author: Pillsbuev, P. J.

text:
    East St. Louis and Carondelet Ry. Co. v. Samuel Frazier.
    1. Instructions. — The instruction which directed the jury to find for the defendant generally, if they found a certain issue in fact in its favor, entirely ignoring the issues made upon the first and second counts of the declaration, was erroneous.
    2. Instructions on measure oe damages. — It is fatal error in instructions on the measure of damages not to inform the jury in any of the instructions that they should be governed by the evidence in the assessment of damages.
    Error to the City Court of East St. Louis; the Hon. Wm. P. Launtz, Judge, presiding.
    Opinion filed July 10, 1886.
    Action by defendant in error to recover for personal injuries received while in the employ of plaintiff in error.
    It appears the railway company owned and operated an appliance, called in the declaration and proofs a cradle, which was used to inn cars upon for the purpose of putting them upon a ferry to be carried across the Mississippi river to St. Louis. This cradle was constructed so as to be moved up or down an incline upon rollers, making it conform to the stage of water, or to remove it up the incline out of danger of high water or floating ice. For the purpose of drawing it up the incline) two ring bolts were inserted into the sides, to which chains or a block and tackle could be hooked, and then connected with a locomotive as the power used. On the occasion in question Frazier was assisting in the preparation necessary for the movement of the cradle, being upon it and in front of the ring bolts, to which the chain was attached, the other end being connected with a car coupled to an engine. While in this position, the locomotive started, and Frazier, seeing the coming strain upon the chain, ran to get out of danger, but not succeeding, and one of the ring bolts breaking, the chain was jerked against him, and his leg was badly crushed and broken, and he otherwise injured. Whether the breaking of the bolt was caused by its being defective when it was put in the cradle, as charged in the third count of the declaration, or from negligent starting of the engine by the engineer in charge, as alleged in the other counts, were questions litigated upon the trial, and upon which the testimony was quite conflicting.
    . The testimony bearing upon the question whether the plaintiff in error is so far permanently injured that he will not recover the entire use of his crushed leg is quite uncertain if not conflicting.
    The plaintiff below asked and the court gave for him but one instruction, as follows:
    “ The jury are instructed that the measure of damages in this case will be, if a verdict is found for the plaintiff, a reasonable compensation for time lost in consequence of the injury, and for the pain and suffering undergone, the necessary expense of effecting a cure, and for any permanent injury to the plaintiff’s leg which renders it less useful.”
    The defendant requested the court to give to the jury its second instruction as follows:
    2. “The court instructs the jury that the mere fact the eye-bolts used in the cradle mentioned in this case broke, does not render the defendant liable in this suit, and if they believe from the evidence that said eye-bolts were of good material, of proper size and properly adjusted in said cradle, then they should find for the defendant,” which the court refused to do.
    Exceptions were duly taken to this action and here the giving of the one and refusing of the other is assigned for error.
    The jury returned a verdict for the plaintiff for $9,000, and he remitting $3,000, the motion for a new ¡trial was overruled and judgment entered for the residue of the verdict, and the defendant brings the record here by writ of error.
    Mr. A. S. Wildeehan, for plaintiff in error ;
    as to instructions on measure of damages, cited City of Freeport v. Isbell, 83 Ill. 440; Martin v. Johnson, 89 Ill. 537; C., B. & Q. R. R. Co. v. Warner, 108 Ill. 538; C., B. & Q. R. R. Co. v. Sykes, 96 Ill. 162; Rolling Mill Co. v. Morrissey, 111 Ill. 646.
    Mr. M. Millard, for defendant in error.
   Pillsbuev, P. J.

The court held properly in refusing the second instruction asked by defendant for two reasons: First, it contains a direction to the jury to find for [the defendant generally, if they find the one issue of fact in its favor, the condition of the bolt which broke, entirely ignoring the issues made upon the first and second counts of the declaration. The issues were presented whether the bolt was broken by the negligence of the engineer, and if so whether he occupied such a. relation to the plaintiff as constituted them fellow servant; within the rule prevailing in this State. Other issues may be said to be involved which the instruction if given would withdraw from the jury. Second, the principle of the instruction was contained in the first instruction given for the defendant and the court was not required to repeat it.

We are compelled to say, however, that the instruction given for the plaintiff, standing as it does alone in the record, while, perhaps, stating the measure of damages in this class of cases properly enough as an abstract proposition of law, should not, under the decisions of our Supreme Court, have been given in the form asked, but should have been modified or refused.

The jury are not told by this instruction, or any other in the record, that they should be governed by the evidence in the assessment of damages, an error held fatal in City of Freeport v. Isbell, 83 Ill. 440; Martin v. Johnson, 89 Ill. 537; C., B. & Q. R. R. Co. v. Sykes, 96 Ill. 162; Rolling Mill v. Morrissey, 111 Ill. 646, and others not necessary to cite.

It is suggested by counsel that as the jury knew nothing about the damages sustained until they heard the evidence they had no basis for their action except as conveyed to them by the evidence, and to be always reminding them of their duty to be governed in all their findings by the evidence partakes of the character of a reflection u pon their intelligence and integrity. Whatever force there may be in this suggestion we need not stop to inquire as it is effectually disposed of in the decisions referred to, which are binding upon this as well as on the court below.

Had the jury been informed of their duty in this regard by any instruction in the case, this objection to it might, perhaps, be considered as obviated.

The most serious objection to the instruction, in our view, is that it assumes the existence of the various elements of damages recited in it as constituting the aggregate amount of damages that the plaintiff could recover. Stated in such abstract form, unexplained by any others, it seems to imply that in the opinion of the court the evidence is sufficient to establish that the plaintiff had sustained damages from the .several causes specified, and that the only duty of the jury was to ascertain the amount of each and return the aggregate as their verdict. This instruction may have been the reason of the verdict returned, which is practically admitted by the remittitur to have been one third too large. The instruction shoxxld have been so modified that the jury could not xxndei'stand from it that they might avoid the responsibility of considering the evidence and to detennine therefrom whether the damages claimed had been proven, especially as the evidence creates such uncertainty respecting any permanent injury.

We think the cases of Adams v. Smith, 58 Ill. 417; T. P. & W. Ry. Co. v. Patterson, 63 Ill. 304; Wolcott v. Health, 78 Ill. 433, and Wilson v. Bauman, 80 Ill. 493, are in point upon this question, and render the instruction so far erroneous as to require a reversal of the judgment. We do not deem it necessary to discuss the weight of the evidence bearing upon the several issues made, as the casé must be again tried at the circuit, and from some of the instructions given for the defendant, notably the first, we are not sure that the former jury passed upon those1 raised by the first and second counts of the declaration; but for the error indicated the judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Wilkin, J.

license: Public Domain

text:
    Philip Dietz et ux. v. Roger W. Atwood.
    Debtor and creditor — Fraudulent transfer. — If a debtor use his personal property upon the real estate of another with the knowledge and consent of the owner, so that it becomes a part of such realty, for the purpose of defrauding his creditors and preventing them from obtaining satisfaction of their demands, they may still follow the property into the hands of the owner of the premises, and fasten their claims upon such premises to the extent of the debtor’s property so appropriated.
    Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed July 10, 1886.
    The original bill in this case sought to set aside a conveyance from appellant, Philip Dietz, to his wife, Wilhelinina, dated March 17, 1868, of lot one, block eleven, in Bussell’s addition to Alton, on the alleged ground that it was made with the intent to hinder and delay appellee and other creditors of the said Philip Dietz. It is alleged in the bill that appellee obtained judgment against appellant Philip Dietz in the Circuit Court of Madison county, on the 18th of October, 1883, for §833.43 and costs, on an indebtedness existing at the time of the conveyance, and that an execution issued on such judgment has since been returned nulla bona.

