author: Wilkin, J.

text:
    A. Halthaus v. J. M. Kuntz.
    Illegal consideration.-—Where the consideration for defendant’s promise to plaintiff was the agreement of plaintiff that he would not prosecute defendant’s son on a criminal charge which had been preferred against him. Held, that such contract is illegal and can not be enforced.
    Appeal from the Circuit Court of Perry county; the Hon. Geobge W. Wall, Judge, presiding.
    Opinion filed December 14, 1885.
    Fir. T. T. Fountain, for appellant.
    Fir. John Boyd, for appellee.
   Wilkin, J.

This suit was begun before a justice of the peace, and judgment was rendered for plaintiff for $88.99 and costs. On'appeal to the Circuit Court of Perry county, and trial had before a jury, the judgment was for defendant for costs. On the trial in the circuit court the plaintiff offered in evidence this statement:

“ St. Louis, April 27, 1883.

“I hereby acknowledge that I have wronged Fir. A. Halthaus in making collections for Alkin Wiley, Conden, Mo. on the Feb. 12th, ’83, fifteen dollars; also of Mr. Hoffman & Son of Pinclcneyville, Ills., the sum of forty-five 85-100 dollars ; farther, the sum of twenty-two dollars of Mr. Wiltliouse, De Soto, Illinois, which all I have collected and marked paid in the hooks, but did not pay the money to Mr. Halthaus. ut now, after reconsidering my wrong, am willing to have my father, J. M. Hunts, from Pinclcneyville, or myself, to settle the above just claim of A. Halthaus at a time of ten days from above date for certain total amount, §82.85.

“ H. K. Kurtz.”

Also the following letter from defendant to plaintiff written in German and translated on the trial:

Pihckneyville, III., April 25th, ’83.

“ Dear Feiend Halthaus :

“ I have just received the news of the tricks of my son Henry committed, and it worries me a great deal of trouble. I never suspected that I should have raised my son to he guilty of such as I just heard (or received the news of). Be not too hard with him for my sake, and leave open some way for him to better himself. I will once more stand good for this money? but it shall he the last time, and if he continues this way, I would rather see him in the penitentiary, if it should hurt mo. Conceal it as well as you can so he will not he branded by every one and could not obtain any more work. For the money that he took please give him some time, and try to make it of him—something every month. Should he be not willing to do so, help him along as well as yon can, for my sake if not for him, so he can obtain a situation again, for he does not need to come to my house again. Hoping,, that yon will grant my favor I remain,

61 Your friend,

c< J. M. Kurtz.”

Plaintiff testified that H. B. Kuntz was in his employ from 1880 u¡i to April, 1883; that while he was out on his trips for him he collected certain moneys from parties indebted to plaintiff and kept the money, failing to report the collections, and not paying over the money. After testifying that the statement signed by H. E. Kuntz was voluntarily made and that he had had him arrested for keeping the money, he says: When I had Kuntz arrested. Mr. Ileckel, who was a. friend of him and his father, started for Pinckneyville, where his father lived, to see what he could do to befriend the Knntzes. I did not ask him to go. The next morning I received a telegram from Hecbel, saying in substance: “Eelease Kuntz—it is all right.” Understanding that this telegram meant that Ileckel had arranged with J. M. Kuntz to pay or secure the amount due me, I declined to prosecute and Knntz was released. I arrived at this understanding from a conversation I had with Ileckel before he started to Pinckneyville, he being a friend of all of the parties; he went to prevent Kuntz’s crime from becoming public.”

And on cross-examination he says: In consideration of J. 31. Iluntz becoming security for the amount Ms son had stolen from me I agreed to arid did not prosecute Ms son.

