text:
    Just Doubet v. Bonnie Kirkman.
    1. Evidence—Questions by court discrediting witness.—Where in advance of the cross-examination by counsel which was then regularly in order, the court propounded questions upon matters personal to the witness, and many of them by their form manifesting,' at least, a strong suspicion of his truthfulness, and his testimony was important to the defendant, as well upon the issue made between the parties as in mitigation of damages. Held, that it was erroneous to discredit the witness before the jury by such an intimation of the opinion of the court.
    2. Breach oe promise—Evidence as to engagement.—In a breach of promise case, the proof of an actual engagement by the plaintiff to marry another, subsisting at the time of defendant’s attentions to plaintiff, will not, as matter of law, overcome the inference of a like'engagement to the defendant furnished by attentions, though such engagement is proper to be considered by the jury as tending to overcome it. The modification of the instruction in this casé is erroneous, for although the hypothesis that plaintiff was a woman of loose and bad habits might justify defendant in refusing to fulfill his promise, if any had been made, it would have no effect upon the operation of the evidence referred to as overcoming or tending to overcome the inference that might otherwise be drawn from the attentions mentioned.
    3. Character oe plaintiff—Damages.—In a breach of promise case it is proper to instruct the jury to take into consideration the character and habits of the plaintiff in estimating the damages, and that no person addicted to lewdness and unchaste conduct ought to recover as much as a moral and virtuous person, and this is unaffected by the general merits or demerits of the defendant.

      Appeal from the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    Opinion filed January 16, 1885.
    Tliis was an action of assumpsit by appellee against appellant, upon an alleged promise of marriage, for damages sustained by its breach and aggravated by seduction.
    On the trial at the May term, 1883, upon issue joined on a plea of non-assumpsit, she testified that she xvas nearly twenty-two years of age; that she had been married when about fifteen to Augustus Opie, lived with him something over two years, bore him a son, still living, and obtained a divorce with leave to resume her maiden name at May term, 1879; that she resided with her parents in Peoria, and defendant on a farm a few miles away; that he began to keep her company in the spring of 1880, visiting her regularly every other Sunday until the following fall, during which time they became engaged to marry; that in the fall his visits ceased for reasons unknown to her (though they continued to meet occasionall}1) until about the middle of November, 1881, when they were renewed, and the engagement was renewed to be consummated in the fall of 1882; that yielding to his wishes she had sexual intercourse with him on three occasions—a week before Christmas, on Christmas evening and about a week later— induced thereto by the consideration of their engagement, and of his further promise, made on each of said occasions, that if pregnancy should result he would marry her at once; that in consequence of this intercourse she did become pregnant, of which she informed him about the last of January, 1882; that he thereupon advised her to procure an abortion, referring her to two parties who he said would perform the operation, and promising to bear the expense; that having applied to one and been refused, she declined to proceed further in that direction; that he then ceased to visit her, and although often requested, refused to fulfill his promise, absolutely and in terms of uncommon heartlessness, saying he had got out of her all that he wanted; that her child was born Sept. 20, 1882. A direct question by the judge elicited the further statement that he never assigned to her any other reason for his refusal than the one above set forth, or made any complaint against her.
    There was no other direct proof of a promise to marry, but her parents and other witnesses testified to circumstances tending to corroborate her statement of it, and the facts of ■sexual intercourse and its fruit were not disputed.
    Defendant, as a witness on his own behalf, positively denied that he ever promised to marry her, and sought to overcome any inference that might otherwise be drawn from such attention, as he was shown to have paid her by proof of her admission that during the period of the alleged engagement to him she was engaged to another, and also of her conduct toward young men, so free and inviting as to account for his visits on other grounds than an inclination to marry her, and at least to mitigate the damages in case she should recover.
    The first, and perhaps the principal witness, called by the defendant for this purpose, was one. Charles A. Kretbaum, who testified in chief that in the fall of 1881 he visited the plaintiff once or twice, and sometimes thrice a week, during a period of six weeks, when, as she said, she was engaged to marry the defendant; that she generally “ caressed ” him when he called; that on two occasions she exposed her leg as high as-the knee; that she allowed him to take and wear the engagement ring, which she said the defendant had given her, and that she told the witness in terms that she wanted to marry him. His last statement in chief was: “ She used to kiss me very often, and put her arms around my neck, and kiss me in that way—nothing further than that.”
    Immediately thereupon, before cross-examination by plaintiff’s attorney, the judge proceeded to question the witness as follows:
    By the Court. You was unapproachable, I suppose, any further than that? You would not yield to any blandishments?
    (Objected to. Defendant then and there excepted.) Ho.
    What was your age at that time? (Objected to. Defendant then and there excepted.) Twenty-one years.
    In good health were you? (Objected to. Defendant then and there excepted.) Yes, sir.

      Where were you from when you came here? Havana, Illinois.
    How long did you live there? (Objected to. Defendant then and there excepted.) I left there in 1868.
    Where did you come from when you came there? (Objected to. Defendant then and there excepted.) Game from near Lewistown, .Fulton county; lived in the county then; born near Lewistown, Fulton count)-", this State.
    You never was married, I suppose? (Objected to. Defendant then and there excepted.) Ho, sir.
    Didn’t want to get married? (Objected to. Defendant then and there excepted.) Ho, I can’t say that I ever did.
    What did you say to her when she wanted to marry you? (Objected to. Defendant then and there excepted.) I told her I didn’t want her.
    Didn’t want her? Ho, sir.
    How often did you go there after that? (Objected to. Defendant then and there excepted.) Hot many times after that.
    You quit pretty soon, did you? Yes, sir.
    Did that frighten you away or not? (Objected to. Defendant then and there excepted.) Don’t know that it did. Didn’t care about going there any longer.
    Yon was too modest, I suppose. Was you? (Objected to. Defendant then and there excepted.) May be.
    That was it, was it? (Objected to. Defendant then and there excepted.) Yes, sir.
    Did you publish this everywhere—what took place there? I did not
    You told nobody ? (Objected to.) May have told intimate friends; that was probably all.
    Your intimate friends? (Objected to. Defendant then'and there excepted.) Yes, sir.
    Ilow generally did you publish it? (Objected to. Defendant then and there excepted.) Well, not to many, probably to two or three of my friends.
    What friends? (Objected to. Defendant then and there excepted.) Young men that work in the shop where I do.

      Did you remonstrate against her approaches—did you oppose it? (Objected to. Defendant then and there excepted.) Sometimes and sometimes not.
    You were horrified at it, I suppose. Was you horrified at it? (Objected to. Defendant then and there excepted.) Yes, sir.
    Or did yon submit? Yes, sir. Some parts I was; some parts I was not.
    Told her so, did you not? (Objected to. Defendant then and there excepted.) Don’t remember.
    You don’t remember? Ho, sir.
    She just voluntarily did all that you have stated, did she, without anything further? (Objected to. Defendant then and there excepted.) Can’t say she did. Probably I encouraged her a little.
    Encouraged her, how? (Objected to. Defendant then and there excepted.) In my own way—caressed her.
    What did you say to her? What inducements did you hold out to her that she asked you to marry her? (Objected to. Defendant then and there excepted.) Don’t know as any at all.
    Hothing at all? Ho, sir; don’t know that I did.
    Hothing except your general address to her, I suppose?
    Yes, sir.
    That was all, was it? (Objected to. Defendant then and there excepted.) So far as I remember.
    By Mr. Foster.—We object to every question and answer.
    I would like to have these objections considered in this examination, to each question and answer.
    By the Court.—-What is the objection?
    By Mr. Foster.—The objection is, that I think they are improper.
    Bv the Conrt.—In what respect?
    By Mr. .Foster.—I don’t think the court should go into it to this extent.
    By the Court.—Why so?
    By Mr. Foster’.—It is simply my idea.
    By the Court.—You ought to have some reason for it. I am asking proper questions to elicit the truth. I mean to get the truth. I don’t wish to make any remarks about it at all.
    By the Court.—You are of French descent, are you? FTo, sir.
    What is your native country ? My parents were German.
    From Germany? Yes, sir.
    The defendant asked, among others, the following instructions, without the parts italicized, which the court added:
    6. You are further instructed that while a contract to marry between the parties to this suit may be inferred from unusual and marked attentions and continued intimacy, and those manifestations of attachment and regard which usually precede marriage, yet such inference will be overcome by actual proof that the plaintiff herein was, during the time of the alleged engagement by plaintiff to marry defendant, actually engaged to be married to a person other than the defendant, if such other engagement tooht place after the engagement to the defendant, or during the time of such engagement with defendant, so as to amou/nt to a repudiation of the contract with defendant, or amount to an abandonment of such contract whilst it was in force or before any refusal to ferform by defendant, if he did refuse.

    9. You are further instructed that if no express promise of marriage has been proved, then it can only be inferred from circumstances, and if the jury believes, from the evidence, that the plaintiff was a woman of loose and bad habits and accustomed to committing acts of michastity, and that the defendant knew and believed the plaintiff to be such a woman when he went to see her, and while he continued to visit her, then the jury should take all these things into consideration and judge from a review of all the evidence whether the defendant visited the plaintiff with the purpose of marrying her or for some other purpose, and if they believe he visited her for some other purpose than that of marrying her, then the jury ought not to infer any agreement to marry her from any such attentions alone which he may have paid her under such circumstances, if he did not malte such promise with ahcnowl

      edge and acquiescence in her conducty but if he Jenew of hej misconduct or unehastity and acquiesced therein at the time of the promise he can not avoid his contracts on that account.

