text:
    Helma Swanson, Administratrix of the Estate of Louis Swanson, Deceased, Appellee, v. Peter Schoenhofen Brewing Company, Appellant.
    Gen. No. 25,061.
    1. Negligence, § 80*—when person falling through trapdoor guilty of negligence per se. A bartender who for over 2 years had worked in his brother-in-law’s saloon to which the defendant brewing company supplied beer, and was familiar with the entire environment, was guilty of negligence per se in walking into a dark room containing a trapdoor leading into a cellar where beer was deposited by the company, without switching on the electric light; and plaintiff was not entitled to recover for his intestate’s death through falling through the trapdoor alleged to have been left open through defendant’s negligence.
    2. Evidence, § 79*—when conversation after accident not part of res gestee. The testimony of a witness to the effect that an employee of the defendant brewing company had stated that a certain other employee who testified that he had shut the trapdoor through which plaintiff’s intestate fell, in fact, did not do so, was not part of the res gestee, as the conversation took place after the death of plaintiff’s intestate.
    3. Negligence, § 81

      —when entering dark room, containing trapdoor is negligence per se. Entering a dark room where a trapdoor leading into a cellar is liable to be open, without using the means at hand to ascertain whether the trapdoor is open or shut, is negligence per se.

    Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed with finding of facts.
    Opinion filed October 27, 1919.
    Rehearing denied November 10, 1919.
    Wilkebson, Cassels & Potter and Burz, von Ammon & Johnston, for appellant; Ralph F. Potter, Kenneth B. Hawkins and Frederick von Ammon, of counsel.
    Robert J. Nokdhold and Rose & Symmes, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff’s intestate was a bartender employed at his brother-in-law’s saloon on the northeast corner of Clifton and Belmont avenues, Chicago, where he had worked for 2 years and 7 months previous to his death. Defendant supplied the beer to .this saloon. The barrels of beer were uniformly kept in a cellar reached by a trapdoor in a dark room adjoining the bar. This room was artificially lighted by electric lights, switches for the purpose of turning the lights on and off being accessible to any one entering the room. The intestate suffered injuries which resulted in his death by falling through the trapdoor on coming into the darkened room, into which he walked without turning on the lights, which trapdoor leading into the basement where the beer was kept was open. By reason of the darkness he did not see the open trapdoor, but evidently assumed that it was closed. In the room in which was the trapdoor leading to the cellar odd things were kept, and the bartender and those who officiated behind the bar in the saloon were in the habit of hanging there such clothing as they did not wear when working in the barroom.

It appears that some little time before, on the day of the accident, defendant had, through two of its employees, carried into the cellar through an outer area way, into the cellar, some barrels of beer. The negligence charged is in effect that a servant of defendant who installed the beer in the cellar negligently left the trapdoor open. A trial before court and jury resulted in a verdict and judgment of $7,500, and defendant appeals.

It cannot be successfully controverted but that plaintiff’s intestate, after service of 2 years and 7 months as a bartender in the saloon where the accident occurred, was familiar with the entire environment; that he must have known, as the law will presume he did, that if the trapdoor was open and he entered the room without using the means of lighting it with the appliances readily at hand so that he could see the danger that confronted him, he was likely to step into the aperture not covered by the trapdoor and be injured. It would therefore seem to reasonable minds that he did not exercise ordinary care for his own safety when he proceeded into the dark room without turning on the electric light, and in assuming, as he must have done, that the trapdoor was closed, not open, and that he could safely walk upon it.

The two employees of defendant who delivered the beer on the premises in question on the day of the accident both testified that they did not leave the trapdoor open, and one of them testified that he closed the trapdoor and was the last man up from the cellar. There is evidence of a statement by a witness as to what one of defendant’s employees said regarding the trapdoor after the accident, which was to the effect that the employee who testified that he shut the trapdoor in fact did not do so. This evidence was given against the objection of defendant. It is insisted that this was part of the res gestee, but as the conversation took place after the death of plaintiff’s intestate, we cannot hold that it was part of the res gestee, and that therefore it was error to admit such statement against defendant’s objection. However, if the statement was admissible, it lends no probative force to plaintiff’s case, as the employee who is alleged to have made the statement denied making it. That either of defendant’s employees left the trapdoor open is a matter of conjecture or surmise arising from the fact, testified to by deceased’s employer, that after defendant’s employees left no one went into the room where the trapdoor was until deceased came along and fell into the cellar.

Defendant moved for an instructed verdict in the usual way at the close of plaintiff’s case and again at the close of all the proofs. In the condition in which the evidence was at the time such motions were made, they should have been allowed. In the first place, plaintiff did not prove by a preponderance of the evidence that defendant’s employees or either of them left the trapdoor open; and, secondly—and more important still—the whole evidence considered, the accident to deceased resulted from his entire lack of ordinary care, for his own safety. It was negligence on his part to attempt to walk in the dark over the place where the trapdoor was without first using the means at his command to lighten the room and ascertain the fact as to whether the trapdoor was open or closed. In this condition of the record, plaintiff was not entitled to recover. This case is similar upon fact and principle to Glombicki v. Chicago Packing Co., 212 Ill. App. 649.

Entering a dark room where a trapdoor leading into a cellar is liable to be open, without using the means at hand to ascertain whether the trapdoor is open or shut, is negligence per se. Heide v. Schubert, 166 Ill. App. 586. In Casey v. Adams, 137 Ill. App. 404, the court said:

“The burden of proving that deceased was not guilty of contributory negligence was upon plaintiff in error. * * * Upon these facts, about which there is no controversy, it is impossible to conclude that deceased was exercising due care. On the contrary, the natural and common-sense conclusion is that he was negligent and that his negligence contributed to the injury.” Darrow v. The Fair, 118 Ill. App. 665.

There are many other cases in the reports- where employees have gone into dark places where danger lurked without using the means at hand to ascertain dangers confronting them, in which the uniform holding has been that such conduct was so negligent that there could be no recovery. The following observations in Glombicki v. Chicago Packing Co., supra, are pertinent to the instant case:

“It cannot be disputed that if plaintiff had made the most casual examination before stepping into the elevator shaft, he would not have done so. The striking of a match, or even extending his hand or foot upon the floor beyond the door of the elevator would have at once disclosed to him the danger which confronted him. Moreover, what plaintiff did he did of his own volition. He does not claim to have been directed by any one of defendant’s employees, or, for that matter, by anybody else, to the place where he was injured. He proceeded in his own way through the darkness without any attempt on his part to inform himself as to where he was going, and recklesssly opened the elevator door on the assumption that he was going into the cooling room. This conduct was inexcusable negligence. * * *

“The accident to plaintiff with the resulting in- ■ juries to him are chargeable not to the negligence of defendant, but to that of the plaintiff. It follows that he is not entitled to recover in this action, and therefore, the judgment of the Circuit Court is reversed with a finding of fact.”

There are other errors in the record, but as plaintiff is not entitled to recover upon the proof concerning his exercise of due care for his own safety, no good purpose can be subserved by discussing them.

For the errors indicated the judgment of the Superior Court is reversed with a finding of facts.

Reversed with finding of facts.

Finding of Facts. The court finds as ultimate facts that defendant was not guilty of any negligence charged against it in plaintiff’s declaration, and further that plaintiff’s intestate suffered the accident set out in the declaration as a result of his own negligent conduct.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    St. Paul Cattle Loan Company, Appellee, v. Joseph S. Hansman et al., trading as Hansman, Thompson & Ball, Appellants.
    Gen. No. 25,070.
    1. Chattel mortgages—when commission men have right to sell mortgaged cattle. Live stock commission men who sold the steers in question at Chicago for the owner in the ordinary course of business, without either actual or constructive notice that they were subject to a chattel mortgage recorded in Wisconsin, or to any other lien, were vested with the right to sell the steers as they did, and pass good title thereto to the purchaser.
    2. Evidence, § 33

      —when common law presumed to he same in foreign States as in this State. Under the condition of the record in trover by the holder of a. chattel mortgage on steers, executed in Minnesota and recorded in Wisconsin, against live stock commission men who sold the stock for the owner at Chicago in the open market in due course of business, without notice of the mortgage, the court assumed that the common law was the same in Minnesota and Wisconsin as it is in this State, viz., that the possession of personal property is prima facie evidence of ownership and that title passed by delivery.

