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    M. C. Tingley et al., etc., v. William T. Vaughn.
    SCHOOL DIRECTORS ANNULI,OTG CONTRACT—IMMORAL CONDUCT.—The court is of opinion that the evidence shows sufficient cause under the statute to justify the school directors in annulling appellee’s contract for teaching.
    Appeal from the Circuit Court of Franklin county; the Hon. D. M. Browning, Judge, presiding.
    Opinion filed November 27, 1885.
    The appellee here, and plaintiff below, claiming that appellants had employed him to teach their district school for five months, commencing Oct. 1, 1884, at §50 per month, and they having refused to permit him to enter upon the performance of the contract, brought this suit to recover for the entire time. To a declaration setting up such facts, the appellants pleaded the general issue, and two special pleas—the first averring that after the said employment and before the time he was to commence teaching, lie, the plaintiff, was arrested and taken to Johnson county on a charge of assault with intent to commit a rape upon one Lizzie Murray, who made the affidavit, and that, upon examination, he was held to bail in the sum of §1,000, and that such matter became of public notoriety in defendant’s school district, and for these causes they annulled the contract. The second averred that after the contract was made, and before the school was to commence, they learned that plaintiff was guilty of immorality and they therefore annulled the contract.
    Issues were formed upon these pleas, a trial had before the court and jury, resulting in a verdict and judgment thereon for §100 in favor of appellee, and the defendants below appealed to this court.
    Messrs. Bose & Lagman and Mr. I. B. Spilman, for appellants.

      Mr. F. M. Youngblood, for appellee.
   Pillsbury, P. J.

The evidence in this case shows that the plaintiff below, in May, 1884, saw one or more of the directors and had a conversation with them about teaching their school, and a conclusion was reached that he might teach for five months at $50 per month, commencing Oct. 1st, and that they would enter into a written contract with him to that effect.

Afterward he was told by one of the directors that they had employed him to teach and he could have the school.

In the resolution of the board of directors adopted Sept. 2d, they recite that they had previously agreed with him to teach the school, but owing to dissatisfaction in the district, and deeming that they had sufficient cause, declare the agreement void and that a copy of the resolution he sent to said Vaughn.

Considering that provision of the statute contained in § 42 of the school law, requiring school directors to hold general meetings, and authorizing them to hold special meetings as occasion may require, at the call of the president or any two members, and prohibiting the transaction of official business except at such general or special meetings, it is extremely doubtful whether the evidence in this case is sufficient to show a contract of employment with the appellee binding upon the district.

There certainly is no direct proof that the directors ever entered into any contract with him at any such meeting of the board, or ratified any previously made by any of the directors.

But conceding for the purposes of this case, that the jury could properly infer that they had done so from the statements contained in the resolution of Sept. 2d, the question remains whether they were justified in annulling the contract with him.

From the record it appears that appellants introduced upon the trial, in support of their special pleas, copies of the affidavit, warrant and return, transcript of the justice of the peace and the recognizance of the appellee, certified by the clerk of the Circuit Court of Johnson county, the original having been returned to him by the magistrate before whom the examination of appellee was had, from which it appears that on July 8,1884, one Lizzie Murray made her affidavit that appellee had, on the 26th day of June preceding, committed an assault upon her with intent to commit rape, and thereupon the justice issued his warrant, upon which appellee was arrested in Franklin county, and taken to Johnson county for examination on July 23d, when, at the request of appellee, the cause was continued until August 1st, at which time an examination was had, the appellee being represented by counsel, and after a lengthy hearing the magistrate held aiDjiellee to bail in the sum of $1,000 for his appearance at the next November term of the Circuit Court of Johnson county, to answer any indictment that might be preferred against him for such offense. He gave bail and was released.

His arrest and being held to bail, after a full investigation, upon such a serious charge, created, as it naturally would, great dissatisfaction in appellants5 school district to his teaching the school. The impression also obtained among many in the district that he was the father of two illegitimate children, and he thought proper to counteract it by procuring from the mothers a statement that he was. not responsible for the existence of their offspring.

Under these circumstances, when the time arrived for the commencement of the school, the appellants refused to receive him as the teacher. The appellants also introduced some thirteen witnesses, who testified that his reputation for morality in the district was bad, while he showed by some five witnesses that it was good. Without commenting upon the effect of this kind of evidence upon the issues, we prefer to give the appellee the benefit of his own testimony in his own vindication, explanatory of the circumstances out of which these charges arose. He says that “after the continuance of the case, I returned to Franklin county, and saw the directors, and told them about the matter, and told them I would clear up the matter to their satisfaction. "x" * * After I was tried and held to bail in Vienna I never went to see the directors any more until the day when the school was to have commenced. I presented myself at the sclioolhouse, and told them I was ready to teach their school, and they would not let me. I understood before that time they had employed another teacher. They did not tell me the reason they had discharged me, but I understood the reason to be on account of my misfortune in Johnson county, and because I was accused of being the father of two bastard children.” After stating that he was not guilty of the charge of bastardy, and that he had informed Mr. Jones, one of the directors, when questioned by him about the matter, that the rumors in that respect were absolutely false, and that he had obtained from each of the mothers a statement exonerating him, he then states, concerning the charge against him in Johnson county : “I told them all about my trouble in Johnson county with the girl, Lizzie Murray. Told them that the girl came into my room; she stayed there about two hours;- think I could have had carnal intercourse with her if I had so desired; I did not want to do it; I felt of her; I had my hands all over her; when she started to go I tried to prevent her from going; she said if I did not let her go she would tell her brothers; then I let her go. I explained all this to the directors. I also explained to them all the bastardy cases, and that there was no truth in the charge of assault to rape, against me.”

Giving him the benefit of all doubts that might arise upon his testimony as to all that occurred between him and the Murray girl, candor compels us to say that his explanation is not a very satisfactory one. He does not say that the girl was forward in her conduct toward him. Ho inducements appear to have been held out by her to cause him to take the liberties with her that he did—indeed it seems that he desired her to remain longer with him, but why he so desired is not made clear by his testimony. If the situation in which he was placed was uncongenial to his tastes it is difficult to understand why he should desire to prolong it.

It is quite likely true, as he asserts, that he was not guilty of an assault upon her with the intent to commit rape, but the circumstances, as detailed by himself, do not furnish very convincing proof of the existence of that innate virtue and morality that the law contemplates should he, and parents have a right to expect are, possessed by those who are employed by school officers to teach the boys and girls in our public schools. Ability to teach the branches prescribed by the statute does not alone qualify a person to teach our youth. In addition thereto, they should be persons who for their known virtue and morality are fitted to be trusted with the dearest treasures of the father and mother—the person and mind of their child. They should be entitled to, and receive the entire confidence of the patron and pupil. If suspicion of vice or immorality be once entertained against a teacher, his influence for good is gone. The parents become distrustful, the pupils contemptuous and the school discipline essen'ial to success is atan end. And especially is this so, when such immorality is of the character alleged against the appellee in this case. When the appellants annulled the contract he was under bail in the sum of $1,000, for his appearance to the circuit court to answer an indictment to be preferred against him for one of the most heinous and degraded crimes known to our law; and -while his testimony destroys the element of criminality in the charge, it leaves him in a very unenviable position and shows him to be guilty of such reprehensible conduct and of such immoral acts that ought not to be tolerated in a teacher of our children. We have no doubt that the evidence in this record shows sufficient cause under the statute to justify the appellants in annulling the contract with him before he commenced teaching, or if he had been engaged in teaching, in discharging him. Beaching this conclusion upon the facts it is not necessary to notice the minor errors assigned, but for the reason stated, the judgment of the court below will be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Pillsbury, P. J.

license: Public Domain

text:
    A. B. Barrett, Adm’r, etc., v. Thomas H. Guthrie.
    Weight of evidence.—Where the evidence introduced by either party may be said to be sufficient to fully sustain a finding in his favor, after two trials in the court below, this court will not interfere on the ground that the finding is against the weight of evidence.
    Appeal from the Circuit Court of Jefferson county; the Hon. T. S. Casey, Judge, presiding.
    Opinion filed November 27, 1885.
    Mr. C. H. Patton and Mr. C. H. Burton, for appellant.
    Mr. George B. Leonard and Mr. E. Y. Satterfield, for appellee.
   Pillsbury, P. J.

Appellee is one of the three heirs of Eranlc Guthrie, deceased, and the appellant is the administrator of the estate. On making his final report in the county court, the appellant charged the appellee with the payment of §350, alleged to have been paid him in money, and certain orders given by appellee to creditors, including one to Barger Bros, for §149.78. To this report appellee filed exceptions, and on hearing the exceptions were sustained. On appeal to the circuit court, the same result followed and the administrator appeals to this court. The county court had made an order for partial distribution of the moneys in the hands of the appellant. Appellee admits he received from the appellant §200 in money, composed of the order to Barger Bros, for §149.78; another order for §15, and a check upon the bank for the difference, being §35.22; while the appellant insists he had paid the appellee in money enough to make his distributive shares equal to the other heirs, viz., §350. The turning point of the case seems to be whether the appellant paid the difference between the §200, as above stated, or whether he only paid the orders named and the check of §35.22. Upon this point the testimony is very conflicting, and a finding either way might well be sustained by an appellate tribunal. The evidence introduced by either party may well be said to be sufficient to fully sustain a finding in his favor, and under such circumstances after two trials in the courts below, we do not feel called upon to interfere on the ground that the finding is against the weight of the evidence. There is no error in the record that would justify us in reversing the judgment, and it will therefore be affirmed.

