hall v. Carpen, 27 Ill. 386; Carpen v. Hall, 29 Ill. 512; Sergeant v. Stryker, 1 Harrison, 464; Butterworth v. Gould, 41 N. Y., 450; Fennemore v. U. S., 3 Dallas, 357; Moore v. Moore, 127 Mass. 22; Rand v. Smallidge, 130 Id. 337.

The judgment is reversed.

Reversed.


text:
    County of St. Clair v. Jacob Bollman.
    1. Coroner’s inquest—Juror’s fees.—A jury was summoned by the coroner to hold an inquest over twenty-six bodies burned in a convent. The jury was not sworn as to each dead body, but was sworn three times, on the theory that there were three classes, the identified burned bodies, the unidentified burned bodies, and the bodies of two persons killed by jumping from a window. The jury returned twenty-seven verdicts—a general verdict as to the immediate cause of the catastrophe, and a separate verdict as to each of its victims. The inquest lasted six days. Held, that the compensation of each juror should be six dollars.
    2. Construction of statute.—The salient and controlling words in the forty-fifth section of the Fees and Salaries Act, “the fee of each juror attending an inquest held over a dead body shall be $1 per day,” are “ an inquest,” and the true intent and meaning is, that each juror attending an inquest shall be paid a, per diem of $1, regardless of the fact whether that particular inquest or inquiry is upon the body of one or many. The words “held over a dead body,” are merely explanatory and for the purpose of indicating the kind of inquest covered by the statute.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. R. D. W. Holder, for appellant;
    cited People v. Canal Com’rs, 3 Scam. 152; Zarresseller v. People, 17 Ill. 101; Wright v. People, 101 Ill. 126; 1 Kent’s Com. 461; People v. Hoffman, 97 Ill. 234; Perry Co. v. Jefferson Co., 94 Ill. 214; Walker v. City of Springfield, 94 Ill. 364.
    Messrs. Hay & Knispxl, for appellee;
    cited R. S. Ch. 31, §§ 10, 13, 14, 19; Ch. 53, §§ 26, 45.
    As to construction of a statute: U. S. v. Morse, 3 Story, 87; Perteet v. People, 65 Ill. 230; Biggs v. Clapp, 74 Ill. 335.
   Baker, J.

The Institute of the Immaculate Conception, in the city of Belleville, Illinois, was totally consumed by fire on the night of the 5th of January, 1884. Twenty-four of the inmates were burned to death, and two died from injuries received by throwing themselves from the windows of the third story of the building. Seventeen bodies were identified, and nine bodies were so entirely consumed that they could not be identified. A jury was summoned by the coroner and it held daily session for six days.

The jury was not sworn as to each dead body, but, it would seem, was sworn three times, on the theory there were three classes of dead bodies, the identified burned victims, the unidentified dead victims and the two persons killed while attempting to escape from the building. There was oue inquest, continuing six days, over the twenty-six dead bodies.

The jury returned twenty-seven verdicts—a general verdict as to the immediate cause of the catastrophe and loss of life and a separate verdict as to each of the victims. The general verdict begins with the recital: “We, the jury, impaneled to hold an inquest over the bodies of the victims of the fire- at the Institute of the Immaculate Conception, in Belleville, Illinois, on the night of January 5, 1884, etc.”

The question at issue is whether appellee, who was a member of the coroner’s jury, is entitled to compensation from the county, at one dollar per day for six days, without reference to the number of the dead bodies, or should receive $156 for six days’ services, on the theory that in contemplation of law he was engaged on the inquiry six days on each.several body.

¡ The determination of the question depends upon the. construction to be given the forty-fifth section of the Fees and Salaries Act; which section reads as follows: “The fee of each juror attending an inquest held over a dead body shall be one dollar per day, payable out of the county treasury.”

The first section of chapter 131, R. S., provides that in the construction of statutes all general provisions, terms, phrases and expressions shall be liberally construed, in order that the true intent and meaning of the legislature may he fully carried out, and that words importing the singular number may extend and be applied to several persons or things.