    10. You are further instructed that in estimating the damages, if any are proven, you should take into consideration the character and habits of the plaintiff, if proven, and if you believe, from the evidence, that she was addicted to lewdness and unchaste conduct, these circumstances should be considered, and no person guilty of such practices ought to recover as much damages as a pure, moral and virtuous person, if the jury believe the character of plaintiff renders her unfit to be his {defendant’s) wife.

    A verdict having been returned for the plaintiff for $875, which the court refused to set aside, the defendant appealed.
    Mr. James H. Cameron and Mr. Daniel R. Si-ieen, for appellant;
    cited Lycan v. The People, 107 Ill. 428; Burnett v. Simpkins, 24 Ill. 266.
    Mr. Isaac C. Edwards, for appellee;
    as to the rights of the court to examine a witness, cited Penn. C. Co. v. Conlan, 101 Ill. 109; Beasley v. The People, 89 Ill. 580; Skelly v. Boland, 78 Ill. 439; Foreman v. Baldwin, 24 Ill. 306; Rogers v. The People, 98 Ill. 581.
   Per Curiam.

The examination by the judge of the witness Iu'etbaum, was objectionable in respect to its time, its substance and its form. It was clearly uncalled for in advance of the cross-examination by counsel, which was then regularly in order and might well have been expected to occupy the same line of interrogation. The questions were directed to matters personal to the witness, and many of them, by their force, manifested at least a strong suspicion of his truthfulness. And since his testimony was important to the defendant, as well upon the issue made between the parties as in mitigation of damages, it was both erroneous and hurtful to discredit him before the jury by such an intimation of the opinion of the court. Lycan v. The People, 107 Ill. 428.

We do not hold, as a matter of law, that the proof of an actual engagement by plaintiff to marry another, subsisting at the time of defendant’s attentions to her, will overcome the evidence of a like engagement to him furnished by those attentions, since there might be in fact a co temperan eons engagement to two or more, though it is proper to he considered by the jury as tending to overcome it, and therefore it was proper to modify the 6th instruction asked by the defendant. But the modification made, instead of correcting the error, added to it; for although the hypothesis presented by it might justify the defendant in refusing to fulfill his promise if any had been made, it would have no effect .upon the operation of the evidence referred to, as overcoming or tending to overcome the inference that might otherwise be drawn from the attentions mentioned. It was therefore not germane to the subject-matter of the instruction as asked, and if intelligible at all, was calculated to confuse the minds of the jurors. It also assumes an engagement by defendant to plaintiff, which was the principal fact in issue between the parties, and to which, as being disputed, the instruction directed—thus further showing that it was in no just sense a modification of the instruction but a departure from it.

The addition to the 9th, as asked, is subject to the same criticism.

The 10th, as asked, was held to be good in Barnett v. Simpkins, 24th Ill. 265, and we hold it to be so, absolutely, and unaffected by the general merits or demerits of the defendant. Its modification was therefore erroneous.

For these reasons the judgment must be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Pillsbury, J.

license: Public Domain

text:
    George Eichlor v. Stephen N. Holroyd.
    1. Delivery of deed without performance of condition.—The delivery to the grantee of a deed left in the hands of a thhcl party, without the grantee performing the condition upon which his right to receive it depended, vests no title in him, and the grantor may recover it by action or have it removed as a cloud upon his title.
    2. Same—Agency—Ratification.—Where a deed was placed in the hands of a third party to he delivered to the grantee only in case he paid the balance of the purchase money, and such party delivered the deed to the grantee without his paying such balance, the grantor would have his election to repudiate or affirm such action. If be chose the latter and recovered judgment against the grantee in an action of assumpsit, such ratification would discharge the agent from all liability for deviating from his instructions.
    Appeal from the Circuit Court of De I£alb county; the Hon. A. H. Barry, <J udge, presiding.
    Opinion filed January 16, 1885.
    Hoiroyd being the owner of 120 acres of land in DeKalb comity, subject to certain incumbrances, sold his equity of redemption to one Grabbe, for $800, the grantee, to assume and pay the incumbrances. The $800 was to be paid before the delivery of the deed. The sum of $500 was paid, and Grabbe let into possession. Hoiroyd made his deed and gave it to Eichlor, the appellant, with instructions to deliver it to Grabbe when the balance of $300 was paid, and if not paid to return the deed.
    Grabbe, by some means, obtained the deed.from theappellant without paying the $300. This was in the autumn of 1877, and the following spring appellee commenced bis action in assumpsit in the circuit court, against Grabbe, to recover the $300, and obtained judgment, but never succeeded in collecting it. The prior mortgages upon the land not being paid, the premises were sold in November, 1879, under the power therein contained, to one Loomis, who received a trustee’s deed therefor.

      This suit was instituted by appellee in May, 1880, against the appellant, to recover the $300, the action being in case and the gravamen the wrongful delivery of the deed to Grabbe without receiving the $300, and the consequent loss of it through the insolvency of Grabbe. He recovered in the court below, and the defendant below appealed.
    Messrs. Dunton, Brown & Pratt, for appellant;
    that no title vests in the grantee who obtains possession of a deed without performance of the condition, cited Harkreader v. Clayton, 56 Miss. 383; Stone v. Duvall, 77 Ill. 475; I. C. R. R. Co. v. McCullough, 59 Ill. 166; Stanley v. Valentine, 79 Ill. 544.
    As to ratification: Searing v. Butler, 69 Ill. 575; Ewell’s Evans on Agency, side page 61, 65; Meyer v. Morgan, 51 Miss. 21; Monk’s Underhill on Torts, 337; Bird v. Randall, 3 Burr. 1345.
    Mr. Harvey A. Jones, for appellee;
    as to agent’s misconduct, cited Story on Agency, §§ 218, 219.
    As to ratification: Harris v. Miner, 28 Ill. 136; Dougherty v. Crowell, 3 Stockt. (N. J.) 201; Seely v. North, 16 Conn. 98.
   Pillsbury, J.

The delivery of the !deed to the grantee without his performing the condition upon which his right to receive it depended, vested no title in him, and the appellee could have recovered it bv action or have it removed as a cloud upon his title. Stone v. Duvall, 77 Ill. 475; I. C. R. R. Co. v. McCullough, 59 Ill. 166; Stanley v. Valentine, 79 Ill. 544; but instead of so doing, he brought his suit against the grantee and recovered judgment for the balance of the purchase money, thereby ratifying the act of the appellant in delivering the deed, as the suit could have been maintained only upon the ground that the deed was valid. Story on Agency, Sec. 259; Peters v. Ballasteir, 3 Pick. 495; Smith v. Hodson, 4 R. I. 211; Smith v. Cole, 3 Pick. 232. The effect of this ratification by him, he well knowing-at that time all the facts, was to discharge the appellant from all liability for deviating from his instructions. Story on Agency, Sec. 243; Cairnes v. Bleeker, 12 Johns. 300; Wilson v. Tunman, 6 M. & G. 230.

The appellee had his election either to repudiate the action of appellant and re-invest¿himself with the record title to the land, in which event he could have recovered the necessary expense from appellant, or to affirm the act of his agent and recover the purchase money from the grantee by action, or enforce a vendor’s lien upon the land.

He chose to hold the grantee personally liable and now has a judgment against him, and it would seem that he is concluded by his election and can not have judgment against both. Kingsley v. Davis, 104 Mass. 178.

These conclusions render it unnecessary to notice the question as to the measure of damages in case the appellant is liable for any sum.

The judgment of the court below will be reversed.

Judgment reversed.


author: Bailey, J.

text:
    William W. Charles v. Ernest Neigelsen.
    Priority or lien—Chattel mortgage—Stable keeper's ’lien.
    —The lien of a chattel mortgage upon ahorse and buggy is superior to the lien of a stable keeper, under the statute (it. S., Chap. 82, § 49), for the keeping of such property where the property remained in the possession of the mortgagor, and was placed in the stable by him subsequently to the mortgage, without the knowledge or consent of the mortgagee.
    Appeal from the County Court of Cook county; the Hon. Richard Peendeegast, Judge, presiding.
    Opinion filed May 20, 1884.
    This was an action of replevin to recover possession of ahorse, gig and harness, brought by William W. Charles against Ernest Neigelsen, before a justice of the peace, and afterward taken by appeal to the county court. A trial was had in the county court, before the court without a jury, upon an agreed state of facts, resulting in a finding and judgment' for the defendant. The facts, as agreed upon, are substantially as follows:

      On the 18th day of October, 1883, one H. 0. Block was the owner and in possession of said horse, gig and harness, the same being of the value of $75. On that day he executed and delivered to said Charles a good and valid chattel mortgage of said property, to secure the payment of three promissory notes of even date with the mortgage, one for $18.75, due November 18, 1883; one for $17.75, due December 18, 1883; and one for $1, due one year from date. Said mortgage was duly acknowledged and recorded on the clay of its date, and in all respects complied with all the provisions of the statute. Said mortgage contained the usual clause authorizing the mortgagor to retain possession of said property, and to use it, at his own expense, until the maturity of the notes; also, that if the mortgagor should fail to pay any of said notes when due, or the- mortgagee should feel himself insecure or fear the removal of said property, he, the mortgagor, should have the right to take immediate possession thereof and sell and dispose of the same.
    The defendant, at the time of the transactions in question, was the keeper of a public livery stable. On the 23d clay of October, 1883, the mortgagor still having the possession of said property under the terms of said mortgage, without the knowledge or consent of the mortgagee, placed said horse, gig and harness in the defendant’s stable to be kept by him in his capacity of livery and stable keeper, for said mortgagor, and said property has remained with said defendant from said 23d day of October, 1883, hitherto.
    On the 24th day of November, 1883, three days before the commencement of this suit, the plaintiff for the first time learning as to the whereabouts of said properly, and one of said notes having become due, and the mortgagee having reasonable grounds for feeling unsafe and insecure, demanded of the defendant the possession of said property, claiming the same under and by virtue of said mortgage, and the defendant then and there refused to deliver up said property or any part thereof to the plaintiff, until the defendant should be paid the sum of $23, which he claimed was due him for the keeping of said mortgaged property subsequent to October 23, 1883. It is agreed that said sum is a reasonable charge for said keeping. The plaintiff declined to pay said claim, and on the 27th day of November, 1883, brought this suit.
    The officer failing to seize said property under his writ, the suit was changed to trover and prosecuted as such.
    Messrs. Wyman Bros., for appellant;
    that the lien of the chattel mortgage is prior to that of the stable keeper, cited Sargent v. Usher, 20 Am. R. 208; Jacobs v. Knapp, 50 N. H. 82; Saltus v. Everett, 20 Wendell, 282; 2 Redfield on Railways, 171; Robinson v. Baker, 5 Cushing, 137; Barque Great West v. Oberedorf, 57 Ill. 169; Stevens v. B. & W. R. R. Co., 8 Gray, 262; Clark v. L. & L. R. R. Co., 9 Gray, 231.
    Mr. M. R. Harris, for appellee.
   Bailey, J.

The plaintiff claims the property described in the replevin writ by virtue of a chattel mortgage executed to him by the owner, and which is admitted to be in all respects valid. The defendant claims it by virtue of a lien acquired by him, subsequent to the execution of the mortgage, as a stable keeper, under the forty-ninth section of the statute in relation to liens. The only question'in the ease is as to which of these parties has the prior or superior lien.

The section of the statute above referred to is as follows: Stable keepers, and any persons, shall have a lien upon the horses, carriages and harness kept by them for the proper charges due for the keeping thereof and expense bestowed thereon at the request of the owner, or the person having possession thereof.”

This statute is recent, and we are not aware that it has as yet received any authoritative exposition. Our conclusions then must necessarily be largely matter of first impression.

The plaintiff, as the holder of the chattel mortgage, ivas the general owner of the property, subject to the mortgagor, Block’s, right of redemption, the possession for the time being remaining in Block.

The expense of keeping the property so long as Block retained possession, devolved upon him. This resulted not only from his relations to the property, but also from the express stipulations of the mortgage. If he saw fit to hire it kept, the liability thereby incurred was his own debt. He was in no sense the plaintiff’s agent, nor did he sustain to the plaintiff any relations which authorized him to contract any liability on his behalf. The plaintiff’s interest in the property was in no way placed at his disposal or under his control. If he had attempted to sell it he could have given no title; or if to mortgage it, the mortgage would have had no validity. He had an undoubted right to deal with his own interest, and do with that as he pleased, but there his authority terminated. Such being the rights and relations of the parties, independent of the statute, can it be held to have been the intention and effect of the statute to place it in Block’s power to hypothecate the plaintiff’s title without his knowlédge, authority or consent, as security for a liability of his own, and to which the plaintiff was an entire stranger. Certainly, before a construction involving such consequences should be adopted, it should so clearly appear from the language of the statute as to be unavoidable.

The universal and fundamental principle of our law of personal property is, that no one can be divested of his property without his own consent. That no one can transfer to another a better title than he has himself is a maxim alike of the common and the civil law; and therefore, if the owner loses his property, or is robbed of it, or it is sold or pledged without his consent by one who has only a temporary right to use it by hiring or otherwise, or a qualified possession of it for a specific purpose, as for transportation, or for work to be performed on it, the owner can follow and reclaim it in the hands of any person, however innocent. Saltus v. Everett, 20 Wend. 267.

A case closely analogous to the present is that of a common carrier to whom the law gives a lien upon the goods carried, for his reasonable charges for their carriage. The rule now universally established is, that where the carrier receives the goods from a Wrong-doer, or one who has no interest in the goods or control over them, he can not insist upon his lien, but must deliver the goods to the true owner on demand. Robinson v. Baker, 5 Cush. 137; Fitch v. Newberry, 1 Doug. (Mich.) 1.

So, in Gilson v. Gwinn, 107 Mass. 126, it was held that a common carrier who carries a chattel at the sole request and for the sole convenience of a bailee, has no lien thereon for his services as against the owner. The same rule is applied to the lieu of a pilot on a vessel for his pilotage, where persons not authorized by the owner took command of the vessel and carried her out of the regular course of the voyage. The Anne, 1 Mason, 512. In these cases it is held that the principle of ea/veat emptor applies to the establishment of liens of this character.

A lien is defined by Bouvier to be, “ a hold or claim which one person has upon the property of another as a security for some debtor charge”; and by another authority “a tie, hold or security upon goods or other things which a man has in his custody, till he is paid what is due him.” 2 Pet. Dig. 692. Accordingly, in Fitch v. Newberry, supra, the court, after discussing the authorities at length, reaches the proposition that to justify a lien upon goods for their freight the relation of debtor and creditor must exist between the owner and the carrier, so that an action at law might be maintained for the payment of the debt sought to be enforced by the lien.

A case more nearly parallel with the present one is that of Sargent v. Usher, 55 N. H. 287. There the owner of two horses, after mortgaging them to the defendant, intrusted them to the plaintiff to be boarded, without the knowledge, acquiescence or consent of the mortgagee. The latter afterward took the horses from the possession of the plaintiff, who thereupon brought trover. The statute of New Hampshire provided that, “ Any person to whom any horses, cattle, sheep or other domestic animals shall be intrusted to be pastured or boarded, shall have a lien thereon for all proper charges due for such pasturing or board, until the same shall be paid or tendered.” The trial court held that the statute gave the plaintiff a right prior to that of the mortgagee under his mortgage. This decision was reversed on appeal, the court holding that the rights of the mortgagee were not subject to the lien. Ladd, J., in his opinion, says:

“ The idea that a lien may be created by a contract of the possessor of animals for their keeping, the owner being in no way privy to such contract, when no rights whatever, as against the owner, could be conferred or created by a contract of sale, seems anomalous, to say the least. Such a thing would, as it seems to me, be a violation of the fundamental rights of property guaranteed by the constitution; and if the legislature had undertaken bv this act to create a lien, to arise on such a state of facts, I think it would be the duty of the court to hold the act, so far, unconstitutional and void. But I do not think any such intention is to be found in the statute. In giving this specific lien, I think the legislature used the word in its legal and generally accepted sense, and that implies some privity between the owner, or person having the right of disposing of the goods, and him in whose favor the lien is claimed; and that by ‘intrusted.’ is meant intrusted by the owner or other person having authority to pledge the animals for such a purpose, that is, to suspend the owner’s right of possession until the charges are paid.”

The language above quoted so aptly applies to this case, that little more need be said. The principle involved in the Hew Hampshire statute and in ours is substantially identical. We can not suppose that our legislature intended such unjust and inequitable, not to say unconstitutional, results as would follow from the interpretation sought to be put upon our statute, particularly so long as it is susceptible of an interpretation which involves no results of that character. It may be admitted that the defendant acquired a lien, but it was a lien only upon such rights as belonged to the party with whom he dealt, and between whom and himself there existed a privity of contract.

A somewhat similar question arose in the case of The Great West v. Oberndorf, 57 Ill. 168. There the question was, whether the lien given by the statute which made steamboats, etc., navigating the rivers within, and bordering upon the State, liable for debts contracted on account thereof by the master, etc., for materials, etc., was superior to a prior mortgage upon the vessel, and said question was answered in the negative.

We are of the opinion that in this case the plaintiff’s mortgage is superior to the lien claimed by the defendant under the statute, and that the finding and judgment of the court below are contrary to the evidence.

The judgment will therefore be reversed and the cause remanded for a new7 trial.

Judgment reversed.


author: Wilson, J.

text:
    Harvey Edgerton et al. v. David Preston et al.
    1. Partnership name—Fictitious patee.—The name or style of a partnership is wholly conventional, and in the absence of a restrictive statute, a firm may adopt-any name it sees fit. Where a note is made payable to order, and the name used is employed as the style or designation of an actual person, firm or company, the payee is not fictitious.
    2. Assuming oorp)RAVE nam5.—The mere assumption of a name appropriate for a corporation would be no violation of section 220 of the Criminal Code, nor would the putting forth of a sign or advertisement in which a corporate name is assumed, if not done for the purpose of soliciting business, constitute such violation.
    Appeal from the Superior Court of Cook county; the
    Hon. Elliott Anthony, Judge, presiding.
    Opinion filed May 20, 1884.
    Messrs. Flower, Bemy & Gregory-, for appellants.
    Mr. Morton Culver, for appellees.
   Wilson, J.