Judgment affirmed.


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    The Great Western Railroad Supply Co. v. John B. Bowman.
    Cobpobatxou employing- lawybb.—As the consent of a majority of the directors was given to the employment of appellee by the president of appellant, the rule relied upon was not violated, even if it could be successfully-interposed against one having no notice of it.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Flaptn-igeit & Cahby, for appellant.
    Mr. A. S. Wildermay, for appellee.
   Pillsbury, P. J.

This suit was originally commenced by the appellee before a justice of the peace, to recover for services claimed to have been rendered by him as an attorney at law for the appellant. After judgment for the plaintiff for §200, the causé was removed into the circuit court, where a trial was had before the court, a jury being waived, and a like finding and judgment, from which this appeal is prosecuted.

The real contest between the parties appears to be whether the appellee was employed by the appellant to perform the work claimed for by him.

The testimony upon this question is quite conflicting. The apj)ellee testifies he was employed by the president of the company and he did the work, with the knowledge and acquiescence of McLean, the treasurer, and McMillan, the secretary.

In this he is supported by the testimony of Wilson, who swears he was the .president and superintendent of the company, and employed appellee to perform the legal work for the company, and that he, McLean, McMillan and Jackson were the directors of the company, and that they all, except Jackson, recognized appellee as the attorney for the company and consulted him as such.

Phillip Wolf also gives testimony corroborative of the appellee and Wilson. Besides this, there is uncontradicted evidence that. McMillan, the secretary, requested appellee to meet with the directors and stockholders, which he did, and presented some contracts he had been directed to prepare between the company and other parties, for their approval, and that he advised with them about affairs of the company. On the other hand, three witnesses, McLean, McMillan and Jackson, swear he was not to their knowledge employed by the company to perform any services for it, neither did he do any for it, and they explain the fact of the labor being done by saying that he was at work fo,r himself, the company being about to locate some of its works upon his land, and he was trying to forward the success of the enterprise and thereby enhance the value of his other real estate.

'It was also shown by the appellants, that before appellee claims he was employed, the directors, at a meeting held by them, passed a resolution that no contract be entered into or debt of any kind be incurred in the name of the company, by any of its officers, without the consent of a majority of the board of directors. It does not appear that appellee had any notice of this rule at the time of his employment or while he was doing the work for which he claims to recover; on the contrary he states he knew nothing of it until the day of the trial in the circuit court. It is contended that under the general law concerning corporations in this State, the rule in question was valid, and prevented any officer from employing appellee without the consent of a majority of the directors, and many cases are referred to as sustaining this view. We do not find it necessary to pass upon this legal phase of the case. Ho propositions of law were submitted to the court, and in absence of such, we must presume that the court found all disputed questions of fact in favor of the plaintiff below; and if the evidence is sufficient to sustain the findings as to the facts necessary to make a case in his behalf the general finding will not he disturbed. We are not prepared to hold that the court committed error in giving credit to the testimony of appellee and Wilson, the president of the company, rather than to that of McLean, McMillan and Jackson, as the other facts and circumstances in evidence and undisputed tend very strongly to support the appellee’s view of the case, and necessarily weaken that of the defense to the same extent. The consent of a majority of the directors then being given to the employment of appellee by the president of appellant, the rule relied upon was not violated even if it could he successfully interposed against one having no notice of it. We perceive no error in the record calling upon us to reverse the judgment, and it will thereupon be affirmed.

Judgment affirmed.


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    Chicago & Alton Railroad Co. v. John M. Dillon.
    1. Instructions—Negligence.—An instruction which requires the jury to find whether the negligence of the plaintiff was slight, and that of the defendant gross, hut does not require the jury to compare the negligence of the respective parties, and determine from such comparison whether the one is slight and the other gross, is erroneous.
    2. Questions for court and jury.—The definition of negligence is for the court. Whether the facts in a particular case bring it within the definition is for the jury.

      3. Highway—Cabe necessaey.—If the public generally use a road as a public highway by the consent of the owner of the premises, and this be known to the railroad company, the law demands of the company the exercise of all ordinary care to avoid injury’; and if the ringing of the bell or the sounding of the whistle would be considered reasonably necessary to be done to effect such purpose, the company should do so independent of the statute,, and can not rely upon the fact alone as a defense that it is not a legal highway.
    Appeal from Circuit Court of St. Clair county ; the Hon. Ajsios Watts, Judge, presiding.
    Opinion filed November 27, 1885.
    Action on the case by appellee against the appellant to recover damages for injuries received in a collision occurring at the intersection or crossing of Avenue “ F, ” at the National Stock Yards at East St. Louis, with a railroad track upon which the appellant was running one of its locomotives. The ap_ pellee was riding over the crossing in a wagon when he was struck by the engine, his horse killed, wagon broken and he seriously injured. The negligence alleged as the cause of the collision consisted in failing to ring the bell or sound the whistle and running the engine at a too high rate of speed. The claim of the appellant in defense was that it was not guilty of negligence in the respects named, but even if it was the plaintiff by his own negligence so far contributed to the injury as to prevent a recovery. The issue thus presented was sharply contested, and the testimony may be said to be quite conflicting.
    The appellee asked but two instructions upon this branch of the case, being the second and third of the series, and are as follows:
    2. The court instructs the jury that the question of the liability of the defendant does not depend wholly upon the absence of all negligence upon the part of the plaintiff, but it depends upon the relative degree of care, or want of care, manifested by both parties, as shown by the evidence. And in this case, although the jury may believe from the evidence that the plaintiff was not -wholly without fault, yet if they further believe from the evidence that the defendant was guilty of gross negligence upon the occasion referred to, and that the injury complained of was occasioned by such gross negligence, and further, that the negligence of plaintiff was but slight, then the jury may find defendant guilty.
    3. The court further instructs the jury that if they believe from the evidence that the place of the injury complained of was the crossing of the railroad over a public highway, and that upon the occasion referred to by the witness, a bell was not rung nor a whistle sounded at a distance of eighty rods from the crossing, and kept ringing and whistling until the crossing was reached, and that the plaintiff was lulled into security by reason of such neglect on the part of defendant, and in attempting to cross the railroad track was struck and injured as charged in the declaration, then the plaintiff will be entitled to recover in this suit, even though he was guilty of slight negligence, if the jury believe from the evidence that his negligence was but slight and that of defendant gross.
    Exceptions were taken to these instructions in the court below, and error is assigned in this court upon the action of the court in giving them. Judgment having been rendered against appellant it brings the record into this court by ap>peal„
    Mr. L. EL Hite, for appellant.
    Mr. W. H. Bennett and Messrs. Dili, & Schaefer, for appiellee.
   Pillsbury, P. J.

The instructions asked by pilaintiff below concede that the evidence shows a proper case for the application of the doctrine of comparative negligence as applied by the courts of this State. It will be noticed that the instructions, while requiring the jury to find that the negligence of plaintiff was slight, and that of the defendant gross, omit entirely the element of the doctrine, uniformly announced in all the decisions, that requires the jury to compare the negligence of the respective parties and determine from such comparison whether the one is slight and the other gross.

This omission renders the instructions erroneous. In fact it was conceded upon the argument that they did not comply in this respect with the rule generally stated in the adjudicated cases, but it was insisted that the terms slight and gross of themselves sufficiently instituted the comparison under the Johnson case, 103 Ill. 512; that if the negligence of plaintiff was found to be but slight, and that of the defendant gross, them relative degree could not be changed by comparing the one with the other.

It is evident that this decision was not intended to be understood as eliminating from the doctrine of comparative negligence the very element that makes it available to the plaintiff where both parties have been guilty of negligence contributing to the injury—the relative degree of guilt of the respective parties—as it has in subsequent cases been recognized, defined and tqffield as still existing under the same limitations as before the Johnson case was decided. Chicago v. Stearns, 105 Ill. 554; W., St. L. & P. Ry. v. Wallace, 110 Ill. 114.

It is also urged that the court erred in refusing the eighth instruction asked by defendant, as follows:

The court instructs the jury for the defendant that it was the duty of the plaintiff to look up and down the track in every direction the railroad ran before attempting to cross the railroad track upon which he was struck, and if the jury believe from the evidence that he failed to do this, and that such neglect caused the accident complained of, then the verdict must be for the defendant.”