It is one of the canons of construction, that the real intention of the legislature, when actually ascertained, will prevail; and that for the purposes of such ascertainment, the whole of the statute, the law existing prior to its passage and the mischief to be remedied, will be considered. It is also a rule that such construction will be avoided as would lead to palpable injustice and absurdity. The section in force prior to the ■Fees and Salaries Act of 1872 provided that the fee of each juror attending an inquest held over a dead body, should be twenty-five cents, payable out of the county treasury. Gross Stat. 1869, Ch. 58, Sec. 22. The act of 1872 made provision for the payment of jurors in courts of record and before justices of the peace at certain fixed rates per day, and amended the section respecting the fees of coroners'jurors by substituting the words “ one dollar per day” for the words “ twenty-five cents.” Under the old statute, if the service had lasted for weeks, the compensation for the whole time would only have amounted to twenty-five cents. We think it clear the intention was not only to remedy this evil, but as far as practicable to apply the principle of a diem compensation alike to jurors of all kinds. The interpretation claimed bv appellee would, necessarily, lead to absurd and unjust consequences. In the case before us, had there been but one victim, appellee would have received one dollar a day, but there being twenty-six victims he claims twenty-six dollars per day, and had there been a hundred victims, would have claimed a hundred dollars per day. In such latter case, which is not at all an improbable or impossible one, from the burning of a theater or other place of public resort, the cost to the county of a six days’ inquest by a jury of six men, would amount to the sum of $3,600 for jurors’ fees alone.

The language of the statute is: “ The fee of each juror at-' tending an inquest held over a dead body shall be $1.00 per day.” The salient and controlling words are “ an inquest,” and the true intent and meaning is that each juror attending an inquest shall be paid a -per diem of one dollar, regardless of the fact whether that particular inquest or inquiry is upon the body of one or many; the words “ held over a dead body,” are merely explanatory, and for the purpose of indicating the kind of inquest covered by the statute; and had the words of the section been “ attending a coroner’s inquest,” the meaning of the statute would not have been otherwise than it now is. Statutes must be interpreted according to their intent and meaning, and not always according to the letter.

A thing within the intention is within the statute, though not within the letter, and a thing within the letter is not within the statute unless within the intention. As we have seen, the legislature itself, in laying down rules for the interpretation of the statutes, expressly provides that words importing the singular number may extend and be applied to several persons or things; and in the section under consideration, the words an inquest held over a dead body,” should be extended and applied to the case of a single inquest held over a number of dead bodies.

We are of opinion the allowance of $156 to appellee was in violation of the rules of construction prescribed in our statute and of the generally received canons of interpretation.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Peoria, Decatur & Evansville Ry. Co. v. Asa Pixley et al.
    1. Chancery. —Where, when this canse was before this court (13 Brad-well, 565), it was held that as it was not urged in the court below that appellant was an improper party, it was too late to then say that appellant had an adequate remedy at law, and the contract in question was held valid, and the cause was re-docketed in the court below, and appellees had filed their answers to the original bill and the cross-bill, when two other parties filing a demurrer to the bills on the ground that appellant was improperly made a defendant, the court permitted appellees to withdraw their answers and to file a demurrer to each of said bills. Held, that this was an abuse of the sound legal discretion of the court, and it was error for the court to dismiss appellant’s cross-bill and dismiss appellant as a party to the original bill. Appellees had full opportunity, upon the filing of the cross-bill, to demur to an investigation in a court of chancery of a purely legal claim. But, having submitted the matters in controversy to an equity court, and that court having decided against them, it would be unjust to now permit them to insist upon another and different tribunal.
    2. Appeal from judgment not final.—Owing to particular circumstances and hardships, courts sometimes refuse to dismiss appeals from judgments which do not completely' dispose of the cases in which they were entered.
    3. Pleading—Who may demur for misjoinder of defendants.— A demurrer will lie on the part of any or all defendants for a nonjoinder or misjoinder of complainants, or for a nonjoinder of defendants; but a party who is properly sued has no right to object that another who is sued with him is improperly made a defendant, and he only who is improperly joined can demur for that cause.
    Appeal from the Circuit Court of Edwards county; the Hon. C. S. Cong or, Judge, presiding.
    Opinion filed October 10, 1884.
    Messrs. Stevens, Lee & Horton, for appellant;
    that the railroad company was a proper and .necessary though not an indispensable party defendant, cited Osborn v. Bk. of U. S., 9 Wheaton, 738; Cameron v. McRoberts, 3 Wheaton, 591; Harding v. Handy, 11 Wheaton, 132; Shields v. Barron, 17 Howard, 130.