    To this bill appellants filed their joint answer, averring, among other things, that the premises conveyed was their homestead, and that at the time of the conveyance it did not exceed in value one thousand dollars. On the coming in of this answer, appellee amended his bill alleging that in the year 1882 Philip Dietz, with the knowledge and consent of his wife, Williehnina, arid with the intention of defrauding complainant, built with his own money, upon the conveyed premises, a dwelling house at a cost of §1,000, thereby increasing the value of said premises to $1,500, and that said new dwelling has, since its erection, been occupied by and rented to tenants of the appellants. The prayer of the bill as amended is that in case the deed can not be set aside, that defendants be decreed to pay the complainants the cost of the dwelling house to the extent of the judgment, and in default thereof, that the said house and a reasonable part of said premises in connection there with, be sold to satisfy such judgment. These allegations were denied by appellants in their answer to the bill as-amended. The decree finds the conveyance as alleged in original bill; that at that time the premises were occupied by appellants as a homestead, and were not worth $1,000'; that during-the year 1882, Philip Dietz, with his own money and with the knowledge and consent of his wife, erected on the premises, the dwelling house mentioned in the amendment to the bill, without any consideration from the wife ; that prior to the erection of the house the premises were not worth more than $1,000, but that the erection thereof has increased the value of the same beyond that amount; that the house has been occupied by tenants since its erection; that Philip Dietz was, at the time he built the dwelling house, largely indebted, and did not retain enough of his means to pay such indebted- “ ness ; that his wife knew of his indebtedness, and that the erection of such house was a fraud upon complainant. It is then ordered that unless Philip Dietz, or some one for him, pay complainant in thirty days, the amount of his judgment, the master in chancery proceed to appoint three commissioners to appraise the premises and set off a homestead to appellants, and the master proceed to sell the remainder thereof to satisfy complainant’s judgment, or in case the commissioners report the premises indivisible and appraise it at more than §1,000, the master shall notify appellants, and in case they fail to pay the excess of value over $1,000, or so much thereof' as is necessary to satisfy the judgment, interest and costs, within sixty days, the master to sell the entire premises and pay Wilhelmina Dietz §1,000, and apply the balance in payment of the judgment, etc., surplus, if any, to go to Wilhelmina Dietz.
    Mr. John G. Irwin, for appellants.
    Messrs. Wise & Davis, for appellee.
   Wilkin, J.

As against Wilhelmina Dietz, there is manifest error in this decree appearing on its- face. It finds the conveyance to her by her husband valid as against his creditors (the premises being a homestead worth less than $1,000) and yet in effect sets it aside as to a part of the lot conveyed. The most that could be claimed on the facts alleged and proved in this case would be that the erection of the new house on the wife’s land should be treated as a gift to her, to the extent that the value of the premises have been enhanced by the improvement, not exceeding the amount of money so invested. The decree, however, seeks to take not only the enhanced value, but all of the property in excess of one thousand dollars in value. The court by this decree does not find the value of the improvement, nor the extent to which the premises have been increased in value, but allows commissioners, appointed by the master in chancery to determine how much of the property, or its value, shall be taken. This is not a proceeding to subject a homestead to sale, and there is no authority of law for vesting such power in commissioners. The question of homestead is only material in the case in determining whether or not the conveyance of March 17, 1868, was fraudulent or not.

That question being settled in favor of appellant, the legal title was vested in the wife, and any increase in the value of the property arising from causes other than the expenditure of money thereon by the husband was hers as absolutely as though she was a stranger to the grantor.

The question then arises as to the rights of the parties, regardless of any question of homestead. The law seems to be that “if a debtor use his personal property upon the real estate of another, with the knowledge and consent of the owner, so that it becomes a part of such realty, for the purpose of defrauding his creditors, and prevent them from obtaining satisfaction of their demands, they may still follow the property into the hands of the owner of the premises thus benefited, and fasten their claims upon such premises to the extent of the debtor’s property so appropriated.” Bump on Fraudulent Conveyance, 239, and cases cited in note one. Especially see Lyman v. McGregor, 38 Allen, 182.

If, therefore,the court below, on a second hearing, should find that the husband invested his money in the improvement of the wife’s property (not reasonably necessary to keep it habitable, and in repair as a home for the family), and that he made such investment with the intent to hinder and delay his creditors, and with . the knowledge and consent of his wife, and without any consideration from her, then the appellee would be entitled to a decree against the premises for the satisfaction of his debt to the extent that the investment of the husband’s money has increased the value of such premises if anything, but not exceeding the amount of money so invested.

The finding of those facts are for the court, by reference to the master or otherwise, so as to fix the rights of the parties by its decree.

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

¡Reversed and remanded.


author: Pillsbury, P. J.

text:
    William J. Randolph v. The County Board of Pope County.
    1. Cbrttorari. — The only purpose of a common law writ of certiorari is to cause to be brought before the tribunal awarding it, the entire record of the inferior tribunal relating to the subject-matter of which complaint is made; the matters involved are to be determined by an inspection of the record alone, the raising of any issue of fact thereon, or the consideration of any evidence dehors the record being inadmissible.
    2. Officers — Removal by county board. — The power of county boards to remove officers for the causes mentioned in' the statute is well settled.
    Error to the Circuit Court of Cook county; the Hon. Robert W. McCartney, Judge, presiding.
    Opinion filed July 10, 1886.
    The plaintiff in error, being removed from the office of county treasurer of Pope county, sued out of the circuit court of that county a common law writ of certiorari directed to the county hoard, commanding it to return into court the record and proceedings had by it respecting the removal of the petitioner.
    In obedience to such writ the county hoard made its return, setting forth its record in the matter, from which it appears that on the third day of March, A. D. 1885, being the second day of the regular March session of the hoard, an order was entered requiring the treasurer to file his report, count the funds and make settlement w.ith the board on the fifth day of the session, and also to he examined under oath as provided by statute, and that he file an additional official bond without delay."
    On the fifth day of the session another order was entered, wherein- it is recited tint the plaintiff in error had failed to comply with the former order of the board, and had failed to comply with the statute making it his duty to report to the board as prescribed in § 10, Ch. 36, R. S., and that he had neglected Ms duty imposed by § 15 of the same chapter ; the board therefore, by authority of said § 15, removed him from office for the causes stated and declared his office vacant, and he was ordered to turn over to his successor all books, moneys, papers, and other things belonging to Ms office, without delay. On the same day the board appointed one John M. Baum as county treasurer to fill the vacancy thus created, who, as appears by the record, duly qualified. During the same session and on the 16th day of March, the record recites that one D. G. Thompson, a citizen, on behalf of plaintiff in error (who also appeared in the circuit court as one of his counsel), came before the board and entered a motion to rescind the order removing the plaintiff in error from the office of county treasurer.
    - This motion, it seems by the record, was entertained and counsel heard upon it, and taken under advisement by the board until the next day, when á final order was entered in the matter, reciting the two former orders above referred to, and further that the plaintiff in error had been notified personally by members of the board and by a certified copy of the entries of record by the board, delivered to him by the sheriff, and that he still failed to make Ms report, count the funds, and file an additional bond, or in making any attempt to file such bond, and had failed to comply in any way with the orders of the board, and the former orders were confirmed and the motion to rescind overruled.
    • The plaintiff in error thereupon applied for and obtained this writ to remove the record of the county board into the circuit court, which being done, he entered his motion to quash the record, which was overruled, and he sued out this writ of error.
    Messrs. Morris & Son, for plaintiff in error.
    Messrs. Ross & Sloan, for defendant in error.
   Pillsbury, P. J.

The only purpose of a common law writ of certiorari is to' cause to be brought before the tribunal awarding it, the entire record of the inferior tribunal relating to the subject-matter of which complaint is made, by way of return to the writ by the person or body to whom it is directed.

Upon the record being returned into the superior tribunal in obedience to the commands of the writ, the matters involved are to be determined by an inspection of it alone, it not being admissible to raise any issue of fact thereon, nor to consider any evidence dehorsti\Q record; and if it should appear from such inspection of the record that the inferior tribunal had no jurisdiction of the subject-matter, or had in its proceedings exceeded its jurisdiction, or had failed to conform its proceedings to the requirements of the law in essential particulars, the record will be set aside and held for naught; but if the contrary appear the record will be sustained and the writ of certiorari be quashed. Hyslop v. Finch, 99 Ill. 171; Dunahue v. County of Will, 100 Ill. 94.

As the record, then, in this case, must stand or fall by its own recital of facts and the conclusions of the county board founded thereon as evidenced by it, we have to see if it discloses a case autlioi izing action by the board and within its jurisdiction, and whether such jurisdiction has been exceeded, or the proceedings defective in any essential requirement of the law. Since the case of Donahue v. The County of Will, supra, and that of The People ex rel. Shipley v. Mays, opinion of the Supreme Court filed June 12, 1886, at Mount Vernon, affirming same case in 17 Bradwell, 361, it is too late to question the validity of the statute that confers upon the county board the power tc remove county officers for the causes mentioned in the statute. Section 10 of Ch. 36 of the Revised Statutes of 1874 (referred to in the order of the board as 1883), makes it the duty of the county treasurer to report to the county board, at each regular term thereof, the amount of money, county orders, jury certificates and other funds he may have received from every source since his last accounting, stating by whom, on what account and at what time paid into the treasury; and also the amount of all payments from the treasury, stating particularly to whom, on what account and at what timo paid out; also the amount of money, county orders and other funds in his hands. ” Here is a plain duty enjoined which public policy requires should be strictly 1 erformed. It is essential to the proper transaction of the county business by the board that it should be correctly advised of the financial condition of the county. Bills against the county are to be audited and paid, appropriations for expenses, repairs or improvements may be called for and necessary to be made, and if the board is not informed of the amount of the county funds, no intelligent action can be had in these respects.