Appellants, Edgerton and Sloan,'werepartners in the making of veneers, the business being carried on under the firm name of the Garden City Veneer Mills.” They sold goods from time to time to the Chicago Cottage Organ Company, in payment for which the organ company drew its checks on appellees, who were bankers doing business under the firm name of Preston, Kean & Co. These cheeks were drawn payable to the order of the Garden City Veneer Mills, the checks in suit being for the respective sums of $100, $292.62 and $214.96. Birch, an employe of appellants, indorsed the checks “Garden City Veneer Mills, E. A. Birch,” and presented them for payment at the banking house of Preston, Kean & Co., by whom they were paid. Birch embezzled the money and never turned it over to appellants. The checks were canceled by Preston, Kean & Co., and returned to the drawer, from whom they were subsequently obtained by appellants, who broughtthepresentsuitagainstPreston,Kean & Co. to recover the money, on the ground that Birch liad no authority to indorse the checks. The declaration alleged that the checks were drawn to the order of the plaintiffs by the name and style of the Garden City Veneer Mills. On the trial the checks were offered in evidence, together with proof of demand of payment before suit brought. The jury found for the defendants.

The court instructed the jury that if they believed from the evidence that the checks were drawn to the order of the Garden City Veneer Mills, and that the same are not shown to be the name of any person, or duly organized corporation, then the legal effect of the checks so drawn is to make them payable to bearer, and in such case no question as to the validity of the indorsements made by Birch is in the case, and the law is for the defendants; and again, that the several checks offered in evidence are in fact drawn to the order of a fictitious payee, and are therefore payable to bearer, and hence the defendants had the right to pay the same to the bearer or holder thereof.

As there was no dispute that the checks were drawn to the order of the Garden City Veneer Mills, nor any claim that the Garden City Veneer Mills was a corporation, the substance of the two instructions was the same, namely, that the Garden City Veneer Mills was a fictitious payee. In other words the court charged as a matter of law, that the checks were drawn to a fictitious payee, which was equivalent to instructing to find for tlie defendant. There was a contrariety of evidence as to whether Birch had authority to indorse checks or other paper for appellants, but it is wholly immaterial whether he had or had not such authority, if the instruction of the court that the checks were drawn to a fictitious payee is correct; since in that event they were payable to the holder, and the indorsement was a superfluous act. The question is thus narrowed down to a consideration of the propriety of the two instructions referred to.

It is alleged in the declaration, and shown by the testimony of the witnesses on both sides, that appellants were copartners, doing business under the name and style of the “ Garden City Veneer Mills.” It is familiar law that the name or style of a partnership is wholly conventional, and that in the absence of a restrictive statute, a firm may adopt any name it sees fit. Col Iyer on Partnership, Sec. 159; Parsons on Contracts, 125. The declaration avers that the checks were made payable to the order of the plaintiffs by the name and style of the Garden City Veneer Mills, and according to tlie ruling in Adams v. King, 16 Ill. 169, this was a traversable allegation, which could only be denied under oath. See, also, to the same effect, Frye v. Menkins, 15 Ill. 339; Dwight v. Newell, 15 Id. 333; Lee v. Mendel, 40 Ill. 359.

But, aside from this, we are wholly at a loss to know upon what ground it can be claimed that merely because a note or check is made payable to a firm by the name it has chosen to adopt, there being no dispute as to the actual existence of the firm, it is therefore payable to a fictitious payee. It would seem to be a simple contradiction in terms. A fictitious payee is where none in fact exists. But if there be in fact a payee, by whatsoever name or style he may be designated, how can it be said that such payee is fictitious? If it draw a bill or make a note payable to the order of John Doe, when there is no such person, and the name is not used as the style or designation of an actual person, firm or company, the payee is fictitious; but if there be an actual person or firm who has chosen the name of John Doe as a business style, it would be absurd to say the use of such name would make the payee fictitious. We are unable to perceive that the doctrine in relation to fictitious payees has any application to the facts of the present case.

But it is claimed that appellants were doing business under an assumed corporate name without being incorporated, in violation of section 220 of the Criminal Code. That section provides: “ If any company, association or person puts forth any sisyn or advertisement, and therein assumes, for the purpose of soliciting business, a corporate name, not being incorporated, or, being incorporated, puts forth an)1- sign or advertisement assuming any other or different name than that by which it is incorporated or authorized by law to act, such company, association or person shall be fined not less than ten dollars nor more than two hundred dollars, and a like sum for each day he or it shall continue to offend, after having been once fined.”

What the statute denounces is not merely the assuming of a corporate name, but the putting forth a sign or advertisement, and therein assuming a corporate name for a particular purpose, namely, for the purpose of soliciting business. The mere assumption of a name appropriate for a corporation would be no violation of the statute; nor wonld the putting forth of a sign or advertisement in which a corporate name is assumed, if not done for the purpose of soliciting business, constitute such violation. It is the purpose for which the act is done that gives character to the act. What the legislature had in view in enacting this section of the Criminal Code manifestly was to prevent persons from obtaining a fictitious credit by advertising themselves as being a corporation when they were not incorporated. If, therefore, it were clear that the name used by appellants imported upon its face a corporate name, which we by no means concede, it would still be a question of fact for the jury to determine, from the evidence, whether appellants had put forth a sign or advertisement representing themselves to be a corporation for the purpose of soliciting business. The court could not say, as matter of law, that such was the purpose. Nor do we think that, even if it should be found there had been a violation of the statute, the consequences of such violation could be extended beyond the infliction of the penalty therein prescribed. The statute does not provide that contracts made by persons thus offending shall be invalid, but only renders such persons liable to pay a fine of not less than ten dollars nor more than two hundred dollars, and a like sum for each day they shall continue to offend.

Viewed in any aspect of the case, we are of opinion that the court erred in giving the defendants’ eighth and ninth instructions. The judgment is therefore reversed,- and the cause remanded for a new trial.

[Reversed and remanded.


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    John Lyons et al. v. Norman A. Williams et al.
    1. Receipt in full—Evidence.—While a receipt in full is not conclusive, but only prima facie evidence of payment, it is evidence of a high and very convincing character.
    2. Prima facie evidence—Instruction.—Prima facie evidence, in the absence of rebutting proof, establishes the fact which it tends to prove; as the instruction in this case upon the crediting of notes and the receipt holds the contrary, it is erroneous.
    Appeal from the Superior Court of Cook county; the Hon. [Rollin S. Williamson, Judge, presiding.
    Opinion filed May 20, 1884.
    Messrs. Snowhook, Johnston & Gray, for appellants;
    as to a receipt being .prima facie evidence of payment, cited Winchester v. Grosvenor, 44 Ill. 425; Strubher v. Mohler, 80 Ill. 21; Rosenmueller v. Lampe, 89 Ill. 218.
    Mr. F. W. Forch, Jr., for appellees;
    as to instructions, cited Wilhelm v. Schmidt, 84 Ill. 187; Tobey v. Barber, 5 Johns. 68; Walsh v. Lennon, 98 Ill. 31; Archibald v. Argall, 53 Ill. 309.
   Bailey, J.

This was a suit in assumpsit, brought by Williams and Tiedeman against Lyons and Scanlan, upon an account for goods sold and delivered. The defendants were sewer builders and the plaintiffs dealers in sewer materials, and the account in suit was for sewer materials purchased by the defendants of the plaintiffs from September, 1875, to June, 1876. The principal controvers}r relates to certain promissory notes executed by one S. S. Hayes to the defendants, and by them transferred and assigned to the plaintiffs. It is claimed by the defendants that said notes were taken by the plaintiffs as cash, and that they were to be so applied upon their account, while the plaintiffs claim that they were taken by them merely as collateral security.

The evidence tends to show that said notes were in fact credited to the defendants on their account, and that on the 6th day of September, 1876, the parties had an accounting in relation to their dealings, at which time a balance of $96.07, in favor of the plaintiffs, was struck and agreed upon, and that said balance-was then and there paid by the defendants, and the account receipted in full by the plaintiffs.

Hayes having in the meantime become insolvent, and said notes remaining unpaid, their amount was charged back to the defendants on their account, that being the indebtedness for which a recovery has been had in this case. The weight to be given by the jury to the fact that the defendants were credited with said notes on their account, and with such credit remaining, the plaintiffs afterward gave them a receipt in full, was an important question at the trial, and upon the law applicable to that question, the court gave to the jury, at the instance of the plaintiffs, the following instruction:

“The jury are instructed that the giving of a receipt in full, or the crediting of the notes in question on the account of said defendants, is not conclusive evidence of payment, but the same are subject to explanation, and the inference arising from the mere receipt or credit is not sufficient to establish a. positive agreement that the notes were taken as absolute payment.”

This instruction was erroneous, and under the circumstances of the case, well calculated to mislead the jury. While it is true that a receipt in full is not conclusive, but only prima faoie evidence of payment, it is evidence of a high and very convincing character. As said in Winchester v. Grovenor, 44 Ill. 425: “That a receipt may be explained by parol is conceded, but the proof bv which it is done must be clear and unmistakable. A written receipt is evidence of the highest and most satisfactory character, and to do away with its force, the testimony should be convincing, and not resting in mere impressions, and the burden of proof rests on the party attempting the explanation.”

The account upon which the notes were credited as cash being receipted in full, a prima faoie inference arises that the notes were taken in payment, and that inference, as we have seen, is of a strong and convincing character. The rule is that prima faoie evidence, in the absence of rebutting proof, establishes the fact which it tends to prove, yet the instruction holds precisely the contrary. It holds that the prima faoie inference arising from the crediting of the notes and the receipt is not sufficient to establish a positive conclusion that the notes were taken in payment.

