text:
    John Jacobson, Appellant, v. W. A. Patterson and George Vanscoy, Appellees.
    Gen. No. 5,975.
    1. Sales, § 186

      —effect of failure to take possession. While a sale of personal property, where made in good faith and where' all the terms were agreed upon, is valid so as to pass title without a delivery of such possession as the property is capable of, if the vendor retains possession the transaction is fraudulent as to creditors and subsequent purchasers without notice.
    2. Sales, § 186*—what constitutes an unreasonable time within which to take possession. In an action of replevin against a sheriff and the constable, representing respectively an execution and attachment creditor, by a purchaser of the contents of a corncrib, held twenty-four days was not a reasonble time within which the purchaser should in some effective manner take possession of the corn, and that his purchase for value would not hold the property as against such creditors.
    3. Sales, § 186*—necessity for taking possession. In an action of replevin by a purchaser of corn in a corncrib upon which he had made payments, where it appeared that the purchaser did not go to the corn, nor nail up the crib, nor post any notice of his purchase upon it, nor put a custodian in possession, nor take any of the corn away, held that he could not properly prevail as against the sheriff and constable representing, respectively, execution and attachment creditors.

      4. Sales, § 186

      —when question of reasonable time to take possession not for the jury. The refusal of an instruction leaving to the jury the question whether a reasonable time had passed within which a purchaser should take possession of corn in a crib, and in determining what was a reasonable time the jury should take into consideration all the facts and circumstances shown by a preponderance of the evidence, was not erroneous since the evidence was such that the jury might not reasonably conclude that a reasonable time had not passed within which to take possession of the property.
    5. Appeal and ebbob, § 1560*—when refusal of requested instruction not prejudicial. The refusal of an instruction that the actual delivery of corn in a crib was not necessary to pass title to a purchaser for value was not prejudicial, as there was no dispute as to the passing of title and the instruction was unnecessary.
    Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 13, 1914.
    Bert W. Adsit, for appellant.
    Norton & Ortman and P. A. Gibbons, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      Sce Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Rowe, in Livingston county, is on a railroad. Jacobson had an elevator there and bought grain. Noonan owned a farm variously stated by the witnesses to be three and one-half and eight and one-half miles from Rowe. Chronister was a tenant, working this farm on shares. Jacobson bought Chronister’s oats in the summer of 1912 and paid him therefor and advanced him $153 in addition. Noonan and Chronister divided the com in the field that fall. Noonan had a double crib, containing a west half and an east half. Chronister’s corn was put in the west half of the crib. On December 13, 1912, Chronister came to Jacobson at Rowe and wished to sell his crib of corn to Jacobson. Jacobson offered him 40% cents per bushel. The offer was accepted and Jacobson bought the corn and paid Chronister $200 thereon and they agreed that the $153 should be applied thereon. Jacobson said his crib contained about 1,400 bushels. Jacobson was short of cars at the time and' it was arranged that when he did get a car Chronister was to haul in the corn and deliver it at Eowe, and then receive the balance of the purchase money. On Friday, January 3,1913, Chronister called upon Jacobson at Eowe and inquired when he would be ready to take the com. Jacobson had since bought Noonan’s com and he wished to get another car and have all the com delivered at the same time, and he told Chronister that he thought he would have two cars soon. Between that time and the 5th, Chronister abandoned his family and absconded. Certain creditors of Chronister obtained judgments against him and placed executions in the. hands of Patterson, the sheriff, on January 6th, and another creditor sued out an attachment before a justice and placed it in the hands of Vanscoy, a constable. Patterson levied upon this crib of corn on the evening of January 6th, and thereafter . Vanscoy took steps to acquire a lien, subject to the sheriff’s executions, all on January 6th. Patterson appointed Ogden, a farmer living near by, as his custodian. On the 7th, Jacobson undertook to send word to Chronister to haul in the grain and then learned of the levy under the executions and attachment. He demanded the com from the sheriff and from the constable and was refused and brought this action of replevin against them for said com. There was a declaration of four counts, and many pleas and replications. No question arises upon the pleadings. There was a jury trial and a verdict for the defendants and a judgment for the return of the property replevied and costs, and plaintiff appeals.

The good faith of. the transaction between Jacobson and Chronister was admitted at the trial, and as between those parties the sale was complete and the title to the com passed from Chronister to Jacobson. Jacobson did not take either actual or constructive possession. He never saw the corn until after it was levied upon by the sheriff. He did not appoint any custodian of the corn nor nail up the crib nor post any notices thereon that he was the owner. He left the corn absolutely in the possession of Chronister. When the sheriff levied, the com had been in that crib for twenty-four days after Jacobson bought it and paid most of the purchase price, without anything being done to indicate to creditors or purchasers that it was not still owned by Chronister. It might be thought from the record that the sheriff did nothing towards talcing possession under his executions, except to appoint Ogden custodian, were it not that at the trial the attorney for the plaintiff admitted that Ogden was in the custody of the corn until the coroner took it under plaintiff’s replevin writ.

It is the well-settled law of this State that a sale of personal property, where made in good faith and where all the terms are agreed upon, is valid and the title passes without a delivery of possession such as the property is capable of, but that if the vendor retains the possession the transaction is fraudulent as to creditors and subsequent purchasers without notice.

In Thompson v. Yeck, 21 Ill. 73, Thompson bought personal property at a chattel mortgage sale and left it in possession of the mortgagors until it should be called for under a written agreement. A creditor of the mortgagors attached it. It was held that for want of a change of possession the transaction was legally fraudulent and not open to explanation, and that the property was subject to the attachment. In Dexter v. Parkins, 22 Ill. 143, personal property was left in the possession of the vendor and was levied upon by a constable for his debt. The vendee claimed the property. It was held that the possession of the vendor was an absolute fraud. To the same effect are Corgan, v. Frew, 39 Ill. 31, and Foley v. Boyer, 153 Ill. App. 613. In Reese v. Mitchell, 41 Ill. 365, a mortgagee lived seven miles from the personal property mortgaged. Two days after the maturity of the debt the property was still in the possession of the mortgagor, and was seized on an execution in favor of a creditor of the mortgagor. The mortgagee replevied. It was held that one day was a sufficient time after the maturity of the debt to take possession, and that the possession of the mortgagor on the second day was fraudulent as to creditors. In Frost v. Woodruff, 54 Ill. 155, it was held that if the sale was in good faith, the property might remain with the vendor any length of time, if the vendee took possession before any lien attached to it while in the hands of the vendor. In Burnell v. Robertson, 10 Ill. (5 Gilm.) 282, it was held that in case of two sales of the same personal property, he has the better right who first gets possession, and that an attaching creditor is to be protected as a purchaser. In Thompson v. Wilhite, 81 Ill. 356, growing grain was sold. A day or two after it was cut an execution against the vendor was levied upon it. It was held that no further possession could be taken by the buyer until it was cut, and that the buyer had not then had time to remove it and that he should be given the grain. Hogs were sold at the same time and the vendee hired the vendor to feed them and left them on the vendor’s farm. It was held that the retention of the hogs by the vendor, though in good faith, was fraudulent in law as to creditors and purchasers. In Ticknor v. McClelland, 84 Ill. 471, there had been a sale of standing com, stacks of hay, hogs, etc. The sale was made on September 23rd at a distance of eighteen miles from the property. The buyers lived sixteen or eighteen miles from the property. They examined the property on September 24th and the hogs were turned into a pasture on the seller’s farm to be fed by the seller, A bill of sale was made on September 25th. An execution against the seller was issued on September 27th and levied on this property on September 29th, six days after the original sale. The purchaser replevied. It was held that a sale of personal property is fraudulent as to creditors and purchasers where the seller continued in possession; that the buyer was not required to take manual possession of growing crops until the time to harvest them; and that there need not be a manual delivery of ponderous goods, incapable of being handed from one to another, and that in that case the delivery was sufficient as to the standing corn and the stacks of hay, and that, as to the rest of the property, the sale was fraudulent in law because of the failure to deliver possession, and void as to creditors, and subject to the execution. In Wellington v. Heermans, 110 Ill. 564, it was said that, “the title to chattels or choses in action does not pass by sale or gift, as to creditors or purchasers, unless accompanied by possession, either actual or constructive.” In Huschle v. Morris, 131 Ill. 587, it was held that delivery is not necessary to pass the title as between the parties to an unconditional sale, but that it is necessary to make it valid as to creditors and bona.fide purchasers. Martin v. Duncan, 156 Ill. 274, was a case of a stock of goods in a store, levied upon by attachment against a vendor after a sale. It was held that there should have been a change of possession, indicated by such outward, open, actual and visible signs as could be seen and known to the public or persons dealing with the goods, in order to permit the sale to prevail over the attachment. It is therefore clearly the law in this State that the sheriff, representing the execution creditor, should prevail in this case, unless the buyer was excused from taking possession by the ponderous nature of the crib of corn or by the circumstances in the case.