This instruction was properly refused for one of the reasons urged by the counsel for defendant to plaintiff’s third instruction, that it assumes to tell the jury that certain facts constitute negligence in the given case. If counsel for defendants, in cases involving the question of negligence, would endeavor to be as accurate in their requests for instructions as they demand the plaintiff to be, they would at least be entitled to the merit of consistency in their arguments before the court. The definition of negligence is for the court. Whether the facts in a particular ease bring it within the definition, is for the jury. Penn Co. v. Conlan, 101 Ill. 93; I. & St. L. R. R. Co. v. Morgenstern, 106 Ill. 216; Myers v. I. & St. L. R. R., 113 Ill. 386.

Whether a person about to cross a railroad track should stop and listen or look up and down the track for approaching trains, depends upon the question whether under all the circumstances proven, reasonably careful, prudent persons would be expected to take such precautions. If the crossing, on account of obstructions upon the sides of the road, preventing a view of it, and trains frequently passing, or that may be expected at irregular intervals, is a dangerous one, it may 'well be that a prudent man would consider it gross negligence not to look out for danger. But this is a conclusion of fact, to be drawn from the other facts proved by the jury, and not a rule of law to be applied in every casé without regard to the circumstances.

Only general rules can be laid down by which the conduct of men is to be judged. What may be ordinary care in some cases and under some circumstances, may be gross negligence under different ones; hence the necessity of judging the character of the act from the time, place and manner it is done, and all the circumstances surrounding the person when he does the act.

The seventh instruction asked by defendant might well have been refused, as its substance is incorporated in the fifth given, but the modification of it by inserting the word “equally” before the phrase “guilty of great carelessness,” would lead the jury to suppose that before the plaintiff would be precluded by his carelessness from recovering, he must be equally guilty with the defendant in causing the injury. We know of no case thus stating the doctrine of comparative negligence. It is further insisted that the crossing in question was not a public highway, and the defendant therefore was not liable for a failure to ring a bell or sound a whistle as required by the statute.

The evidence shows that Avenue “F” has been used as a public traveled way for about ten years, and was as much used by the public as any highway in the country, although how it became such public way does not clearly appear. The question whether it was such public way was submitted to the jury upon instructions for the plaintiff, to which the defendant urges no objection, and its own instructions upon that point are as favorable as it could well ash, for the court told the jury that it was at public highways only, as defined in the statute, that the defendant was bound to ring a bell or sound the whistle. If it was a way generally used by the public and the defendant knew that people were using it as a public highway, then the duty was imposed upon it at common law to use all reasonable precautions to avoid injury to persons crossing whether they would be liable to the statutory penalty for a failure so to do or not.

Besides, we are not prepared to say that a plaintiff in every case of an injury occurring at a highway crossing must be defeated, if it should not appear that the road came within the definition of a public highway as defined by the statute. If the public generally use it as such by the consent of the owner of the premises, and this be known to the defendant, the' law demands of it the exercise of all ordinary care to avoid injury ; and if the ringing of the bell or the sounding the whistle would be considered reasonably necessary to be done to effect such purpose, then the railroad should do so independent of the statute, and can not rely upon, the fact alone as a defense that it is not a legal highway. This brings us to the consideration of the last question made, that the court should not have permitted the appellee to show what the custom of other railroads was in regard to ringing the bell or sounding the whistle at this crossing. We can not think this evidence could have any bearing upon the question of the care exercised or negligence committed by the defendant. If the defendant had been accustomed to comply with the statute at this crossing as at highway crossings, it would be competent to show that fact as bearing upon the question of its knowledge of its character as a way used and treated by the public as a highway.

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

Judgment reversed.


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    The People ex rel., etc., v. Jesse Mays.
    1. County board removing school superintendent.—A county board is not required to recite in its record the cause of removal of a school superintendent in the precise words of the statute. Where the record recited that a school superintendent was removed for ‘1 omission of duty, ’ ’ and the board found that through intoxication he had at various times neglected his duties. Held, that this amounted to “ palpable” omission of duty.
    2. Same—Procedure.'—The fact that such person was removed without having notice of the contemplated action by the board, and was not given an opportunity of making a defense, can not avail him. Where the statute fails to prescribe any particular method of procedure when exercising the jurisdiction conferred, such tribunals are not confined to any legal rules of evidence in determining the facts upon which it is required to act.
    Error to the Circuit Court of Fayette county; the Hon. Jessb J. Phillips, Judge, presiding.
    Opinion filed November 27, 1885.
    Hpon leave obtained, the State’s attorney of Fayette county, upon the relation of Benjamin F. Shipley, filed in the circuit court an information in the nature of a quo warranto, setting forth that the relator was, on Nov. 7, 1882, duly elected county superintendent of schools of said county, for the term of four years, and duly qualified and entered upon the duties of said office.
    That the defendant intruded into said office and for the period of one hundred and twenty days had unlawfully held and exercised the duties of said office, and still continues so to do without right or title thereto, and prays that he may show by what warrant he so acts. The defendant answered, asserting his right to the office by virtue of certain proceedings had by the board of supervisors of said county at their meeting in March, 1881, substantially as follows:
    Hankins, member of the board, after a preamble reciting that there had come to the ears of the members of the board of supervisors information that B. F. Shipley, county superintendcnt of schools, had scandalized his office by being found drunk, etc., introduced the following resolution :
    “ Be it resolved that this board appoint a committee of three of its members to investigate and report as to the facts of the intoxication of B. F. Shipley on various occasions, and also investigate questions as to legal power of the board of supervisors to remove him (Shipley) from his said office of county superintendent of schools, etc.” Resolution adopted.
    Chair appointed Hankins, Clark and Snerley, to act as such committee. Committee report back to board as follows: “Tour committee, to whom was referred the matter of examining into the legal grounds for the dismissal of B. F. Shipley from the office of superintendent of schools, and consult counsel, etc., would beg leave to submit the following report on the matter before them: That we have consulted Messrs.
    Henry and Farmer as to counsel, and have examined witnesses as to Mr. Shipley’s neglect of the duties of the office, and find from the evidence gained that he has at several different and sundry times been intoxicated when attending, or at the time he should have been attending, to the duties of his office. And it is the opinion of your committee that in consequence of intoxication he has at numerous times been guilty of neglect of the duties of his office, which fact we believe can be proven by competent evidence. All of-which is respectfully submitted.
    Geo. W. Hankins, Chairman.”
    On motion of Mr. Parks, ordered that report be adopted. Mr. Frailey introduced and moved the adoption of the following:
    “ Ordered by the board of supervisors of Fayette county, that Benjamin F. Shipley be and he is hereby removed from the office of superintendent of schools of Fayette county, for omission of duty, and said office is hereby declared vacant.” Motion carried by aye and nay vote.
    On motion, board of supervisors proceeded to elect by ballot a successor to Benjamin F. Shipley as superintendent of public schools of said county, and that the respondent, Jesse Mays, was then and there duly elected by said board of supervisors to fill said vacancy.

      The answer then avers that the defendant qualified hy giving bond and taking the oath of office, and was commissioned by the governor, and that he obtained possession of the books, papers, records, etc., belonging to the office, by an order of the circuit court of that county, entered in conformity with § 217 of the Criminal Code of the State. To the answer setting out these facts in extenso¡ the relator interposed a demurrer, which was overruled by the court, and the relator abiding, final judgment for costs went against him, and he caused the record to be removed into this court by writ of error.
    Mr. F. M. Guias and Mr. B. W. Henry, for plaintiffs in error;
    that the record must show that the relator was removed for some cause known to the law, cited State v. McGarry, 21 Wis. 496; People v. Higgins, 15 Ill. 110; Clark v. People, 15 Ill. 216; Donahue v. Will Co., 100 Ill. 94.
    Notice should have been given: State v. Prince, 45 Prince, 611; McGregor v. Bd. of Supervisors, 37 Mich. 388; Queen v. Saddlers Co., 10 House of Lords, 404; Wade on Notice, § 1187.
    Messrs. Webb & Cox, ■ for defendant in error;
    that notice was not required, cited Illinois Statutes, Ch. 122, § 13, 1881; People v. Higgins, 15 Ill. 110; Wilcox v. People, 90 Ill. 186; People v. Stout, 11 Abb. (N. Y.) Pr. 171; State v. McGarry, 21 Wis. 496; Holbrook v. Township Trustees, 22 Ill. 539.
   Pillsbury, P. J.

It is provided by Sec. 5, Art. VIII of the constitution that “ There may be a county superintendent- of schools in each county whose qualifications, powers, duties, compensation, and time and manner of" his election and term of office, shall be prescribed by law.” Acting under this authority, the legislature, by § 11 of the General School Law, provided for the election by the people of each county of a superintendent of schools on the Tuesday after the first Monday of November, 1873, and every four years thereafter, who should perform the duties required by law, and by § 13 of the same act made him liable to removal by the county board for any palpable violation of law or omission of duty. The constitution places no limitation upon the power of the legislature as to the term of office, the time and manner of the election, or the qualifications of such officer, leaving all these matters under the entire control of the legislative department of the State government to be provided for as it saw fit and proper.