      3. Chattel mortgages, § 193

      —what must be proved in trover by mortgagee against commission men who sold mortgaged cattle. In trover by the holder of a chattel mortgage upon steers, executed in Minnesota and recorded in Wisconsin, against live stock commission men who sold the steers for the owner in open market at Chicago, without either actual or constructive notice of plaintiffs claim, plaintiff was not entitled to recover in the absence of proof that he was entitled to any lien, right or claim by the laws of Minnesota because of the execution and delivery of the mortgage in that State, and in the absence of proof that the steers were ever in Wisconsin after the date of the mortgage, and in the absence of evidence as to the laws of Wisconsin creating any lien by a mortgage of the kind in question.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed with judgment of nil capiat and for costs against plaintiff.
    Opinion filed October 27, 1919.
    Boyle, Mott & Miller, for appellants.
    Gardner & Carton, for appellee; John M. Zane and Edward A. Hayes, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an action in trover for the conversion of 52 head of yearling steers, which it is claimed were converted by defendants, plaintiff claiming title in virtue of a certain chattel mortgage purporting to convey the steers to plaintiff by one William Giebel, the then owner. On a trial before the court there was a finding and judgment against defendants in the sum of $903.05, and defendants appeal.

The cause was tried upon a stipulation of fact. The crux of the dispute rests for solution upon the fact as to whether there was any unlawful conversion of the cattle by the defendants.

The chattel mortgage' was executed by William A. Giebel in Dakota County in the State of Minnesota to

the plaintiff at South St. Paul in that State. The note which the chattel mortgage was made to secure was executed at South St. Paul, Minnesota, for the sum of $1,077.95, with interest at 8 per cent per annum from date until paid.

The facts controlling our decision rest in the stipulation of the parties upon which the cause was tried: That the plaintiff is a corporation under the laws of West Virginia and that its business is loaning money to purchasers of cattle upon notes of the purchasers secured by chattel mortgage upon the cattle purchased ; that defendants were partners in the live stock commission business at the Union Stock Yards, Chicago, under the name of Hansman, Thompson & Ball; that about June 26,1916, the mortgagor, William A. deb el, of Flambeau, Wisconsin, applied to plaintiff at South St. Paul, Minnesota, for a loan of $1,077.95, and offered as security a chattel mortgage on 52 head of yearling steers, and on the next day executed his note for the said sum, together with a chattel mortgage securing the same conveying the steers; both note and mortgage are made exhibits in the stipulation; that the chattel mortgage was filed for record on July 22,1916, with the township clerk of Washington township, Busk county, Wisconsin, in which Flambeau, is situated; that on or about October 7, 1916, debel shipped the cattle described in the mortgage to the Union Stock Yards, Chicago, where he placed them in the hands of defendants for sale 2 days thereafter; that before and at the time of the sale of the cattle and the delivery of the proceeds to Giebel none of the defendants or their agents had any actual notice or knowledge of the existence of the chattel mortgage upon the cattle or of the existence of any other lien upon them; that on October 9, 1916, the defendants, in good faith, sold the cattle in controversy in open market at the Stock Yards to Swift & Company; that defendants received a commission of $25 for making the sale; that on the day following the sale defendants delivered to Griebel a cashier’s check on the Live Stock Exchange National Bank for $1,334.87, and in doing so defendants acted in good faith without any knowledge of any claim of plaintiff against the cattle. Griebel took the check, went away, but did not leave Chicago until October 11. On October 11 he mot one of the defendants and in the course of a general conversation told him that the cattle were mortgaged to the plaintiff in St. Paul, but that he intended to pay the mortgage. Defendants then demanded that Griebel return the check, which he refused to do on the ground that he intended to pay the mortgage at St. Paul, and then left Chicago. Defendants thereupon went to the Live Stock Exchange National Bank and asked the bank if they could stop payment on the check and the bank agreed to stop payment. Defendants wired plaintiff as follows: “Holding proceeds William Griebel cattle sold Monday, understand you have mortgage. What disposition shall we make ? ’ ’ which was the first knowledge or notice plaintiff had of the removal or sale of the property by Griebel, to which plaintiff replied: 11 Send proceeds of Griebel cattle to us. We have mortgage.” Defendants on receiving this telegram wrote plaintiff, “We have your wire and note you hold mortgage against Wm. Griebel’s cattle which we sold Monday. After giving Mr. Griebel a Chicago Exchange for the net proceeds, $1,334.87, we found the cattle were mortgaged and immediately stopped payment on the check. As soon as a reasonable time elapses, the bank will issue a new check and we will send same to you.” About October 15, 1916, a member of defendants’ firm went to Holcomb, Wisconsin, in an endeavor to locate Griebel, whom he ascertained "was at the home of a sister in St. Paul. He thereupon called the plaintiff-over the ’phone and told him of the whereabouts of Giobel, saying that if they would go right over to Giebel they could probably get their money. The party telephoning'plaintiff thereupon left for St. Paul, where he arrived the following morning, called at plaintiff’s office and talked with the officer of the company with whom he had communicated over the telephone, asking him whether he had taken any action against Giebel; he replied that he had not and that he had no interest in Giebel, as they were looking to defendants for their money; that later Giebel cashed the cashier’s check through the Merchants’ National Bank of St. Paul, a bona fide purchaser for value, and the Live Stock National Bank honored the check on its being presented, as it was legally bound to do; that Giebel had not paid the mortgage.note either then or at any subsequent time. About October 28, 1916, J. J. Flanagan, president of plaintiff’s company, called at defendants’ office and demanded from one of the defendants the amount due on the face of the Giebel note, plus interest, which demand was refused, and this suit was brought.

Defendants were admittedly innocent of any claim of right, title or interest of plaintiff in the steers which they sold at the Stock Yards for Giebel as commission merchants in the ordinary course of their business, until after the sale was made, the purchase price paid and the transaction so far closed that they had no further control either of the steers or the purchase price. They not only did not have any actual knowledge of the claim of plaintiff but no constructive knowledge. Nothing occurred or was brought to defendants ’ attention regarding the situation which gave them any notice of plaintiff’s interest either in the steers or of its dealings with Giebel. Defendants did no act which in any way brought to them any information regarding the chattel mortgage or plaintiff’s claim thereunder. As innocent parties in the transaction they cannot be made to suffer for the negligent manner in which plaintiff transacted its dealings with Griebel.

When the chattel mortgage on the steers was executed they were in Minnesota, as was also Giebel. They were purchased at South St. Paul and the whole transaction took place there. While it is true the mortgage recited that the steers were thereafter to be kept in Busk county, Wisconsin, still there is no proof that the mortgaged steers were at any time in the State of Wisconsin, notwithstanding the fact that the mortgage was filed, as provided by the Wisconsin statutes, with the clerk of Washington township in Busk county. Plaintiff never made any demand on defendants for the steers; the demand made was for the amount unpaid upon the mortgage note.

It is clear from the facts recited in the stipulation on which the cause was tried that there was never at any time a tortious conversion of the steers. Plaintiff in virtue of its chattel mortgage from Giebel had no lien upon the steers, for while the mortgage was executed and delivered in Minnesota, there is no evidence that by the laws of that State plaintiff acquired any lien, right or claim in virtue thereof. Lacking proof that the steers were at any time after the date of the mortgage in Busk county, Wisconsin, or evidence as to the laws of Wisconsin regarding any lien created by a chattel mortgage of the character of the one from Giebel to plaintiff, we cannot say that the mortgage in evidence created any lien on the steers in favor of plaintiff. As defendants received the steers from Giebel in due course of their business without notice of any claim or lien thereon in favor of plaintiff, they were thereby vested with the right to sell them as they did and pass a good title thereto to the purchasers.

In the condition of the record we will assume, in the absence of any proof to the contrary, that the common law is the same both in Minnesota and Wisconsin as it is in this State, that the possession of personal property is prima facie evidence of ownership and that title passes by delivery.

Under the statutes of this State the Giebel mortgage was void as against defendants and all purchasers of the mortgaged steers for value. The courts of this State will not enforce a mortgage executed out of this State conveying personal property against a bona fide purchaser for value in this State who has neither actual nor constructive notice of its existence. Dawes v. Rosenbaum, 179 Ill. 112.