Again, the instruction seems to intimate, and may have been understood by the jury as holding that it was essential for the defendants, in order to'avail themselves of the notes as payment, to show that there was a “ positive agreement” that they should be so applied. Such certainly is not the law. The agreement by which such application was made may be shown to have been positive or express, or it may be implied from the acts and dealings of the parties and the nature of the transaction. The material question is, whether the notes were in fact received and applied by the plaintiffs as payment on the account; and whether the application was in pursuance of a positive agreement or a tacit understanding between the parties is unimportant, provided the actual intention was to apply them in that way.

As the case must be submitted to another jury we forbear discussing the evidence, but for the error in giving the foregoing instruction the judgment will be reversed and the cause remanded.

Judgment reversed.


author: McAllister, P. J.

text:
    Allen M. Hays v. Francis C. Mather.
    1. Libel—Questions for court and jury.—It is for the court to decide whether a publication is capable of the meaning ascribed to it by an innuendo, and for the jury to decide whether such meaning is truly ascribed.
    2. Charge of dishonesty in business, actionable.—Any charge of d'skonesty against an individual in connection with his business, whereby his character in such business may be injuriously affected, is aet'onable.
    3. Libel.—A and B had been carrying on the commission business under the firm name of B & Co. A, a minor, bought out B’s interest in the property and good will of the concern. B prepared and sent to the customers of A, a postal reading as follows: “ Dear Sir: I drop you a line to let you know A, my successor in business, is not legally responsible for his contracts, as he is yet a minor, under 21 years of age. A word to the wise is suffic.ent. Store, No. 118 South Wa'.er street, I shall occupy and do business. Would be pleased to hear from you. B.” Held, that the words of this publication are capable and reasonably susceptible of a defamatory meaning as respects A, in con.iection with his bus.ness.
    Error to the Superior Court of Cook-county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed May 20, 1884.
    This action was brought in the court below, by Hays against Mather, to recover damages for an alleged libel. The declaration contains three counts, the first of which is in substance as follows:
    First count: Plaintiff and defendant in March, 1882, formed copartnership, in firm name F. C. Mather & Co., as commission merchants, to receive and sell on commission, produce and property consigned to them, and carried on such .commission business at No. 118 South Water street, Chicago; and in the course of such business received consignments of property, sold and accounted for the same for many consignors and shippers in Illinois and other Northwestern States, and said firm, in their commission business, had acquired much credit, patronage and popularity; and on 23d day of September, 1882, plaintiff, then being of the age of twenty years and five months, purchased defendant’s interest in the business, the property and fixtures and the good will of F. C. Mather & Co., and the goods coming consigned to F. C. Mather & Co., for period of one year; defendant retiring from the business, plaintiff continued it on his own account. Yet defendant, intending to injure plaintiff as a commission merchant and his commission business, to bring him into discredit and disgrace, particularly among shippers and consignors who had dealt or might deal with plaintiff, and to cause it to be believed that because of being a minor, plaintiff would convert to his own use the property or proceeds of property of plaintiff’s bailors and consignors, maliciously, etc., composed and published on the 29th day of January, 1883, in the form of postal cards, circulated by mail and addressed to divers of the patrons of plaintiff and F. C. Mather & Co., in the State of Illinois and other States, a malicious, false, scandalous and defamatory libel of and concerning plaintiff in his character as a commission merchant, among other things the following:
    “Dear Sir: I ” (meaning defendant) “ drop you a line to let yon know A. M. Hays,” (meaning plaintiff) “my successor in business, is not legally responsible for his contracts,” (meaning in respect of his dealings as a commission merchant in his said commission business) “ as he ” (meaning plaintiff) “ is yet a minor, under twenty-one years of age. A word to the'wise is sufficient ” (meaning, enough said. Beware, lest under cover of infancy said Hays appropriate and convert your property or proceeds thereof to his own use). “Store, iHo. 118 South Water St., I” (meaning defendant) “shall occupy and do business. Would be pleased to hear from you.
    F. C. Mather.”
    The count avers that by means of said grievances the plaintiff was injured in bis good character, credit and standing among correspondents, consignees, shippers, etc., and has suffered special damages by thereby losing the custom of certain persons, naming them.
    The second and third counts were similar to the first. To each count the defendant filed a plea simply averring that at the time when, etc., the plaintiff was a minor and that he is not legally responsible upon his contracts. To these pleas the plaintiff demurred. The court overruled the demurrer as to the pleas, but carrying it back sustained it to the declaration, and gave final judgment against the plaintiff, who brings error to this court.
    Mr. John Lyle King, for plaintiff in error;
    that the publication was libelous, cited Stewart v. Howe, 17 Ill. 71; Nelson v. Borchenius, 52 Ill. 236; Odger’s Libel and Slander, 31; King v. Lake, Ventr. 28; Phillips v. Hoeffer, 1 Penn. 62; Ostrom v. Calkins, 5 Wend. 263; Harrison v. Thornborough, 10 Mod. 11; Cheese v. Scales, 10 M. & W. 488; Carpenter v. Denny, 3 Sandf. 305; Craig v. Brown, 15 Ben Monroe, 186.
    Mr. A. S. Trude, for defendant in error;
    cited Townsend, Libel and Slander, 538; Fry v. Bennett, 5 Sandf. 54; Commonwealth v. Snelling, 15 Pick. 335; Van Vechten v. Hopkins, 5 Johns. 226.
   McAllister, P. J.

When the words of an alleged libelous publication are not reasonably susceptible of any defamatory meaning, the court is justified in sustaining a demurrer to the declaration. But if they are reasonably susceptible of two constructions, the one innocent and the other a libelous construction, then it is a question for the jury which construction is the proper one; and in such case if the defendant demurs to the declaration, his demurrer will be overruled. Odger on Libel and Slander, 26.

A rule involving substantially the Same idea has been concisely stated thus: It is for the court to decide whether a publication is G(tpcibl& of the meaning ascribed to it by an innuéndO) and for the jury to decide whether such meaning is truly ascribed, Blagg v. Sturt, 59 E. C. L. 899; Jenner v. A. Beckett, L. R. 7, Q. B. 11; Mulligan v. Cole and others, L. R. 10, Q. B. 549; Thompson v. Grimes, 5 Ind. 385.

It follows as a logical result of the application of the above rules to this case, that if the words of the publication set out in the plaintiff’s declaration, to which the court below sustained a demurrer, are capable, or reasonably or fairly susceptible of any defamatory meaning as respects the plaintiff’s occupation or business, as a commission merchant, then, in sustaining such demurrer, the court erred.

Any charge of dishonesty against an individual, in connection with his business, whereby his character in such business may be injuriously affected, is actionable; or, as was said by Bayley, J., in Whittaker v. Bradley, 16 E. C. L. 310, “ whatever words have a tendency to hurt, or are calculated to prejudice a man who seeks his livelihood by any trade or business, are actionable.” Orr v. Skofield, 56 Maine, 483; Ostrom v. Calkins, 5 Wend. 264.

The plaintiff, though a minor, lacking a few months of the period of his majority, had the lawful right to seek a livelihood by carrying on the business of commission merchant, the same as the defendant or any other adult, and is just as much entitled to the protection of the law in so doing as the defendant or any other adult. If it were otherwise, what would become of our young men, who, frequently, before they are out of their majority, are obliged to support a widowed mother, or orphaned brothers and sisters left in poverty, or at all events to support themselves? Are such young men to' be regarded as out-laws, so far as adult competitors are concerned?

The declaration shows that the plaintiff and defendant had, from some time in March, 1882, been carrying on the business of commission merchants, at 118 South Water St., Chicago, under the firm name of F. C. Mather & Co.; that they had built up a good business, acquired credit and popularity in their business; that September 23, 1882, the plaintiff, Hays, bought out the defendant Mather’s interest in the property and good will of the concern, and continued the business; that January 29, 1883, the defendant prepared and sent to the customers of plaintiff, through the mails, a postal card reading:

“Dear Sir: I drop you a line to let you know A. M. Hays, my successor in business, is not legally responsible for his contracts, as he is yet a minor, under twenty-one years of age. A word to the wise is sufficient. Store, No. 118 South Water street, I shall occupy and do business. Would be pleased to hear from you.

F. C. Mather.”

We are of opinion "that the words of that publication are capable and reasonably susceptible of a defamatory meaning as respects the plaintiff, in connection with his business. They convey, in a somewhat disguised, but very insidious manner, the defamatory imputation of dishonesty in connection with that business. What other conclusion can be arrived at? The writer refers to the plaintiff as his successor in business. That conveys the idea or information that the writer is well acquainted "with the plaintiff and his business character. The plaintiff, it is then said, is not legally responsible for his contracts, as he is yet a minor. That conveys the idea that those who deal with him are without any legal remedies arising from any breach of contract. If the publication had stopped there it probably would not have been fairly susceptible of any defamatory meaning, because, so far, the words were true, and persons contemplating dealings with plaintiff would be likely to say, “there being nothing against his pecuniary ability, and his character for honesty being good, I would rather trust to the latter than to legal remedies.” But when what was previously said is followed by the significant and proverbially precautionary tvords—“ A word to the wise is sufficient,” the idea is at once conveyed that plaintiff is also wanting in honor and integrity as a business man, and that those who should deal with him ■would suffer loss. That such publication was calculated to injure the plaintiff’s character in business there can be no doubt; and that it did, is specially averred in the declaration. The judgment of the court below will be reversed and the cause remanded for further proceedings, not inconsistent with this opinion.