In jjrescribing the time that any person might hold the office it could impose any limitations or conditions it desired, and could, without doubt, confer upon any body it might select, the power of amotion. Bespeeting these matters its power would seem to be plenary. If the legislature has power to confer upon the county board the authority to remove a county treasurer whose election and term of office are provided for hy the constitution, as was held it had in Donahue v. Will County, 100 Ill. 105, there can be no valid reasonfor saying it does not possess as great power respecting an officer where all the conditions upon which he holds the office are left to legislative discretion. The case referred to is a complete answer to the argument of relator that the power is too dangerous to be intrusted to such a body as a board of supervisors. It may be as suggested that in individual cases the members of the board may act from political prejudice, or without a due regard for the public interests, and remove a faithful officer when the reason assigned upon the record for their act is not in fact true. If such should be the case the people themselves are to blame for electing men with so little honor to represent them upon the county board. The remedy is in their own hands, hy electing men who are above being actuated by party passion or prejudice, or of violating their oaths of office by countenancing the entry of a falsehood upon their record.

This power must be vested in some tribunal, and we are not to assume that it will be exercised arbitrarily for political reasons or otherwise abused by the county board any sooner than it would be by any other tribunal invested by the law with like power. The power of removal is limited to certain causes specified in the statute, and the members of the county board, in each determining for himself whether such cause in fact exists, acts under the solemnity of his official oath, and he has the same fears of the pains and penalties attached to its violation, and the same inducements to fairly and honestly perform his duties under it, that any judicial or any other executive officer would have who was charged with the performance of the same duty.

"With the policy of the statute conferring this power upon the county board we have nothing to do. If the people, through their representatives, have legally intrusted such power to the county board, as we have seen they have, we should rest content therewith and confine ourselves to the inquiry whether such tribunal has kept itself within the jurisdiction conferred. This must be determined from the record it has made. It is urged that the record of the board as set forth in the plea does not show that the relator was removed for either of the causes specified in the statute; that he was not found guilty of a “palpable ” omission of duty, the record simply stating that for “ omission of duty” he was removed. We have been referred to no authority, neither do we know of any, that requires the board to recite in its record the cause of removal in the precise words of the statute. If the cause stated and that prescribed by the statute are in substance the same, it would appear to be a sufficient compliance with the statute in this respect.

Thus in the case of Higgins v. The People, 15 Ill. 110, where the statute provided that the medical superintendent of the Illinois State Hospital for the Insane might be removed for infidelity to the trust imposed in him or incompetency to the discharge thereof, and the record recited that the reason for his removal was that “he does not possess the kind of qualifications which are necessary to the proper discharge of the duties of said office,” this was held sufficient, the court saying, “unless the board were bound to adopt the precise language of the statute it can not well be denied that the cause assigned for removal was sufficient; the substance is the same and that was sufficient.

So in Wilcox v. The People, 90 Ill. 186, where the governor removed the West Chicago Park Commissoners for incompetency, but employed, in his order for removal, the language of the order in Higgins’ case, which, the court say, “was a delicate and inoffensive form of stating the cause of removal,” but was considered as equivalent thereto and was sufficient.

In this case the committee appointed by the board to investigate the charges against the relator reported that they had examined witnesses as to his neglect of the duties of his office, and find, from the evidence gained, that he had at different times been guilty of intoxication when attending, or when he should have been attending to the duties of his office, and that it was the opinion of the committee that in consequence thereof he had at numerous times been guilty of neglect of the duties of the office, which they believed could be proved by competent evidence. Acting upon this report the board declared that for omission of duty he be removed and the office be declared vacant.

When the order of the board is considered in connection with the report of the committee, thu character of the omission of duty ¡is made clear, and amounts to a finding that through intoxication the relator has at various times omitted to perform the duties of his office. To have used the word “ palpable,” could pot have made the matter any clearer, nor added any force to the finding of the board.

The finding that through intoxication he has at various times been guilty of neglecting his duties is tantamount to a finding of “ palpable ” omission of duty. We quite agree with counsel that the word “ palpable,” as here used in the statute, embraces the idea of an intentional and substantial failure to perform the duties imposed by law, partaking of the nature of a willful or gross neglect of the officer to attend to his duties. It would be a too restricted use oE the word to give it the sense only of “ easily perceived, ” “ plain, ” or “ obvious, ” as such a construction would make the officer liable to removal when he had omitted to perform any of the duties of the office, although his failure to perform the same may have occurred through aceident, mistake or some personal inability, arising from illness or other cause, for which he might not be in any degree responsible, which certainly could not have been contemplated by the legislature as a cause for removing him. Through a mistake, that any one is liable to make, he may present an erroneous report to the county board, showing his receipts and disbursements, and such report therefore be untrue as a matter of fact, and an examination of his books would plainly show the incorrectness of it, yet if it should also appear that the error was not intentional, but the result of a mistake of the officer, it would certainly not be contended that he would thereby render himself liable to be removed by the board. But if it appeared to be a willful act, upon his part, done with the design to wrong the county, there could be no question that the board not only could, but should, remove him.

Still it must be remembered that an officer is responsible for all those conditions and situations into which he places himself voluntarily, and which naturally result in incapacitating him for the proper discharge of his duties; and where, as in this case, as found by the board, his omission of duty results from voluntary intoxication, such neglect of duty can not but be treated as equivaffint to a willful disregard of the rights of the public to have the duties imposed by the law upon the ofiicer promptly and properly performed.

Again it is urged that without notice to the relator, of the time and place of hearing before the board, no jurisdiction was obtained of his person, and the order was therefore void; and further, that as the board heard no evidence, as it should have done, and determined therefrom whether the cause existed for his removal, the order is invalid for this reason also. These two objections may well be considered together. That there is great force in the point made that the relator was removed without having notice of the contemplated action by the board and being given an opportunity of making a defense, if any he had, must be admitted, and did we consider it an open question in this State, we are not prepared to say it would not prevail.

In Higgins’ case, supra, the same objections were taken to the proceedings, and the Supreme Court say that “the statute has made none of these formalities necessary, nor does the common law so interpose and attach itself to the statute so as to require them; and it was further held that the trustees in determining as to the existence of the cause of removal, might act upon their own observation and exercising their own best judgment, as well upon facts detailed by others as upon the opinions of witnesses. ”

The doctrine of this case was commented upon and re-affirmed in Wilcox et al. v. The People, supra, where the same objections were taken to the action of the governor and a like conclusion reached regarding them as in Higgins’ case, and it was further said: “ In other cases this court has decided that where the law has invested a quasi judicial power, even in subordinate administrative officers, the court will only inquire whether the officer has acted within the power, and will not attempt to substitute its own judgment or discretion for that of the officer, and will not supply any other conditions to the exercise of their discretionary power than such as the law has provided.”

These cases clearly show that where the statute fails to prescribe any particular method of procedure, when exercising the jurisdiction conferred, such tribunals are not confined to any legal rules of evidence in determining the facts upon which it is required; nor is it required to adopt or act upon all those formalities deemed necessary by the courts of law as a basis for their action in adjudicating upon the rights of individuals. Heitlier will the courts require that such tribunal shall take any other or different steps precedent to final action than the statute has. declared essential.

The statute here has placed the power of removal in the county board without prescribing the method of procedure or requiring any specific kind or character of evidence upon which it can only act, but has left the board to determine whether the statutory cause for removal exists in any manner that knowledge of the fact may come to it and be considered of that credible character that convinces the minds of the members of the board, acting under their official oaths, of the existence of the facts showing cause for removal. Some cases have been referred, as holding that notice to the party removed was essential to action by the removing power, but it is believed that such decisions 'were made under statutes prescribing the mode of procedure and are 'therefore not applicable here; but if not, the decisions of our own court must be our guide in applying the law to the facts of the present case.

. It is earnestly insisted, however, that as the removed parties in those cases were the appointees of the removing power, they can not apply where the officer is elected by the people for a definite, term.

As we have seen, it was expressly held in Donahue’s case, supra, that the power and authority was well conferred upon the county board to remove an officer whose oilice was provided for and his term of office fixed by the constitution, and, for weightier reasons, might it be invested with the power of removal where the office may be said to be a legislative one, and the term fixed by statute.

It is enough, perhaps, to say upon this point, that the power of removal is derived from the statute, and is not made by it to depend upon the source of the officer’s right to the office.

For the reasons given, we think the court below committed no error in overruling the demurrer to the plea, and its judgment will be affirmed.