At no time did plaintiff have an immediate right to the possession of the steers mentioned in the mortgage, so there could be no wrongful conversion of them, either when they came to the possession of defendants from Giebel for sale by them as commission men at the Stock Yards, or at the time they sold and delivered them to the purchaser. Right of possession is a sine qui non to the right to maintain an action for conversion. Dawes v. Rosenbaum, supra; Union Stockyard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554.

We are referred to an opinion of the United States Circuit Court of Appeals for the Seventh Circuit rendered in Hoyt v. Zibell, 259 Fed. 186, which involved the title to an auto truck under a chattel mortgage. The opening sentence of the opinion shows its inapplicability to the facts of the instant case. In the Hoyt case the chattel mortgage on the auto truck was executed and recorded in Lake county, Indiana, where the mortgagor resided and the truck was located; therefore the question of the. extraterritorial effect of a chattel mortgage is not in ibis' case, because the chattel mortgage in the record, now being reviewed had, so far as the record shows, no force or effect either in Minnesota or Wisconsin.

Under the facts stipulated and on which the cause was tried in the Municipal Court, plaintiff had no right of action against defendants. As there is no proof of a wrongful conversion of the steers, the judgment of the Municipal Court is reversed and a judgment of nil capiat and for costs entered in this court.

Reversed with judgment of nil capiat and for costs against plaintiff. .


author: Mr. Presiding Justice Htgbee

text:
    J. W. Crawford, Plaintiff in Error, v. Board of Education District No. 88, Defendant in Error.
    1. Schools and school districts, § 148*—when contract of employment as superintendent invalid. Under Rev. St. eh. 122, sec. Ill (J. & A. T 10132), providing that no official business shall be transacted by school directors except at a regular or special meeting, a contract of employment as superintendent of schools was invalid, where It was admitted that it was signed by four members of the board at their several places of abode or business some time after the meeting at which it was claimed plaintiff was elected.
    2. Evidence, § 111

      —what is only competent evidence of what transpires at school hoard meeting. In an action against a board of education upon a school principal’s contract, plaintiff’s offer to prove by the testimony of one of the members of the board that he and three other members voted for plaintiff’s employment at a stated meeting and that plaintiff then and there accepted the employment, was properly refused, because the records of the hoard were the only competent evidence as to what transpired at meetings of the board.
    Error to the Circuit Court of Franklin county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    W. H. Hart and E. E. Smith, for plaintiff in error.

      J. P. Mooneyham, W. P. Seeber and Boy O. Martin, for defendant in error. ■

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

   Mr. Presiding Justice Htgbee

delivered the opinion of the court.

J. W. Crawford, a school teacher, plaintiff in error, hereinafter called plaintiff, brought an action in assumpsit against the Board of Education of School District No. 88, Franklin county, Illinois, defendant in error, hereinafter called defendant, in the Circuit Court of Franklin county, to recover 8 months’ salary as principal and superintendent of schools at $125 a month, for the term beginning September 4, 1917.

The declaration consists of three counts. The first is based upon an alleged written contract, the second is a combination of the common counts and the third is based upon an alleged employment at a regular meeting of the board of education, by four members thereof. The defendant pleaded the general issue and before the trial began it was stipulated by the parties that under the declaration and the general issue all evidence might be offered by either party to the same extent as could be offered under any and all special pleas well pleaded.

The alleged employment was at a regular meeting of the board of education on April 23, 1917. In July, 1917, five members of the board of education resigned and those vacancies were filled by a special election at which five new members weré elected. At a meeting of the board on August 13, 1917, a resolution was passed directing the secretary to write plaintiff and ask for his resignation, which was done, but plaintiff did not comply with the request, At a meeting on September 4, 1917, a resolution was passed by the board to the effect that the service of plaintiff in error was not needed. Plaintiff was not permitted to teach, seems not to have secured other employment and claims the amount he would have received had he taught the school for the full time. Defendant questioned the validity of the alleged contract of employment and also sought to justify its attempt to remove the plaintiff and its refusal to permit him to teach on the grounds that he had,'during school hours of the previous year, frequented saloons and drunk intoxicating liquors therein and had failed to turn over money raised to purchase a flag. The case was tried with a jury and the issues were found for the defendant. A motion for a new trial was denied and the cause afterward brought to this court on writ of error.

Together with other documentary evidence the plaintiff offered in evidence the alleged contract and same was admitted. It named the parties, recites the qualifications of the plaintiff and his undertakings, the time school is to begin, the length of the term, the salary, how payable, the undertakings of the defendant, and provides that plaintiff may be dismissed by the defendant or its successors for incompetency, cruelty, negligence, immorality or for violating any of the stipulations of the contract, or in case his certificate is revoked, and that the plaintiff cannot recover compensation after dismissal or revocation of his certificate. Section 127, ch. 122, Rev. St. (J. & A. If 10148) provides that a board of education shall have all the powers of school directors and be subject to the same limitations. Section 111, eh. 122, Rev. St. (J. & A. ff 10132) provides that the directors shall hold regular meetings and that special meetings may be called and that no official business shall be transacted by the directors except at a regular or special meeting. To hold the alleged contract valid in this case would do violence to the provision of the statute last quoted, as it is admitted that it was signed by the four members of the board of education at their several places of abode or business some time after the meeting of April 23, 1917, at which it is claimed plaintiff was elected. It was to correct the practice of a board of education attempting to transact business at other than a regular or special meeting that the statute cited was enacted. Lawrence v. Traner, 136 Ill. 474.

The power of a school board or committee to enter into contracts on behalf of the school district must be exercised by them as boards and not as individuals; and hence it is necessary, in order that such a contract may be binding, that it be authorized or executed at a board meeting regularly adjourned to, or regularly called, at which all the members of the board are present or have had notice to be present * * *. In accordance with these rules a contract is not binding on the district, if it is executed by members of the board acting separately and individually and not as a body convened for the transaction of business, although it is actually executed by a majority of the board * * * nor will the ratification of such a contract by the individual members make the contract valid and binding.” National Bank of Decatur v. Board of Education, 205 Ill. App. 57, quoting approvingly from 35 Cvc. 958. That principle is also recognized in People v. Rea, 185 Ill. 633. Section 112, ch. 122, Rev. St. (J. & A. ¶ 10133) requires that the clerk shall keep in a punctual, orderly and reliable manner a record of the official acts of the board, and that on all questions involving the expenditure of money, the yeas and nays shall be taken and entered on the records of the proceedings. Together with other documentary evidence the defendant offered in evidence the record of its meeting of April 23, 1917. It was the first meeting of the board of education and shows that five members were present. That portion of the minutes concerning the employment of plaintiff is as follows: “Motion by Johnson & sec. by Davis to employ J. W. Crawford as our next Principal of Schools at $125. per Mo. Votes 3 yes & 1 No. * * * Approved apr. 27-17. J. Lovelace.”

Plaintiff offered to prove by each of four members of the board of education that he, together with the other three members of the board, voted for the employment of plaintiff in error at the meeting of April 23, 1917, and that plaintiff then and there accepted the employment, which oral testimony the court refused to admit. While there is some authority tending to support the claim of plaintiff that this testimony should have been admitted, the better and generally conceded rule is that laid- down by our Supreme Court in People v. Board of Sup’rs of Madison County, 125 Ill. 334, as follows: “Where the law requires records to be kept, they are the only lawful evidence of the action to which they refer, and such record cannot be contradicted or supplemented by parol. The whole policy of the law would be defeated if they could rest partly in writing and partly in parol. * * * And where school districts are required by law to keep such an account of their proceedings by a sworn clerk, such proceedings can only be proved by the record. ’ ’

Defendant is a municipal corporation and can speak only through its records and properly executed documents. The four members of the board of education, who signed the alleged contract at their several homes or places of business, did not bind the defendant because they were not legally authorized so to do. National Bank of Decatur v. Board of Education, supra. The court properly excluded the oral testimony offered to explain the action of the board of education at its meeting of April 23, 1917. In the view which we take of this case, it is not necessary for us to determine whether or not defendant had reasons to exercise, or did properly exercise, the power given a board of education under paragraph 3, sec. 115, and paragraph 9, sec. 127, ch. 122, Rev. St. [J. & A. ¶ ¶ 10136(3), 10148(9)].