In Hart v. Wing, 44 Ill. 141, a case of corn in a crib, it was held that the actual removal of the entire mass of corn was not necessary to constitute a delivery and change the possession. It was held that such possession was given in that case as the nature of the property permitted, but the report of the case does not show what was done to effect a delivery. In Richardson v. Rardin, 88 Ill. 124, the question was whether a constable had made a sufficient levy upon certain com in the crib. The constable made the levy in actual view of the property and properly indorsed it upon his execution. The defendant was at the crib. The execution was served upon him. Demand was made that he turn over the property and this he refused. He was notified that a levy was made upon the corn, and that he must not further interfere with it. The constable then nailed boards on the crib, so as to secure the corn, and then gave public notice in the hearing of several persons standing near that he had levied upon the. com and it must not be disturbed. Eichardson claimed to have bought the corn long before that time, and the court held that, even if he had bought it of the execution debtor, there was not such a delivery to Eichardson and possession taken by him as would bind third parties without actual notice. Afterwards, the constable notified Eichardson that he had levied on the corn. After that, Eichardson took the com away with knowledge of the levy. It was held that the constable did that which, but for the protection of his writ, would have made him a trespasser, not only in nailing the boards on the crib but also in exercising actual dominion over it and prohibiting its use by the defendant in execution and others. It was said that it would have been better if the constable had also placed a notice on the crib that the com was levied upon, but that this was not necessary as to Eichardson, since he had actual notice of the levy before he took the com away In May v. Tallman, 20 Ill. 443, where a crib of com was sold and the purchaser took away two loads and the seller refused to permit the rest to be taken, and the buyer brought trover and recovered and that was sustained, it was said that even where a strict delivery was necessary, the actual removal of the entire mass of a cumbersome article, like a crib of corn, is not necessary to constitute a delivery and change of possession.

Under the above authorities we conclude that as Jacobson did not go to the corn, did not nail up the crib, did not post any notice of his purchase upon it, did not put a custodian in possession and did not take away any of the corn, it must be held that he did nothing towards taking possession, and that twenty-four days was not a reasonable time within which he should in some effective manner take possession, and that his purchase would not hold the property as against the execution creditors. The court refused an instruction, leaving the jury to determine whether a reasonable time had passed within which he could take possession of the corn, and that in determining what was a reasonable time the jury could take into consideration all the facts and circumstances shown by a preponderance of the evidence. This instruction should have been given if there had been any evidence from which the jury might reasonably conclude that a reasonable time had not passed within which to take possession of the property. Jacobson testified that after his conversation with Ohronister on January 3rd about bringing-in the com and Noonan’s corn at the same time, he thought he did not get a car until January 7th, but he did not testify that after buying the corn on December 13th he made an effort to get a car nor that he did not have cars during that time, nor was it shown that he could not have received the com in his elevator. Jacobson testified that when he went out with the coroner to serve the writ of replevin, which was January 17th, the roads were muddy and corn could not be hauled, but there was no evidence that anything in the condition of the roads interfered with the hauling of the corn from December 13th to January 6th. We therefore conclude that the jury could not reasonably have found from the evidence that a reasonable time had not elapsed for Jacobson to take possession of the corn before executions were levied, and that the refusal of that instruction did not harm the plaintiff. Some other instructions requested by plaintiff were refused which might have been given, such as that the actual delivery of the com was not necessary to pass the title from Chronister to Jacobson, but it was not disputed that as between these parties the title did pass, and the instruction was unnecessary. In Walsh, Boyle & Co. v. First Nat. Bank of Hiawatha, 228 Ill. 446, there is language implying that an attaching creditor only takes the rights the debtor has in the property at the time of his levy and is not entitled to be protected as a bona fide purchaser for value, and that statement is found in some earlier cases; but in the case just cited there had been a transfer of a bill of lading, and this was held to be a symbolical and sufficient delivery of the carload of flour there involved, and this delivery was before the levy, and, the property having been delivered, a subsequent attachment could not take the property. In many of the cases we have above cited, execution creditors and attaching creditors were coupled together as each entitled to hold property seized where there had not been a sufficient delivery of possession to another.

We conclude that the judgment is right as to both sheriff and constable, and it is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    Oliver Wing, Appellee, v. E. M. Smith, Appellant.
    Gen. No. 5,930.
    1. Master and servant, § 158

      —application of Safety Appliance Act. Act of 1897 (Hurd’s R. S. 1913, ch. 48, §§ 43-48, J. & A. ITT 5378-5383) held not to apply to the injury in question, as sought to be guarded against by the statute.
    2. Master and servant, § 158*—persons protected by Safety Appliance Act. To entitle a person to recover because of a violation of a statute imposing a duty upon an employer for the protection of an employee, he must be within the class contemplated by the statute and within the purpose and protection for which the law was enacted.
    3. Master and servant, § 572*—burden of proof. In order to entitle an employee to recover under a statute 'enacted for the protection of workmen, it is not alone sufficient to aver and prove the violation of the statutory duty of the defendant and the consequent injury to the plaintiff, but it must also appear that the statutory duty violated was one that defendant owed the plaintiff and of which he complains.
    4. Instructions, § 25*—where counts are defective. Refusal of an instruction to the jury to disregard certain bad counts is not reversible error if there is another good count in the declaration.
    5. Master and servant, § 158*—safety appliance statute construed. Act of 1909 (Hurd’s R. S. ch. 48, §§ 89 et seq., J. & A. If 5386 et seq.) held that the purpose of the act manifest from its title and provisions was to provide for guarding power driven machinery and that it was not intended to limit its requirements to machines specifically named and hence it should be construed to cover buffing wheels, as there was not an attempt to name every machine or part of a machine that must be guarded, but rather the specific mention of certain machines to indicate the kind and character of machinery contemplated.
    6. Master and servant, § 445*—compliance with direction of master. A workman is not to be charged with negligence, or with the performance of an unlawful act, because he installs or works upon machinery not guarded in compliance with statute, if he does so under the direction of his master.
    7. Master and servant, § 432*—care required of servant to use safety devices. It seems that if a workman is in charge of the Installation and operation of a machine, with full power to guard it or not as he sees fit, he cannot maintain an action for negligence of his master based on his own failure to do the act required.
    8. Instructions, § 38

      —when recital of inapplicable part of statute reversible error. An instruction reciting sections of an act not applicable, held prejudicial as presenting improper matters for consideration in reaching a verdict.
    9. Master and servant, § 302*—where doctrine of assumed risk does not■ apply. In an action under the Act of 1909 (Hurd’s R. S. ch. 48, §§ 89 et seq., J. & A. HIT 5386 et seq.), held that an instruction that the doctrine of assumed risk did not apply and the doctrine of contributory did apply was proper under the pleadings, although both defenses may not be available under the statute.
    10. Instructions, § 38*—effect of recital of lengthy statute. While the recital of an extensive statute in an instruction is not good practice, it was held not to be erroneous.
    11. Master and servant, § 685*—admissibility of evidence. Where an injury fell within the Safety Appliance Act of 1909, it was held erroneous to permit the introduction of evidence that other machinery in the factory was not guarded, including machinery that might fall within the provisions of the Act of 1897, which did not apply to the injury in question.
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 27, 1914.
    Page, Hunter, Page & Dallwig, for appellant.
    Dailey & Miller, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Appellee, Oliver Wing, met with an accident April 16,1912, while in the employ of E. M. Smith, the appellant, resulting in the loss of his left eye. He brought this action on the case to recover for the injury. A jury trial resulted in a verdict and judgment against appellant for forty-five hundred dollars, and he brings the case here for review.

Appellee is a skilled mechanic and had been in the employ of appellant for about ten years before the accident. At the time of the injury he was in charge of three men helping him to do a piece of work. It is not clear from the evidence what his position in the shop was. Appellant’s counsel say he was foreman, and appellee’s counsel say that he was acting under the direction of appellant and simply in charge of the men that were helping him do the particular work on which they were engaged at the time of the injury. They were making a floor plate in the course of some repair work on an automobile. A short time before the accident appellee went to a dealer in buffing wheels and procured a wheel about ten inches in diameter and about an inch thick made of pieces of canvas stitched together. On the day of the injury appellee himself, or one of his helpers under his direction, attached this wheel to the stand or frame on which it was used at the time of the injury. It was connected by a belt with a line shafting in the shop and revolved very rapidly. The helper under appellee’s direction attempted to polish or buff the floor plate by holding it against the wheel as it revolved. It flew out of the helper’s hands, and appellee took it and held it against the revolving wheel when it flew from his hands and struck him in the left eye.

The case was tried on a declaration of three original and two amended counts and a plea of the general issue. The first count charged a violation of the Act of 1897 (J. & A. J[ 5379) in failure to provide a hood or hopper on said wheel, and averred due care ,by plaintiff; the second count charged that the wheel was not guarded and had no hood or hopper as provided by the Act of 1897; the third count is substantially the same as the second; each of the last two counts omitted the averment of due care by the plaintiff. The first amended count charged a failure of appellant to inclose, fence, cover or protect the “combination emery and buffing wheel” by a guard or device as required by the Act of 1909; the fifth count is the same as the fourth except the wheel is called an emery wheel. In each of the two amended counts due care by the plaintiff is alleged.