Judgment affirmed.


text:
    Donk Brothers & Co. v. The St. Louis Glucose and Grape Sugar Co.
    Purchase of property subject to liens—Assignment of judgment.—-Where a company bought property expressly subject to the claims of attaching creditors, and it was incumbent upon the company to discharge the liens if it would save its purchase, and when one of the creditors obtained his judgment, the company obtained an assignment of such judg. ment. Held, that the assignment of the judgment to the company, it at the time having control of the fund primarily charged with its payment, operated as an extinguishment of it and a dissolution of the attachment, and the company could not keep the lien alive to the prejudice of appellees, attaching creditors, whose claim upon the property was of equal dignity as that evidenced by the judgment purchased.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed November 27, 1885.
    This is an appeal from an order made by the Circuit Court of St. Clair county, at its February term, 1885, distributing the proceeds of attachment sales between attaching creditors. The stipulation filed by the parties upon the hearing of the motion to distribute, sets out the whole case substantially as follows:

      “ Edmund C. Donk et al. filed their affidavit in attachment against Ottomar W. Heyer, November 28, 1881. Writ issued the same day, returnable to the February term, 1882, of this court. Levy made on real estate of Heyer and some personal property as shown by writ; additional levy on other personal property made December 3, 1881, as shown by writ and sheriff’s indorsement thereon. Declaration filed February 9, 1882. Appearance of Ottomar W. Heyer entered by W. C.Kueffner, on the 5th Wednesday of the term, and judgment by consent of parties for $2,600.75 as per stipulation on file on the 5th Thursday, being the 23d of March, 1882.”
    Alexander & Taussig commenced suit in assumpsit against Ottomar W. Heyer, December 2,1881. Summons issued same day; writ of attachment in aid sued out and issued same day ; both writs returnable to February term, 1882. Levy was made on all the property before then attached under writ in favor of Donk et ah, and also the additional, viz.: “The entire stock of bone black in the buildings on the premises, about fifty barrels of marble dust or whiting, one part barrel grape sugar, two kegs of syrup and three sets of double harness.” The additional property was found and directed to be levied on by Mr. Taussig, one of the plaintiffs, and this additional levy was also on the same day indorsed on the Donk writ. Declaration filed February 9, 1882.

      On November 29,1881, Ottomar W. Heyer made an assignment to Hugo Muench, assignee, in pursuance of the statute of Missouri relating to assignments; this deed of assignment was recorded in St. 01 air county, December 3, 1881, after the above levies.
    On December 13,1881, the Circuit Court of St. Louis, Mo., made an order directing said Hugo Muench, as assignee, to sell all the property of O. W. Heyer, subject to all incumbrances, on the 5th day of January, 1882, and subject to the approval of the said court.
    On January 5, 1882, said assignee sold all of the attached property, real and personal, except that sold by the sheriff as perishable, to John B. Lovingston, William D. Marshall and George W. Lubke, as trustees for a corporation thereafter to be formed, for $2,000. Said sale purported to be in pursuance of the above order, and the notice of the sale specified that the sale was to be made subject to incumbrances.- Deed made by assignees to said vendees, dated January 7, 1872.
    Report of sale approved by St. Louis Circuit Court, January 6,1882. (At said sale personal notice of. the levy of the attachment in favor of Alexander ■& Taussig was given by their attorney.)
    On February 27, 1882, the “St. Louis Syrup, Glucose and Grape Sugar Co.” was incorporated, with John B. Lovingston, W. D. Marshall, Geo. W. Lubke, L. S. Metcalf, Jiv, and others, as stockholders. By deed, dated February 28,1882, John B. Lovingston, W. D. Marshall and Geo. W. Lubke, as trustees, conveyed to the St. Louis Syrup, Glucose and Grape Sugar Co., in consideration of $30,000, which was in full-paid shares of the capital stock of said party of the second part, and whereof they retained for themselves, as trustees, $12,000, the property acquired by said trustees at the assignee’s sale, “ excepting such of said articles as have been heretofore sold by the sheriff of said St. Clair county, under levy of a certain writ of attachment issued in favor of Donk Bros, against said O. W. Heyer.”
    On January 26, 1882, the sheriff of St. Clair county, HI., sold the perishable property levied on under the attachment of Donk jiros, for $1,363.70.

      On April 11, 1882, the court rendered judgment for $2,600.75, and awarded special execution therefor against property attached in favor of Donk Bros.
    On April 25, 1882, the judgment of Donk Bros. v. Heyer was duly assigned by Donk Bros, to Lyne S. Metcalf, Jr., and special execution was' issued upon said'judgment in favor of Donk Bros, on March 19, 1883, but no sale made under it.
    On the 24th of October, 1883, the said Lyne S. Metcalf, Jr., executed to the St. Louis Syrup, Glucose and Grape Sugar Co., the following instrument:
    “ Whereas, Donk Bros. & Co., on Hovember 28, 1881, in St. Clair county, Illinois, sued out an attachment and levied upon certain leasehold and other property then belonging to Ottoman W. Heyer, defendant in said cause, and in which cause judgment was on March 23,1882, rendered in favor of said Donk Bros. & Go. for $2,600 and costs, and which judgment was subsequently assigned to Lyne Metcalf, Jr., and whereas the St. Louis Syrup, Glucose and Grape Sugar Company has purchased all the property so attached and not sold: How, know all men by these presents, that I, the said Lyne S. Metcalf, Jr., of St. Louis, Mo., in consideration of ten dollars to me paid by said St. Louis Syrup, Glucose and Grape Sugar Company, receipt of which is acknowledged, do hereby remise, release and forever quitclaim unto said company, their assigns and legal representatives, all and singular, any right or lien I may have against the premises and property so attached, of every kind, name and nature, and do hereby further assign, transfer and set over unto said corporation the judgment against said O. W. Heyer hereinbefore recited and assigned to me by said Donk Bros. & Co., to have and to hold said property and premises arid said judgment, with all the rights that I may or might be entitled to. In witness whereof I have hereunto set my hand and seal the 24th day of October, 1883. L. S. Metcalf, Jb. [l.s.]”
    Acknowledged at St. Louis, Mo., and recorded in the Becorder’s Office of St. Clair county, 111., in book 273, page 456.
    At the February term, 1882, of the circuit court in the case of Alexander & Taussig v. Heyer, the defendant appeared and filed a plea to the declaration. Hugo Muench, as assignee of Heyer, filed an interpleader, claiming the property attached, real and personal, as assignee. Lovingston, Marshall and Lubke interplead, claiming the property attached as their own as trustees and as purchasers from Muench, and claiming the proceeds of sale of the perishable articles subject to the Donk attachment. The St. Louis Syrup, Glucose and Grape Sugar Company filed their interpleader, claiming the real and personal property attached as their own. Issues were joined, and at a subsequent term all the issues were tried and decided by the court in favor of plaintiff and judgment rendered in the sum of §902.56, and general and special executions awarded. The interpleaders and the defendant sued out a writ of error to the appellate court, where judgment was affirmed ; then sued out a writ of error to the Supreme Court, where judgmentwas likewise affirmed. Upon the final disposition of the case, Alexander & Taussig caused an execution to be issued aud all the personal property not sold as perishable and all the buildings and fixtures having just been before destroyed by fire, the sheriff under said execution sold the leasehold estate of said Heyer, then in possession of the St. Louis Glucose company, to plaintiffs, for §700, March 5, 1884, and the same was redeemed by said Glucose company March 8, 1884, by payment of §701.90 to the sheriff.
    The following is a statement of the net proceeds of said sales under said attachment writs:
    Proceeds of sale under Donk Bros.’ attach-
    rnent................................ 81,363.70
    Costs of attachment..................... §178.52
    Costs of execution...... ................ 7.45
    Met proceeds of Donk attachment..... 81,177.73
    Proceeds of sale under attachment of Alex
    ander & Taussig...................... §701.90
    Costs of attachment.................... 8 17.90
    Costs of execution...................... . 116.65
    Met amount left.................... §567.35
    And this was all the evidence.

      Then the circuit court found as matter of law that the claim of the judgment of Alexander & Taussig was preferred to the claim of Donk Bros. & Co., and entitled to preference in sharing the proceeds of the said sales, and to this finding Donk Bros. & Co. and the St. Louis Syrup, Glucose and Grape Sugar Co. at the time excepted, and then the said Donk Bros. & Co- and the said company moved the court for a new trial or hearing of the motion,- because the finding of the court was contrary to law, but the court denied the motion and the movers thereof excepted.
    And then the court ordered the sheriff to pay out of the proceeds of said sales the judgment of Alexander & Taussig in full, and the balance to the said company, and to this judgment the said company and the firm of Donk Bros. & Co. excepted and appealed to this court.
    Hr. Charles W. Thomas, for appellants.
    Messrs. Hat & Ejxispel, for appellees;
    as to merger, cited 7 Wait’s Actions and Defenses, 321, 322; Marley v. Stevens, 47 How. (N. Y.) 228; Clift v. White, 15 Barb. 70; McHenry v. Watkins, 12 Ill. 233; Freeman on Judgments, § 480; Strout v. Natoma Water & Mining Co., 9 Cal. 78.
   Pillsbury, P. J.

The assignee of Heyer held the property assigned charged with the attachment liens of Donk Bros. & Co. and the appellees, and the St. liOuis court ordered him to sell subject to all incumbrances, which he did, and reported the sale to the court, which was approved.

At the sale actual notice was given by the attorney of appellees of the levy of their attachment writ upon the property then offered for sale, and it was purchased by Lovingston, Marshall and Lubke, as trustees for appellant company, although not then organized, but in contemplation, and upon its organization the trustees executed their trust by conveying to it.