Beversed and remanded.


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    O. L. Mann et al. v. George Oberne et al.
    Act (R. S. 1874, p. 778), the defendant may plead an estoppel in pais as a matter of right. Such special plea will, however, be subject to the same . tests and rules of practice as in other cases.
    2. Replevin—Pleading—Presumption.—Where in an'action of replevin, a special plea setting up an estoppel in pais, to which the court below sustained a general demurrer, was good in substance. Held, that although where a demurrer has been sustained to a special plea, which set out a good defense, if the action was one which admitted of a general issue under which affirmative defenses, and such as were thus specially pleaded, might be given in evidence, the appellate court will presume that the defendant had the benefit of such defense under the general issue, unless the contrary is shown by the bill of exceptions, and will affirm the judgment, uo other error appearing; yet in a case of replevin, this court does not apply the doctrine of presumption recognized above.
    Appeal from the Circuit Court of Cook county; the Hon. Kiric Hawes, Judge, presiding.
    Opinion filed May 20, 1884.
    This was replevin in the cepit, brought by Oberne and Ho sick against O. L. Mann (then sheriff), and Eppstein and Marks for 160 sides of leather. The pleas were 1, non cepit; 2, non detinet; 3, property in one Scheiderer; 4, justification under attachment against Scheiderer, with averment of property in him; 5, special plea by Eppstein and Marks, of estoppel in pais, in substance as follows:
    That plaintiffs are barred and estopped from bringing or maintaining their said action, because before and at the said time when, etc., one George P. Scheiderer was a resident of Wisconsin, and just prior to the said time when, etc., had failed in business and become and was insolvent, owing a large indebtedness, to wit, $100,000, and was indebted to said defendants, Eppstein and Marks, before and at the said time when, etc., in the sum of $7,000, then past due and wholly unpaid, all of which the plaintiffs then and there well knew; that just before the said time when, etc., the goods and chattels in the declaration mentioned were in said Cook county, in the possession of the plaintiffs; and the plaintiffs, well knowing the premises aforesaid, and further knowing that the defendants were then desirous of finding property of Scheiderer, in said Cook county, to be levied on for the benefit of the defendants, under an attachment writ about to be sued out by .the defendants, and in response to an inquiry then and there made by the defendants of the plaintiffs in that behalf, freely and of their own accord, stated and represented to said defendants that said goods and chattels in the declaration mentioned were then and there the property of said Scheiderer, and that they, the plaintiffs, had no lien thereon, and had no right to the possession thereof, and were about to ship back and return said goods to said Scheiderer, by reason of the making by the plaintiffs of which said statements and representations the defendants, believing the same to be true, and relying and proceeding upon the truth thereof, and not knowing or having any reason to believe the same to be untrue, just before the said time when, etc., employed an attorney at law for a reasonable reward, to be paid by them to him in that behalf, and by and through said attorney instituted in this court an attachment suit against said Scheiderer, and sued out of this court a certain writ of attachment against said Scheiderer, and delivered said writ to the sheriff of said county, to be executed in due form of law; and under and by virtue of said writ, and while the same was in full force and effect, said sheriff at the same time when, etc., and at the instance and in behalf of the defendants, seized and took out of the possession of the plaintiffs the said goods and chattels in said declaration mentioned, and detained the same in execution of said writ, which are the same taking and detention in the declaration supposed, that had said plaintiffs not made to the defendants said statements and representations aforesaid, they, the defendants, would not have employed said attorney, nor instituted said attachment suit, nor sued out said attachment writ, nor requested said sheriff to seize and take said goods and chattels as aforesaid, nor would said seizure have been made; that solely by reason of and in and about the employing of said attorney instituting said attachment suit, suing out said attachment writ, and having the same levied upon said goods and chattels, and seizing and taking the same as aforesaid, the defendant did necessarily lay out and expend a large sum of money, to wit, one hundred dollars; and did necessarily incur and contract a large ¡¡pecuniary liability to be discharged by them, the defendants, to-wit, a liability for five hundred dollars; and this the defendants are ready to verify. Wherefore, etc.
    Replications were filed to all the pleas but the fifth, to that a general demurrer which the court sustained. The cause was tried by the court without a jury, and finding and judgment for plaintiffs, from which defendants prosecute this appeal.
    Mr. Philip Stein, for appellants;
    that the plea presents all the elements of an estoppel in pais, cited Talcott v. Brackett, 5 Bradwell, 60, 68, 69; Pickard v. Sears, 6 Ad. & El. 469; Dezell v. Odell, 3 Hill, 215; Cornish v. Abingdon, 4 H. & N. 549; Smith v. Newton, 38 Ill. 230; Knoebel v. Kircher, 33 Ill. 308; Mayer v. Erhardt, 38 Ill. 45 2; Kinnear v. Mackey, 85 Ill. 98, 99; International Bank v. Bowen, 80 Ill. 541; Wade v. Bunn, 84 Ill. 117; Tucker v. Conwell, 67 Ill. 553; Hefner v. Vandolah, 57 Ill. 520; St. L. & I. M. R. R. Co. v. Earned, 103 Ill. 293; Higgins v. Ferguson, 14 Ill. 269; Donaldson v. Holmes, 23 Ill. 85; Anderson v. Armstead, 69 Ill. 452; Nichols v. Pool, 89 Ill. 491.
    Mr. IIenky Y. Freeman, for appellees;
    as to estoppel in pais, cited Hefner v. Vandolah, 57 Ill. 524; Knoebel v. Kircher, 33 Ill. 315; Anderson v. Armstead, 69 Ill. 454; People v. Brown, 67 Ill. 435; International Bk. v. Bowen, 80 Ill. 545; Mayer v. Erhardt, 88 Ill. 457.
   McAllister, P. J.

That the fifth plea, setting up an estoppel in pais, and to which the court below sustained a general demurrer, is good in substance, can scarcely admit of doubt. It presents with sufficient certainty all the necessary - elements of an estoppel in pais, and if true, amounts to a defense to the action. To sustain a demurrer to it was there-lore error, if the defendants were justified under the rules of pleading in filing it; and it is error which should reverse the judgment below, unless this court is bound to presume that the defendants filing it had the benefit of the same defense as fully, under some other plea.

It was said in The Welland Canal Co. v. Hathaway, 8 Wend. 482, that estoppels in pais can not be pleaded, but are given in evidence to the court and jury, and may operate as effectually as a technical estoppel under the direction of the court. That question, that is, the question -whether an estoppel in pais could be pleaded, was not involved in that case, and the observation, though very nearly correct, may be regarded as mere dictum. The English courts, seemingly without taking any distinction between those actions which admit of a general issue under which different affirmative defenses may be given in evidence, such as assumpsit and case, and such actions as admit of no such general issue, suchas replevin and trespass, hold, that at common law, estoppel in pais may, but need not, be pleaded. Sanderson v. Collman, 4 Man. & Gr. 209; Phillips v. Thorn, 114 E. C. L. 400.

But it is entirely clear that under section twenty-nine of our Practice Act (Ií. S. 1874, p. 778) the defendant may plead an estoppel in pais as a matter of right; such special plea will, however, be subject to the same tests and rules of practice, as in other cases. It has repeatedly been decided in this State that where a demurrer has been sustained to a special plea which set out a good defense, yet, if the action was one which admitted of a general issue, under which affirmative defenses and such as were thus specially pleaded might be given in evidence, then the appellate court would presume that the defendant had the benefit of such defense under the general issue, unless the contrary were shown by the bill of exceptions, and would affirm the judgment, no other error appearing. Warner v. Crane et al., 20 Ill. 148; Stevenson v. Sherwood, 22 Ill. 238.

How, the action of replevin admits of no such general issue; and while we are not prepared to say that the estoppel in pais set up by the special plea was not admissible in evidence, under the plea of property in Scheiderer, yet we do not feel justified in holding that this.court should extend the doctrine of presumption recognized in the above cited cases to such a case as this, and upon the strength of it, hold that the error in sustaining the demurrer to the special plea in question could not have prejudiced the defendants, unless the contrary is made to appear by the bill of exceptions. The Supreme Court has not, so far as we can ascertain, ever applied such a doctrine of presumption in an action of replevin. Oil the contrary, in Leeper v. Hersman, 58 Ill. 218, that court reversed the judgment in replevin, because the court below had improperly sustained a demurrer to a special plea of estoppel. It is true that the plea there set out a deed which might be held to operate as a technical estoppel, which must be pleaded if there be opportunity to do so. But it also set out matter of estoppel in pais, and it is evident from the' opinion that the plea was regarded as one of estoppel in pais.

We think it is the better view that the plea in question here was properly interposed; and, as it was good in substance, it was error to sustain the demurrer, which requires a reversal of the judgment, and sending the cause back.