These, and other considerations, make it very important that the report of the treasurer should be presented to the board at or near the beginning of the session, and renders it very improbab’e that the legislature intended, as contended for by counsel, to give the treasurer the entire session in which to report.

To so hold would empower him to continue the session of the board indefinitely, or else the board must adjourn without making settlement with him; for as long as the board remained in session he would not be in default, and he could delay until the last moment of the session without being chargeable with neglect of duty in this respect. He should make his report to the board at such an early day in the session that the public business would not be delayed by want of it, even if the statute should be construed as not requiring it at the convening of the board.

By section 12 of the same chapter, he is required to render an account and make settlement at any time when ordered by the board, and by section 14 to submit to an examination under oath by the board touching any matter in regard to the faithful discharge of his duties, and section 16 empowers the board to remove him from office if he shall neglect or fail to render an account, or make settlement at any time when required by law, or by the county board, or refuse to answer any question propounded to him by the county board, or is a defaulter and in arrears with the county) or is guilty of any other misconduct in his office.

From these provisions of the statute it is clear that the county board of Pope county had the right to make the order of March 3d, requiring the plaintiff in error to file his report and make settlement on the seventh day of March, and to be examined under bath as provided in the statute, and for a-failure to comply, with such order to remove him if their proceedings for that purpose were otherwise regular. The only defect discoverable in the order of March 7th removing him, is the lack of any recital 'that the plaintiff in error was notified of. the.order of March: 3d,-which may be occasioned on account of his absence in another State, as admitted by counsel in their arg ment. "

If he was then absent, he must have returned before the' session of the board closed, for it appears from the order of' March 17th that he had been notified, both personally by-members of the board, and officially by service of a certified • copy of the former orders, of the action of the board, and om • his behalf a- motion was made and entertained by the- board to rescind their former orders.

. If notice to him of the action of the board, evidenced by-the order of March 3d,- was essential to the exercise of the power to remove him on the seventh, a point not necessary now to adjudge, there can be no doubt of the power and duty of the board to set the last order' aside, if he offered to comply with the requirements of the first order. And it is quite evident that the board was willing to hear anything that-could be urged in his behalf, and that he had the opportunity of complying or offering to comply with the former order of the board.

. There is nothing in the record before us tending to show that he ever offered to comply with the requirements of the board in any particular, and we can not presume he did so, as it is not to be supposed that if he had, the board would have refused to state the fact in their order overruling the motion to rescind. On the contrary this order shows upon its face that he was still contumacious, neglecting to comply with the • order of the board and making no attempt at compliance.

Under such circumstances the board was not called upon ■ to undo all their work, even if irregular, when it is clear that it would have to be again performed.

After notice to him of the action, a hearing before the board upon a motion made in his behalf, for continued neg-' lect, the board affirmed its former orders, and in so doing we think it did not exceed its jurisdiction, nor fail in any essential requirement of the law in its exercise, arid if any iriegularities existed in the former proceedings, the subsequent hearing and orders cured them.

' Upon the whole we are of the opinion that the circuit court decided correctly, and therefore affirm the judgment.

Judgment affirmed.


author: Pillsbxjry, P. J.

text:
    Caroline V. McClure, Executrix, etc. v. The People, etc.
    . I. Administration or estates. — Letters of administration relate to the death of the intestate, and the law validates all the acts of the administrator in taking possession of the property of the intestate, and in settle, ment of the estate from the time of his intestate’s death, it such acts would be valid under letters issued prior to such acts.
    2. Surety — Administrator’s bond. — The same facts which establish a liability of the principal upon an administrator’s bond are competent against the surety.
    • Appeal from the Circuit Court of Union county; the Hon. Egbert W. McCartney, Judge, presiding.
    Opinion filed July 10, 1886.
    One George W. Houston filed his petition in the County Court of Union, on the 7th day of July, 1879, setting forth that one William H. Frazier, late of said county, died on the 24th day of June of the same year, intestate, leaving personal estate consisting of live stock, and “ an interest in about 200 acres of wheat in shock subject to rent; an interest in about 120 acres of growing cirn subject to rent; moneys, household and ki cken furniture. That in the above acres of wheat and corn, your petitioner, George W. Houston, has an interest in the same one half after the payment of rents and cultivation and harvesting, and that said property is estimated to he worth about §1,425,” and praying that letters of administration be issued to him.
    This petition does not seem to have been acted upon by the county court until August 4th, when the petitioner was appointed administrator and gave bond in the sum of §2,900, with Thomas J. McClure, appellant’s intestate, as surety, for the faithful performance of his duties. Houston never filed any inventory of the estate in the county court, but having threshed and sold the wheat, left the State, taking with him a gold watch of the value of §150, and a revolver, the property of the intestate, and the money received for the wheat.
    In August, 1879, upon the petition of his surety, McClure, he was, by the county court, ordered to appear and make settlement, which failing to do upon proper notice, he was at the September term removed, and Thomas J. Finley wras appointed administrator de bonis non of Frazier’s estate, the said McClure being also his surety. Olivia F. Dishon recovered a judgment, September 16, 1880, in the Circuit Court of Union county, on an appeal from the count/ court, against the said estate for the sum of §1,000, to be paid in due course of administration. It not being paid, she caused this suit to be ins'ituted against Houston and his surety, McClure, upon the bond of said Houston, alleging as a breach of its condition that there came to his hands as such administrator 200 acres of wheat in the shock, the property of the estate, the gold watch and the revolver, and that he converted the same to his own use, etc. Service of process being had upon McClure he appeared and pleaded, 1st, nul tiel record, 2d, non est factum, and 3d, traversing the receipt by Houston of the property named in the declaration. After plea, and before trial, McClure died, and the appellant, as his executrix, was made defendant, and the cause dismissed as to Houston. At a subsequent term a trial was had before the court and a jury, resulting in a verdict of §2,900, the penalty of the bond as debt, and for damages in the sum of $924.12, from which last sum the plaintiff remitted $137.79» „ and the court overruling a motion for a new trial, entered judgment for the residue, and the defendant brings the record here by appeal.
    Mr. John M. Lansden, for appellant.
    Mr. Jesse Ware, Mr, M. C. Crawford and Mr. W. S. Day, for appellee.
   Pillsbxjry, P. J.

The fact that after the death of Frazier, Houston took possession of the 200 acres of wheat in the shock, threshed and marketed it, and took away the watch and revolver, is not disputed by the appellant, but it is claimed as a defense, so far as the wheat is concerned, that he threshed and sold it before the bond in suit was given, and if he had on hand the proceeds of the wheat when he was appointed, and the bond was given, and failed to account therefor, then he was guilty of converting the money, and not the wheat, after his a ppointment as administrator, and therefore the plaintiffs below can not recover upon the bond for the conversion of two hundred acres of wheat, the property being thus particularly described in the declaration, as there is a fatal variance between the pleadings and proofs as to the property converted. Disposing of this point before proceeding to the consideration of any other, it may be said that in taking possession of the wheat as it stood in the shock, at the death of Frazier, Houston was acting in his own wrong, and might be charged as executor de son tort% but his 1 tters of administration subsequently granted by the county court legalized his acts in that regard, as fully as though they had been issued to him prior to the receipt of the property. Letters of administration relate to the death of the intestate, and the law validates all the acts of the administrator in taking possession of the property of the intestate, and in settlement of the estate from the time of his intestate’s death, if such acts would be valid under letters issued prior to such acts.

Acts, therefore, pe.formed by him before his appointment, and for which he might be held responsible as executor de son tort, are legalized, and he is only to be chargeable therewith as administrator de jure. Shillaber v. Wyman, 15 Mass. 323; 1 Williams on Ex. 240, 396-7; Rattoon v. Overacker, 8 Johns. 126; Curtis v. Vernon, 3 Term Rep. 587.

He is therefore properly chargeable with the receipt of the wheat in his official capacity, and having filed his petition for letters in-which-he describes the■ property as in the declaration, and while the property was in such condition and fully answering such description, the taking possession of it during the pendency of such application for -letters properly concludes him from averring and proving that he did not receive it in such condition in his official character.

■ The principal in the bond, and for whose acts the surety is bound, being properly chargeable in his official capacity with the receipt of the. wheat in the condition he received it, his surety is likewise bound and the same facts which establish the liability of the principal are competent against the surety. Choate v. Arrington, 116 Mass. 552.