The Act of 1897 is found in Hurd’s Revised Statutes of 1913, ch. 48, p. 1183, and in Jones & Addington Annotated Statutes, vol. 3, p. 2894, 5378. It is entitled: “An Act to compel the using of blowers upon metal polishing machinery,” and is sometimes called the “Blower Act.” It provides: “That all persons * * * operating any factory or workshop where emery wheels or emery belts of any description are used, either solid emery, leather, leather covered, felt, canvas, linen, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with blowers, or similar apparatus, which shall be placed over, beside or under such wheels or belts in such a manner as to protect the person or persons using the same from the particles of the dust produced and caused thereby, and to carry away the dust arising from or thrown off by such wheels or belts while in operation directly to the outside of the building or to some receptacle placed so as to receive and confine such dust. *• * *”

It is made the duty of any person operating such factory or workshop to provide such appliances, etc., “necessary to carry out the purpose of this act, as set forth in the preceding section,” and that “each and every such wheel shall be fitted with .a sheet of cast iron hood or hopper of such form and so applied to such wheel or wheels that the dust or refuse therefrom will fall from such wheels, or will be thrown into such hood or hopper by centrifugal force and be carried off by the current of air into a suction pipe attached to same hood or hopper.” (J. & A. ft 5379.) The size of the suction pipe on various sized wheels is provided for, and" necessary fans or blowers to be connected therewith, and the speed at which the fans shall be run.

The Act of 1909 (in force January 1,1910) is found in Hurd’s Statutes on page 1198, and in the third volume of J. & A. Statutes on page 2896, 5386, and is entitled: “An Act to provide for the health, safety and comfort of employees in factories, mercantile establishments, mills and workshops in this State, and to provide for the enforcement thereof.” It provides: “That all power driven machinery, including all saws, planers, wood shavers, jointers, sand paper machines, iron mangles, emery wheels, ovens, furnaces, forges and rollers of metal; all projecting set screws on moving parts; all drums, cogs, gearing, belting, shafting, tables, fly wheels, flying shuttles and hydro-extractors; all laundry machinery, mill gearing and machinery of every description; all systems of electrical wiring or transmission; all dynamos and other electrical apparatus and appliances; all vats or pans, and all receptacles containing molten metal or hot or corrosive fluids in any factory, mercantile establishment, mill or workshop, shall be so located wherever possible, as not to be dangerous to employes or shall be properly enclosed, fenced or otherwise protected. All dangerous places in or about mercantile establishments, factories, mills or workshops near to which any employe is obliged to pass, or to be employed shall,where practicable, be properly enclosed, fenced or otherwise guarded. No machine in any factory, mercantile establishment, mill or workshop, shall be used when the same is known to be dangerously defective, and no repairs shall be made to the active mechanism or operative part of any machine when the machine is in motion.” The violation of this act is made a misdemeanor punishable by fine.

It is obvious that the purpose of the Act of 1897 was to protect workmen from dust, and that there was no intention to protect from the kind of accident that occurred in this case. It is quite likely that the act could have been complied with and still left the machinery in such condition that this accident would have happened. But if there was a cansal relation between the failure to comply with the Statute of 1897 and the injury, we are still of the opinion that the injury was not one sought to be guarded against by the provisions of that statute, and therefore that appellee could not make a case by showing its violation by appellant. To -entitle a plaintiff to recover because of a violation of a statute imposing a duty on the defendant, he must be within the class contemplated by the statute, and within the purpose and protection for which the law was enacted. Rosan v. Big Muddy Coal & Iron Co., 128 Ill. App.128; Halberg v. Citizens Coal Min. Co., 149 Ill. App. 412. It is not sufficient to aver and prove the violation of a statutory duty by the defendant, and consequent injury to plaintiff, but it must further appear that the statutory duty violated was one that the defendant owed the plaintiff. Ehrlich v. Chicago Great Western R. Co., 160 Ill. App. 379, and authorities there cited and reviewed. Definitions of negligence by courts and text writers are numerous and not altogether harmonious. A great number of them are found in 29 Cyc. 415. Our Supreme Court in McAndrews v. Chicago, L. S. & E. Ry. Co., 222 Ill. 232, on page 236, stated the three elements necessary to make a case of actionable negligence. The first element being in the language of the court: “The existence of a duty of the part of the defendant to protect the plaintiff from the injury of which he complains.” The definition of actionable negligence there stated has been much quoted in later cases in this State. Under that definition the duty of a defendant to protect the plaintiff from an injury is not sufficient; it must be a duty to protect the plaintiff from “the injury of which he complains.” The duty may be created by statute or ordinance or may otherwise arise, but if it be created by statute the consequences must be those contemplated by the provision. 29 Cyc. 438. It is said in 21 Am. & Eng. Encyc. of Law 481: “It is believed that as a general rule evidence of the violation of a statute or ordinance can tend to show actionable negligence only where the consequences particularly or generally contemplated by the provision in question have ensued from its violation. ’ ’

No attempt is made to sustain either of the three original "counts except on the claim that the Statute of 1897 applies. In our opinion they were each bad in failing to charge actionable negligence. Appellant at the close of plaintiff’s case, and again at the close of all the evidence, offered a separate motion accompanied by-an appropriate instruction asking the court to instruct the jury to disregard these counts, which motions were denied and the instructions refused. The instructions should have been given, but if there were other good counts or another good count in the declaration, it was not reversible error to refuse them. Scott v. Parlin & Orendorff Co., 245 Ill. 460.

Appellant contends that the Act of 1909 does not apply because, though the section begins by using the words “all power driven machinery,” it follows immediately with the words, “including all saws, planers,” etc., and a buffing wheel is not included among the many kinds of machinery specifically mentioned; and the rule of construction that words of general import are limited by words of restricted import immediately following or preceding is invoked. He contends that it was the intent of the lawmaker to provide for guarding emery wheels, because they are specifically mentioned, and not to provide for guarding buffing wheels because they are not so mentioned. We are of the opinion that the purpose of the act manifest from its title and provisions is to provide for guarding power driven machinery, and that it was not intended to limit its requirements to machines specifically named, and that it should be read to cover buffing wheels; that there was not an attempt to specifically name every machine or part of a machine that must be guarded, but rather by the specific mention of certain machines to indicate the kind and character of machinery contemplated. We assume there are machines of other names, but of the same character, now in use, and that from time to time still other machines, now unknown and unnamed, of the same character, will be operated in factories; and we think it á too narrow construction of this act to hold it applies to no machine not specifically mentioned therein. In Streeter v. Western Wheeled Scraper Co. 254 Ill. 244, 1 N. C. C. A. 828, the Court said, in discussing this act, on page 247: 1 £ Section 1 is an unqualified declaration that all machinery and appliances of the character mentioned shall,” etc.; and while the Court was not then discussing the question we are now considering, still the language used is some indication of its construction of the statute in that regard.

The first additional count charges a failure to guard “a power driven combination emery and buffing wheel,” and the second additional count describes it as “an emery wheel.” We are of the opinion that the evidence may be read as supporting the first -designation, if not the second.

It is contended that appellee was acting at the time as a vice-principal and was solely responsible for the installation and operation of the wheel. As we have before said, it is not clear from the evidence just what position of responsibility appellee occupied, either generally or in relation to this transaction. As the case must be remanded for another trial, and the evidence on that trial will probably more clearly show these facts, we will not discuss that feature further than to say that a workman is not to be charged with negligence, or with the performance of an unlawful act, because he installs or works upon machinery not guarded in compliance with the statute, if he does so under the direction of his master; but we assume it is true that if the workman is in charge of the installation and operation of the machine, and the question whether it be guarded is left to his discretion, and he has full power and authority to guard it or not as he sees fit, that he cannot maintain an action for negligence of his master based on his own failure to do the act required.

The court at the instance of appellee gave the jury an instruction reciting the first and second section of the Act of 1897, and by another instruction led them to infer that appellant was under a duty to appellee to comply with that act, and that a failure to do so created a liability in this case. This in our opinion was prejudicial error. It may be said that it could make no difference because the duty to guard the machine was imposed by the Act of 1909, and it was only necessary that the jury should know that the duty existed, and not material whether it was imposed by one statute or two; but it is probable that a mistaken belief that the machine was operated in violation of the Act of 1897 as well as the Act of 1909 would prejudice the jury against the defendant and affect their verdict. • This consideration is of more importance because of the fact that in this class of cases the question of the amount of damages is necessarily largely left to the discretion of the jury and may be influenced unconsciously by feelings of prejudice. Whether appellant had violated the Statute of 1897 was not a question for the jury in this case, and they should not have been embarrassed by its consideration.

It is argued by appellee that there is no question of contributory negligence or assumed risk in this case, and American Car & Foundry Co. v. Armentraut, 214 Ill. 509, and Streeter v. Western Wheeled Scraper Co., supra, are cited in support of that contention. The former case arose under the Child Labor Law. The defense of contributory negligence is not available under that law or under the Mining Act for reasons that are not necessarily controlling in cases arising under this Statute of 1909. It was not held in the Streeter case, supra, which arose under the Act of 1909, that it was unnecessary to aver and prove due care on the part of the plaintiff. We are not aware that the question has been determined by the Supreme Court. We indicated in Robishaw v. Schiller Piano Co., 179 Ill. App. 163, that the question was in doubt, and the Appellate Court of the First District in Schultz v. Henry Ericsson Co., 182 Ill. App. 487, use some expressions in discussing the question of contributory negligence that may be taken as indicating that the defense is like that of assumed risk, not available under such a statute. In each of the amended counts due care is alleged. The court instructed the jury that the doctrine .of assumed risk did not apply and the doctrine of contributory negligence did apply. Under the pleadings this instruction was proper and no cross-error is assigned raising the question.