George P. Heckel testified: Know all parties: II. E. Kuntz was in the employ of plaintiff; he obtained the situation through my influence. My first information of Henry’s being in debt to plaintiff was obtained from plaintiff, who told me Henry was short in his collections and had lied to him in saying he had not collected certain bills which he had collected and that he had him arrested so as to investigate the matter further. I went to the police station where Harry was and he acknowledged to me that plaintiff had correctly stated the case to me. In the conversation with Harry in the police station, he told me he was confident if I would see his father, J. M. Kuntz, he would not see him prosecuted, but would help him out of the scrape. I told him I was going to Pinckneyville that night on one of my trips, and wonM stop and see Ms father, and that I thought I could induce plaintiff not to prosecute him until he heard from me, and I left Harry with that understanding. I then saw the plaintiff and told him I was going to Pinckneyville and would see Harry’s father, and I thought I could get him to fix the matter up, and that I would telegraph Mm, and for him not to do anything further toward prosecuting Mm until he heard from me. Went to Pinckney ville that night, and saw defendant next morning and explained the whole matter to him, stating the amount involved was something between §80 and §100. Defendant said he would not see his son prosecuted, and if plaintiff would give Harry time to pay the amount, he would see that it should be all right. I then said to defendant I must know from him if he would agree to stand security for the amount if Harry did not pay it, and told him I was going to telegraph the result of my interview with him. He said he did not want the family disgraced on account of the other children, and that if the plaintiff would agree to give Harry time in which to pay the debt that he would be security or responsible for the amount. He also told me to make some settlement with Harry so he would not know that he had become his security. He also told me that he would write a letter to the plaintiff regarding the matter; that I should make any arrangement that I might think best, to secure the payment of the money by Harry and prevent the disgrace of the family. I then left him and telegraphed to plaintiff to ■release Harry, that it was all right. And on cross-examination this witness also says: In consideration of defendant going his son’s security the plaintiff declined to prosecute his son.

Defendant testified that he signed the letter offered in evidence, and then says,- the way I came to sign it, Heckel came to me and told me my son was arrested for failing to pay over money to plaintiff, and unless I helped him out he would he prosecuted.” Told him I would pay the amount, but for plaintiff to try to make it out of Harry.

It would be difficult to find a case in which the evidence more clearly establishes an illegal contract. In fact, both parties frankly admit that the consideration for defendant’s promise to plaintiff was the agreement of plaintiff that he would not prosecute his son on the criminal charge which had been preferred against him. ■ Counsel for appellant says, in his argument in this court, that “ the consideration for this promise was doubly good, being first, plaintiff would not prosecute the son of defendant, and second, that he would give the son time to pay.”

In the trial below plaintiff asked the court to give this instruction to the j ury:

The court instructs the jury, that if you believe from the evidence in this case that II. B. Kuntz was justly indebted to the plaintiff for money which he had collected of the plaintiffs and failed to pay over, and that said H. B. Kuntz was arrested upon a criminal charge in reference to said transaction) and that the said defendant, J. M. Kuntz, agreed in writing to pay the amount of such indebtedness in consideration that the plaintiff would not prosecute the said II. B. Kuntz, and would set him at liberty and extend the time of payment, then, in such case, the defendant is liable for such amount and your verdict should be for plaintiff, unless the defendant has been discharged by act of the plaintiff.”

It appears, therefore, that the fact that the promise of appellee was in consideration that the appellant would not prosecute his son is not denied, but is admitted and relied upon to make out plaintiff’s case.

Can it be seriously contended that the transaction as shown by the proof and set forth in this instruction was not illegal ? It is in the very teeth of section 43 of the Criminal Code and in violation of the common law.

This transaction was not between H. B. Kuntz, who owed the debt, if anything was due plaintiff. It is true that the indebtedness from- H. B. Kuntz to the appellant would be a sufficient consideration to support a promise in writing by appellee to appellant to pay the debt, and in the absence of proof to the contrary the presumption would be that such indebtedness was the real consideration for the promise; but here all parties agree that the promise was in consideration that the plaintiff would not prosecute the criminal charge against H. B. Kuntz. It was not merely “ receiving compensation for the private injury occasioned by the commission of the crime,” but an express agreement with a third party not to prosecute the criminal charge. If a court can be called upon -to uphold this transaction, the criminal law may be used with impunity for the purpose of compelling the payment of debts, and the public interest be made wholly subservient to that of individuals.