Being thus held as receiving two hundred acres of wheat in the shock in his official capacity, and not accounting for it he was properly charged in the declaration of converting it by that description.

It is next insisted that the proof shows that Houston was a partner «with Frazier in the crops raised, and the legal title was in him as surviving partner, and he can not be held as converting such crops as administrator.

The question whether he was such partner seems from the record to have been the main question litigated in the trial below, and in behalf of appellant the court expressly told the jury if they found he was such partner to return a verdict for the defendant.

It is evident from this direction that the jury did not consider the evidence sufficient to establish that relation, and, looking at the evidence adduced upon the issue thus presented, we can not say the jury were not justified in their conclusions upon this point.

The testimony shows that Frazier leased the land upon which the crops were raised and owned all the teams and farming utensils, and so far as appears did as much work upon the farm as Houston did, who appears also to have worked upon the farm. It appears that he was the nephew of Frazier and had worked ior him quite a number of years; and there is testimony that Frazier had said in casual conversations that Houston was his partner, and in others that he was to have an interest or share in the crops for his work ; but altogether considered, we are not prepared to say that the evidence is of that clear and convincing character that would authorize us to find, in opposition to the verdict of the jury, that they were partners in the crops raised.

The court refused some of the instructions asked by appellant, but an examination of those given on her behalf shows that the jury were fully and fairly instructed upon the issue made, and that they substantially contained the same principle contended for in those refused.

Ho substantial objection appears to those given for the appellees, and we fail to find any such material error in the record as requires us to reverse the judgment, and it will therefore be affirmed.

Judgment affirmed.


text:
    C. H. Meyer & Co. v. McKee, Quante & Co.
    1. Debtor and creditor — Compos-tion agreement. — In a composition agreement with creditors if the deed contains an absolute release of all debts and Habilites for a consideration then paid by the debtor, the creditor can not he allowed to show by parol evidence, in opposition to the terms of the deed, that a particular debt was not intended to be and was not included within its provisions.
    2. Same. — A creditor can not recover any part of his debt withheld or reserved from the operation of the composition deed.
    3. Evidence — Parol.—Parol evidence held competent in this case to show a non-compliance by the debtors with the conditions in the composition deed.

      Error to the Circuit Court of Massac county; the Hon. Oliver A. Harker, Judge, presiding.
    Opinion filed July 10, 1886.
    January 10, 1884, H. Rampendahl & Co., with plaintiffs in error, executed their promissory note to defendants in error for $2,500, payable sixty days after date, with eight per cent, interest from maturity until paid. This action being brought upon that note, the plaintiffs in error pleaded a release of the cause of action, and on the trial, after the plaintiff had introduced the note in evidence, they, in support of the plea, offered in evidence the claimed release as follows: “ Whereas C. H. Meyer & Co. of Metropolis, BL, are indebted to the undersigned, their creditors, in several sums of money which they are not able to fully satisfy and discharge, by reason whereof they have made an assignment for the benefit of their creditors ; and whereas, also, the said C. II. Meyer & Co. arc desirous of resuming business: Therefore, we, the undersigned creditors, have agreed and do hereby agree to accept of the sum of fifty cents on the dollar in full discharge and satisfaction of all debts Giving to us, respectively, at the date hereof; the same being paid by several promissory notes of even date herewith, executed by C. H. Meyer & Co., with indorsements, payable to each of us, respectively, in full satisfaction of our several demands, and due in six, twelve, eighteen and twenty-four months after date. Bow, therefore, know ye that, for the consideration aforesaid, each of us, the said creditors, who have hereto set our hands and seals for himself, herself, his or her heirs, executors, copartners and assigns, doth by these presents remise, release and discharge the said C. H. Meyers & Co., their heirs, executors and assigns,, of and from our several debts and demands of every kind whatsoever, and all actions or causes of action against the said C. H. Meyer & Co., which each of us now hath or may hereafter have by reason of the premises; provided however, on this condition, that if the said C. H. Meyer & Co., their heirs, executors or assigns, fail to pay the said promissory notes hereinbefore mentioned, or either of them, at the time they respectively become due, then this release to be void and of no effect whatever.” This release was signed by the several creditors, among whom were the defendants in error. The plaintiff here introduced James M. Choate, who testified that he was a member of the plaintiff firm, and that plaintiffs in error never gave their notes indorsed for the payment of the note in suit, and never paid anything upon the note, for the reason that it was not included in the release ; that at the time the release was given they were indebted to McKee, Quante & Co., -§5,860 for goods sold, and that was what they were settling when they gave the release; that the note in suit was not released neither was it intended or understood to be; that the defendants, Meyer & Co., never gave them any notes for the §5,860 but paid §3,000 in cash. The testimony of this witness was objected to as being incompetent, but the court, trying the case without a jury, admitted it and exception was taken. The defendant Meyer then testified in behalf of his firm that he understood that the plaintiffs released all claims when they signed the release, and when they made the assignment they stated in their schedule that they owed the plaintiffs §5,860, as they did not know but what Rampendahl had paid the note in suit. This was in substance all the evidence, and the court found the issue for the plaintiffs and rendered judgment for the full amount of note and interest and the defendants, Meyer & Co., sued out this writ of error to reverse the judgment.
    Messrs. Courtney & Helm, for plaintiffs in error;
    that a creditor who signs a composition agreement can not recover any part of his debt withheld or reserved from the operation of the agreement, cited Russell v. Rogers, 15 Wend. 351; Holmes v. Viner, 1 Esp. 131; Perry v. Armstrong, 39 N. H. 583.
    Mr. J. F. McCartney, for defendants in error.
   Pillsbury, P. J.

The question presented by the record and argued by counsel is, whether the testimony of the witness Choate was properly admitted. It is argued by counsel that the composition deed contains an absolute release of all actions and causes of action, for the consideration of the indorsed notes recited to have been executed and delivered as a satisfaction of the accord between the parties, and that to show by parol evidence that the note in suit was not included or intended to be included in the release, or that the defendants below, Meyer & Co., had not given the notes provided for in payment of the note sued upon, is a violation of the rule that such evidence can not be introduced tó contradict, vary or explain the terms of a written agreement.

It may be conceded that if the deed contains an absolute release of all debts and liabilities for a consideration then paid by the debtor, the creditor can not be allowed to show by parol evidence in opposition to the terms of the deed that a particular debt was not intended to be, and was not, included within its provisions. To allow this would not only contradict the express terms of the deed but would also be a fraud upon the other creditors who consented thereto upon the faith that every creditor had presented all the claims to which he was justly entitled.

The cases referred to of Russell v. Rogers, 10 Wend. 474; Holmes v. Viner, 1 Esp. 131; Alsager v. Spalding, 4 Bing. (N. C.) 467, and Horton v. Riley, 11 M. & W. 492, would seem to be decisive of the question that a creditor can not recover any part, of his debt withheld' or reserved from the operation of the composition deed. But does the deed relied upon in this case have the operation contended for? Briefly stated its provisions are, that the creditors agree to accept fifty cents on the dollar due them in full satisfaction of their entire demands, which sum being paid in the promissory notes of the debtors bearing even date with the deed, with indorsers, and due in six, twelve, eighteen and twenty-four months, the creditors respectively release all debts, dues arid demands of every kind and nature, upon the express condition that the debtors pay each and every of said notes when they severally mature, otherwise the release is to be void and of no effect. From the terms of the release it is c1 early manifest that the real consideration of the accord was not the agreement of the debtor to give bis notes indoi-sed for a portion of the indebtedness due the respective creditors in discharge of the entire debt, but the payment of the sum, evidenced by such notes, in satisfaction of the accord.

The accord between the several creditors and their debtors to receive a part in satisfaction of the whole, was founded upon a valid consideration, in that the surrender, by each of the several creditors, of a part of their demand against the debtor, would sustain a like agreement on the part of the other. Creditors thus mutually agreeing to accept a part of their demands in satisfaction of the entire debt undoubtedly have a right to attach such terms and conditions to the payment of the portion they are to receive as they may'determine and if they prescribe as a condition of the release of any debt that such sum thus agreed upon shall be paid in installments at a particular time, otherwise the deed shall not operate as a release of such debt, no reason is suggested or perceived why such condition is not valid, and why the creditor can not show upon the trial a non-compliance by the debtor with such condition, and thereby establish that, the deed in accordance with its own terms has become void and of no effect and can not therefore bar the action for the recovery of the debt.

It can not be seriously contended that by the provisions of this composition deed any of the creditors have agreed te» accept fifty cents on the dollar of one particular claim, im satisfaction of all his demands, if the debtor owe him several different claims or debts. In our opinion the deed, construing all its provisions together, does not make the agreement between the parties to receive and pay fifty per cent, of the debts, operate as a release and discharge of the entire debt, but it is the actual performance of the agreement by the debtor that is to have such effect; for unless the note stipulated to be given with security, by indorsements, evidencing the time and manner of the payment of the several installments, are paid at maturity, the deed is void by its own terms.