      The court having once acquired jurisdiction of the parties and the subject-matter, should retain the case to do complete justice: Sherlock v. Village of Winnetka, 59 Ill. 400; Sterl v. Sterl, 2 Bradwell, 223; Folleusbee v. Scot. Am. Mort. Co. 7 Bradwell, 486; Channon v. Stewart, 103 Ill. 541; Apperson v. Gogin, 3 Bradwell, 48; Conklin v. Foster, 57 Ill. 105; Boyd v. Hunter, 44 Ala. 705; Pool v. Docker, 92 Ill. 501.
    Mr. "W". F. Foster and Messrs. Hanna & Adams, for appellees;
    that the power of the court to allow answer to be withdrawn and demurrer afterward to be filed is within the sound discretion of the court, and unless the court has abused its discretion, the appellate court will not reverse, cited Rowan v. Kirkpatrick, 14 Ill. 6.
   Baker, J.

This cause was' before us at the August term, 1883 (see 13 Bradwell, 565), where a statement of the case will'be found. We then decided upon the merits of the several controversies arising, both upon the original and the cross-bills herein; and the decree was reversed on account of errors in the computation of amounts to be contributed by some of the then appellants. We directed that the cause should be referred to the master, to state the accounts on the basis suggested by ns; and it was intimated in the opinion that leave might be given Hinkle and Pixley to file cross-bills for the purpose of protecting certain rights and equities. We fully sustained the validity of the contract involved jn the litigation, the right of the Goulds to a contribution from the joint contractors .with them, and the right of the present appellant, the P. D. .& E. By. Co., to a decree upon its cross-bill. We then said:

It is assigned as error that the court did not dismiss the cross-bill filed by the P. D. & E. Ry. Co: The objections stated are that the corporation was not a necessary or proper party to the original bill, and that its claim set up in the cross-bill was a purely legal claim, which could be° enforced in a court of law. It was not urged in the court below as ground of demurrer, that an improper party was made a defendant to the bill filed by the Goulds, nor was any demuríér interposed to the cross-bill; but answers were filed to both bills, and the two causes were heard on their merits without demurrer or objection, and it is too late now to say there was an adequate remedy at law or that an unnecessary party was made a defendant.”

At the April term, 18S4, of the Edwards Circuit Court, the cause was re-docketed in that court.

Thereupon Hoffman and Plinell, two of the defendants to both the original bill and the cross-bill, filed a demurrer to the original bill, on the ground the P. D. & E. Ry. Co. was improperly made a defendant to said bill. And Pixley and nine other defendants were permitted by the court to withdraw their answers to both the original bill and the cross-bill and to file a demurrer to each of said bills.

Thereupon the court sustained all of these demurrers, and dismissed the original bill as to the P. D. & E. Ry. Co., and also dismissed the cross-bill of that corporation.

From the decree thus entered, dismissing its cross-bill and dismissing it as a party to the original bill, the P. D. & E. By. Co. b: s taken this appeal. It is suggested that the decree is not final, the original bill being still retained as to the other defendants, and that no appeal lies from it. Owing to particular circumstances and hardships, the courts have refused to dismiss appeals from some judgments which did not completely dispose of the cases in which they were entered. Freeman on Judgments, Ch. 1, Sec. 35.

The case of W. U. Tel. Co. v. P. & A. Tel. Co., 49 Ill. 90, seems to be an authority to sustain this appeal.

As respects the defendants, Hoffman & Plinell, we find, upon a careful inspection of the record, that they, on the remanding of the cause, occupied but a slightly different position to that occupied by Pixley and the other defendants to the original and cross-bills. They, Hoffman and Plinell, had answered the cross-bill prior to the first hearing of the cause. It appears from the record that at the November term, 1882, it was expressly stipulated by agreement of all the parties, that the answer to the cross-bill and the supplemental cross-bill should be taken as an answer by all the defendants named in said bill, except Ansel A. Gould and Philander Gould. And not only this, but the answer itself, which was filed April 11, 1882, shows on its face it was the “joint answer,” not only of Pixley and the defendants specially named in the answer, but of the “ other defendants in a cross-bill filed by the P. D. & E. Ry. Co., etc.”

It appears, however, Hoffman and Plinell did not join in the answer to the original bill, and that by some oversight a default was not entered as to them. At the hearing “ all the parties to the suit ” appeared, and were represented by their several solicitors, and the cause was heard upon the pleadings and proofs. The action of the court in permitting Pixley and others to withdraw their answers to the original bill and cross-bill and file demurrers, was, in our opinion, an abuse of the sound legal discretion imposed upon the court.