The court at the instance of appellee recited in an instruction the section of the Act of 1909, heretofore set out. This is argued as error. While it is no doubt better to instruct a jury in such a case as to the liability of the defendant without reciting a statute so extensive as this one, at length, still we do not regard the instruction as reversible error. It is however open to the objection that it directs the attention of the jury to other and different elements of liability and might thus confuse them, and should not be repeated on another trial. The court properly refused to instruct the jury that the doctrine of assumed risk applied; the Streeter case, supra is decisive of that question. Other questions arising on the.instructions are sufficiently disposed of in what we have heretofore said. Appellee was permitted over the objection of appellant to introduce evidence that other machinery in the factory was not guarded, including machinery that might fall within the provisions of the Act of 1897. TMs was error that might prejudice the jury against appellant. Complaint is made that witnesses in some instances were permitted to testify to conclusions instead of facts, and there is some ground for the complaint, but that question may not arise in another trial.

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

Reversed and remanded.


text:
    Louis Giachas, Appellee, v. The Cable Company, Appellant.
    Gen. No. 5,937.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 27, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Louis Giachas against The Cable Company for compensation for the loss of an arm under the Act of 1911, since repealed. From a judgment for $1,749.90, in favor of the plaintiff, defendant appeals.
    Plaintiff was an unmarried Russian, twenty-three years of age, who had been in the country about three years and employed by the defendant in the same grade of employment for one year, earning wages amounting to $509.95. On January 23, 1913, he sustained an injury arising out of and in the course of his employment, and he was unable to do any work until July 25, 1913. As a direct result of the injury his right arm was amputated two-thirds of the way from the elbow to the wrist. A subsequent amputation was necessary resulting from blood poisoning, and - although it caused much sickness and pain, his general health was good at the time of the trial, when there was still some soreness in the stump, which promised to become serviceable in from three to six months from the date of the hearing.
    Abstract of the Decision.
    1. Workmen’s Compensation Act, § 1

      —construction. Where the trial court held at the instance of an employer that there could be no recovery under clause C of the Compensation Act of 1911 (Hurd’s R. S. 1913, ch. 48, § 126, J. & A. If 5449), but recovery must be had, if at all, under clauses b and d, the employer cannot, and did not in the case at bar, question that basis of computing damages.
    2. Workmen’s Compensation Act, § 7*—effect of offer of employment. In an action for the loss of an arm under a compensation act, where the claimant is still unemployed but was offered employment by defendant, but not permanent or for any definite period, such an offer pending litigation is not entitled to much weight on the question of probable future earnings.
    3. Workmen’s Compensation Act, § 8*—amount of award. Where under clause d of the Compensation Act of 1911 (Hurd’s R. S. 1913, ch. 48, § 126, J. & A. If 5449) the time on which to compute recovery is practically seven and one-half years, the rate is $709.95 a year, the amount to be earned on that basis is $3,824.53, half of which is $1,912.26,- a finding of the court for $1,749.90, which was reached by deducting from the sum of $1,912.26, what in the opinion of the court plaintiff would be able to earn in some suitable employment or business after the accident in that period of seven and a half years, and adding to the amount so obtained the sum due under clause b; and whatever defendant might be found liable for on the doctor’s bill of $225, stipulated to be reasonable, will not be disturbed by an Appellate Court, as it is peculiarly a case where the judgment of the trial court, who had the man before it, should stand, unless clearly wrong, since the question of probable future earnings leads into the field of conjecture and speculation.
    Ralph P. Potter, for appellant.
    Charles B. Hazlehurst and George D. Carbary, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

4. Workmen’s Compensation Act, § 7*—elements of compensation. Evidence as to pain and suffering of a petitioner for compensation for the loss of an arm, although it probably should have been excluded had it been a jury trial, held not prejudicial in a trial to the court.

5. Workmen’s Compensation Act, § 8 —future earning capacity in arriving at award. In an action under a compensation act for loss of an arm, where the court refused to hear the testimony of one-armed men produced by defendant as to how they had prospered despite the disability, and heard testimony introduced by plaintiff, over objection, to the effect that the loss of an arm is a serious disadvantage in the business world in obtaining employment, held not to be erroneous in excluding the first, and if erroneous in admitting the second, it was of no consequence in influencing the court’s finding, as what a one-armed man may do is a matter of common knowledge.


text:
    Clotilde Machelli, Appellee, v. Silvester Torrelli, Appellant.
    Gen. No. 5,967.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 27, 1914.
    Statement of the Case.
    Replevin by Clotilde Machelli against Silvester Torrelli to recover the possession of a horse. Plaintiff’s husband had traded the horse to defendant for another. From a judgment on a verdict in favor of the plaintiff, defendant appeals.
    It was contended that plaintiff’s testimony, that she obtained the money from her deceased father’s estate with which she purchased the horse, was unreasonable, inconsistent with itself and should be disregarded, and that she probably obtained the money from her husband who earned wages as a laboring man.

      Abstract of the Decision.
    1. Replevin, § 40

      —what constitutes demand and refusal of property. Where a claimant told one in possession of a horse that she was going to the pasture and take the, horse, and he answered if she did it would cost her dear, the conversation amounted to a demand and refusal upon which a replevin action might be based.
    2. Appeal and ebrob, § 481*—when rulings on motion for peremptory instructions not preserved for review. Where the trial court refuses defendant’s motion for a peremptory instruction at the close of plaintiff’s evidence, and again at the close of all the evidence, defendant waives the first error by introducing evidence in defense after the overruling of his motion, and as he did not tender the written instruction asked at either time, he cannot raise the question on appeal.
    3. Replevin, § 124*—insufficiency of evidence for directed verdict. In an action of replevin, evidence held insufficient to require a. directed verdict for defendant even if properly made.
    4. New trial, § 127*'—necessity for weighing evidence. In passing on a motion for a new trial a court is required to weigh the evidence, although not so required in passing upon a motion for a directed verdict..
    5. Replevin, § 124*—sufficiency of evidence. In a replevin suit, evidence held sufficient to support the verdict of right of property in plaintiff.
    6. Estoppel, § 50*—evidence insufficient to show ratification. Where the evidence was conflicting as to where and how plaintiff learned of her husband’s trading a horse, held insufficient to show ratification of the transaction.
    7. Replevin, § 147*—effect of omission of elements in instructions. Where at the instance of defendant the jury were instructed that the only question involved in the case was whether or not at the time plaintiff’s husband and the defendant traded or exchanged horses—the plaintiff in the case was the owner and was entitled to the possession of the horse in controversy, and that the burden of proof was on her to establish that fact, he was not in a position to complain that the jury ignored or mistook other questions of fact, such as demand before the replevin action was instituted or ratification of the trade after it was made.

      Walter A. Panneck, for appellant.
    Watts A. & Carey R. Johnson, for appellee.

      See Illinois Notes Digest, Vola. XI tó XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

8. Replevin, § 126*-—sufficiency of evidence to show demand. In an action of replevin of a horse, evidence held to show a demand for the property and a refusal by the defendant to deliver before institution of suit.


author: Mr. Justice Dibell

text:
    Daniel Dinneen, Appellee, v. Edgar F. Bradford et al., Appellants.
    Gen. No. 5,971.
    1. Officers, § 62

      —right to salary when prevented from performing duties. If an officer is wrongfully prevented from doing the duties of his office he may recover his salary during the time it was so prevented, where it has not been paid to anyone performing the duties of the office.
    2. Officers, § 62*—right to salary where another has received compensation for performing the duties of office. Where any one else has been paid for performing the duties of an officer during the absence of the incumbent, it is the prevailing rule that the incumbent cannot recover such salary from the municipality.
    3. Officers, § 62*—right to compensation as affected 6y neglect of duties. Though the conduct of an officer may be such as to render him liable to removal, if the statute makes no deductions for absence or neglect of duty and the State takes no steps as to the consequence of such absence or delinquency, it is the legal right of the officer to demand the full salary allowed by law.
    4. Officers, § 68*—when mandamus will not lie to compel payment of unaccrued salary. Where a petition, praying for a writ of mandamus directing the city counsel to vote the .payment of salary to a commissioner for certain months alleged to be due at the filing of the petition and also the issue of warrants for the monthly instalments of a salary in the future while he should hold office, went to judgment upon demurrer to answer and pleas and the court could not from them judicially know that the petitioner had any right to be paid or had not been paid for the months subsequent to the filing of the petition, the judgment could only be properly affirmed as to the months alleged to he due at the time of the filing of the petition, without prejudice to the right of the petitioner to institute suit for instalments accruing thereafter.
    Appeal from the Circuit Court of La Salle county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed in part and reversed in part.
    Opinion filed October 27, 1914.
    Rector C. Hitt, for appellants.
    Browne & Wiley and James J. Conway, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