In such case the deed can not be relied upon as a release if it appear that the debtor has failed to make the payments at the time prescribed. Evans v. Powes, 1 Ex. Ch. 601; Hadley Falls Bank v. May, 29 Hnn (N. Y.), 404.

Respecting the point made that the recital of the deed that the amount “being paid by promissory notes of even date herewith executed,” etc., is conclusive of the fact stated, we are of the opinion that the recital is not of the character that estops the plaintiff from alleging and proving that the notes were never in fact executed and that no part of the accord was paid.

The practice is not uncommon of reciting in written agreements the receipt of the consideration in the past tense when it is understood that it is to be paid at the time of, or after the execution of the contract. Almost uniformly, deeds of bargain and sale recite the payment of the consideration at the time of ensealing the deed, yet it has never been supposed that where in fact the consideration was to be subsequently paid, that such recital stood in the way of the recovery of the actual consideration to be paid. Besides, the recital may as well refer to an understanding that the notes were to be executed on the same day after- the execution of the deed as to an act done before it was made.

Greenleaf, in his work on Evidence, speaking of the rule that parol evidence can not be introduced to vary, contradict or explain a writing, says, section 285: “ Neither is this rule infringed by the introduction of parol evidence eontradioting or explaining the instrument in some of its recitals of facts, where such recitals do not, on other principles, estop the party to deny them; and accordingly in some cases such evidence is received.

Supporting this principle is the case of Goldshede v. Swan, 1 Ex. 153, which was an action based upon a written guaranty reciting that “ in consideration of your having this day advanced, etc.,” and it was objected that the guaranty was bad as referring to a past consideration and therefore no action could be maintained upon it.

Parol proof was introduced showing that it was signed simultaneously with the payment of the money referred to as being advanced, and that the guaranty had no reference to a past consideration. The evidence was held properly received, the court holding that the expression “ this day” may mean something that has been done or which is to be done this day and might be read as referring to future advances. So in Butcher v. Stuart, 1 M. & W. 857, the language of the undertaking was “in consideration of your having released the above named defendant from custody 1 hereby engage to pay; etc.,” and it was held that evidence was admissible to show that the defendant was not released until after the execution of the agreement, and in the light of such evidence it could be read, as it really was, prospective upon the release of the debtor. Haigh v. Brooks, 10 Ad. & El. 309, is to the same effect.

It would seem from these authorities that no violence is done to the language used in the recital in construing it as referring to an act that was to be performed simultaneously with or on the same day after the execution of the deed, and such construction not being obnoxious to the law of evidence, and being in furtherance of justice and right between the parties, we have no doubt that the parol evidence introduced, in so far as it tended to show a non-compliance by Meyer & Co. with the conditions in the deed, was very properly admitted. It was then properly and fully established upon the trial that plaintiffs in error never gave any notes securing the fifty per cent, of the debt siied for in this case, and have never tendered or paid any portion of it, and as we think the conditions of the deed should be held to apply to each and every debt owing to the respective creditors, upon which they had agreed to accept a moiety in satisfaction of the whole, the payment of the amount of the accord upon the several debts of Meyer & Co. to the defendants in error can not be held to operate as a satisfaction of the accord as to the joint debt of Meyer & Co. and Bampendahl & Co. evidenced by the note in suit.

To maintain the defense to the note in suit the plaintiffs in error are necessarily driven to take the position that the terms of the release are broad enough to include the demand sued for in this case. We are disposed to admit the construe. tion contended for and hold that the deed shows as valid an accord as to this debt as to any other; but the point seems to be overlooked that it is not the agreement to accept the moiety. of any demand in discharge of the whole that releases the debt, but the payments of the moiety agreed to be accepted at the time and in the manner provided for that satisfies the accord. The moiety never being secured, paid, or tendered, as agreed, and such payment being the real consideration, as we have seen, for the composition, the composition, by the terms of the deed itself, fails, leaving the plaintiffs at liberty to prosecute for and recover upon the original indebtedness. Evans v. Powes, supra.

The note in suit being within the terms of the release is subject to the conditions contained in the release upon which its operation depends.

Ho point was made in the court below nor in this court, that the present suit was prematurely brought, and we have not examined that question.

It has been submitted and argued upon the merits and we have so considered it.

Ho error appearing the judgment will be affirmed.

Judgment affirmed.


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    Illinois & St. Louis R. R. Co. v. William Whalen, Adm’r, etc.
    1. Duty in construction of tracks and adjacent buildings. — The law imposes upon a railroad company the duty of constructing its tracks and adjacent buildings so that its employes will not be exposed to extra hazard in the performance of their duties. Under the evidence in this case the railroad company was guilty of gross negligence in permitting the shed in question to be in such dangerous proximity to the track.
    2. Damages. — The fact that the deceased, whose next of kin was a father and brothers and sisters, contributed a portion of his wages to the support and education of his younger brothers, is sufficient to entitle his administrator to recover more than nominal damages.

      Appeal from the City Court of East St. Louis; the Hon. Wm. P. Lauhtz, Judge, presiding.
    Opinion filed July 10, 1886.
    Mr. J. M. Freels, for appellant.
    Messrs. G. & G. A. Koerner, for appellee.
   Wilkin, J.

This is an action on the case under the statute, charging appellant with negligently causing the death of John Whalen.

The negligence charged is the erection and maintenance of a scale house or shed by defendant so near to its track as to endanger its emp’oyes in passing along its tracks upon its locomotives and cars through or by said shed, of which it had ¿lotice, etc.

On the trial below appellee recovered a verdict for $2,000, but on a motion for new trial he was required to remit $1,200 to avoid the allowance of the motion.

The remittitur having been entered the motion for a new trial was overruled, and judgment entered for $800 and costs of suit.

The only ground upon which a reversal is urged, is that the verdict of the jury and the judgment of the court is contrary to the law and the evidence.

Counsel for appellant insist, with seeming earnestness, that there is no evidence of negligence on the part of appellants; that the proofs failed to show that the deceased was in the exercise of due care at the time of his death; that under the evidence deceased should be held to have had knowledge of the dangerous situation, and therefore to have voluntarily taken the risk, and it is lastly contended that the deceased, being at the time of his death past twenty-one years of age, no more than nominal damages could in any event be recovered under the proofs. Deceased was a switchman in appellant’s employ; at the time of his death he was standing on the side foot board of a locomotive, attached to a freight train passing through the scale shed ; while no one saw him at the moment of his death, there can be no doubt from the evidence that he was knocked, or dragged off the foot board by coming in contact with the shed; the cars passing over his body, and causing instant death. On the next morning at the coroner’s inquest the same locomotive was placed on the track at the point where he was struck, and the distance measured, from the side of the engine where he stood, to the shed, a'nd it proved to be but about seven inches.

It is in evidence and uncontradicted, that freight cars passing along the track had rubbed against the side of this shed, leaving marks upon it. The engineer and fireman in charge of the engine at the time of the accident, introduced by appellant, as well as every other witness interrogated on the subject, swear that it was a dangerous place.

Another employe of appellant had been previously injured there, and it had notice of that fact. The shed and track had been in the same relative positions for several years. The law imposed upon appellant the duty of constructing and maintaining its track, and adjacent buildings, so that its employes would not be exposed to extra hazard in the performance of their duties, and it was held to bo negligence in a railroad company to allow the edge of an awning to its station house to be but eighteen inches from its track: I. C. R. R. Co. v. Welch, 52 Ill. 183; also to have a mail catcher in dangerous proximity to the track: C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; or to allow a telegraph pole to remain within eighteen inches of the sides of freight cars on its track: C. & I. R. R. Co. v. Russell, Adm’r, 91 Ill. 298. In the light of these decisions and in view of the facts charging appellant with not only constructive but actual notice of the dangerous situation, it was guilty of gross negligence in permitting the shed to remain so near to the track. It follows therefore, that even if the deceased was guilty of slight negligence, the plaintiff’s right of recovery would not be thereby defeated.

There is, however, sufficient evidence in the record to sustain the allegation of due care on his part. It is not necessary to establish that fact by direct testimony. The deceased is shown to have been in the line of his duty. He was at one of the places on the locomotive provided for him to stand. He was the head switchman of the- train, and at a place where, as such, he might properly stand. He was seen in that position but a moment before he was killed, doing no act from Avhich negligence could be inferred. The evidence shows that he Avas a careful, active switchman. These fac s sufficiently prove that he used due diligence. C. B. & Q. R. R. Co. v. Gregory, supra ; Missouri Furnace Co. v. Abend, 107 Ill. 44.