Reversed and remanded.


text:
    Chicago & North Western Railway Co. v. Gottlieb Stube.
    1. Negligence—Instruction.-—Where a court submitted it to the jury to find for the plaintiff if the .injury was by defendant’s engine, and the engine at the time and p ace had not a light upon it, showing in which direction it was moving, etc., and no ordinance requiring such precaution was introduced in evidence. Held, that such a direction was wrong and misleading. The question of negligence was one of fací for the jury and not of law for the court.
    2. Instructions.—The seventh instruction given in this case is erroneous, in that there was no evidence whatever that any witness for defendant testified under a fear of losing his employment, or a desire to please his. employer, and because, taken as a whole, it afforded to the jury a means and justification for discrediting and disregarding the testimony of the witnesses on behalf of a railroad company upon mere conjecture and metaphysical speculation.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed May 20, 1884.
    This action was by appellee, Stube, against the appellant corporation, to recover for a personal injury to appellee, occasioned, as he alleges, by his being struck by a locomotive of appellant, while crossing the track of the latter at a street crossing in' the city of Chicago, by reason of negligence on the part of appellant’s agents and servants. There was a trial resulting in a verdict and judgment against appellant for $3,503, which appellant claims ought to be reversed for manifest error.
    The evidence was conflicting upon the question of ordinary care on the part of Stube upon the occasion in question, also as to there being any negligence on the part of the railway company, with a very decided preponderance in favor of the latter.
    Although it was alleged in one count of the declaration that there was an ordinance of the city requiring the railway company, and other such companies, to have in the night time a conspicuous light burning on the forward end of every locomotive engine, and that in violation thereof the appellant had none upon this occasion, though 'in the night time, and averred that the injury to Stube was the result of that neglect, yet no evidence of any such ordinance was introduced on the trial, and the court, in the first instruction fot the plaintiff, submitted to the jury the question of the omission of the defendant to have such light on. the locomotive.
    This was the instruction:
    1. “ If the jury believe from the evidence that'at the time and place testified by him the plaintiff was injured by an engine of the defendant corporation, and that at such timó and place the engine in question had not a light upon it showing the direction in which the engine was moving, if you believe from the evidence the engine was moving, and that the time was in the night time, or that the engine in question, while in motion, did not have a bell continually ringing, and if you further believe from the evidence that the plaintiff was struck and injured at the railroad crossing in question, as charged in the declaration, in consequence of the omission to have such light or to ring such bell, and also believe from the evidence that the plaintiff himself was at the time exercising ordinary care and caution for his own safety and to avoid *ccidents, then the defendant is liable to the plaintiff for the loss and damage sustained by him by reason of such injury, if any such loss or damage has been proven.”
    There was no evidence tending to show that any witness testified under any fear of losing his employment, or a desire to please his employer, yet this instruction was given for plaintiff’:
    7th. “If the jury believe from the evidence that any witness has testified under a fear of losing his employment, or a desire to please his employer, then such fact may be taken into account by the jury in determining the degree of weight which ought to he given to the testimony of such witness, and in such case the jury have a right to judge of the effect, if any, likely to be produced upon the human mind by such feelings or motives, and how far such feelings or motives, on the part of the witness, may tend to warp his judgment, or pervert the truth, and the jury, after applying their own knowledge of human nature and the philosophy of the human mind to the investigation of the subject, are to judge of the weight which ought to be given to the testimony of such witness, taking the same in connection with all the other evidence in the case.”
    Mr. B. G. Cook, for appellant;
    as to instructions, cited C. & N. W. Ry. Co. v. Schumilowsky, 8 Bradwell, 620; I. B. & W. R. R. Co. v. Birney, 71 Co. 391; Alexander v. Mt. Sterling, 71 Ill. 366; Holcomb v. Davis, 56 Ill. 413; Pease v. Catlin, 1 Bradwell, 88.
    Messrs. Clifford, Anthony & Paulsen, for appellee;
    cited C. B. & Q. R. R. Co. v. Lee, 87 Ill. 454; T. W. & W. Ry. Co. v. McGinnis, 71 Ill. 346; I. & St. L. Ry. Co. v. Smith, 78 Ill. 112.
   McAllister, P. J.

The evidence upon the question of ordinary care on the part of the plaintiff and negligence on the part of the defendant below, was not only conflicting, but, judging from the record, the clear preponderance of it was against the plaintiff upon both those essential facts. It is, therefore, a case for the application of the rule requiring accurate instructions, and a reversal of the judgment for anything substantially improper and prejudicial in them. We are of opinion that the first and seventh instructions for the plaintiff were of that character.

By the first, the court submitted to the jury to find for the plaintiff if the injury was by an engine of the defendant; that the engine, at the time and place, had not a light upon it showing in which direction it was moving, and it was night at the time. iNo ordinance of the city upon that subject was introduced in evidence, so that the instruction, in that particular, amounted to a direction by the court that the moving an engine by the defendant in the night tim.e, no matter under what circumstances, without having a light upon it showing the direction in which it was moving, was negligence per se, and as a matter of law. Such a direction of the jury was clearly wrong and misleading. In the absence of a statute or ordinance requiring such a precaution, the question of negligence was one of fact for the jury, and not of law for the court. There is no such statute, and no ordinance of any kind is to be found in the record. The counsel for appellee take the position that proof of the ordinance, or the introduction of it in evidence was unnecessary; that courts will take judicial notice of such ordinance. -We are aware of no statute authorizing the courts to take judicial notice of the ordinances of the city of Chicago, when they come in question collaterally, as in this case.

The seventh instruction for plaintiff below was improper for two reasons: (1.) There was no evidence whatever that any witness for the defendant testified under a fear of losing his employment, or a desire to please his employer; so that it submitted to the jury a question of fact, as to which there was no evidence, except the fact of the existence of the relation of employer and employe, as respected the defendant’s witnesses, or the greater part of them. (2.) The instruction, taken as a whole, affords to the jury what in many instances they are too anxious to find, viz.: A means and justification for discrediting and disregarding the testimony of the witnesses on beha.lf of a railroad company upon mere conjecture and metaphysical speculation. A moment’s reflection will show the utter unfairness of such an instruction. Here is the plaintiff' testifying in his own behalf, where he has thousands of dollars at stake. The instruction does not apply to him. His credibility is subjected to no test; but those who are called to testify in opposition to him, having no interest in the event of the suit may, upon the mere ground that they are in the employment of the railroad company, be discredited upon conjecture and metaphysical theories born of prejudice alone. ¡Railroad companies, when they voluntarily come or are brought into the courts, are entitled'to no greater, no less rights than private individuals. The rights of all litigants in a court of justice should be equal; impartial justice, devoid of the influences of passion or prejudice, should be the end sought. Such an instruction affords the means for the unlimited sway of both passion and prejudice. If the means of discrediting witnesses there prescribed shall be sanctioned, we are unable to perceive how we could ever determine from the record, in such a case, that the clear weight and preponderance of the evidence was against the plaintiff. But, inasmuch as we have never found such a mode sanctioned by any decided case of authority, or in any elementary work on evidence, we must condemn it, not only for that reason, but for its inherently mischievous tendency to thwart the due administration of justice.

The judgment of the court below will be reversed and the cause remanded.

¡Reversed and remanded.


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    Patrick Maloney v. J. S. Shattuck.
    1. Forcible detainer—Complaint—Description.—In determining the sufficiency of the description in a complaint of forcible detainer, the proper test is whether an officer, executing a writ of restitution, could identify the premises described in his writ. Applying this test in this case, the description of the premises in the complaint is void for uncertainty.
    2. Same.—Where a complaint alleges that the plaintiff is the owner and is entitled to the possession of premises, and that the defendant unlawfully withholds the possession thereof, the entry having been peaceful, it is necessary in order to a recovery, that the plaintiff should show he was entitled to the posses ion at the time of suit brought.
    3. Possession.—Where persons claim possession without a deed or other instrument calling for boundaries, their possession does not extend beyond what they have inclosed or actually occupy.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed May 20, 1884.
    This was an action for forcible detainer by appellee against appellant. The complaint was as follows:
    State of Illinois, )
    Cook County, j
    J. S. Shattuck complains to J. G. Bolton, Esq., a justice of the peace in and for said county and State, that he, the said J. S. Shattuck, is the owner of and is entitled to the possession of the following described premises in said county, to wit: Commencing at a point on the north line of lot 16, in County Clerk’s division of undivided lands in Section 20, 37,11, Cook county, Illinois, 100 feet east of the northwest corner of the undivided east 23 acres of said lot 16, and running thence east 300 feet along said north line of said lot 16; thence southwest 136 feet; thence south 320 feet; thence west 210 feet; thence north 324 feet; thence west 102 feet; thence north 136 feet to the place of beginning, containing about 3 1-5 acres, and being immediately south of and adjoining block 32, Athens, and the south end of Catherine street, in the village of Lemont, Cook county, Illinois, and all being in the undivided east twenty-three acres of said lot 16 above mentioned. And that Patrick Maloney unlawfully withholds the possession thereof from the said J. S. Shattnck, wherefore he prays a summons in pursuance of the statute in such case made and provided.
    Dated June 19, A. D. 1882.
    On the back is the following:
    J. S. Shattuck.
    Complaint for an illegal or forcible detainer.
    Judgment in the court below for the plaintiff, and the defendant appealed to this court.
    Messrs. Bennett & Higgins and Mr. John I. Bennett, for appellant;
    as to possession, cited McCartney v. McMullen, 38 Ill. 238; C. & St. L. R. R. Co. v. Wiggins Ferry Co., 82 Ill. 232; Thompson v. Sornberger, 59 Ill. 328; Dudley v. Lee, 39 Ill. 342.
    As to pleading: Haskins V. Haskins, 67 Ill. 452; Schaumtoeffel v. Belm, 77 Ill. 568; Beel v. Pierce, 11 Ill. 97.
    Mr. A. B. Jenks, for appellee;
    cited Gazzolo v. Chambers, 73 Ill. 75; Ball v. Chadwick, 46 Ill. 28.
    Actual possession may exist by proof of something short of an actual residence on the land or inclosing it by fence: Pearson v. Herr, 53 Ill. 144; Jamison v. Graham, 57 Ill. 94; Hassett v. Ridgely, 49 Ill. 197.
   Wilson, J.