The property being offered for sale, and sold expressly subject'to all incumbrances, and the purchaser having notice of the particular liens then existing against it, we think the presumption must be indulged—nothing further appearing— that the amount of these liens was taken into consideration by the purchaser jin fixing the amount to be paid for the interest acquired, and that, the price paid was a sum which, in the judgment of the buyer, did not exceed the value of the property less the incumbrances. Atherton v. Toney, 43 Ind. 211; Thompson, adm’x, v. Thompson, 4 O. S. 349; Mathews v. Aiken, 1 Comst. 595; Kinnear v. Lowell, 34 Me. 302; 1 Jones on Mort., § 736.

Purchasing the property in this manner, it became in the hands of appellant company the primary fund between all the parties out of wdiich these liens should be discharged (Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 Ill. 375), as fully as though the grantee had assumed their payment in the deed, this latter assumption by a grantee not having any greater effect to subject the property to such payment than the former, but giving to the lien holder a personal action against the grantee. 1 Jones on Mort., § 736; Sweetser v. Jones, 35 Vt. 317,

In either case, the company, in order to become invested with the entire estate in the property, must see to it that the incumbrances are discharged, and as b etween it and its vendor, the primary duty was cast upon it to do so (Shuler v. Hardin, 25 Ind. 386); and it is said in Cherry v. Munroe, 2 Barb. Ch. 618, where the equity of redemption was purchased subject to an outstanding mortgage, that the purchaser had no legal right to have the mortgage debt charged upon the mortgagor personally instead of charging it upon the land upon which it was charged by the mortgage.

The purchaser of an equity of redemption subject to existing liens is only entitled to what he purchases, and while he may not be personally liable for them payment as he has not promised to pay them, it is his duty to pay them or surrender the property in their discharge; and to allow him to compel his grantor to discharge the incumbrance on the ground of a personal liability for the debt would- in effect invest him with the entire estate free from all liens when he took, it specially charged therewith. The injustice of such a proceeding is so apparent that courts of equity in eases where the lien creditor has enforced payment of the debt thus charged upon the land from the mortgagor have not hesitated to subrogate him to all the rights of the creditor by considering him as the equitable assignee of the mortgage lien, and thus permit him to subject the premises to sale to reimburse him for such payment. Kinnear v. Lowell, supra; Baker v. Terrell, 8 Minn. 195; Tice v. Amine, 2 Johns. Ch. 125; Yerris v. Crawford, 2 Denio, 598; Mathews v. Aiken, supra.

A grantee, therefore, under such a sale to him, can not, by paying the lien creditor the amount of the incumbrance, take an assignment of the debt to himself and hold it as a valid claim against his grantor, nor use it as a set-off in an action by the vendor for the purchase money (Shuler v. Hardin, supra); and having become the owner of the lien and as between him and his vendor the primary obligation, if he would save his purchase, resting upon him to pay the debt the law treats the assignment to himself as a payment of the debt and the land discharged therefrom. Converse v. Cook, 8 Vt. 164; Lilly v. Palmer, 51 Ill. 331; Williams v. Thurlow, 31 Me. 392; Tice v. Amine; Baker v. Ferrell; Atherton v. Toney, supra.

So where land is conveyed subject to two liens of which the vendee is advised and makes his price accordingly, he can not take an assignment of the senior one and retain it to the prejudice of the junior. Converse v. Cook; 1 Jones on Mort., supra.

Applying the foregoing principles to the facts of this case the questions involved are not difficult of solution. The appellant company bought the property expressly subject to the claims of these attaching creditors, and the property was charged with their payment, and it was incumbent upon it to discharge such liens if it would save its purchase. ¡Recognizing the position in which it stood, as soon as Donk Bros. & Co. obtained their judgment and the amount of their lien judicially ascertained, an assignment of the judgment was procured from Donk Bros. & Co. to Metcalf, a member of the company, who afterward assigned the same to the company for the nominal consideration of ten dollars and re1 eased to it any right or lien he had to any of the property attached. Ho attempt was thereafter made to assert any right under said judgment, and none would probably ever have been asserted if the buildings and fixtures purchased had not been destroyed by fire, thus materially reducing the value of the property purchased; but the rights of the parties became fixed prior to such loss and must be determined irrespective of it.

In my opinion the assignment of the judgment to the company—it at the time having control of the fund primarily charged with ¡its payment—operated as an extinguishment of it and a dissolution of the attachment, and thereafter the company held the property discharged of any lien arising therefrom, and could not keep it alive to the prejudice of appellees, whose claim upon the property was of equal dignity as that evidenced by the judgment purchased. Strout v. Natoma Co., 9 Cal. 78, and cases above cited.

Being equitably bound to pay both liens, and having paid one in the manner above stated, it had the effect of leaving all the property attached by appellees subject to the payment of their judgment; and it being equitable that as against the company they should be paid in full, as the company ought to have paid it upon rendition of judgment, no error is perceived in the action of the court in so ordering the funds in court applied, and the order will be affirmed.

Order affirmed.


author: Wilkin, J.

text:
    A. M. Askew et al. v. Leroy A. Goddard.
    Confession of judgment—Attorney’s fees.—The attorney who confessed the judgment in this case had no power under the warrant of attorney to confess judgment for any attorney’s fee, for the reason that he was the attorney for the plaintiff also. The judgment of the court below is therefore reversed as to so much as is made up of the attorney’s fee and the $1.83 in excess of the principal and interest due on the notes.

      Error to the Circuit Court of Williamson county; the Hon. David J". Baker, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Clemens & Warder, for plaintiffs in error;
    as to the attorney being attorney for both parties, cited Freeman on Judgments, 144; Fish v. Leser, 69 Ill. 400; 1 Wait’s Actions and Defenses, 448; Cox v. Sullivan, 7 Ga. 144.
    Judgments may be valid in part and invalid as to another portion: Fleming v. Jencks, 22 Ill. 477; Soles v. Sheppard, 99 Ill. 619.
    Messrs. ¡Young, Barr & Lemma, for defendant in error;
    cited Roundy v. Hunt, 24 Ill. 600; Iglehart v. Morris, 34 Ill. 501; Durham v. Brown, 24 Ill. 93; Condon v. Besse, 86 Ill. 159; Ball v. Miller, 38 Ill. 110; Hempstead v. Humphrey, 38 Ill. 90; Crossman v. Wohlleben, 90 Ill. 537.
   Wilkin, J.

This case originated in the court below on a motion to modify a judgment entered before the clerk of the Circuit Court of said Williamson county in vacation, on the 30tli day of January, 1885, in favor of defendant in error and against plaintiffs in error for the sum of $3,716.93, and costs taxed at $3.

The motion was heard at the May term, 1885, of the circuit court and overruled and hence this writ of error.

The judgment was confessed on a note for $3,540 due twelvemonths after date, payable to defendant in error, signed by plaintiffs in error, and “authorizing and empowering any attorney at law of the State of Illinois to appear before any court of record, in term time or vacation, and confess judgment for the above-mentioned sum and eight per cent, from maturity, and a reasonable attorney’s fee, and to release all errors,” etc.

It appears from the record in this case that the plaintiff in the confessed judgment signed his own declaration; that George W. Young, Esq., signed the cognovit as the attorney of defendants therein, in and by which he says that “ the said Mary Ann Askew and Alexander M. Askew, by George W. Young, their attorney, come and waive service of process, etc.” and confesses that the said L. A. Goddard on occasion of the non-performance of the several promises in said declaration mentioned, including the sum of $125 for his reasonable attorney’s fee, has sustained damages, etc. That George W. Young, Esq., prepared the declaration and all other papers in the confession and advised with the plaintiff and the clerk who entered the judgment with reference thereto, and that the defendant in error paid him the sum of $125 for his services as his attorney in that proceeding. It also appears that this §125 attorney’s fee, together with the principal and interest due on said note, do not equal the amount of the judgment confessed by $1.33 ; that real estate was sold on said judgment for $387.95 more than the amount due thereon and purchased by defendant in error, and the excess paid over to the plaintiff in error, A. M. Askew, prior to the tiling'of the motion herein, and the judgment satisfied.

These are all the facts in the case necessary to he stated in its consideration. It is insisted by defendant in error that the plaintiffs in error have ratified the acts of the attorney in confessing the judgment and that they can not now he heard to question it.

We find no evidence in the record to justify that position. There is no pretense that Mrs. Askew has done any act whatever which directly or indirectly recognized the validity of that proceeding.

The only evidence tending to prove a ratification by A. M. Askew, is the statement in the affidavit of George W. Young that the sheriff of Williamson county, having sold'certain property on execution issued on said judgment for $387.95 more than the amount due thereon, paid that amount to A. M. Askew. There is nothing to show that he knew the facts when he accepted the money. It is also insisted that by the sale the judgme nt complained of was satisfied and that there fore the same can not he modified.

There is no claim that the judgment has been voluntarily paid by the plaintiffs in error. The plaintiffs in error made their motion to the first term of the court after the confession was taken, and this they clearly had the right to do.

To say that because the defendant in error had in the meantime caused execution to issue, a sale to be made and the execution, returned satisfied, the plaintiffs in error cannot maintain this motion, would be to allow a party taking a judgment by confession in vacation to deprive the defendant of a remedy which by the law he is entitled to.