There is no proof whatever that John Whalen had actual notice of the danger to which he was exposed, and from Avliich he lost his life, nor do the facts proved as to his having preAdously worked for appellant, and the length of time he had been so engaged on this occasion, charge him Avitli such notice. It does not appear that his duties at any time previous to the occasion of his death had brought him in a position to have observed the relative position of the track and. shed at the particular point at Avhich he met his death. The jury Avas justified in concluding that he Avas not apprised of the danger and that he was not negligent in that respect. Wharton on Negligence, Sec. 217. That the deceased left the next of kin mentioned in the declaration, viz., a father and brothers and a sister, is admitted, but ignoring the proof that he had to some extent, at least, contributed to their support and education, or assuming that that evidence is not entitled to credit, it is argued that only nominal damages at most could be recovered. The jury, avIio saAV -the Avitnesses and heard them testify, had the right to credit the evidence of the father, from which it is shoAvn that after arriving at his majority he did contribute of his wages to the support and education of his younger brothers, who Avere in college. Whether these contributions were much or little is immaterial in determining whether a recovery can be had beyond nominal damages. The fact that he did so contribute in whole or in part is sufficient to entitle his administrator to recover more than nominal damages. C. & A. R. R. Co. v. Shannon, Adm’r, 43 Ill. 346. While it is true that the damages recoverable in this class of cases must be confined to the pecuniary loss sustained by the next of kin, there are no fixed rules by which that loss can he estimated, and hence the damages must be left largely to the jury.

In this case the trial court has exercised its right to require the plaintiff to remit the larger portion of the amount found by the jury, or submit- to another tr'al of the case. We find nothing in the evidence to justify this court in again interfering with the judgment on the ground that it is excessive. Ho fault is found with the court below in giving or refusing instructions. Ho error is assigned on the admission or exclusion of evidence. Appellant’s abstract is imperfect, and this, as to the evidence of plaintiff, is admitted, and the court invited to examine the record because, as it would seem, the labor of abstracting it was too great; appellee has furnished a more complete abstract and we think it was necessary to "do so to fully and fairly present the case. The costs of sncli additional abstract will therefore he taxed to the appellant.

Affirmed.


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    The City of Grayville v. William W. Gray et al.
    . Injunction — Increasing indebtedness oe city. — A bill will lie at the suit of a taxpayer to enjoin a city from increasing the indebtedness of the city by erecting a city hall to cost $5,500 when there is only $1,000 in the city treasury, or in the process of collection appropriated for such purposes, when it is already indebted beyond the constitutional limit.
    Appeal from the Circuit Court of White county; the Hon. Carroll C. Boggs, Judge, presiding.
    Opinion filed July 10, 1886.
    This is a hill in equity filed by the appellees as citizens and taxpayers of the city of Grayville, seeking to have the authorities of the city and its alleged contractors, W. H. Gilbert and W. G. Wheatcroft, enjoined from building a city hall the probable cost of which would be about $5,500. It is alleged in the bill that the taxable property of said city as ascertained by the last assessment for State and county taxes is less than $150,000, and that the city became indebted to the Cairo & "Vincennes Bailroad Company in 1873 in the sum of $15,000, for which it issued its bonds payable in twenty years with eight per cent, interest, and that none of said bonds have been paid but are still outstanding and are an existing indebtedness against the city.
    The bill avers that on July 6, 1885, the city council passed the annual appropriation bill for the present fiscal year including therein an item of $500 for the building of a city hall in said city, which, with $500 appropriated the preceding year, is the entire sum available for such purpose. That at said meeting the committee on city hall reported plans and specifications for a new building estimated to cost $5,000, which were accepted by the council and the clerk ordered to advertise for bids for the erection of it. At a subsequent meeting the bid of the defendant Wheatcroft to complete the stone and brick work for $2,090 was accepted, and defendant Gilbert having bid for the carpenter work $3,400, the contract for the work necessary to inclose the building was awarded to him.
    The old city hall was advertised for sale and removed as the new one was to be built upon the same site; excavation for the foundation had been commenced, and a large amount of material had been hauled upon the ground by Wheatcroft at time of presenting the present bill. Alleges the appointment of a building committee by ordinance to superintend the construction of any building, and to make all contracts and take all bonds for the construction thereof and submit same to the council for ratification. That complainants have requested of the mayor of said city an examination of the contracts with the contractors, but were refused, and so are unable to state their exact contents. That if the contracts awarded are carried out it will increase the indebtedness of the city, which is already in excess of the constitutional limit of five per cent.
    Defendants answered the bill, ;in which they admit the varíous actions of the city council concerning the erection of the building, except the making of any contract with Wheateroft and Gilbert which was ratified by the city council, and deny any intention on the part of the council or building committee to enter into any contract with them by which the indebtedness of the city wiU be increased or any money drawn out of the treasury that has not been appropriated and set apart for the building of the hall. They say further in their answer that they admit that the city hall building since the appointment of said building committee has been removed, and that some materials have been hauled to said place of building by defendant Wheateroft, but they charge the truth to be, that said defendant was informed by said building committee, when said materials were being hauled, that he was doing so at his own risk. They admit that drafts of contracts with the said defendants Wheateroft and Gilbert Qiave been submitted to said building committee for the building of said city hall, but no contracts have, as yet, been presented to and ratified by the city council with said defendants, or any other person or persons, for the building of said now city hall; nor will any contract or contracts for that purpose be ratified by said city council by which the indebtedness of said city will be increased to the extent of anything. They admit that the attorney of complainants requested the mayor of said city to permit him to examine the drafts of contracts with Wheat-croft and Gilbert, and that such request was not granted by said mayor, because such drafts of contracts were not in the possession of said mayor, and had not been presented to and ratified, as contracts, by the city council, and were wholly inoperative as contracts with said city.”
    Respecting the present indebtedness of the city, alleged in the bill, they say: Defendants admit that it is probably true that the present indebtedness of said city is more than five per cent, of the assessed value of the taxable property in said city, as ascertained by the last assessment for State and county taxes, and that such indebtedness is, in amount and character, as alleged in complainant’s bill, and that it may exceed the sum of §15,000. Other matters are stated in bill and answer not necessary to notice to an understanding of the real points in controversy. The case was submitted to the court on motion to. dissolve the injunction and upon affidavits filed in support of the pleadings of the respective parties, with the evidence furnished by the record of the city council,- when the court sustained the injunction as to the city and dismissed the bill as to the other “defendants, and the city appealed.
    Messrs. Bell & Green, Mr. J. S. Stevens, Mr. E. Kershaw, and Messrs. Organ & Organ, for appellant;
    that courts of chancery will not attempt to control or restrain municipal officers in the exercise of their discretionary powers, cited Dillon on Municipal Corporations, §§ 58, 59, 396; Greeley v. People, 60 Ill. 19; Brush v. City of Carbondale, 78 Ill. 74; Town of Lemont v. Singer, etc., 98 Ill. 91.
    Messrs. Williams & Parker, for appellees ;
    cited R. S. Ch. 21, Art. 7, § 1, Ch. 38, § 208; City of Chicago v. Shober, etc., 6 Bradwell, 560; City of Philadelphia v. Flanigan, 47 Pa. 21; Bladen v. Philadelphia, 60 Pa. 464; Parker v. Philadelphia, 92 Pa. 101.
   Pillsbury, P. J.

It is first objected that the evidence fails to establish the truth of the allegations in the bill that the bonds issued to the Cairo & Vincennes Railroad Company constituted a valid claim against the city. It is charged that the city is indebted in excess of the limit fixed by the constitution and the amount and character of such indebtedness is stated in the bill, and the admission of the defendants in their answer of the facts thus averred is sufficiently explicit to dispense with any affirmative proof thereof by the complainant. This objection is not now open to the appellant, even if valid upon a different record than here presented. It is apparent from the record that the main ground relied upon by the defendants below to obtain a dissolution of the injunction was, that no written contract had been executed by the building committee and contractors and reported to and ratified by the city council.

The object of the bill was to prevent an increase in the indebtedness of the city beyond the constitutional limit by erecting a city hall that would cost some $5,500, when there was only $1,000 in the city treasury or in the process of collection appropriated for such purpose.

That such bill will lie at the suit of a taxpayer is settled by the cases of Springfield v. Edwards, 84 Ill. 626, Howell v. City of Peoria, 90 Ill. 104, and others in our State not necessary to cite.

The claim set up in the answer, that no written contract had as yet been made with the contractors, and none was intended to be, that would increase the indebtedness of the city, does not seem in our view to be so fully supported in the evidence as to justify us in saying the court committed error in not so finding.