On this record plaintiff is not entitled in law to recover and the judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Higbee

text:
    Ruth M. Meyer, Appellee, v. John A. Meyer, Appellant.
    1. Attachment—in aid of trover not maintainable. Trover not being mentioned among those actions in aid of which attachment may be issued, enumerated in section 31 of the Attachment Act (J. & A. If 522), the action in question for an attachment in aid of trover was not maintainable.
    2. Damages, § 221*—when refusal of jury to defaulted defendant is reversible error. The provision of section 59 of the Practice Act (J. & A. H 8596), that either party to suits in courts of record may have the damages assessed by a jury, is imperative, and the refusal to grant the defendant's request for a jury in the case in question after a default judgment had been vacated, objections to defendant’s pleas sustained and remittitur entered, was reversible error.
    3. Tboveb and convebsion, § 7*—nature of trover. Trover is not technically a form of trespass on the case, and the actions are clearly distinguishable.

      i. Damages, § 221

      —when refusal of jury to defaulted defendant is reversible error. A defaulted defendant at any time before the assessment of damages is entitled, on asking it, to have his damages assessed by a jury, and the refusal to grant the request is reversible error.
    Appeal from the Circuit Court of Alexander county; the Hon. William N. Butleb, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed November 7, 1919.
    O. S. Miller, for appellant.
    William S. Dewet, Alexander Wilson and Walter B. Warder, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit was commenced by appellee, Ruth M. Meyer, filing a declaration in trover on September 28, 1917, against appellant, John A: Meyer, to recover the value of certain jewelry alleged to be the property of appellee and converted by appellant to his own use and benefit. Appellant and appellee are husband and wife, and a divorce case between them was pending at this time.

It appears that the action in trover was continued generally for four terms of court, and no steps taken, until July 31, 1918, when, while appellant was in the State of New York, an affidavit in attachment was filed and an attachment writ in aid of such suit 'in trover was issued. This writ was levied on certain building and loan association stock owned by appellant. On October 16, 1918, at the October term of the Circuit Court of Alexander county, judgment by default was entered in favor of appellee for the sum of $400, value of property converted, and $100 damages. The court also rendered judgment in rem for $500 against the property attached and awarded special execution against this property. At the same term of court, appellant filed his motion supported by affidavit to set aside this judgment. On December 19, 1918, the court set aside the default judgment entered October 16. On that day appellee filed a remittitur of $68 and appellant filed a plea of the g*eneral issue. Appellee made certain “objections” to this plea but just what disposition, if any, the court made of them, is not clear from the record, and counsel do not agree as to the effect of the court’s rulings thereon. On the same day the court entered judgment for appellee in the sum of $432 and awarded a special execution against the property attached. This last judgment among other things contained the following recitals: “Now on this 19th day of December, A. D. 1918, comes the plaintiff, by Alexander Wilson and Wm. S. Dewey, her attorneys, and the defendant, by Carl S. Miller, his attorney, and thereupon the court being fully advised, it is therefore ordered that the judgment of the court heretofore entered in this cause on the 16th day of October, A. D. 1918, be and they are hereby set aside and the court enters the remittitur of sixty-eight dollars heretofore requested and filed by the plaintiff. The defendant thereupon files general pleas on this date, to which the plaintiff then and there objected, which objections were sustained by the court, to which the defendant entered exceptions; thereupon the defendant demands a jury trial, which demand is overruled, to which defendant takes exception.” The judgment in favor of appellee for $432 and costs follows. The minutes on the judge’s docket under date of December 19, as shown by the record, contain the following: “12-19-18. Judgmt. of 10-16-18 set aside. Enters the remittitur. Pleas of gen. issue filed this date & Obj. Ex. Jury trial demanded, overruled ex.”

One of the grounds urged by counsel for a reversal of this judgment is that appellant’s plea of the general issue was on filé at the time the judgment was rendered, and that “A default judgment cannot be rendered where a plea remains on file undisposed of.” Counsel for appellee insists appellant’s plea had been stricken from the files by the court before judgment was entered. It is undoubtedly the law that where a plea is once filed it must be stricken from the files, or otherwise disposed of, before judgment can be entered by default. It is not altogether clear from the record just what action was taken by the court in regard to this plea, and since this judgment must be reversed for other reasons, it is not necessary for this court to determine what was the effect of the trial court’s rulings on the plea. It is further urged by counsel for appellant that attachment in aid will not lie in an action of trover. This contention seems sound. Section 31 of the Attachment Act (J. & A. ft 522) provides that: “The plaintiff, in any action of assumpsit, debt, covenant, trespass or trespass on the case, having commenced an action by summons or capias, may, at any time pending such suit, and before judgment therein, on filing in the office of the clerk where such action is pending, a sufficient bond and affidavit showing his right to an attachment under the first section of this act, sue out an attachment against the lands, goods, chattels, rights, moneys, credits and effects of the defendants, which said attachment shall be entitled in the suit pending and be in aid thereof; and such proceedings shall be thereupon had as required or permitted in original attachments as near as may be: Provided, this section shall not apply to actions in which the defendant has been arrested and has given special bail: And, provided, further, that in all actions of trespass and trespass on the case, before a writ of attachment shall be issued the plaintiff, his agent or attorney shall apply to a judge of a court of record or a master in chancery of the county in which the suit is pending and be examined, under oath, by such judge or master concerning the cause of action; and thereupon such judge or master shall indorse upon the affidavit the amount of damages for which the writ shall issue, and no greater amount shall be claimed.”

An attachment proceeding was unknown at the common law. It is purely statutory and in derogation of the common law. It is clearly established by the decisions of this State that the authority for the issuance of an attachment writ must be found in the statute and the statute must be strictly followed. Trover is not mentioned in the statute among those actions in aid of which attachment may be issued. It is however insisted by counsel for appellee that trover is technically a forin of trespass on the case, but to this we cannot agree. The actions of trover and trespass and trespass on the case are clearly distinguishable. Corpus Juris, vol. 1, par. 117, page 997, and par. 123, page 998. There being no statutory authority for an attachment in aid of an action of trover, it will not lie.

It is also insisted that the court erred in refusing appellant’s request for a “jury trial.” It does not appear from the record that any default was entered in the attachment, and the judgment does not recite that any evidence was heard. Even though appellant’s plea had been stricken from the files and default entered against him, yet after the former judgment was set aside and before remittitur was filed he had a right to a jury to assess damages, and it was reversible error to refuse his request for a jury. Section 59 of the Practice Act (J. & A. if 8596) provides that, “In all suits in the courts of record in this State upon default * * * either party may have the damages assessed by a jury.” In considering this section of the statute the Appellate Court for the Third District, in the case of Blizzard v. Epkens, 105 Ill. App. 117, said: “The words are imperative and not open to construction. A defaulted defendant, at any time before the damages are assessed by the court, is entitled, on asking it, to have his damages assessed by a jury and the refusal of the court to grant his request is reversible error.” To the same effect are the cases of Loellke v. Grant, 120 Ill. App. 74, and Ungar v. Feuer, 172 Ill. App. 204.

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

Reversed and remanded.


text:
    Louisa Schaefer et al., Appellants, v. M. W. Schaefer et al., Appellees.
    1. Wills, § 128*—-when question of undue influence cannot be raised. The question of undue influence cannot be raised upon the presentation of a will for probate.
    2. Wills, § 139*—what evidence admissible on hearing on presentation of will for probate. Evidence in regard to undue influence was improperly admitted at the hearing upon the presentation of the will in question to probate, and the proof should have been confined to the questions provided for by the statute in the case of an application for the admission of a will to probate.
    3. Wills, § 163

      —how question of undue influence can be raised. The question of undue influence in procuring the execution of a will can only be raised by bill in chancery as provided by the statute on wills (J. & A. If 11542 et seq.).