It would be sufficient ground for the reversal of the judgment below that the description of the premises, as set forth in the complaint, is void for uncertainty, the metes and bounds as given not inclosing any land. We have examined the description with care, and find that the two terminal points do not meet by at least one hundred and fifty feet. In determining as to the sufficiency of the description in this class of cases, the proper test is whether an officer executing a writ of restitution could identify the premises described in his writ. This in the present case would be impossible.

Again, the plat of the land which was offered in evidence, and was by reference made a part of the testimony of the plaintiff’s witnesses, embraces an entirely different tract from that attempted to be described in the complaint. As the complaint forms the basis upon which the proceedings rest it must correctly describe the premises withheld, or the suit will fail.

But independent of these difficulties, we are of opinion that the case, as made by the plaintiff, did not entitle him to recover. The statute in relation to forcible entry and detainer provides for several classes of cases, among which are, Isr, where a forcible entry upon lands or tenements is made, 2d, where the entry is peaceable and the possession is unlawfully withheld, and 3d, when entry is made into vacant and unoccupied lands or tenements without right or title.'

Where the entry is forcible, the only inquiry is, has the possession been taken by actual or constructive force. If it has, it must be restored on complaint of the party dispossessed, even though the wrong-doer himself may be the owner of the land.

The object of the statute, in that class of cases, is to give a summary remedy to one who has been forcibly dispossessed, without reference to his title or his right of possession. Dudley v. Lee, 39 Ill. 339.

The present case is brought under either the second or third class of cases above specified, and is a suit for an unlawful detainer merely. The complaint alleges that the plaintiff is the owner of, and is entitled to the possession of the premises, and that the defendant unlawfully withholds the possession thereof. Under such a complaint, the entry having been peaceable, it was necessary in order to a recovery that the plaintiff should have shown he was entitled to the possession at the time of suit brought. Did he so show?

It appears from the bill of exceptions that one 27. J. Brown, on November 7,1881, for the consideration of $1, quitclaimed to Julius A. Boyer 23 acres of land, within which, as is claimed, the premises in controversy are embraced, and that Boyer, March 7, 1882, conveyed the land to the plaintiff by deed with a covenant of warranty of title. It does not appear, nor is it claimed that either Boyer or the plaintiff ever took possession of the land; nor was there any proof offered that Brown ever had a deed or other paper title thereto. It was claimed, however, that he had formerly exercised acts of ownership over portions of the twenty-three acre tract, such as cutting of timber, permitting a small space to be used for burial purposes, etc. But the proof on this subject was vague and unsatisfactory, and was, we think, wholly insufficient to show possession or to raise any presumption of ownership in Brown. Moreover, it does not appear that any of the claimed acts of ownership were done upon that part of the land now in controversy. They were done upon other and different portions of the tract, and as it is not shown that Brown ever had a deed or color of title to any part of the tract, such acts as were done by him can not, by construction, be deemed to extend his possession beyond the limits of their actual performance. If one enters upon an estate having title thereto, the law presumes the possession to be co-extensive with the estate: 1 Wash, on Beal Property, (4th Ed.) 58. But the mere entry upon a tract of land, without any color of title, and exercising acts of ownership, such as the inclosing a part of it with a fence, does not, of itself, constitute possession of any more land than is inclosed. Webb v. Sturtevant, 1 Scam. 181. In Ill. Cent. R. R. Co. v. Ind. & Ill. C. R. R. Co., 85 Ill. 211, the principle is stated thus: “ Where persons claim possession without a deed or other instrument calling for boundaries, their possession does not extend beyond what they have inclosed, or actually occupy.” There was thus an entire failure to show title to the premises in controversy in Brown, by acts of ownership or otherwise. Having no title he could convey none to Boyer, and Boyer could convey none to the plaintiff.

The claim that Brown purchased the property is without foundation from anything appearing in the evidence.

Equally unsupported is the theory that the relation of landlord and tenant existed between Brown and the defendant. Brown, it is true, testified that the defendant applied to him to purchase the property. But tins falls far short of showing a recognition by the defendant of Brown as his landlord. The defendant had been in the open and exclusive possession of the property for many years, the larger part of it for more than twenty years, under no lease or contract with Brown, and without any demand or claim by him for the payment of rent ever having been made by Brown during all that period.

The inference to be drawn from the proof in the case would seem to be quite as strong that the defendant was holding adversely to Brown as the contrary.

Other points are discussed in the briefs of counsel which it is unnecessary to consider. Viewed in any aspect of the case, we think the verdict and judgment were unwai’ranted by the evidence, and accordingly the judgment is reversed and the cause remanded for a new trial.

Beversed and remanded.


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    Joseph Bohmann v. City of Chicago.
    Practice.—Where, in an action at common law for injuries'caused by raising the grade of a street, the defendant pleaded the general issue, and a jury was impaneled to try the issues between the parties, and the plaintiff introduced his evidence tending, in part, to prove his cause of action, and rested his cause, and defendant then moved to exclude plaintiff’s evidence and discharge the jury, and plaintiff asked leave to introduce further evidence, it was error for the court, after granting the former motion and overruling the latter, against plaintiff’s objection, to find the issues for the defendant and render final judgment.
    Appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed May 20, 1884.

      Mr. Ahíto Yoss and Messrs. Bean & Cooiie, for appellant;
    that it was error for the court, after striking out all the evidence and discharging the jury, to find the issues for the defendant, cited Deshler v. Beers, 32 Ill. 368; Smith v. Gillett, 50 Ill. 291; Hutt v. Bruckman, 55 Ill. 441; Merricks v. Davis, 65 Ill. 319; Crowley v. Crowley, 80 Ill. 469; Guerdon v. Corbett, 87 Ill. 272; Seely v. Pelton, 63 Ill. 101; Holmes v. C. & A. R. R. Co., 94 Ill. 439.
    Mr. Julius S. Gjrinnell, for appellee.
   McAllister, P. J.

This was an action at common law, brought by Bohmann against the city of Chicago, to recover damages for an alleged injury to his premises, consequent upon the raising the grade upon Lincoln avenue, upon which plaintiff’s premises abutted. The case came on for trial under the plea of not guilty, and a jury was impaneled to try the issues thus formed. After the plaintiff had introduced his evidence, tending in part at least to prove his cause of action, he rested his cause. Whereupon the defendant’s counsel moved the court to exclude the plaintiff’s evidence and discharge the jury. The plaintiff’s counsel thereupon asked leave to introduce further testimony. This last motion the court overruled, but granted the motion of defendant’s counsel, excluded plaintiff’s evidence and discharged the jury; and the jury being discharged, the court, without plaintiff’s consent and against his objections, found the issues for the defendant and rendered final judgment in its favor. To all which the proper exception was taken by plaintiff, who brings the case here for revision.

We are of opinion that there is no warrant in law for such a course of procedure. The case being at common law, both parties had a constitutional right to a trial by jury, which could be waived only by mutual consent. Ware v. Hottinger, 35 Ill. 375. Where a plaintiff, at the trial, finds himself wanting in evidence to prove some necessary element of his case, and such predicament is the result of innocent mistake, surprise, or of fraud on the part of the defendant, the court may, in its discretion, allow the plaintiff to withdraw a juror, which operates to discharge the jury without nonsuiting the plaintiff, and carries the case over to another term. Schofield v. Settley, 31 Ill. 515, and cases there cited.

In the case before us, the plaintiff’s counsel, instead of asking leave to withdraw a juror, applied for leave to introduce further testimony. This was denied. But defendant’s counsel having made, pressed the motion to exclude from the jury all of plaintiff’s evidence, and to discharge the jury. That motion was allowed.

While such a practice is wholly without precedent, so far as our knowledge of practice goes, vet it is not difficult to prescribe as to its legal effect. Such a motion can be regarded only as an expressed consent, on the part of the defendant, to the withdrawal of a juror by the plaintiff, and that the cause might stand continued to another term, and when allowed by the court, no other effect could legally be attributed to it. The defendant having so consented, the court could not properly even give judgment as in case of nonsuit.

It was held in Chandler v. Bicknell, 5 Cowen, 30, that where the plaintiff was allowed to withdraw a juror, against the consent of the defendant, the latter was entitled to move for judgment as in case of nonsuit. That however, is not allowable under our practice. In Schofield v. Settley, supra, the court say: “The practical effect of withdrawing a juror, in our practice, is not that it shall operate as a nonsuit, but merely to carry the cause over to another term.” When a juror is withdrawn by consent of defendant, he is not even entitled to costs. Stodhart v. Johnson, 3 Term R. 657. So, as we have seen, the defendant by its consent to the discharge of the jury was thereby precluded from moving even for judgment, as in case of nonsuit, or claiming costs of the trial; but notwithstanding that, the court below, after such discharge of the jury, assumed the function of finding the issues for the defendant, and thereupon rendered a final judgment, in bar of any other suit by plaintiff for the same cause of action, and for full costs, against him. To hold that such a procedure is allowable, is but saying that trial judges may alter in their discretion, not only well settled common law rules, but those prescribed by the higher law of the constitution of the State. The judgment of the court below will be reversed and the cause remanded.

Judgment reversed.