On March 7, 1913, Daniel Dinneen filed in the Circuit Court of La Salle county a petition against Edgar F. Bradford and four others for a mandamus. The petition charged that the city of Ottawa is under the commission form of municipal • government; that in 1911 petitioner was duly nominated and elected and qualified as a commissioner of said city, and Bradford in like manner became mayor, and three of the other defendants also became commissioners, and the remaining defendant became city clerk, and that the mayor and petitioner and the other three commissioners entered upon the duties of their offices, and that from that time until the filing of the petition, Bradford continued to hold and occupy the position of mayor and petioner and said other three defendants continued to hold and occupy the' office of commissioner ; that none of them has in any way resigned or abdicated his office or been recalled or been displaced or disqualified in any way by any court, or in any other way deprived of full participation in said office to which he was so elected, and that said mayor and said commissioners constitute the council of said city, and that no one has disputed said facts or the right of said parties to enjoy and administer said offices. The petition further alleged that when said parties were inducted into said offices, the population of said city was between 10,000 and 15,000, and that under said statute the salary of each commissioner was fixed at $900 per year, payable in equal monthly instalments, and that the salary of petitioner was $75 per month and he was entitled thereto; that the manner provided for paying said salaries was that the city council by vote allow the salary of each officer each month and direct warrants issued upon the city treasurer for said amounts; that said warrants are then signed by the mayor and city clerk and delivered to the persons respectively entitled to the same, and, upon presentation to the city treasurer, they are paid; that from the time petitioner took said office down to and including September, 1912, he received such warrants for his salary each month, but that since September, 1912, no salary has been voted to him nor any warrant delivered to him for any instalment of his salary, but said council has constantly refused to vote said salary, and said mayor and clerk have constantly refused to execute and deliver warrants to him for his said salary, although repeatedly requested so to do; that said council have voted to the mayor and to the other commissioners their salaries regularly, ever since they were inducted into office. The petition further alleged that on March 3, 1913, he made demand in writing upon said council, during its regular session, to vote to petitioner said several monthly instalments of salary for the month of October, 1912, and for succeeding months to and including February, 1913, and said council by vote refused to pay any further salary to petitioner or any of said instalments of salary in arrears. The petition further alleged that the petitioner is now and has been continuously since May, 1911, the duly elected and qualified commissioner of said city and member of said council, and is entitled to said salary in monthly instahnents of $75, and that there was due him when the petition was filed said instalments for October, November and December, 1912, and January and February, 1913, amounting to $375, which said council refuses to allow to be paid. The petition prayed for a writ of mandamus directing the city council, at its next session, to vote the payment of said salary to the petitioner for said months, and to direct the mayor and city clerk to deliver warrants to petitioner therefor, and to vote and direct the issue of warrants for the monthly instalments of his salary in the future while he holds said office, and to direct the mayor and clerk to deliver to him warrants therefor while he occupies said office. A demurrer to the petition was overruled. The respondents thereupon filed an answer and a plea and an additional plea. We deem it unnecessary to set out separately the allegations of the answer and of the several pleas or the details thereof, which are very lengthy. They admitted petitioner’s election, qualification and assumption of office, and. also their own election, qualification and assumption of office. They alleged that petitioner had attended no meeting of the council since August 14,1912, and that he had failed and wilfully refused to perform the duties of the office, and denied that he had been continuously a member of the council and that said instalments of salary are due him, but charged that he had abandoned his office, and that said council was without authority to vote him said salary. They stated the adoption of an ordinance, apportioning the executive and administrative powers and duties among the several departments, and set out in detail the duties pertaining to the department of streets and public improvements, and alleged that petitioner was designated commissioner of that department, and that he did not devote such time thereto as the duties thereof required and did not discharge the duties thereof and did not make the required reports pertaining to his department; that in April, 1912, the council made a new assignment of commissioners, whereby petitioner was assigned to the department of public property, and it set out in detail the duties of that department, as prescribed by ordinance, and alleged that he had not discharged any of the duties thereof, but wilfully neglected the same, and that by reason of this wilful neglect, he abandoned his office as commissioner and is not entitled to said salary. A demurrer to said answer and pleas was sustained. Defendants elected to abide by said answer and pleas and there was judg.ment for petitioner, awarding a writ of peremptory mandamus for said salary for the months above specified, and also for the months of March, April, May and June, 1913, said judgment being entered on July 25, 1913. This is an appeal by the defendants from that judgment.

In Bullis v. City of Chicago, 235 Ill. 472, it is held that: ‘ ‘ The salary is incident to the title to the office and not to its occupation and exercise.” If this were all that is there said, that case would be decisive of one of the main questions in this case; but it is there further said:

“If appellee was wrongfully prevented from performing the duties of his office, he may recover his salary for the time during which he was so prevented, where it has not been paid to any one performing the duties of the office. His earnings or opportunities to earn during that time were immaterial.”

Where any one else has been paid for performing the duties of the office during the absence of the incumbent, it is the prevailing rule that the incumbent cannot recover such salary from the municipality. The prevailing doctrine, and the contrary doctrine, and the cases supporting each, are shown in State v. Milne [36 Neb. 301], 19 L. R. A. 689; El Paso Co. Com’rs v. Rhode, [41 Colo. 258], 16 L. R. A. (N. S.) 794; Stearns v. Sims [24 Okla. 623], 24 L. R. A. (N. S.) 475; and in the notes to said cases. This doctrine is recognized in Kreitz v. Behrensmeyer, 149 Ill. 496.

It is not averred in the answer or pleas that the city has paid any one else for performing the duties of the office held by petitioner. But there is nó claim that he was wrongfully prevented from performing those duties during the five months referred to in the petition. At first blush, it seems unjust that the city should be required to pay petitioner for services which he never rendered. The Supreme Court of Iowa, in Bryan v. Cattell, 15 Iowa 538, was confronted with a similar situation and experienced the same difficulty. It, however, there said:

“It must be remembered, however, that we are dealing with a practical and not an abstract question. And practically the difficulty in the view suggested is, that it would be impossible to tell where the true line should be drawn,—that is to say, how long an absence from official duties—how great delinquency—shall work a forfeiture of salary. In the absence of statute, shall it be one day, or one week, or one month, or one year ? Where shall faithfulness end and delinquency begin? Add to these considerations the fact that it is frequently impossible to tell to what extent the services of officers were necessary, at the time covered by the supposed delinquency, and the propriety of the rule, which entitles the officer to his salary so long as he remains in office, becomes reasonably manifest. The better and safer rule doubtless is, that if he is in point of law actually in office, he has a legal right to the salary pertaining to it. His conduct may be such as to render him liable to removal, but when the statute makes no deduction for absence or neglect of duty, and the State takes no step as a consequence of such absence or delinquency, we suppose it is the legal right of the officer to demand the full salary allowed him by law. ’ ’

Speaking on this subject, Meehem on Public Officers, sec. 855, says:

“The relation between an officer and the public is not the creature of contract, nor is the office itself a contract. * * * It exists, if it exists at all, as the creation of law, and, when it so exists, it belongs to him ‘not by force of any contract, but because the law attaches it to the office.’ The most that can be said is that there is a contract to pay him such compensation as may from time to time be by law attached to the office.”

To the same effect is Throop on Public Officers, sec. 500: “The right of an officer to his fees, emoluments or salary, is such only as is prescribed by statute; and, while he holds the office, such right is in no way impaired by his occasional or protracted absence from his post, or neglect of his duties. Such derelictions find their corrections in the power of removal, impeachment, and punishment provided by law. The compensations for official services are not fixed upon any mere principle of a quantum meruit but upon the judgment and consideration of the legislature as a just medium for the services which the officer may be called upon to perform. These may in some cases be extravagant for the specific services, while in others they may furnish a remuneration which is wholly inadequate. The time and occasion may, from change of circumstances, render the service onerous and oppressive, and the legislature may also increase the duties to any extent it chooses; yet nothing additional to the statutory reward can be claimed by the officer. He accepts the office ‘for better or worse’ and whether oppressed with constant and overburdening cares, or enabled, from absence of claims upon his services, to devote his time to his own pursuits, his fees, salary, or statutory compensatioa constitutes what he can claim therefor and is yet to be accorded although he performs no substantial service, or neglects his duties. * * * The fees or salary of office are ‘quicquid honorarium,’ and accrue from mere possession of the office.”

In 28 Cyc. 451, note 70, eases are cited holding that no deductions may he' made from a mayor’s salary because of his personal private absences, and that the right of an officer to his salary is not impaired by protracted absence from his post or neglect of his duties. It no doubt is a fact that many times the holder óf such an office performs little of the actual work, but that that is done by subordinates. The pleadings in the case do not show why petitioner failed to act during the five months in question. If he had been absent for that length of time on a protracted vacation, or in search of health, his right to the salary would be undoubted. So it would be, if he had been confined to his home by a serious illness which unfitted bim for performing the duties of his office. The law affords a remedy against an officer who wilfully refuses to perform the duties of his office. Moreover, the act for the commission form of municipal government provides how the electors who are dissatisfied with a commissioner may recall him. We are of opinion that under the authorities above cited and under the case stated in the pleadings, this salary was attached to the office and did not depend upon the fidelity with which its duties were discharged. It is true that section 30 of the statute in question (J. & A. 1589) provides that where such a city has a population of over 20,000, the mayor and the commissioners shall devote at least six hours daily to the performance of their official duties, but we are of opinion not only that this does not apply to a city of under 20,000 population, but also that the council could not- deduct anything from the salary of a commissioner if they were of opinion he had devoted a less time than that required to his official duties. It was held in City of Earlville v. Radley, 237 Ill. 242, that a city council has no power to fine an alderman for his neglect of official duty in failing to attend a council meeting. The same section 30 of the Act provides that the salary fixed by the council shall be the total and only compensation of the mayor and the commissioners for the performance of their respective duties, but this is only to prevent any effort to obtain extra allowances for the performance of unusual duties. The same section requires the mayor and commissioners to devote such time to the duties of their respective offices as a faithful discharge thereof may require, but that is only expressly stating what the law always implies as a requirement from every public officer. The law has not given the council the power to determine what is a faithful performance of his duties by any one of its members, nor make such deductions from his salary as in their judgment would remedy the evils of official nonaction.