If the defendant in error has taken a judgment to which he was not entitled, and one which it is inequitable to permit him to hold against the plaintiffs in error, he must suffer the consequences, no matter what he has done in pursuance thereof. It is admitted that the attorney confessing the judgment exceeded his authority by confessing the judgment for more than was due. “ An attorney in fact can only act within the strict letter of his authority for the purposes and in the manner prescribed.” Chase v. Dana, 44th Ill. R. 262; Tucker v. Gill, 61 Ill. R. 236; Frye et al. v. Jones, 78th Ill. R. 627.

It is said, however, that the judgment is only too large by a small amount, and therefore the court should take no notice of it. As to the whole amount of the judgment, the 81-33 is small, but we are unable to find any authority which justifies an attorney in fact in confessing a judgment for more than is authorized by his warrant.

The case of Zuckermann et al. v. Solomon, 73 Ill. R. 131, does not so decide. There is nothing in Üiat case to show that the confession was not in strict conformity to the power of attorney. In fact it may be fairly concluded that it was. In the opinion it is said : “ It is also claimed that there was a small amount of usury inducted in the note? and again, “ But the court.offered to have deducted from the judgment the excess of interest that may have been inadvertently included in the note.” The confession was therefore for the amount which was due by th e terms of the note and the usury was shown by other proof.

Even if it can be said that this case would have justified the court below in offering to allow the 81.33 to.be deducted from the judgment confessed, and confirmed it for the balance, nothing of the kind was done. The court below confirmed the judgment—overruled the motion entirely at the costs of plaintiffs in error. There is nothing in the record to show any offer to deduct that or any other amount except the statement in the affidavit of Young, in which he admits that the judgment is too large, and says that “ he is perfectly willing that as to such an amount said judgment shall be corrected.”

But we hold that the attorney’s fee of §125, under the circumstances, was also improperly included in the judgment.

While judgments by confession are authorized both-by statute and the common law, and while the practice of taking notes with warrants of attorney attached is not in itself to be condemned, yet it is a practice that is liable to abuse, and often results in oppression to debtors; and we are not willing to increase the facility for taking such judgments by holding that in such a proceeding the same attorney may act for both plaintiff and defendant.

The fair construction of that part of the warrant of attorney which authorizes a confession for a reasonable attorney’s fee, is that it was intended to indemnify the defendant in error in the expense of employing an attorney to take the confession, the reasonableness of that fee to be fixed by a disinterested third party. • Certainly it was not intended that the reasonableness of the amount should be fixed by "the payee of the note or his attorney. A party signing such a power of attorney no doubt waives most of his rights and places himself largely in the power of his creditor, but he does not thereby authorize such creditor-to select an attorney to represent him who is already employed in the interest of the creditor himself, and allow such attorney to fix the amount of the compensation he shall- receive to be paid by the debtor.

While it is no doubt true, as stated by the counsel for defendant in error, that in confession proceedings the papers are usually all prepared by .the attorney for the plaintiffs, and while it may be true that brother attorneys sign cognovits for each other without a previous critical examination of them, yet we are not prepared to believe that a reputable member of the profession when called upon to confess a judgment for an attorney’s fee, the reasonableness of which was to be determined by him, would not exercise care in reference thereto and not leave it wholly to the attorney for the plaintiffs.

It may be said that the fee in this case is not in fact unreasonable and that therefore there is no equitable ground for setting aside the judgment because it was allowed. We hold that the attorney who confessed this judgment had no power under the warrant of attorney to confess judgment for any attorney’s fee, for the reason that he was the attorney for plaintiff also, and therefore the question of its reasonableness does not arise. The judgment of the court below, overruling the motion of plaintiffs in error and confirming the judgment by confession, is reversed as to so much thereof as is made up of the said attorney’s fee of $125, and the $1.33 excess of principal and interest due on said notes, which amounts should be deducted from said judgment; and in all other respects the judgment of the circuit court is affirmed, and the cause is remanded for further proceedings in conformity with this opinion.

Judgment reversed in part.


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       M. C. Campbell et al. v. Leroy A. Goddard.
    1 Judgment by confession—Equitable jurisdiction.—Courts of law exercise an equitable jurisdiction over judgments entered by confession upon bonds and warrants of attorney.
    2. Same.—Where an application is made for the exercise of this equitable power, and the case is involved in doubt or the testimony is so contradictory that the truth can not be ascertained with reasonable certainty, an issue should be directed to try the question. Finding no equitable grounds for interfering with the judgment as confessed in this cause, the judgment is affirmed.
    Appeal from the Circuit Court of Williamson county; the Hon. David J. Baker, Judge, presiding.
    Opinion filed November 27, 1885.

      Messrs. Clemens & Waed.ee, for appellants.
    Messrs. Torno, Babb &.Lemma, for appellee.

       The case of M. C. Campbell v. Leroy A. Goddard is in all respects like this and is affirmed for the same reason.

   Wilkin, J.

On tlie 4th of April, 1885, appellee took judgment against appellants before the clerk of the Circuit Court of Williamson county, in vacation, for $1,390.80, on a promissory note, dated December 13, 1884, due ninety days after date, for $1,359.14, with eight per cent, from maturity, signed by appellants and payable to appellee. In the body of the note there is a power of attorney authorizing any attorney, etc., to confess judgment before any court of record in term time or vacation for the amount of the note “ and a reasonable attorney's fee” releasing all errors, etc. At the May term, 1885, appellants entered their motion to modify the said judgment, which, on a hearing, was overruled, and appellants appeal to this court. The only objection made to the judgment as confessed is that it includes an attorney’s fee of $25. “ Courts of law exercise an equitable jurisdiction over judgments entered by confession upon bonds and warrants of attorney.” Where an application is made for the exercise of this equitable power, and it clearly appears that the plaintiff was not entitled to judgment on the bond or warrant of attorney, the court should vacate the judgment and leave him to pursue the ordinary remedy by action ; but if the case is involved in doubt, or the testimony is so contradictory that the truth can not be ascertained with reasonable certainty, an issue should be directed to try the question. Lake v. Cook, 15 Ill. 355; Hall v. J ones, 32 Ill. 38; Conden v. Besse, 86 Ill. 159.

In Knox et al. v. Winsted Savings Bank. 57 Ill. on page 333, the Supreme Court say, the question properly before the court below was, not whether the judgment should be vacated for error of law, but whether in the exercise of its equitable jurisdiction there was any equitable reason for opening the judgment.” Rising v. Brainard, 36 Ill. 80, is to the same effect.

Do appellants show any equitable ground for setting aside or modifying this judgment ?

The execution of the note containing the power of attorney to confess judgment for the amount with a reasonable attorney’s fee is not denied. That the amount of the judgment confessed does not exceed the sum of the principal and interest due on the note at that time, together with a reasonable attorney’s fee, is conceded. Even if the declaration was de-' fective or failed to properly aver that the attorney’s fee was claimed by plaintiff, and although it might be held that the provision in the power of attorney for “ a reasonable attorney’s fee,” is not sufficiently explicit to warrant any sum to be confessed as attorneys’ fees, when the strict rules of law are applied, yet unless it should also be held that upon equitable grounds it can not be allowed, the motion was properly overruled.

Certainly the appellants can not be allowed to say that it is inequitable to hold them to the plain provision of their contract. If there was any evidence proving that the contract was not fairly entered into, or that the attorney’s .fee was not reasonable, a different case would be presented..

An attempt is made in the argument of this case, on behalf of appellants, to make a distinction between judgments confessed in term time and during, vacation; but as to the power of the court to vacate or open them-up they stand upon precisely the same footing.

Having already seen that the motion should not be allowed for mere errors of law, it is unnecessary to determine what, if any, errors were committed, or how far any such errors are released by the warrant of attorney.

Finding no equitable grounds for interfering with the judgment as confessed we are of the opinion that the decision of the circuit judge was correct, and it is affirmed.

Affirmed.


text:
    M. C. Campbell et al. v. Leroy A. Goddard.
    Confession of judgment—Attorney’s fee.—In determining the reasonableness of an attorney’s fee in a confession of judgment, regard must be had to the amount involved as well as to the labor and skill required to perform the services charged for. In the absence of all proof, the court is not prepared to hold that the fee in this case is so unreasonable as to justifj a reversal.
    Appeal from the Circuit Court of Williamson county; the Hon. David J. Baker, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Clemens & Warder, for appellants.
    Messrs. Young, Barr & Lemma, for appellee.
   Wilkin, J.

This case is substantially the same as M. 0. Campbell et al. v. Leroy A. Goddard, decided at this term of this court. The fee allowed in the judgment confessed is much larger than in that case, being $125.

The confession in this case was on two notes, and the whole amount of the judgment $4,651.10. In determining the reasonableness of an attorney’s fee, regard must be had to the amount involved as well as to the labor and skill required to perform the services charged for, and in the absence of all proof, we are not prepared to hold that this fee is so unreasonable as to justify a reversal of the case. In fact, in this, as in the case above referred to, appellants do not ask a reversal upon the ground that the fee allowed is unreasonable, but because, as they insist, no fee whatever should ha\ e been allowed. Therefore, the reasons assigned for the affirmance of that case are applicable to this.