Said defendants had full opportunity, upon the filing of the cross-bill, to demur and object to an investigation in the court of chancery of a legal claim which could be enforced in a court of law. They elected not' to do this, but to test the validity of the claim and the merits of the case in the chancery court. Had that court found and decreed the contract in controversy void, there is no doubt that determination would have made the question of such validity and all other questions involved in the issues res adgudicata as to appellant; and the decree of the court could have been pleaded in bar to a subsequent suit at law. Having elected to submit the matters in controversy to the equity court, and that court having decided against them, it would be manifestly unjust and unfair to now permit them to insist upon another and a different tribunal. Parties should not be allowed to thus trifle with the rights of others and with the courts. Appellees having deliberately selected their bed should be permitted to lie in it. It would seem that if when the case was first here, it was then too late to say there was an adequate remedy at law, it would necessarily follow it was also too late after the cause had been remanded.

As we have seen, the defendants, Hoffman and Plinell, had also answered the cross-bill and elected to test the validity of appellant’s claim in the court of chancery, and what we have said with reference to Pixley and others applies as well to them.

As respects the demurrer of Hoffman and Plinell to the original bill of the Goulds on the ground that there was a misjoinder of the appellant corporation with the other defendants, we think it was improperly sustained. A demurrer will lie on the part of any or all defendants for a nonjoinder or misjoinder of complainants, or for a nonjoinder of defendants; but a party who is properly sued has no right to object that another who is sued with him is improperly made a defendant, and he only who is improperly joined can demur for that cause. Story’s Equity PI. §§ 544 and 237; Crane v. Deming, 7 Conn. 387; Horton v. Sledge, 29 Ala. 498; Christian v. Crocker, 25 Ark. 327.

It is suggested that the only parties who could complain of the order sustaining the demurrer to the original bill and dismissing appellant therefrom, are the Goulds, complainants therein. After appellant filed its cross-bill the Goulds had no power to dismiss their bill, either generally or as to appellant, without its consent. R. S. Ch. 22, Sec. 36. Appellant had substantial rights, both under the original and the cross-bill, which wore affected by the orders of the court, and it had the right under the circumstances of the pleadings and the record to have the benefits it had obtained by the litigation thus far, and the advantage of its position in the court of chancery. By the action of the court, appellant was completely dismissed from the proceedings, and the whole case was fully disposed of, so far as it was concerned.

The orders and decrees of the court dismissing the cross-bill of appellant and dismissing it as a party to the original bill, are reversed, and the cause is remanded with instructions to reinstate appellant to.the position it occupied after the former reversal of the cause, and then proceed in conformity with the former opinion herein.

Reversed and remanded.

Casey, C. J., took no part in the decision of this case.


text:
    Francis Hogg v. The People, etc.
    1. Indictment under Dram Shop Act.—Where a number of persons assembled, at a house for the purpose of dancing, and plaintiff in error was induced to go to a neighboring town and procure a jug of whisky, and it was understood that, he should contribute thirty cents of the price paid for the liquor and the others the residue, some contributing before, others after, its procurement. Held, that an indictment will not lie against plaintiff in error for selling intoxicating liquors in less quantity than one gallon, without having a legal license to keep a dram shop.
    2. Construction op statute.—The thirteenth section of the Dram Shop Act should receive a fair and liberal construction and be strictly enforced, but at the same time it is to be interpreted within its true intent and meaning, and a thing within the intention is within the statute, though not within the letter, and a thing within the letter is not within the statute, unless within the intention.
    Error to the Comity Court of Pope county; the Hon.Wn. Y. Eldridg-e, Judge, presiding.
    Opinion filed October 10, 1884.
    Messrs. Morris & Boter, for plaintiff in error.
    Mr. James A. Bose, for defendants in error.
   Baker, J.

Francis Hogg, plaintiff in error, was tried and convicted at the July term, 1884, of the County Court of Pope county, upon an indictment for selling intoxicating liquor in less quantity than one gallon without having a legal license to keep a dram shop, and a judgment was entered against him for a fine of $60 and costs.

The substance of the transaction upon which the indictment is predicated was, that on the 25th of December, 1882, a number of persons assembled at the house of Jonathan Wallace for the purpose of dancing, and some of the young men induced plaintiff in error to go to Shetlerville and get a jug of whisky, one of them furnishing him a horse for that purpose. It was understood that Ilogg should contribute thirty cents of the price paid for the liquor, and the others the residue. The liquor was accordingly obtained and the jug placed in a barn, where the contributors to the purchase money and their friends partook of the contents. The whisky was apportioned to some extent in proportions consonant with the several sums paid by the several parties. Prior to' its procurement some of the young men paid their contributions, and others agreed they would contribute certain amounts, while still others were not parties to the arrangement until after the liquor had been brought to the barn. The witnesses all state they put in their money to help pay for the whisky.