It is, however, urged that, the petitioner had abandoned bis office, and reliance is had upon People v. Hanifan, 6 Ill. App. 158; Harrison v. People, 36 Ill. App. 319; and People v. Spencer, 101 Ill. App. 61.

These were not suits to collect salaries, but proceedings to determine which of two men claiming an office were entitled thereto; and the conduct there set out, under the circumstances of these particular cases, was held to have justified the proper body in filling the offices in which the original incumbents failed to act. The circumstances were held to show an intention by the original incumbents to abandon the office. Here, petitioner appeared and demanded his pay. He was originally installed in the office, he acted for much more than a year, and the only thing relied upon as an abandonment is that he has not performed the duties of his office after a certain date. Section 11 of the Act in question (J. & A. 1570) provides that if any vacancy occurs in the office of mayor or commissioner, the remaining members of the council shall, within thirty days after such vacancy occurs, appoint a person to fill such vacancy. It is not alleged in the answer or pleas that the council made any effort to appoint a person to the place held by petitioner, and it is to be assumed against the pleader that the council did not take any such step, and it is a fair presumption therefrom that it did not suppose that any vacancy existed or that the petitioner had abandoned his office.

The judgment awarded a mandamus, commanding the defendants to take the steps to pay petitioner not only for the five months stated in the petition, and which had expired before the petition was filed, but also for the following months of March, April, May and June, 1913. If issues of fact had been made and tried and evidence had been heard, showing that petitioner had not been paid for the months intervening between the commencement of the suit and the trial of the cause, a question might then have been presented whether the jury or the court could include in the verdict or finding and judgment pay'for such intervening months.- But this cause went to judgment upon a demurrer to answer and pleas, and the court could not from them judicially know that petitioner had any right to be paid or had not been paid for the months of March, April, May and June, 1913.

The judgment is therefore affirmed so far as relates to the months of October, November and December, 1912, and January and February, 1913, and is reversed as to the months of March, April, May and June, 1913, at the costs of the petitioner, appellee here, but without prejudice to the right of the petitioner to bring another suit for instalments accruing after February, 1913.

Affirmed in part a/nd reversed in part.


text:
    The People of the State of Illinois for use of John McAndrews, Plaintiff in Error, v. John C. Bruner et al., Defendants in Error.
    Gen. No. 5,912.
    (Not to he reported in full.)
    Error to the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 27, 1914.
    Statement of the Case.
    Action by the People of the State of Illinois for the use of John McAndrews against John 0. Bruner, Fred Luhrsen, William Flanigan, Fred Weber and J. W. Conard in assumpsit. Service was had upon all of the defendants except J. W. Conard. An attorney entered the appearance of all the defendants. A declaration was filed in the name of John McAndrews, plaintiff, against the defendants. It contained two counts. The first count alleged that Bruner was the treasurer of Drainage District No. 4 in Iroquois county, and filed an instrument which was accepted by the drainage commissioners of said district, by which Bruner obligated himself to account for all moneys that came to his hands as such treasurer, and the other defendants obligated themselves for such moneys; that plaintiff contracted with the commissioners of said district to excavate certain ditches and the district agreed to pay him certain sums therefor on the monthly estimates of the engineer for the district, and that ten per cent, of the estimate for each month was to be withheld as security for the completion of the work and be paid to plaintiff when the work was completed and accepted; that plaintiff dug the ditches, received estimates and received ninety per cent, thereof from time to time and that Bruner as treasurer withheld ten per cent, of each of said estimates at the time; that the amount so withheld belonging to plaintiff amounted to $1,158.25, and that plaintiff never received that sum from any one; that he completed his contract and the work was accepted by the district and the sum so withheld became immediately due and payable to plaintiff; that said sum came to the hands of Bruner as such treasurer and his duty required him to pay it to plaintiff when the work was completed and accepted, and that, though often requested, he had not paid it. The second count contained like allegations and set out said treasurer’s bond in haec verba, showing it to be an instrument under seal and showing it not signed by defendant, Conard. This count also alleged an assessment made and collected to pay for said excavations, and that the money came to the hands of said treasurer and that plaintiff had a lien upon said funds in the possession of said treasurer to the amount of all estimates allowed in his favor; that the treasurer paid out of said funds divers amounts upon other claims and indebtednesses of the district and left no funds with which plaintiff could be paid. The defendants demurred specially and generally to said declaration and said demurrer was sustained and plaintiff elected to abide by the declaration, and defendants had a judgment in bar. To reverse the judgment, plaintiff appeals.
    Abstract of the Decision.
    1. Parties, § 13

      —when declaration in suit for use irregular as to party plaintiff. Where the People of the State of Illinois for the use of an individual is the plaintiff in the summons, it is irregular to file a declaration in the name of such individual alone as plaintiff.
    Gower, Cooper, Hobble & Parish, for plaintiff in error.
    M. K. Smith, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Per Curiam.

2. Official bonds, § 29*—form- of action in suit on tond under seal. The proper form of action upon an official bond under seal is debt and not assumpsit.

3. Official bonds, § 32*—sufficiency of declaration. In an action on an official bond, a count in the declaration held defective as containing no allegations which would make one of the defendants liable on the instrument, which was not executed by him.

4. Official bonds, § 32*—when declaration fatally defective. In an action on an official bond of a treasurer of a drainage district for a balance claimed to he due to plaintiff for work and alleged to be wrongfully withheld by the treasurer, a declaration failing to allege whether the district was operating under the acts forbidding the treasurer of a district organized thereunder to pay out money except upon the written order of the majority of the commissioners, and failing to allege that plaintiff obtained any such order and presented the same to the treasurer for payment, held fatally defective, since the declaration must he construed most strongly against the pleader.


text:
    F. W. Matthiessen, Appellee, v. Conrad Ott et al. (Julia A. Clayton et al., Appellants.)
    Gen. No. 5,947.
    1. Roads and bbidges, § 64

      —essentials to jurisdiction of commissioners. Upon the presentation of a petition for a private or public road, failure of the highway commissioners to fix a time and place for hearing and give notice thereof as required by statute (J. & A. H 9660) leaves them without authority to make an order either granting or refusing the prayer of the petition.
    2. Roads and bbidges, § 102*—when certiorari to review proceedings of commissioners not tarred ty laches. Mere lapse of time short of the period of limitation for a writ of error will not bar a writ of certiorari to review proceedings of highway commissioners, where nothing has been done by the public authorities, or with their permission, which will cause great public detriment or inconvenience in case the proceedings are quashed.
    3. Cebtiobabi, § 52*—grounds for denying or quashing writ. Where a party making application for a writ of certiorari is guilty of conduct in procuring error in the record which he seeks to review he should, be denied the writ, and it is the duty of the Court, if such conduct comes to his knowledge at any time before the writ is issued to deny the petition, or, if it comes to his knowledge after the writ is issued and the record made, to quash the writ instead of quashing the proceedings of the inferior tribunal.
    4. Cebtiobaei, § 32

      -—parties. Where the party whose land is taken for a road makes application for a certiorari to review the proceedings of the highway commissioners, the petitioners for the road are not entitled to be made parties, but they may appear before the court for the purpose of showing that the applicant was not entitled to the writ for the reason that he fraudulently procured the defective record which he seeks to review.
    5. Certiorari, § 44*—necessity of proof of grounds for refusing or recalling writ. Mere allegations of fraud by the petitioner in procurement of a defective record, is not ground for refusing or recalling a writ of certiorari.
    Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed December 3, 1914.

      Certiorari allowed by Supreme Court.
    Butters & Clark, for appellants.
    H. M. Kelly, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

' This was a petition for a common-law writ of certiorari filed by F. W. Matthiessen to review the action of the Highway Commissioners of Deer Park in La Salle county, in a proceeding to lay out a public and private road on the petition of Julia A. Clayton, Charles S. Clayton and Glennie Piercy, the appellants.

The petition for the road was presented to the highway commissioners June 7, 1909, under the Boads and Bridges Act then in force, and the section thereof entitled “Private Boads” (J. & A. 9681). The commissioners, without fixing a time and place for hearing and giving notice thereof, as required in that section of the statute by reference to the section providing for the laying out of public roads (J. & A. ft 9660), denied the prayer of the petition. This omission of the highway commissioners left them without authority to make an order either granting or refusing the prayer of the petition, as held in many Illinois cases cited in the notes to the sections of the statutes above referred to. Appellants, however, took an appeal to three supervisors under the provisions of the act (J. & A. If 9686), which resulted in an order by the three supervisors granting, the prayer of the petition September 3, 1909, and further proceedings thereunder, including the assessing of damages to Matthiessen, whose land only was crossed by the road, at $733. and the entry of a final order laying out the road November 12, 1910.