It is undisputed that • the council had determined to erect the building according to certain plans and specifications approved by it; that bids had been received and accepted for work involving an expenditure of some $3,000, a committee appointed to make contracts and superintend the work ; that the old city hall had been removed to make room for the new one; the contractors had commenced work and hauled a large amount of material upon the site, and were still proceeding in the performance of the work when restrained by the injunction. Such acts clearly demonstrated that it was the intention of the city to allow the contractors to proceed and complete their work according to the plans adopted, and under their bids awarding them the contract, and that the matter of the execution of a written contract and its ratification by the council was of secondary importance.

The court below might properly have found, from the proofs adduced, that neither the members of the city council nor the people of the city were entirely harmonious in their views regarding the propriety or necessity of a new hall, and that those members of the council favoring the work, and being a majority of the council, pursued the course they did to avoid the effect of any preventive action that might be taken by those opposed to it. The evidence in the record creates upon our minds, at least, a clear impression that such was the object, and that tliey intended to have the building erected according to the plans and at the expense to the city designated in the contracts awarded, whether any written contract expressing such intention was or was not afterward executed by the committee or ratified by the council. It can scarcely be contended with any confidence that the city, after doing what it had done, would not be liable to the contractors if it had allowed them to proceed with their awarded contracts and completed the building although it had provided that a written contract should be signed.

Without referring to the evidence in detail, supporting the decree of the court below, we are satisfied with its conclusions thereon and affirm the decree.

Decree affirmed.


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    William S. Murphy v. The People, etc.
    1. Criminal law — Protection of bank depositors. — In a prosecution under the “ Act for the Protection of Bank Depositors,” passed in 1879, neither knowledge of insolvency nor fraudulent intent are necessary to be alleged in the indictment, nor need they be proved on the trial.
    2. Same. — But the allegation of insolvency of the banker is a material and necessary one, is affirmative, and must be established by proof on the part of the people as any other material and necessary averment before a conviction can be had.
    3. Practice. — It is irregular, but not ground for reversal, in the absence of evidence that the party complaining is damaged thereby, for the presiding judge to temporarily absent himself from the court room, leaving a member of the bar upon the bench during the progress of the argument to the jury.
    Error to the Circuit Court of Jackson county; the Hon. David J. Baker, Judge, presiding.
    Opinion filed July 12, 1886.

      This is a prosecution under the statute passed in 1879 entitled “An act for the protection of bank depositors” which is in the following language: “ That if any banker or broker, or person or persons doing a banking business, shall receive from any person or persons, firm, company or corporation, or from any agent thereof not indebted to said banker or broker, banking company or incorporated bank, any money, check, draft, bill of exchange, stocks, bonds or other valuable thing which is transferable by delivery, when at the time of receiving such deposit, said banker, broker, banking company or incorporated bank is insolvent, whereby the deposit so made shall be lost to the depositor, said banker, broker or officer so receiving such deposit, shall be deemed guilty of embezzlement, and upon conviction thereof shall be fined in a sum double the amount of the sum so embezzled and fraudulently taken, and in addition thereto may be imprisoned in the State penitentiary not less than one, or more than three years. The failure, suspension or involuntary liquidation of the banker,-broker, banking company, or incorporated bank within thirty days from and after the time of receiving such deposit, shall be grima facie evidence of an intent to defraud, on the part of such banker, broker or officer of such banking company or incorporated bank. ” Session -Laws 1879, page 113, § 1. The indictment contains two counts. The first charges that William S. Murphy on the 16th of July, 1884, at and within said county, then and there being a banker, did then and there receive on deposit, from one Samuel Desbarger, the sum of two hundred and fifty dollars in money, said Samuel Desbarger not then and there being indebted to said William S. Murphy, banker. The said William S. Murphy, banker, at the time of receiving such deposit, was insolvent, whereby the said deposit, the said sum of two hundred and fifty dollars in money, was lost to said Samuel Desbarger, said depositor, and the same then and there feloniously and fraudulently was converted to the use of him, said William S. Murphy, banker. Second count: that, William S. Murphy; on the 16th day of July, 1884, at and within said county, then and there doing a banking business, did then and there unlawfully, fraudulently and feloniously receive on deposit from one Samuel Desbarger the sum of two hundred and fifty dollars in money, said Samuel Desbarger not then and there being indebted to said William S. Murphy. Said William S. Murphy at the time of receiving said deposit, said sum of two hundred and fifty dollars in money, was insolvent, whereby the said deposit of two hundred and fifty dollars in money was lost to the said Samuel Desbarger, depositor. This indictment was returned at the August term, 1884. At the December term, 1884, there was a motion to quash the indictment which was overruled. At this term of the court there was a plea of not guilty, and a trial resulting in a failure of the jury to agree. After the jury was discharged defendant applied for a change of venue on account of the prejudice of the people. The attorneys for the people denied the facts set forth in the petition and numerous affidavits both in support of the petition and denial were filed. The court overruled the motion.
    At the August term, 1885, a jury was impaneled and a trial had, resulting in a verdict of guilty and fixing the punishment by fine in the sum of §487.40. It appears from an affidavit by the defendant that during the argument of the case to the jury the judge called a member of the bar to the bench and retired from the bench and court room and was absent perhaps fifteen minutes.
    Motion for new trial being overruled the case comes to this court by writ of error.
    Errors assigned as follows:
    1st. The said circuit court erred in overruling the motion to quash the indictment.
    2d. The said circuit court erred in denying and refusing the application for a change of venue.
    3d. The said circuit court erred in overruling the motion for anew trial and in rendering a judgment upon the said verdict.
    4th. The circuit court erred in leaving the bench and court room, and in leaving a lawyer to occupy the bench during his absence and while the ease was being finally argued to the jury.

      5th. The circuit court erred in admitting improper evidence to go to the jury on the part of the people.
    6th. The circuit court erred in giving improper instructions to the jury on the part of the people.
    7th. The circuit court erred in refusing proper instructions asked to he given on the part of the defendant.
    8th. The circuit court erred in modifying proper instructions asked to be given on the part of the defendant.
    9th. The circuit court erred in refusing defendant’s challenge to jurors and to the panel.
    The following instructions with others were given at the instance of the people and were excepted to by the defendant:
    4th. If you believe beyond a reasonable doubt from the evidence that the defendant was engaged in the business of banking, and in' such business received on deposit with intent to defraud, from Samuel Desbarger, the sum of $243.70 or any other sum, that at the time such deposit was made said Desbarger was not indebted to defendant, that at the time" of receiving said deposit the defendant was insolvent and knew himself to be so, that said deposit or any portion of it was lost to Desbarger, then you should find the defendant guilty.
    5th. The court instructs the jury that a depositor of money in a bank is a person who places his money therein for safe keeping.
    6th. The court instructs you that while the allegation of insolvency of the defendant at the time of the receipt of deposit of Desbarger is a material allegation, yet if you further believe beyond a reasonable doubt from the evidence that the defendant received said deposit within thirty days before the time of his suspension, then the burden of proof is on the defendant to show that he was solvent at the time of receiving said deposit and that he did not fraudulently convert the same to his own use.
    9th. It is not necessary that the prosecution should prove by direct and positive evidence that the defendant was insolvent on the 16th day of July, 1884, or that he knew that he was insolvent, but it is sufficient if you are satisfied beyond a reasonable doubt from all the circumstances in evidence in the case that he was insolvent at that time, and took and converted the deposit with fraudulent intent.
    10th. It is your province as jurors to say under your oaths, from the evidence, whether or not the defendant William S. Murphy was insolvent at the time he received the deposit of $243.70 from Samuel Desbarger, on the 16th of July, 1884, at the time of his suspension.
    The court was asked to give the following instructions on behalf of the defendant, but refused to do so :
    9th. You can not find the defendant guilty unless you are satisfied from the evidence, beyond a reasonable doubt, that at the time of receiving the deposit in the indictment herein mentioned, the defendant was not only insolvent, but also that he knew at the time of receiving such deposit that he was insolvent.
    14th. The court instructs you that if you believe from the evidence that the defendant, at the time he received the deposit of Desbarger (if the evidence shows that he did receive it), had sufficient property, real and personal, if realized upon, to pay all his liabilities, then in law he was solvent; and if yon find from the evidence that defendant was solvent at the time' of receiving such deposit, or that he honestly and in good faith believed he was solvent, and that he was the owner of "sufficient property to induce that belief in a reasonable mind; then you should find the defendant not guilty.
    19tli. In this case it is immaterial as to whether or not the defendant made loans to his brother or other relatives, or whether such loans, if any such are shown, are sufficiently secured or not, except so far as such fact may tend to show what was the value of so much of defendant’s property and assets as was made up of such loans; nor will the jury consider any evidence as to what was the purchase price of the property mortgaged as security for such loans, except so far as you may believe that such fact may tend to show the value of such property ; nor should the jury consider any question as to where the money was obtained to purchase such property.