The thirteenth section of the Dram Shop Act provides that the giving away of intoxicating liquors, or other shift or device to evade the provisions of the act, shall be held to be an unlawful selling. The statute is a wholesome police regulation, and should receive a fair and liberal construction, and be strictly enforced, with an eye to preventing all evasions and subterfuges and making it potent and efficacious in its application to all eases plainly within the mischief intended to be cured. At the same time it is to be interpreted according to its true intent and meaning; and a thing within the intention is within the statute, though not within the letter; and a thing within the letter is not within the statute unless within the intention.

There is no testimony to show, or tending to show, a want of good faith on the part of plaintiff in error, or that any shift or device to evade the law was intended.

In substance he was not a vendor of the liquor, but was an agent, acting on behalf of himself and the other contributors to the purchasing fund for the purpose of procuring the whisky for his and their use and consumption. The legal relationship that existed between the contributors and him was that of principals and agent, and not that of vendees and vendor. The circumstance that, at the time of the procurement of the liquor some of the proposed principals had not been ascertained, we do not regard of controlling influence.

Our conclusion is that plaintiff in error is not guilty under the indictment; and the judgment of the county court is reversed.

Reversed.


author: Lacet, J.

text:
    Peter Bressler v. August Schwertferger.
    Instructions.—Where certain instructions given assumed that an alleged settlement was not made, which was the question at issue and upon which the evidence was conflicting. Held, that the fact that other instructions were given stating that if the settlement had been made, then, etc., did not cure the error.

      Appeal from the Circuit Court ofWlnteside county; the Hon. William Brown, Judge, presiding.
    Opinion filed August 20, 1884.
    Messrs. C. J. & C. C. Johnson, for appellant;
    cited C. & N. W. Ry. Co. v. Dimick, 96 Ill. 47; Am. Ins. Co. v. Crawford, 89 Ill. 62; Chambers v. People, 105 Ill. 409.
    Mr. J. E. McPherran, for appellee;
    cited McNally v. O’Brien, 88 Ill. 237; Lovinguth v. City of Bloomington, 71 Ill. 238; Mass. M. L. Co. v. Robinson, 98 Ill. 325.
   Lacet, J.

This was a suit brought by appellant against appellee in assumpsit to recover an account, and the appellee pleaded general issue and also a plea of set-off.

The trial before the court and a jury resulted in a verdict apd judgment over against appellant in the sum of §135. The evidence shows and it is admitted by counsel for appellee that if one item of the latter’s account of set-off amounting to between $200 and $300 had not been allowed, the verdict and judgment should have been for appellant. Concerning, this item it was contended by appellant and denied by appellee, that it was included in a settlement between them in August, 1881. The evidence as to whether this item was so included in the settlement or not was conflicting.

The claim in appellee’s set-off account mentioned originated in a debt due from appellant as security for one Low, to a firm in Chicago of the name of Pelton & Pomeroy, of $1,200, which was compromised by appellant and that firm for $600, appellee and Frank Bressler securing the claim, for which appellee claims he was to be paid of the amount saved one half of it, or §300, appellant claiming he was only to have one third or $200.

At the instance of the appellee the following instruction was given, which was excepted to by appellant and now assigned for error, to wit:

“ That if the jury believe from the evidence the plaintiff ,and defendant settled up all their matters of account in full on the 23d day of March, 1883, in the office of Adam Smith at Sterling, except the so called claim of Felton & Pomeroy and the balance of $37 due from Bressler to defendant, then the jury shall find for the defendant and assess his damages at such amount as they may determine from the evidence is due him, the defendant, for and on account of such Felton & Pomeroy claim, if the same has been proven.” The 4th and 6th of appellee’s instructions are somewhat similar as regards the Felton & Pomeroy claim.

It will be seen that this instruction wholly ignores the question at issue, as to whether or not the claim was settled in August, 1881, and assumes that it was not so settled, thus depriving appellant of all his evidence produced to show that it was settled in August, 1881. This was certainly erroneous; but it is claimed that the court gave for appellant instructions to the effect that if the claim was settled in August, 1881, and the evidence showed it, the appellee should not be allowed it on account, and hence the error could do no harm. We are not prepared to say that such was the case. It can not be known what effect this error had, and we can not say from an examination of the evidence that the merits were clearly in favor of appellee; that the instructions did appellant no harm. This error was repeated in two other instructions. And the court should not have assumed that appellant owed appellee $37 besides this Felton & Pomeroy item. 0We express no opinion as to the weight of the evidence as it is not necessary, the judgment being reversed for error in giving appellee’s instructions. The judgment is reversed and cause remanded.

Reversed and remanded.