Matthiessen filed his petition for this writ of certiorari March 15, 1911, making defendants, only the highway commissioners and the town clerk, who is ex officio clerk of the board. The court, after notice to the defendants, ordered a writ issued returnable April 8, 1911, and afterwards on motion of petitioner extended the time for return to May 15, 1911. At the next term, on July 18, 1911, a return was filed, the record, among other things, showing the want of notice above mentioned.

Meantime on June 26,1911, appellants appeared and obtained leave of court, “To file written motions, etc.” Nothing further of importance seems to have happened for nearly two years, when on the sixth day of June, 1913, appellants filed a motion: “For leave to become parties defendant or to appear amicus curies * * * and for leave to enter their motion to quash the writ of certiorari awarded and issue in said cause,” on the grounds: (1) That there are insufficient proper and necessary parties ; (2) that said Matthiessen has been guilty of laches and acquiescence, and that he procured and has ratified said supposed irregularities and defects mentioned in said petition for certiorari, and by collusion with the commissioners of highways and other persons procured said supposed irregularities and defects to exist, and that the proceeding by a writ of certiorari is the result of fraud and collusion and should be quashed. Affidavits were filed in support of this motion.

The substance of the facts shown in appellants’ petition and affidavits as summarized in their brief is: That there was great necessity for the road because appellants owned valuable land with no practicable way to reach it except across the land of Matthiessen, who denies them the privilege of crossing his land; that there had been two previous attempts, by way of petition to the highway commissioners, to compel the opening of a public and private road through his land, which had each failed, by the commissioners not taking necessary legal steps and being guilty of improper conduct induced by fraud and connivance of Matthiessen, who resorted to unfair means to bring error into the proceedings to defeat the road so that he might be able to acquire the ownership of the land; that in the present proceeding appellants employed competent attorneys to conduct the same, but they were unable to control the conduct of the commissioners, who followed the advice of the attorney of Matthiessen; that Matthiessen and his attorney appeared at every meeting of the commissioners and supervisors in the whole proceeding and knew of every step taken, and purposely contrived to bring about the supposed errors in the record of which he now complains; that he appeared and participated in the proceeding to condemn his land for right of way, and that the said $733 damages allowed him to be paid by appellants was deposited for him with the justice of the peace, and appellants have paid a large amount of costs and attorney’s fees; that Matthiessen appealed from said condemnation proceedings to the Circuit Court, and after dismissing his appeal sued out this writ of certiorari.

On June 27, 1913, appellants appeared by counsel and in the name of the highway commissioners moved to quash the writ and dismiss the petition. Matthiessen objected on the ground that the commissioners of highways did. not authorize the appearance or motion, and that they had made their return, which objection was sustained. Matthiessen then moved to strike the motion and petition of appellants to quash the writ from the files. The court without passing on that motion proceeded to hear evidence in support of the appellants’ motion. Appellants offered in evidence only the files of the case, including their petition and affidavits, without any effort to prove any act or acts of Matthiessen that would support the general charges of fraud contained in their petition and affidavits.

The court entered an order denying Matthiessen’s motion to strike appellants’ motion from the files and denying appellants’ motion to become parties to the proceeding and to quash the writ: Finding in the original proceeding that the highway commissioners, and supervisors on appeal, did not have jurisdiction to enter a legal or binding order, and ordering the proceedings quashed. It is recited in the court’s order that appellants: “Pray an appeal from the judgment and order of this court denying the said Julia A. Clayton et al. the right to become parties to this proceeding and further denying and overruling the motion to quash the writ and dismiss the proceedings.” Which appeal was allowed.

The record shows that the court having heard the testimony, “Overrules and denies the motion of Julia A. Clayton et al. (Appellants) to become parties to the proceeding cmd to quash the writ.” In the bill of exceptions it is recited: “Thereupon, the motion of the petitioner to strike the motion from the files, also the motion of Julia A. Clayton et al. to quash the writ in the above entitled cause, coming on for hearing, the said defendants, by their attorneys offered and introduced the following evidence.” Then follows eighty pages of testimony offered by appellants, which consisted of files and documents as above stated, and is certified to be all the evidence offered in the case.

Appellants have followed the suggestion in People v. Lower, 254 Ill. 306, in bringing the matter of their motion to this court for review, by preserving their evidence and their exceptions to the action of the court in that regard by bill of exceptions. It is well settled that the common-law writ of certiorari is not a writ of right, and issues only upon application to the court and for special cause, and if it is issued improvidently, upon the facts being presented to the court the writ will be quashed. Clark v. City of Chicago, 233 Ill. 113, and authorities there cited. Mere lapse of time short of the period of limitation for a writ of error will not bar a writ of certiorari to review proceedings of highway commissioners, where nothing has been done by the public authorities, or with their permission, which will cause great public detriment or inconvenience in case the proceedings are quashed. Schlosser v. Highway Com’rs Town of Warren, 235 Ill. 214, explaining and distinguishing earlier' cases that might be construed as announcing a different doctrine. We see nothing in this record to estop Matthiessen on the ground of laches from proceeding with his writ.

It is no doubt true that a party may be estopped by his own act from raising a jurisdictional question in a proceeding like this: (People v. Crowley, 250 Ill. 282, and authorities there cited and discussed); and we entertain no doubt that Matthiessen, if guilty of the conduct in general terms charged in appellants’ petition and affidavits in procuring error in the record he seeks to review, could not be permitted a writ of certiorari to review that record, and that it was the duty of the Court, if such conduct came to his knowledge at any time before the writ was issued, to deny the petition, or, if it came to his knowledge after the writ was issued and the record made, to quash the writ instead of quashing the proceedings of the inferior tribunal. Appellants were parties to the proceeding sought to be reviewed, and had a direct interest therein which would have permitted them or any of them to sue out a writ of certiorari. In Sampson v. Highway Com’rs Chestnut Tp., 115 Ill. App. 443, this court held, in case of parties similarly situated, that the court had a right to permit them to intervene and show reason why the writ should not issue, but expressly said that it was not decided whether such parties had the right to appear and make such showing; that is, it was expressly decided that the court had a right to hear them on the question whether the writ should issue, and whether it would be error to refuse to hear them was not passed upon because it was not involved in that case. We are inclined to the opinion that under the circumstances of this case it would have been error for the court not to hear appellants in support of their allegations that the defects in the record sought to be reviewed were introduced into the record by the fraudulent acts of the petitioner. If Matthiessen induced the highway commissioners to pass on the petition for a road without fixing the time and place and giving the required notice, as is inferentially charged in the affidavits filed by the appellants, he could not be heard to question the record because of that defect, and we think it would have been error for the court to refuse any party to the record sought to be reviewed, who had a direct interest in the proceeding, the right to appear either before or after the writ was issued and show that such defect was brought about in that way. The Court should hear evidence, if offered, before ordering the writ, or afterwards, while he has the power to quash the writ, that would advise him whether the writ should issue or whether it had improvidently issued; but such evidence is directed only to the question of issuing the writ, or recalling it after it has been improvidently issued, and while parties in the position of appellants may lie properly heard on that question, and probably have the right to be heard thereon, they are not in any ordinary sense parties to the suit. After the question is settled whether the writ should issue, or whether it improvidently issued and should be recalled, the suit is tried on the record brought up, and appellants were not proper or necessary parties in that suit so tried.

Counsel insist with much vig’or that the Court did not hear them on a motion to quash the writ, but refused to grant them leave to appear and make a motion to quash the writ; but the Court did hear evidence offered by them on a motion to quash the writ, if we are to believe the statements in the bill of exceptions prepared by them, and it appears he was giving them an opportunity to show that the writ should not have issued. Even if appellants understood the Court was hearing them on the question whether they should be permitted to file a motion to quash the writ, still when they were allowed to introduce evidence they should have shown or offered to show facts that would sustain their charges of fraud, for instance, the statement in appellants’ petition that Matthiessen’s attorney procured the commissioners to deny the petition without notice being given, and to do the things which were done by them and to commit the errors they committed, is well enough for a pleading, and on a question whether a writ should issue, or whether it should be recalled as improvidently issued, a court should investigate such an allegation; but when he permits the petitioner to introduce evidence in support of his charge and there is none introduced or offered as to any act done by Matthiessen or his attorney that would support such a charge, the Court might well disregard it. It can hardly be said that general allegations of fraud should suffice as grounds for refusing or recalling the writ.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Charles E. Farrell, Administrator, Appellee, v. Reuben Bruce, Appellant.
    Gen. No. 5,964.
    1. Set-oee and recoupment, § 25