“ The object of all law is to repress vice and promote the general welfare of the State and society, and an individual' shall not be assisted by the law in enforcing a demand originating in a breach or violation on his part of its principles or enactments. The benefit of the public, not the advantage of the defendant, is the principle upon which a contract is allowed to be impeached in respect of illegal consideration.” Cliitty on Contracts, pages 657 and 658.

“In general, if any part of the entire consideration for a promise, or any part of an entire promise be illegal, whether by statute or common law, the whole contract is void.”

“ If a part of the consideration is illegal the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act oían illegal promise, although he may have connected with this act or promise another which is legal.” Parsons on Contracts, Vol. 1, page 456 (sixth edition); Henderson v. Palmer, 71 Ill. 579, and Illinois cases there cited; Wolf v. Fletmeyer, 83 Ill. 418; Tobey v. Robinson, 99 Ill. 222.

We do not wish to be understood as holding that the verdict of the jury and judgment of the circuit court may not be affirmed on other ground, but regarding the transaction between the parties to this record, viewed in its most favorable light to appellant, as a flagrant violation of the law, we prefer to place our affirmance on that ground alone.

Affirmed -amiineu.


source: Caselaw Access Project

license: Public Domain

text:
    Edward Houts v. Susan Houts.
    Bill fob separate maisteuaiioe.—While separate maintenance, pro- ‘ vided by statute, should in no case be withheldfrom a wife who lives separate and apart from her husband without her fault, she must be held to a reasonable compliance with the rule requiring every complainant to make out his case by a preponderance of evidence. The court is of opinion that the wife in this cause fails to make out her case.

      Error to the Circuit Court of "Wabash county ; the Hon. Wm. C. Jones, Judge, presiding.
    Opinion filed December 14, 1885.
    On the 8th day of April, 1885, defendant in error filed her bill in the Circuit Court of Wabash county against the plaintiff in error for separate maintenance.
    In her bill she alleges that she was married to the defendant on the 18tli day of January, 1883 ; that she has one child, the fruit of said marriage. She charges that on the 1st day of March, 1885, without any fault on her part, the defendant willfully deserted her, and from that time to the filing of her bill continued to desert and abandon her and her said child, leaving them without any means of support.
    The defendant in his answer denies the desertion and avers that the complainant refused to live with him, and on the said 1st day of March, 1885, willfully and without cause abandoned and deserted Mm.
    Messrs. Bell & Green and Mr. M. F. H^skinson, for plaintiff in error.
    Mr. S. Z. Landers, for defendant in error.
   Wilkin, J.

The single question presented by this record is whether or not the decree rendered by the court below was authorized by the proof. The only wrongful act or misconduct on the part of the plaintiff in error complained of in the bill is desertion. There is some evidence in the record tending to prove cruelty on the part of the husband toward the wife, but if that was relied upon as a justification for living separate and apart from him, in conformity to well established rules of chancery practice she should have alleged it in her bill. However, that evidence and the argument based upon it "may be disposed of by simply saying that there is nothing in the "proof to show when these acts were committed, and it may be fairly gathered from the entire record that the parties continued to live together long after they were committed. It is certainly not claimed that she left him on that account, because she says in her bill, and maintains in her testimony that her husband deserted and abandoned her, and that she is living apart from him because he refuses to live with her. The only question then to be determined is whether or not the complainant has supported her allegation of desertion by sufficient proof to entitle her to a decree. She testifies that he went away the 1st of March, 1885, and says, “I do not know why he left. When he left he went to Robert Willey’s. I think he then went to Lawrence county. I did not see him after he went to Willey’s.” On cross-examination she states that he told her that he had rented rooms at Willey’s to live in, and that they were the only ones he could get.” She says “he did not request me to go there to live because Mrs. Willey had sent me word that she would not allow me to come into her house. The reason he got the rooms at Willey’s was, we had rented of Lucas only till the water went down, and she told us several times she wanted possession.” It therefore appears from her own evidence that she did know why he left the Lucas house, and from what he told her why he got rooms at Willey’s.