Affirmed.


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    John J. Roberson et al., etc., v. Laura Troutt.
    1. School—Rules of directors.—Whether rules adopted by school directors are reasonable or not is a question of law for the court, and is to be determined in view of the facts of each particular case.
    2. Instructions.—As the instructions as to the teacher’s negligence, cruelty and failure to observe the rules made by the directors were manifestly erroneous, the case is reversed.
    Appeal from the Circuit Court of Franklin county; the Hon. D. M. Browning, Judge, presiding.
    Opinion filed November 27, 1885.
    Mr. George C. Boss and Mr. Charles H. Layman, for appellants.
    Mr. F. M. Youngblood, for appellee.
   Wilkin, J.

On the 19th of May, 1884, appellants employed appellee to teach a five months’ school, commencing September 1 st of that year, for which they wei-e to j>ay her §30 per month. She taught until December 15th and was then discharged by appellants for negligence, cruelty and refusing to enforce the rules adopted by appellants. She was paid for the time actually taught, but claiming that her discharge was wrongful she sued for her wages for the unexpired term for which she had been employed. She had judgment before the justice of the pea ce, and also in the circuit court, and appellants bring the case to this court by appeal. The merits of the case involve but a single question, namely: Was the discharge of appellee justifiable?

Appellants] offered evidence in the court below to prove that appellee was negligent, cruel, and that she refused to enforce and observe the rules and regulations adopted by them for the government of the school.

Appellee controverted all of these charges, and also insiste 4 that the rules were unreasonable and that she was not themfore bound to observe them. These rules, so far as they ai¿¡ in question in this case, are as follows:

“ The teacher must be prompt in attendance and hear all cf the lessons in the branches named in his or her certificate.

The teacher must hear at least four lessons from each student daily when there are not more than forty pupils in attendance.

“ The teacher must teach full six hours daily, not counting the time of recesses and intermissions. Teachers must not institute any cruel or inhuman treatment of pupils, but promptly report all incorrigibly bad conduct to at least one member of the board of directors.”

Appellants asked among others the following instructions numbered seven, eight and nine, which were refused.

7. The court instructs you that a rule by aboard of school directors, requiring a teacher to teach six hours a day actual teaching is a reasonable rule; and in this case if you believe from the evidence that the directors made a rule requiring the plaintiff to teach six hours a day in actual teaching, and that she failed or refused toAo so, then you should find for the defendants.

8. That a rule of school made by a board of school directors, requiring a teacher to hear four recitations per day from each pupil is a reasonable rule; and if you find from the evi-. dence that the directors in this case made a rule requiring the plaintiff to hear four recitations per day from each student, and that the plaintiff failed or refused to obey and carry out such rule, then your verdict should be for the defendants.

9. That the law makes it a duty of boards of directors to adopt and enforce rules and regulations for the government of their schools; and that it is the duty of the teacher to act in conformity to such rules and regulations; and in this case, if you believe from the evidence that Laura Troutt, the plaintiff, refused to abide by such rules and regulations (if you believe from the evidence such rules were made), or that she ignored such rules and regulations, then and in such a case you should find for the defendants.

The objection urged by counsel for appellee against these instructions is, that they ask the court to declare, as a matter of law, what is a reasonable.rule of school.”

This, it is said, is a question for the jury to determine. The Supreme Court ni Thompson et al. v. Beaver et al., 63 Illinois R. 357, say, “ The directors undoubtedly have the power to make and cause to be enforced all reasonable rules and regulations for the government of schools in their respective districts. What are reasonable rules is a question of law P

In the case of the Illinois Cen. R. R. Co., etc., v. Whittemore, 43 Ill. R. 420, it was held to be error to leave it to a jury to say whether a rule adopted by a railroad company for the government of its business was reasonable or not. It is there said that the necessity of holding this to be a question of law, and therefore within the province of the court to settle, is apparent from the consideration that it is only by so holding that fixed and permanent regulations can be established.”

See also C. B. & Q. R. R. Co. v. Mc Lallen, Adm’r, 84 Ill. R. 116.

We see no difference in principle in the two classes of cases-We do not hold that the rules adopted in this case as to the hours to be taught, and the number of recitations to be hear d each day, would be under all circumstances reasonable; nor that a bare failure to literally comply with them would subject a teacher to removal.

While the reasonableness of such rules is a question of law for the court, that question is to be determined in view of the facts of the particular case. In other words, the court in determining whether or not a rule of school is reasonable must take into co nsideration the school for which it wTas adopted. It was certainly the province of the court to determine whether or not these rules as applied to the school being taught by appellee were reasonable or unreasonable, and while the evidence may furnish some ground for argument as to the reasonableness of the regulations fixing school hours and the daily number of recitations, we are not prepared to hold that they are unreasonable. We think they are not. A part of these rules are certainly perfectly proper, not onh , - ' jqilieable to this school, but all others. That a (ear's , should be prompt in attendence and should not institute- any cruel or inhuman treatment of pupils, would seem to be duties so plainly incumbent upon all teachers that special rules imposing them could scarcely be thought necessary.

The ninth instruction aslced by appellants we think should have been given, as it announced a correct rule of law applicable to the case.

The following instructions were given at the instance of the appellee to which appellants excepted.

“ That it devolves on defendants to prove by a preponderance of the evidence that the plaintiff Was guilty of cruelty before they can ask a verdict at your hands.”

“ That the jury have nothing whatever to do with the popular clamor in the district, but the only question of importance for them is, was the plaintiff after employment guilty of negligence ? And unless the weight of the testimony shows such cruelty or negligence, you should find for the plaintiff.”

“ The term negligence used in the statute means, the want of ordinary care and attention to the performance of a duty, and if you believe from the evidence that plaintiff exercised ordinary care and attention to her duties, she can not be guilty of negligence. Ton are to determine from all the evidence whether defendants have shown by a preponderance that plaintiff was guilty of cruelty or negligence, and unless the preponderance of the evidence so shows, you should find for the plaintiff.”

“ That the clause in the contract that if plaintiff should be discharged by defendants' for the statutory causes or either or them, that she should not make any claim for the balance of the term, does not deprive her of the right of recovery simply because the directors preferred the charge of cruelty and negligence against her, on the order discharging her, but notwithstanding that clause in the contract, the defendants, before they can avoid the payment of the contract price, must show by a preponderance of the evidence that she was actually guilty of cruelty and negligence or any one of them, and if they have failed to do this, your verdict should he for the plaintiff.” These instructions are each erroneous and must have misled the jury if they were followed.

The first imposes the burthen of proof upon appellants to show cruelty before they can ask a verdict at the hands of the jury.

Although the jury may have believed from the evidence that appellee .was negligent, or that she positively and willfully refused to observe the rules adopted for her government, still, if they followed the directions of this instruction they could not find for appellants, unless they also believed that she was guilty of cruelty. The other three instructions above make it incumbent upon appellants to prove either cruelty or negligence before they are entitled to a verdict ignoring the third charge, “failure to enforce the rules.”

Three reasons were given for the discharge of appellee: negligence, cruelty and not enforcing the rules. On the -trial evidence was introduced, fro and con to prove and disprove each of these distinct charges.

Appellants introduced evidence to prove that she was negligent in various ways; that she cruelly whipped one of the. pupils, and that she refused to observe the rules, assigning as a reason that they were unreasonable. She denied each of the charges • and introduced evidence to disprove them. It was unquestionably the province of the jury to determine whether or not the charges were true, but why one or oven two of them should have been singled out and the defense made to -depend solely upon them, we are unable to see. In the oral argument it was insisted by counsel for appellee that the charges of negligence and not enforcing the rules amounted to but one charge—that of negligence. It is true that a failure to enforce rules might result from negligence-, but that is not the only failure here insisted upon. It is a failure resulting in part at least from a positive refusal.

Ño attempt whatever is made to justify the giving of the first instruction, and we are clearly of the opinion that it, as well as the other three referred to, are so manifestly erroneous, in view of the evidence in the case, that no logical argument can be adduced in their support.

The suppression of the deposition of the witness Lucy Dorr was, we think, under the circumstances, a matter within the discretion of the judge trying the case. It is conceded that if the award of execution by the court below is to be construed as ordering an ordinary fi. fa. it is error. But it is insisted that the language in the judgment, execution is awarded,” must be construed as an order for the peculiar writ mentioned in section 50, Starr & Curtis’ Statutes, page 2229. We do not agree with this view. The order for the writ provided for in this section is no part of the judgment.

It may be made at any time after the rendition of the judgment, and can only be issued by the special direction of the court. The clerk could not reasonably construe the language here used as authorizing him to issue a writ commanding the appellants to pay the judgment in the manner directed in the section referred to.

This error, if the only one, might be remedied by remanding the ease with directions, but we think there is manifest error in the refusal of appellants’ ninth instruction, and in giving each of the above instructions on behalf of appellee.

¡Reversed and remanded.