      —right of recoupment in action of trover hy administrator. In trover by an administrator to recover the value of certain certificates of deposit belonging to the deceased and wrongfully converted by defendant to his use, defendant is entitled .to recoup for a portion of the money paid out by him for doctor’s and undertaker’s bills incurred in the last sickness of deceased and in his burial.
    2. Appeal and error, § 1698a*—when error in instruction not waived. Where an instruction given by plaintiff is erroneous for the reason it ignored defendant’s right to recoupment, the defendant is not precluded from complaining of such instruction because he asked for no instruction covering that point.
    3. Pleading, § 303*—when affidavit denying assignment of copy of instrument unnecessary. Where a plaintiff in an action of tort unnecessarily files with his declaration a copy of an instrument, the assignment of which he seeks to impeach, he is not required to file with the copy an affidavit denying its assignment in order to offer proof in support of his action.
    4. Trover and conversion, § 19*—when trover will not lie. Where a decedent in his lifetime gave a person certain certificates of deposits for collection and the latter cashed the same and after-wards misapplied the proceeds, or' refused to pay over the money so obtained, or the balance of it in his possession, to the administrator, held that the administrator could not recover the surplus in his hands in an action of trover.
    • 5. Witnesses, § 327*—extent to which testimony in other proceedings may he inquired into. Permitting a party to get before the jury the testimony of his witnesses in a proceeding in another court, on the theory that he was surprised and was endeavoring to refresh the memory and quicken the conscience of his witnesses, held improper as to extent to which the trial court allowed the inquiry to go.
    6. Appeal and error, § ■ 472*—when improper remarles of court not saved for review. Objections to improper remarks of trial court are not preserved for review when no specific objection was made in the trial court.

      Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Greek, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed December 3, 1914.
    Sheen & Galbraith and Glen Cameron, for appellant.
    Quinn, Quinn & McGrath, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

John Farrell died intestate September 27, 1912, seventy-nine years of age. About two weeks before his death, and in his last sickness, he delivered to Eeuben Bruce, the appellant, twenty-five of his bank certificates of deposit which he indorsed on two different occasions, in part by writing his name and in part by his mark. Bruce procured the payment of these certificates in the lifetime of John Farrell and after-wards paid out of the money so obtained doctor’s bills and undertaker’s bills incurred in the last sickness and burial of deceased, and contracted for a monument to be placed on his burial lot. ■ Charles E. Farrell, the appellee, was appointed and qualified as administrator of John Farrell’s estate and brought this action of trover against appellant to recover the value of said certificates and obtained a verdict and judgment for $2,370.13, the full amount of the certificates with interest, without any deduction for moneys that had been expended by appellant for the benefit of the estate. Appellant assigns error that he was not permitted to recoup moneys so paid by him. The instructions given at appellee’s request ignore that right.

This error is well assigned. It is said in Stow v. Yarwood, 14 Ill. 424, on page 426, in illustration of the doctrine of recoupment: “If a stranger converts the goods of an intestate, and is sued in trover for the goods by the administrator, he may show in mitigation of damages, that he has applied the proceeds to the payment of the debts of the intestate.” This case is cited in Turner v. Retter, 58 Ill. 264, and it is there held that the defendant may recoup damages under the plea of the general issue in action of trover. This is the settled law of this State; the authorities are collected and reviewed in Sample v. Farson, 174 Ill. App. 334. It is no answer to say that appellant asked no instruction covering that point. The instructions of appellee were erroneous in that respect, and the verdict and judgment were not supported by the evidence. Therefore, because of this error, the judgment must be reversed and the cause remanded for another trial.

The main contention on the trial was on the question whether John Farrell at the time of the delivery and indorsement of the certificates was mentally and physically able to understand the transaction and know what, he was doing. If he was not, then the delivery and assignment was not his act and was of no force and effect. If he did understand what he was doing and was capable of transacting that business, then there is another question under the evidence as to the legal effect of what was said and done at the time, depending somewhat on a determination of fact as to what was said and done. Without expressing any opinion as to the weight of the evidence, we will notice other errors assigned so far as necessary to another trial of the case. The declaration was in the common form and the plea was the general issue. In the record filed here are copies of the twenty-five certificates in question following the copy of the declaration, but while copies of the indorsements thereon appear in that part of the record showing the certificates offered in evidence they do not appear at this place. It is assumed in argument that these copies of the certificates were filed with the declaration; therefore, it is argued that appellee cannot deny that the certificates were assigned to appellant, because he, the appellee, filed no affidavit denying the execution or assignment, and section 52 of our Practice Act (J. & A. 8589) is relied on in support of that contention. No authority is cited, and we know of none, that supports the position that a plaintiff in an action of tort, unnecessarily filing a copy of the instrument in question, the assignment of. which he is attacking, must file with the copy an affidavit that it was not assigned, or be precluded from offering proof in support of his action. We do not regard this error well assigned.

Appellant contends that if it is found from the evidence that the certificates were given to him by the intestate to be collected, and he did rightfully cash them and afterwards misapplied the proceeds or refused to pay over the money so obtained by him or the balance of it in his possession to the administrator, that he is not liable in this action and relies on Kerwin v. Balhatchett, 147 Ill. App. 561, in support of that position. We think that case properly states the law so far as it may be applicable to questions arising under the facts here. The case of Loomis v. Stave, 72 Ill. 623, is in point. Trover does not lie to recover a surplus in the hands of a bailee as there stated, and if appellant was rightfully in possession of these certificates and rightfully collected the money due on them and there be moneys in his hands so obtained belonging to the estate, it cannot be recovered under the pleadings in this action.

Some of appellee’s witnesses had before testified in the County Court on a trial involving the facts about which they were called to speak in this trial, and their testimony on this trial was not so favorable to appellee as he might well presume it would be. He was allowed, over appellant’s objection, to get their testimony in the County Court quite fully before the jury, on the theory that he was surprised and was endeavoring to refresh the memory and quicken the. conscience of Ms witnesses. This line of examination is permitted in certain instances with proper limitation, but we are of the opinion that the court erred in the extent to which he allowed the inquiry to go; but as there can be no claim of surprise as to the testimony of these witnesses on another trial, the question will probably not again arise.

Complaint is made of remarks of the court during the trial that are claimed to be prejudicial to appellant. There is no doubt danger that a court may inadvertently err in that manner, as was very aptly said by Judge Gary in Kane v. Kinnare, 69 Ill. App. 81; but to preserve that question for- review, objection must be specifically made to the language employed by the Court. Pegram v. Mutual Protective League, 159 Ill. App. 214. An unguarded expression may often be relieved of harm if the Court’s attention is at once called to it.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mb. Justice Dibell

text:
    William Leisteko, Plaintiff in Error, v. Harry Smith et al., Defendants in Error.
    Gen. No. 5,644.
    (Not to be reported in -full.)
    Error to the County of Court of Lake county; the Hon. Pbbrt L. Persons, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 15, 1914.
    Reaffirmed on rehearing December 3, 1914.
    Statement of the Case.
    _ . Proceeding by William Leisteko against Harry Smith and H. S. Boberts by distress warrant to recover three hundred dollars claimed to be due as rent for certain land described. The warrant was served by seizing certain chattels, and a summons was issued and served on each of the defendants who thereafter gave bond releasing the chattels from the levy. The defendants filed a plea of the general issue and a notice of certain set-offs. At the trial the court directed a verdict for the defendants, which was rendered. A motion for a new trial was denied and the defendants had judgment. To reverse the judgment, plaintiff prosecutes a writ of error.
    Abstract of the Decision.
    1. Landlord and tenant, § 375

      —nature of distress warrant. A distress warrant is a suit at law for rent and, is governed by the common rules of pleading and by our Practice Act, except that the distress warrant stands as a declaration.
    2. Pleading, § 104*—right to file inconsistent pleas. Inconsistent pleas are permitted in this State, except that a plea in bar of the entire declaration cannot be filed with a plea of tender.
    3. Pleading, § 400*—effect on issues when plea does not deny joint liability. Notwithstanding joint liability has not been denied by plea, the evidence must show that each defendant is liable in order to entitle the plaintiff to a judgment against any one of them in an action ex contractu.

    4. Pleading, § 400*—effect of plea of set-off on issue of joint liability. In a suit at law against several defendants alleging a joint liability for a debt, the fact that the defendants filed a plea of set-off does not obviate the necessity of proving- them all liable where they also pleaded the general issue.
    A former judgment against the landlord was before the Appellate Court in Leisteko v. Smith, 160 Ill. App. 170.
    Alfred E. Case and C. T. Heydecker, for plaintiff in error.
    E. M. Runyard, for defendants in error.

      See Illinois- Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mb. Justice Dibell

delivered the opinion of the court.

5. Trial, § 83*—when request for leave to reopen case for further evidence properly refused. Where in a suit against two defendants jointly for rent, the plaintiff, after having closed his case without proving the debt was still unpaid and without any evidence to prove that one of the defendants owed anything, asked leave to reopen his case for the purpose only of proving that the alleged sum was still unpaid, held that the court did not err in refusing leave.

6. Judgment, § 192*—right to judgment against joint defendant in actions ex contractu. In a suit at law against several defendants alleging a joint liability for a debt, and all are served with process, the plaintiff in order to recover, must prove a case against all the defendants or else he must dismiss as to those whom he cannot prove liable and amend his declaration by striking out so much thereof as charges that the dismissed party was liable; otherwise, if he fails to prove a case against any one of the defendants, his suit fails.