    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed November 7, 1919.
    Louis P. Zerwick, for appellants.
    August Barthel, guardian ad litem, for appellees Louis Poos and Emil Poos.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Jacob Schaefer died at Lebanon, Illinois, on July 15, 1918, leaving an instrument offered by appellants as his last will and testament in which M. W. Schaefer was named as executor. At the time of his death he was over 80 years of age. He left as his heirs five children, M. W. Schaefer, Lorena Schmidt, Frederick Schaefer, Jacob Schaefer and Adam Schaefer, and eight grandchildren, Walter Poos, Nora Poos, Louisa Poos, Minnie Poos, Katie Poos, Emil Poos, Jacob Poos and Louis Poos, the children of Margaret Poos, a deceased daughter.

Jacob Schaefer in his lifetime accumulated considerable property. At one time he made a will devising to each of his six children a farm, making the devises equal by means of bequests, but the management of his farm proving a burden, he subsequently conveyed a farm to each of his children, adjusting the difference in value by gifts in money. Some time after those conveyances were made, his daughter, Margaret Poos, died. At the time of his death and for some time prior thereto Jacob Schaefer was living with his son and daughter-in-law, Adam Schaefer and Louisa Schaefer. He was a cripple, being unable for some months prior to his death to leave his room, and they gave him proper care and attention. On February 15, 1918, Jacob Schaefer had prepared an instrument in the form of a will disposing of the remainder of his estate, which consisted of about $5,000 in personal property. In it he gave Louisa Schaefer, appellant, a child’s share. On April 23, 1918, the instrument in question was prepared in which he bequeaths to appellant, Louisa Schaefer, $1,000, to each of the Poos grandchildren, $5, and distributes the remainder equally among his five children. The last instrument was filed in the Probate Court of St. Clair county as was also a petition asking for the probate of the same. The court appointed August Bartlett guardian ad litem for Louis Poos, a minor, and Emil Poos, a soldier in the military service of the United States, defendants. On the hearing in that court the court entered the following order: “The court finds that Jacob Schaefer, deceased, the testator, was unduly influenced at the time of making said will; whereupon it is ordered by the court that the probate of said will l>e, and the same hereby is, denied, and that the petition to probate the said will be and the same hereby is, dismissed.”

An appeal was taken to the Circuit Court by Adam Schaefer and Louisa Schaefer where the court entered judgment “that the will be not admitted to probate and judgment against Louisa and Adam Schaefer for costs.” While the order in the Circuit Court does not set forth the grounds upon which the probate of the will was denied, yet it appears from the record that the question of undue influence alleged to have been exercised over the testator by Louisa and Adam Schaefer in procuring the execution of. the will was the only question considered, and it is stated in the brief filed in this court for the minor appellees that it appeared to the satisfaction of the Circuit Court from seeing the witness and hearing the testimony that said document was procured to be signed by said Jacob Schaefer by reason of undue influence and was not his last will and testament, and probate was therefore denied.

The only question presented here in the briefs is álso the question' of undue influence. It therefore is manifest that the whole proceeding has been treated as a contest of the will on account of undue influence exercised upon the testator in procuring it to be made. A will cannot be contested upon the ground of the use of undue influence in this manner. The statute on wills (J. & A. 11542 et seq.) provides for the contest of wills by bill in chancery, and in no other way can the question raised here be determined. In the case of Stuke v. Glaser, 223 Ill. 316, where it was sought to raise the question of testamentary capacity upon the presentation of a will for probate, it was said by our Supreme Court: “The ‘fraud’ permitted to be proven to invalidate the will in a proceeding to admit it to probate was not intended to embrace the testamentary capacity of the testator. It relates to such conduct as a trick or device by which a person may be induced to sign the paper under the impression it is something else, or to the alteration of the will after it is signed, or the substitution of another paper for part of the will after it has been signed, and matters of like character. While it would be a fraud to procure a signature to a will by a person who was known to be in an unconscious condition from disease and incapable of voluntary and intelligent action, it is not the character of fraud intended by the statute. If it were, then in any case where it was claimed the testator was of such unsound mind as to be incapable of executing a will, and was known to be so by the witnesses to it, it would authorize a full investigation in the County Court, upon an application to admit the will to probate, of testamentary capacity. Determining whether the witnesses knew the party signing the will was insane or of unsound mind would also require an investigation and determination of whether the party ivas, in fact, insane. To prove the witnesses knew the testator had not sufficient mind to make a will it must first be proven that he did not have testamentary capacity. Manifestly this is not within the meaning of the statute relating to the procedure in the admission of wills to probate. * * * It was never intended that the contestants should be permitted in the County Court to offer testimony, other than that of the witnesses to the will, upon the subject of testamentary capacity, and then, if defeated, relitigate the same question by a bill in chancery.”

The same rule must necessarily be held to apply to an attempt to contest a will for undue influence as in this case. It is manifest therefore that all the evidence introduced on the trial in regard to undue influence was improperly admitted, and that the court should have confined the proof to the questions provided for by the statute in the case of an application for the-admission of a will to probate.

The judgment of the Circuit Court will therefore be reversed and the cause remanded for further proceeding’s in accordance with the views herein expressed.

Reversed and remanded,


text:
    Mary J. Lewis, Appellee, v. Royal League, Appellant.
    1. Insurance, § 913*—when judgment on benefit certificate reversed for falsity of statements in application. A judgment upon a benefit certificate was reversed with a finding oí facts, where the answers, even if representations only and not warranties, made by the insured in his application and the medical examiner’s blank, as to the cause of the death of his brother and sister, and as to whether any of his near relations had ever been afflicted with consumption, were false and were material to the risk.
    2. Insurance, § 752

      -—when falsity of representations avoids policy in benefit association. Falsity of representations material to the risk, made by an applicant for insurance in a benefit association, will avoid the policy.
    Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed with finding of facts.
    Opinion filed November 7, 1919.
    Busby, Weber, Miller & Donovan, Arthur A. Anderson and T. A. O’Connor, for appellant.
    E. L. Maher, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, Mary J. Lewis, brought suit in the City Court of Granite City against appellant, Royal League, on a benefit certificate issued to George Lewis, son of appellee, payable to her as beneficiary. The case was tried before the court without a jury on the declaration and plea of general issue with a stipulation that any defense could be made under the general issue which would be admissible under appropriate special pleas.

The record shows that on December 20,1915, George Lewis made application in writing to appellant, a fraternal beneficiary society organized under the laws of Illinois, for membership and insurance. In his application and the medical examiner’s blank he expressly warranted the truthfulness of all statements and answers made by him to the medical examiner and agreed that any untrue answer should forfeit all rights of himself and his beneficiary in any benefit certificate which might be issued to him. He was asked to state in his medical examination whether any of his brothers or sisters were dead, and if so to give the cause of death, duration of sickness and year of death. He answered that one brother died of anaemic malaria in the year 1914 and one sister died of malaria in 1912. He was also asked whether any of his near relatives had ever been afflicted with consumption, and answered “No.” On December 30, 1915, the certificate sued on was issued to him. This certificate recites that it is issued upon the express understanding and agreement that the member’s statements and answers of every kind or description contained in his application for membership and in his medical examination are guaranteed and warranted by the member to be true and correct in every particular, and are to be considered as warranties; also that the medical examination and application shall constitute a part of the contract between the society and member. Evidence that his sister and brother died of consumption in 1912 and 1914, respectively, is uncontradicted. Appellee, in her written proofs of the death of George Lewis furnished appellant, expressly so stated. Some evidence was introduced by appellee in rebuttal tending to show George Lewis was away from home during the illness of his brother and sister; that he did not know the cause of their deaths and that he afterwards made some effort to learn the cause of their deaths but was unable to do so. His sister died after an illnes of 14 to 18 months and his brother after an illness of 8 months. He came home more or less frequently during the illness of each of them and attended the funerals of both. George Lewis himself commenced taking treatment in October, 1916, and died of consumption March 16, 1918. A judgment for $350 was rendered in favor of appellee.

Counsel for appellant contends: “1. That by the terms of his contract contained in his medical examination and benefit certificate, the statements and answers of George Lewis with reference to the causes of death of his brother and sister must be construed as warranties, and being untrue, appellee is not entitled to recover.

“2. Even if such statements and answers be held to be representations and not warranties, they are representations as to matters material to the risk, and being untrue, there can be no recovery.

“3. Whether construed as warranties or representations such statements and answers being as to matters material to the risk, and being untrue there can be no recovery whether George Lewis knew them to be untrue or not. He assumed to have knowledge and made positive statements and answers upon which appellant had a right to rely.”