      20th. A quit-claim deed is as effectual in law to convey the title to land therein mentioned as would be a deed with full covenants of warranty if the party making such quitclaim deed had the title when the deed was made; and although portions of the land owned by defendant or by those who mortgaged land to him as security for loans, may have been conveyed to him or them by quit-claim deed, then the presumption is that such deed made a good title, unless it is shown that the party or parties who made such deeds had no title to the lands so conveyed.
    Several of defendant’s instructions were modified, to which exception was taken, but it is not necessary to set them out at length in order to a full understanding of the objection urged to this action of the trial court. The court below permitted certain quit-claim deeds to defendant to be read in evidence over the objection of the defendant.
    Messrs. Smith & Stephens, Mr. W. J. Allen and Mr. W. W. Barr, for plaintiff in error.
    Mr. R. J. McElvain and Mr. W. A. Schwartz, for defendant in error.
   Wilkin, J.

It is urged, first, that the indictment under which defendant was tried is fatally defective in not averring that defendant knew of his insolvency and in not averring fraudulent intent. “ Where the guilty knowledge is part of the definition of the offense it must be averred, but not otherwise.” Wharton on Criminal Law, Vol. 1, Sec. 297.

The intent is not an element of the crime and need not therefore be averred. The indictment charges the offense in the language of the statute, and under Sec. 408, C. 38, R. S., is sufficient.

We think there is a sufficient compliance with the constitutional requirement in the entitling of the act under which the indictment is drawn. The motion to quash the indictment was properly overruled. On the motion of defendant for change of venue many affidavits were filed pro and con. Some of these amount to no more than the statement of an opinion that the defendant can or can not have a fair and impartial trial. Others, however, affirm and deny the facts alleged in the petition. Sec. 22, C. 146, R. S., clothes the trial court with a discretionary power in passing upon such motions; he “ may grant or deny the petition, as shall appear to be according to the right of the case.” There is nothing in this case to show that the discretion has been abused and hence it is not for this court to interfere.

It was no doubt irregular for the presiding judge to absent himself from the c.ourt room, leaving a member of the bar upon the bench during the progress of the argument to the jury, hut we are not prepared to hold, in the absence of all evidence to show that the defendant was prejudiced thereby, that the ca-'e ought for this irregularity to be reversed. The case is distinguishable from that of Meredith v. The People, 84 Ill. 479. In that case the judge was engaged in the trial of other cases. The member of the bar called to preside at the criminal trial having no judicial powers whatever, there was no presiding judge, the judge of the court being incapable of presiding over the trial of- two cases at the same time. In this case the absence of the judge was but temporary, and there is no pretense that he was so engaged that he could not at any moment resume the bench and pass upon any question which might arise. The calling of a member of the bar to the bench was of no consequence; the judge, though temporarily off the bench, or even out of the court room, was still the presiding judge at the trial.

The ninth error is not well assigned; there is nothing to show that the court refused" to allow defendan M challenge of jurors, or that defendant challenged the panel. It is difficult to tell from the argument, whether the remarks of the judge during the impaneling of the jury are made the ground of exception because they were prejudicial to the defendant, or because they were offensive to counsel ;• but there’is certainly nothing in the record to show that the defendant was not fairly allowed all the challenges he chose to exercise.

It is insisted that there can be no conviction, under the statute, unless there is an entire 'loss of the deposit — viz., all must be lost.

The construction contended for is supported by no authority, is unreasonable, and would render the statute absolutely nugatory.

It would scarcely be insisted that the indictment must state the exact amount of the deposit.

It is unnecessary to prove the value laid in the indictment unless the precise sum forms the essence of the offense, or is stated as a matter of description. Wharton on Criminal Law, Vol. 1, 613.

The mathematical exactness insisted upon by the defendant in this case as to proof of the loss is never required. The extreme case put by counsel w<fuld result in the punishment of the hanker for a very small loss, and yet he would be a wrongdoer to that small extent. But let the extreme case (which it is said is the surest way to reach a correct conclusion) be reversed. Suppose the depositor loses all of his deposit except the one half of ' one per cent., the case presenting all the other elements of guilt, would it still be insisted that there could he no convictiqn because the whole of the deposit was not lost %

This statute is to have a reasonable construction consistent with the rules of the criminal law.

The fourth instruction as to the required proof of value is in conformity with the rules of criminal pleading and evidence and was properly given.

We see no objection to the fifth of people’s instructions. It states' a correct principle as far as it goes. It is not in conflict with defendant’s sixth instruction which goes farther and defines a general depositor, and states the rules of law governing the right of the banker to use the money on such a deposit.

The objection to the ninth instruction raises also the question as to the correctness of the ruling of the court below in refusing and modifying certain of defendant’s instructions. That question is, whether or not it was incumbent on the prosecutor to prove that at the time the deposit was received the defendant knew he was insolvent. As we have already said, knowledge of insolvency is not made an element of the crime by the statute, therefore it was neither necessary to aver it in the indictment, nor prove it on the trial. It will not do to broadly assert that it is absurd to hold a defendantliable when he did not know the existence of facts making the act criminal. Every intelligent lawyer knows that there are many instances in which the law, by statutes, does so deal with individnals for the good of society. The object of this statute is too manifest to be misunderstood. There is no hardship in requiring a banker who is doing a legitimate banking business to know whether he is solvent or insolvent at the time he received his customers’ money on deposit. The uncertainty as to solvency grows out of investments in real estate, or other speculations, not properly belonging to a banking business. "We think the ruling of the circuit court was correct in holding that proof of knowledge of insolvency was not necessary to a conviction, and that there was no error in giving the ninth of people’s instructions and in refusing and modifying those of defendant which sought to impose that burden upon the prosecution. Bishop on Criminal Procedure, Vol. 1, Secs. 522 and 523; Wharton’s Criminal Law, 8th edition, Vol. 1, Sec. 88.

The sixth instruction given on behalf of the people and excepted to by defendant remains to be considered. By it the jury are told that while the allegation of insolvency of the defendant at the time of the receipt of the deposit is a material allegation, yet, if they believe beyond a reasonable doubt from the evidence that he received said deposit within thirty days before his suspension, then the burden of proof is on the defendant to show he was solvent at the time of receiving the deposit. This statute was passed for the purpose of punishing insolvent bankers for receiving deposits, thereby causing loss to the depositor. Insolvency at the time of receiving the deposit is of the essence of the crime, and hence that allegation in the indictment was necessary and material. Sec. 76 of the Criminal Code effectually provides for the punishment of bankers, brokers, etc., who fraudulently convert to their own use money deposited with them. It is therefore manifest that the legislature intended by this act to reach persons assuming to do a banking business and who, through their insolvency, should cause loss to those intrusting money with them on deposit. Conceding then, as must be done, that the allegation of insolvency is material, it is impossible to discover under what rule of evidence the burden of proof as to it, is cast upon the defendant. The instruction would seem to proceed upon the supposition that the statute made the suspension of the bank within thirty days after the deposit, prima faoie evidence of insolvency at the time of receiving the money ; but by reference to the statute it will be seen that there is no such provision. An attempt is made in argument to maintain the correctness of the instruction on the ground that the averment of insolvency is within the rule that where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved; as in indictments for-selling liquor or exercising a trade without a license; but the allegation of insolvency is not a negative averment in this indictment. In an indictment for selling liquor or doing any other act which can only be lawful when authorized by a license, the crime consists in the doing of the act, which may be excused by the license. The averment that the excuse did not at the time of committing the act exist, is material but is negative. Here the act made criminal consists in receiving the deposit by the banker when he is insolvent, and the averment of insolvency is as much an affirmative one as that he received the money.

Had the deposit, in this case, been made more than thirty days prior to the suspension, no greater proof would have been required by the people than under the existing state of facts except as to the fraudulent intent. In either case the insolvency of the banker at the time he received the money must be averred and proved by the people before a conviction can be had.

This instruction erroneously placing the burden of proof on the defendant to prove his solvency, and no other instruction in any way correcting this error, the case must be reversed.

The third instruction given on behalf of the people, though not excepted to, is equally objectionable, and for the same reasons.

We find no error in the rulings of the court in excluding or admitting evidence, nor do we find any fault with the conviction under the evidence, but leave that branch of the case undiscussed, as the case must again be tried.

For the error appearing in the sixth instruction the case is reversed and remanded.

Reversed and remanded.