Under the proofs in the case the untruth of these statements and answers is clearly established.

Counsel for appellee contends that since appellant has not shown that George Lewis knew the statements and answers concerning the death of his brother and sister were untrue at the time he made them, and that they were made with the intention to defraud appellant, the judgment should be affirmed. If these statements and answers are simply representations as contradistinguished from warranties, in the technical sense of those terms, then such statements and answers, not material to the risk, as were honestly made, in the belief they were true would not be binding upon the assured or present any obstacle to a recovery. In that case the contention of counsel for appellee would be sound. (Continental Life Ins. Co. v. Rogers, 119 Ill. 474.)

On the other hand, if such statements and answers are warranties their untruth would vitiate the contract whether made in good faith or not. A substantial breach of such a warranty, whether material to the risk or not, will defeat the policy. (Harvick v. Modern Woodmen of America, 158 Ill. App. 570.) Again it has been held “that a material misrepresentation, whether made intentionally and knowingly or through mistake and in good faith, will avoid the policy.” (Davis v. Catholic Order of Foresters, 165 Ill. App. 137; United States Fidelity & Guaranty Co. v. First Nat. Bank of Dundee, 233 Ill. 475.) “A want of truth in the representation is fatal, or not, to the insurance, as it happens to be material or immaterial to the risk undertaken.” (Supreme Council v. Beggs, 110 Ill. App. 139.) This court in the case of Bloomington Mut. Life Benefit Ass’n v. Cummins, 53 Ill. App. 530, said: “The disease with which parents, brothers and sisters of the applicant died are clearly material to the risk, as affecting the prospects of life of the applicant. If he assumes to know he must answer the truth. If he does not know he can so state. But when he does answer such direct inquiries in an unequivocable manner, the insurance company has a legal right to rely on them as being true.” To the same effect is the case of Kotek v. Court of Honor, 152 Ill. App. 92.

In our opinion, it is unnecessary to determine whether or not these statements and answers are warranties, for the reason that, under the authorities last cited, they must be held to be at least representations material to the risk, and as we have seen the falsity of representations material to the risk will avoid the policy. Therefore, since the falsity of these statements and answers is clearly established by the proofs, the certificate became void, appellee cannot recover and the judgment will be reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment. We find that the answers made by George Lewis in his application and the medical examiner’s blank as to the cause of death of his brother and sister, and as to whether any of his near relatives had ever been afflicted with consumption, were false and that they were material to the risk.


text:
    Dan Liogas, Appellant, v. Phillip Lowenguth, Appellee.
    1. Malicious prosecution, § 51*—when recovery cannot he had under declaration for false imprisonment. While counts for malicious prosecution and false imprisonment may be joined in the same declaration, yet a recovery for malicious prosecution cannot be had under a declaration for false imprisonment.
    2. Appeal and error, § 420*—when Appellate Court will treat declaration as one for false imprisonment. Where the form of the action in question was not clear from the declaration, but both parties treated the declaration as one in an action for false imprisonment, the Appellate Court, also for the purpose of review, was required to so treat it, and recovery for malicious prosecution was denied.
    3. False imprisonment, § 1

      —when recovery cannot he had. Where a declaration on its face showed a legal complaint and warrant, and an arrest and detention by a legal and proper officer, and the proofs sustained the same, there could be no recovery for false imprisonment unless the warrant was invalid or the arrest or detention illegal.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.

      W. J. Baxter and Harry Faulkner, for appellant.
    J. M. Bandy, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This case, as it appears from the record, arises out of the following facts: In November, 1917, appellee sold to appellant and two other parties his butcher business in Granite City, including his horses, wagons and some tools and equipment. Subsequently appellant bought out his partners. A slaughter house, which was located in the back yard of appellee, together with some tools and apparatus, were rented by appellee to appellant for a rental of $15 per month. In August, 1918, appellant by order of the authorities of Granite City, was forced to discontinue the use of this slaughter house. He then moved his equipment and tools to another place. It is claimed by appellee that appellant in moving also took certain tools belonging to him. On August 30, 1918, appellee made sworn complaint to a police magistrate of Granite City, charging appellant with the larceny of these tools. A warrant for the arrest of appellant was issued and delivered to an officer. Appellant learning of the warrant on August 31 went to the police station and was there arrested. He was detained at the station until he could obtain a bondsman and the matter was set for preliminary hearing on September 9. Before that time it appears both appellant and appellee saw and talked with the Assistant State’s Attorney, who on the day set for the hearing dismissed the case. A declaration was filed setting forth the facts substantially as stated above. The case was tried before the court and a jury of six which returned a verdict of not guilty.

The form .of action is not clear from the declaration, but both parties treat it as a declaration for false imprisonment and this court must also, for the purpose of this review, so consider it. The declaration on its face shows a legal complaint and warrant, and an arrest and detention by a legal and proper officer, and the proofs sustain the same. Under these conditions there can be no recovery for false imprisonment for there can be no false imprisonment unless the warrant is invalid or the arrest or detention illegal. (Watters v. De La Matter, 109 Ill. App. 334.) “False imprisonment is a trespass committed by an unlawful arrest and imprisonment. If the imprisonment is under legal process, but the action was begun and carried on maliciously and without probable cause, it is a malicious prosecution and not false imprisonment.” (Mexican Cent. Ry. Co. v. Gehr, 66 Ill. App. 173. See also Conkling v. Whitmore, 132 Ill. App. 574; Morrell v. Martin, 17 Ill. App. 336.)

"While counts for malicious prosecution and false imprisonment may be joined in the same declaration, yet a recovery for malicious prosecution cannot be had under a declaration for false imprisonment. For the reasons stated the judgment of the court below is affirmed.

Affirmed.


author: Mr. Justice Boggs

text:
    The People of the State of Illinois, Defendant in Error, v. Richard Brockway and John Johnson, Plaintiffs in Error.
    1. Conspiracy, § 35*—when surplusage does not render indictment , bad. Allegations in an indictment for conspiracy to assault negroes and injure their persons and property, etc., reciting that a large number of negroes owned real estate and personalty and were employed in numerous occupations in the city in question; that others residing elsewhere passed through said city from time to time and that prejudice existed in the minds of white persons and was openly expressed, etc., even if superfluous, did not render the indictment bad.
    2. Conspiracy, § 44*—when failure to name persons conspired against does not render indictment bad. An indictment for conspiracy to assault negroes and injure their persons and property, etc., was not bad because it did not show a conspiracy to harm a particular person or persons, naming them.
    3. Criminal law, § 194*—when permitting certain attorney to assist State’s Attorney not error. The action of the court in permitting a certain attorney to assist the State’s Attorney in the prosecution in question was not error on the alleged ground that such attorney had been employed to defend the accused and was receiving money from private parties, where it appeared that such attorney had been appointed Assistant Attorney General of the State, and where there was no sufficient showing in the record that he had ever been in any way employed to defend the accused, and where he denied in positive, terms such employment, and where the charge as to leceiving money from private persons had no support.
    4. Criminal law, § 495*—when number of attorneys to be allowed to appear for State is discretionary. The questions as to how'many attorneys should be permitted to appear for the State, and as to whether the representation in favor of the State is stronger than the representation in favor of the defendant, are largely discretionary.
    5. Jury, § 47

      —what constitutes abuse of discretion as to appointing special bailiff to summon persons to fill exhausted panel. Although under Hurd’s Rev. St. ch. 78, sec. 13 (J. & A. U 6843), providing that upon objection to the sheriff summoning persons to fill an exhausted panel the court should appoint a special bailiff to summon such persons, the matter of appointing such bailiff may be discretionary, such discretion was abused in a prosecution for conspiracy to assault negroes and injure their persons and property, which had attracted wide interest, and where accused set up among other matters that the deputy sheriffs were close personal and political friends of the sheriff and State’s Attorney and were under their control and influence, and that the sheriff and his assistants had aided in the investigation and in the prosecution and conviction of the indicted persons, etc.
    6. Conspiracy, § 49*—when error to exclude testimony of defendant. In a prosecution for conspiracy to assault negroes and injure their persons and property, where certain witnesses had testified to alleged statements of the accused which he in his examination denied having made, to the effect that he had tried to start something the morning of the riot condition in question, where defendant did not deny having had the conversation, it was error to refuse to permit him to state what he claimed he had in fact said, as the record disclosed an offer that what the accused did say was that he had tried to stop something already that morning.
    7. Witnesses, § 207*—when cross-examination improperly limited. In a prosecution for conspiracy to assault negroes and injure their persons and property, it was error to limit the cross-examination of a witness for the People who had testified to certain conversations between the accused and another, so as to preclude eliciting of all that was said between the parties.
    8. Criminal law, § 238*—when statement of prosecutor in argument not improper. In a prosecution for conspiracy to assault negroes and injure their persons and property, it was not error to overrule an objection to the statement by the prosecutor in his argument, that never in the history of Illinois had blood flowed so freely as it did on the riotous day in question.
    9. Conspiracy, § 49*—when admission of evidence of rioting not error. In a prosecution for conspiracy to assault negroes and injure their persons and property, it was not error to admit evidence of rioting and its attendant results, without first attempting to connect the accused therewith.
    10. Conspiracy, § 26

      —when actual participation in acts of violence not necessary to conviction. In conspiracy to assault negroes and injure their persons and property, the law did not require that the accused should have participated in the actual acts of violence committed by others, in order to be held guilty, as one who is instrumental in instigating acts of violence is just as guilty as though he actually participated in them.

      Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed November 7, 1919.
    T. M. Webb and Alexander Flannigan for plaintiffs in error.
    Edward J. Brundage, C. W. Middlekauee, James A. Farmer and Hubert E. Schaumleeeel, for defendant in error.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

On August 1,1917, plaintiff in error, Richard Brock-way, and certain other defendants were indicted by the grand jury of St. Clair county, Illinois, on a charge of conspiracy. The indictment consisted of ten counts, the first five of which charge in various ways a statutory conspiracy to assault and injure the persons and property of negroes living and having property and business in the City of East St. Louis, and to thereby compel the negro people to leave said city. The remaining five counts are common-law counts charging conspiracy to commit the same acts of violence, with the same object and purpose.

While a number of defendants were indicted and tried with Brockway, the charges against all the defendants, except Brockway and defendant John Johnson, were disposed of in various ways and are not involved in this proceeding. The case proceeded to trial and the jury returned a verdict of guilty as to defendants Brockway, Johnson and Tisch, and fixed Brock-way’s punishment at 5 years in the penitentiary and a fine of $1,000. Brockway and Johnson sued out this writ of error, since which time Johnson died, leaving plaintiff in error, Brockway, who for convenience we will hereafter refer to as plaintiff.

Numerous errors were assigned which we null take up in their order. It is first contended by plaintiff that the allegation in the indictment to the effect “that a large number of negroes and persons of color, men, women and children, resided in the City of East St. Louis and were the owners and in possession of real and personal property, and divers of them were employed in numerous occupations,” and the allegation, “that divers negroes and persons of color residing elsewhere than in the City of East St. Louis lawfully passed through said city from time to time upon the highway of said city, and that prejudice existed in the minds of divers white persons residing in said city against negroes and persons of color, and that such prejudice was openly expressed by divers white persons, and that the persons of said negroes and persons of color were rendered unsafe and subject to assault and attack by reason thereof,” are immaterial and superfluous and- could have no connection with any allegation of conspiracy attempted to be shown by the evidence, and that they laid the foundation for the introduction of immaterial evidence, and therefore rendered the indictment bad. An indictment is not rendered bad because it contains superfluous allegations. We are not, however, saying that these allegations were superfluous, but we merely say that, if superfluous, they do not render the indictment bad.

It is next contended by counsel for plaintiff that the indictment was bad because it did not show a conspiracy to harm a particular person or persons, naming them.

In the case of Spies v. People, 122 Ill. 1, the court at page 212 says: “ ‘A conspiracy may be described, in general terms, as a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose; or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.’ (3 Greenleaf on Evidence, sec. 89; Heaps v. Dunham, 95 Ill. 583.) It is not necessary, however, that the accused should have been an original contriver of the mischief, ‘for he may become a partaker in it by joining the others while it is being executed.’ (2 Bishop on Grim. Law, 190.) If he concurs, no proof of agreement, to concur is necessary. * * * As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is complete. This joint assent of minds, like all other parts of a criminal case, may be established as an inference of the jury from other facts proved; in other words, by circumstantial evidence. 2 Bishop on Grim. Law, 190, and note 7.”

In this case the gist of the allegation in the various counts of the indictment is that by and with a common design and purpose those who participated in the acts of violence purposed thereby to drive from the City of East St. Louis all negroes and persons of color, and their acts of violence were not limited to the negroes of East St. Loilis, but extended to all negroes and persons of color who chanced to be in said city at that time. Under the authority of Spies v. People, supra, the indictment sufficiently sets forth the charges against plaintiff and the motion to quash was therefore properly overruled.

It is next contended by plaintiff that the court erred in permitting James A. Farmer to assist the State in the trial of said cause for the alleged reason that Farmer had been employed to defend plaintiff in this trial, and further, because it is contended that Farmer was receiving pay for his services from private persons. Plaintiff made a motion supported by an affidavit asking for an order prohibiting Mr. Farmer from appearing as one of the prosecuting attorneys in the case. The People filed a counter-affidavit, made by Farmer, to which was attached an instrument purporting to be an appointment of Farmer as Assistant Attorney General of the State. The court denied said motion and an examination of these affidavits leads us to the conclusion that the court did not abuse its discretion in its rulings on said motion. There is no sufficient showing in the record that Farmer was in anyway ever employed to defend plaintiff in this case. On the contrary, Farmer denied in positive terms such employment, and we hold, therefore, in the state of the record the court did not err in its rulings. People v. Gerold, 265 Ill. 448.

There is no evidence in the record whatever to support the contention that Farmer was receiving or was to receive money from private parties for his services in the case.

It is further insisted that the trial court permitted too many attorneys to appear for the State, and that the representation in favor of the State was much stronger than the representation in favor of the defendants. While Mr. Webb was the only attorney who appears of record for plaintiff, at the same time other, defendants were being tried on the same charge and were represented by counsel, all of whom were acting" in said trial. Under the circumstances we do not think the court abused its discretion in this matter. Matters of this character rest largely in the discretion of the trial court to be decided according to the special facts and circumstances in each case. People v. Gerold, 265 Ill. 448; People v. Gray, 251 Ill. 431; Hayner v. People, 213 Ill. 142.

The next contention made by plaintiff is that the court erred in appointing Gus Meder, one of the deputy sheriffs, as special bailiff to summon jurors to serve on the trial of said cause, the regular panel 'being-exhausted.

The plaintiff in error filed his motion, supported by his affidavit objecting to the sheriff or any of his deputies (naming them), among whom was the said Meder, being appointed special bailiff- for summoning persons for jury service. Said affidavit stated among other things “that each of the deputy sheriffs are close personal and political friends of the 'Sheriff and State’s Attorney and are under their control and dominion and subject to their influence; that prior to the indictment the Attorney General caused his assistants and detectives and investigators to pursue a course of investigation as to persons engaged in the riot, and that said assistants, detectives and investigators have at all times received the assistance of the State’s Attorney and of his assistants, and that since the commencement of said investigation the Sheriff and his assistants have aided the Attorney General and State’s Attorney in such an investigation, and that as a result numerous persons have been arrested and prosecuted by the State’s Attorney and Attorney General ; and that during said prosecutions the Sheriff and his deputies have rendered to the prosecution every possible assistance to secure the conviction of persons indicted, and that because of the close personal friendship existing between the Attorney General, State’s Attorney and Sheriff, the deputies of the said Sheriff are prejudiced against the interest of this defendant, and because of said prejudice are interested in seeing him convicted. * # * That the deputies (Sheriff’s Deputies) frequented the council room and engaged in and advised with the attorneys representing the prosecution in the selection of jurors that would favor the prosecution, and that the deputies are widely known amongst the citizens of said county and that if permitted to serve and summon jurors for the trial of the cause they would select only such persons whom they thought to be satisfactory to the prosecution, and would advise in the rejection or retention of said jurors; that during the progress of the trial of said cause and while attorneys were consulting with defendants in council room, said Underwood came into said room without consent of said attorneys, and when his presence was protested, said Underwood stated that he had been instructed by the said Heder ('deputy) to step inside said council room and remain there; that one of the attorneys representing the defendants approached the said Heder and complained of the presence of said Underwood in said room at said time and was informed by said Heder that he, the said Heder, was acting under the orders of the said Sheriff; that because of the prejudice of the said Sheriff and his deputies and of their interest manifested in the prosecution of the said cause, the defendant states that the Sheriff and deputies are partial and prejudiced against him, and that they would not select jurors from among men who would be im-' partial. ’ ’ j

Section 13 of chapter 78, Hurd’s Revised Statutes (J. & A. U 6843) provides, among other things, that when “the regular panel shall be exhausted, the court may direct the sheriff to summon a sufficient number of persons having the qualifications of jurors to fill the panel for the pending trial; but, upon objection by either party to the cause to the sheriff summoning a sufficient number of persons to fill the panel, the court shall appoint a special bailiff to summon such persons.”

It is contended by plaintiff that the. above section of the statute warrants him in making objection to the deputies of the sheriff as well as to the sheriff, and that when such objection is made, the court has no right to appoint a deputy to summon persons for jury service. While counsel for the People contend that the provisions of the statute are limited to the sheriff himself and that it does not include his deputies. Counsel for the 'State argue that it is necessary that some one with experience should be appointed to do such work, and that there is nothing in the record to show that the plaintiff was prejudiced by reason of Heder being appointed.

Without reference to whether the above section of the statute is broad enough to include the deputies, as well as the sheriff, so that if objection be made it becomes mandatory on the court to appoint a special bailiff outside of the sheriff’s office, or not, still in this case, in view of the facts set forth in the affidavit and of the surrounding circumstances in connection with the ease,—the widespread interest taken in the same and the activity that must necessarily have been employed by the sheriff’s office in connection therewith, it seems to us and we so hold that even though it should be held a discretionary matter with the trial court, it abused its discretion. We have no doubt that in a county with the population of St. Glair, some person not connected with the sheriff’s office possessing the necessary qualifications to serve as special bailiff in this case can easily be found and who would be' unobjectionable to either side. We cannot say that the plaintiff has not been prejudiced, and hold that the court erred in its ruling.

1 It is next contended by plaintiff that the court erred in its ruling on the evidence. The record discloses that certain witnesses produced by the People had testified to statements having been made by the plaintiff which in his examination he denied having made. Plaintiff was then asked what he had in fact said. On objection made to the question the court ruled that if the plaintiff denied having the conversation that he would not then be allowed to state what he claimed he had in fact said. If the plaintiff had denied having the conversation at all the ruling of the court would have been proper, but the record discloses that in certain instances, especially in connection with the testimony of one Nellie Turner, a stenographer in the office of the East St. Louis and Suburban Railway Company, he did not deny having a conversation at the time specified. The witness had been allowed to testify for the People that when she came into the office of the East St. Louis and Suburban Railway Company on the morning in question, “Brockway had a newspaper in his hand, and was talking to the other men in the office. I sat down, and I heard him say to either one of, the gentlemen that he spoke to—I do not know which one—that he had tried to start something that morning. Mr. Ward had said that there would be something doing, and the statement of Brockway was in reply to Ward’s statement.” Q. “What did the discussion relate to?” Objection; overruled; exception by plaintiff. Q. “Whether it related to what was going on that day or not?” A. “It did.” Q. “The riot condition?” A. “Yes, sir.”

Plaintiff after having denied making the statement that he had started something that morning was asked to state what he in fact did say. Objection was made to the question and was sustained by the court. Counsel for plaintiff then offered to prove by him that at the time Miss Turner stated she heard Ward say, “there will be something doing,” that plaintiff replied, “I have tried to stop something already,” and that Miss Turner said, “It looks pretty bad,” and that plaintiff replied, “I stopped something already this morning.” This offer was objected to and the objection sustained. We think the court erred in this ruling for the reason that plaintiff admitted having been present at the time referred to by the witness Nellie Turner and to having had a conversation with Ward in her presence at that time. Plaintiff should have been allowed to have stated everything that was said in that conversation in the presence of Nellie Turner, and which she stated referred to the riot conditions.

There are one or two other instances of a similar character in which the court refused to allow plaintiff to give his version of certain conversations testified to by witnesses for the People. These witnesses had testified that plaintiff had made certain statements, which statements he denied having made but did not deny having had a conversation at the time referred to. The ruling of the court in reference thereto was erroneous. The court also unduly limited the cross-examination of the witness Nellie Turner. Counsel for plaintiff should have been allowed to fully cross-examine her as to all that was said by plaintiff and Ward in the conversation testified to by her. This the court refused to do. The statements and conversation referred to were recognized by both parties as being very material, and it was important that the ruling of the court thereon should have been „ substantially correct.

It was next contended by plaintiff that the court permitted counsel for the People to make improper remarks in argument to the jury. One of the statements complained of was made by Assistant Attorney General Middlekauf, who stated: “that never in the history of Illinois has blood flowed so freely as it did on this riotous day in East St. Louis.” The court overruled an objection made by plaintiff to this statement. Under the ruling of the Supreme Court in People v. Parker, 284 Ill. 272, we find no error in the ruling. On the next statement complained of no ruling was made by the court, so it is not before us for consideration. As to the remaining statement complained of, we are not able to say it was not warranted by the evidence.

It is next contended by plaintiff that the court erred in admitting evidence of rioting and its attendant results without first attempting to connect the plaintiff therewith. It is charged in the indictment that plaintiff, .and others, formed a common purpose and were united in a common design to aid and encourage the driving out of East St. Louis all negroes and persons of color and to injure their persons and property. If they combined to accomplish such a purpose by concerted action, the ordinary law of conspiracy is applicable and the acts and declarations of one of them, done in furtherance of the common design, are, in contemplation of law, the acts and declarations of all. Brennan v. People, 15 Ill. 511; Hanna v. People, 86 Ill. 243; Spies v. People, 122 Ill. 1; McMahon v. People, 189 Ill. 222.

In Spies v. People, supra, at page 238, the court says: “A further objection is made as to the order in which the trial court permitted certain portions of the evidence to be introduced. It is claimed that some of the acts and declarations proven in the case were allowed to come in before proof was made of the conspiracy or of the connection of the defendants with it. This matter is largely discretionary with the trial judge.

“The proof of conspiracy, which will authorize the introduction of evidence as to the acts and declarations of the co-conspirators, may be such proof only as is sufficient, in the opinion of the trial judge, to establish prima facie the act of conspiracy between the parties, or proper to be laid before the jury, as tending to establish such fact. (1 Greenleaf on Evidence, sec. 111.) Sometimes, for the sake of convenience, the acts or declarations of one are admitted in evidence, before sufficient proof is given of the conspiracy, the prosecutor undertaking to furnish such proof in a subsequent stage of the cause. (Idem.)

“The rule, that the conspiracy must be first established prima facie, before the acts and declarations of one conspirator can be received in evidence against another, cannot well be enforced ‘where the proof of the conspiracy depends upon a vast amount of circumstantial evidence, a vast number of isolated and independent facts; and, in any case, where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that such a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations. ’ (State v. Winner, 17 Kan. 298.) The prosecutor may either prove the conspiracy, which renders the acts of the conspirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspiracy. Roscoe on Crim. Evidence (7th Ed.) 415.”

It is next contended by plaintiff that the verdict of the jury is against the manifest weight of the evidence, but as there will have to be another trial of this ease we will not discuss this assignment of error or express an opinion in reference to the weight of the evidence.

It is also contended by plaintiff that he did not participate in any of the acts of violence and that he should not have been held responsible for the acts of others. The law does not require that one shall participate in the actual acts of violence. If one is instrumental in instigating acts of violence, he is just as guilty as though he actually participated in them. Spies v. People, supra.

Counsel for plaintiff insist that the court erred in refusing to give to the jury certain instructions offered by him. We have examined the instructions and are of the opinion, so far as they state correct principles of law, they are covered by instructions given.

For the error in appointing the deputy sheriff as special bailiff to summons persons for jury service over the objection of plaintiff and for the errors committed by the court in its rulings on the evidence, the judgment will be reversed and the cause will, be remanded for another trial.

Reversed and remanded.