The defendant testified, as to the separation, that Mrs. Lucas wanted her rooms and required him to move out, and that the only rooms he could get were those at Willey’s ; that he only rented them until the roads got better, so that he could go back to his farm. He says that he asked his wife several times to go with him, and that she refused. That on the morning he moved, Mr. Willey and Mrs. Lucas both asked her to go with him and slm refused because Mrs. Willey was mad at her.

If the husband found it necessary, or even desirable, to change his place of living, and provided another home for himself and family, reasonably suitable to his circumstances in life, it was unquestionably the duty of his wife to accompany him, and under ordinary circumstances a formal invitation to do so would scarcely be expected by the wife, or thought necessary by the husband.

Mrs. Lucas, William Lucas and Robert Willey all corrobórate the husband, and each swear that on the morning he moved he asked his wife several times to go with him and she refused. They also testify that they each asked her to go with him and she would not, giving as a reason that Mrs. Willey was mad at her. Mr. Willey says that he told her “ that made no difference and that there would be no trouble.”

Mrs. Lucas also testified, and complainant did not deny it, that previous to the moving on the 1st of March, defendant in error had sent away a portion of her things. She says “ her father was there with a wagon, and she had a lot of things packed in a basket and asked me to put it in the wagon so that Ed would not see it. I gave the basket to my husband, and he put it in the wagon.”

The clear preponderance of the evidence is, that instead of the plaintiff in error deserting his wife, she, in fact, did refuse to go with him to the rooms which he had provided for their temporary home, which, so far as appears from the evidence, were suitable and sufficient for their temporary comfort and convenience; that her only excuse for not going was that Mrs. Willey was mad at her. The purpose of the husband being not to take her into the family of Mr. Willey, but into separate rooms, to be occupied by them as a home of their own, having been previously informed by her husband that he could get no other rooms, and being assured by Mr. Willey that his wife being mad at her should make no difference, her excuse has rather the appearance of captiousness than a reasonable objection honestly made. There is also some testimony to the effect that she had previously declared her purpose to leave her husband, and go with her parents to Texas-While it is true that she contradicts the witnesses who so tes" tify, yet in view of the uncontradicted statement of Mrs. Lucas as to her having sent away a portion of her things and expressed a desire to conceal the fact from her husband, the evidence is entitled to no little weight as tending to prove that her refusal to go with her husband was not, in fact, because of the ill will of Mrs. Willey, but that the necessary removal was taken advantage of to carry out her previously formed design to leave him and return to her parents.

We have not overlooked the conduct of plaintiff in error in hastily leaving the county after the separation, and his seeming indifference as to the welfare of his wife and child, and do not hold him faultless in that respect.

The wife, however, seems to have been equally unconcerned as to a reconciliation between herself and husband, but hastened to file her bill within less than a month and a half after the separation. We recognize the superior opportunity of the trial court to judge of the credibility of witnesses, and the weight to be given to the testimony of those who appear before it and testify, and admit the wisdom of the rule which requires appellate courts to leave the finding of facts undisturbed unless it appears that such finding is manifestly contrary to the evidence; but in this case the evidence seems to be so clearly against the defendant in error that we think the decree in her favor was error. Families should not be broken up on account of trifling differences between husbands and their wives. The public is interested in the stability of the domestic relations. As the facility for obtaining decrees for divorce and separate maintenance increases, the spirit of compromise and forgiveness in the home decreases, and while the remedy provided by this salutary statute should in no case be withheld from a wife who lives separate and apart from her husband without her fault, she must be held to a reasonable compliance with the rule requiring every complainant to make out his or her case by a preponderance of the proof. Failing to do so in this case the decree in her favor must be reversed.

Reversed and remanded.


text:
    Chicago & Alton R. R. Co. v. Henry Murphy.
    Evidence—Negligence.—As there is no proof of negligence on the part of appellant, the hole in question, into which appellee slipped, being necessary and proper for the management of appellant’s locomotive, and appellee being perfectly familiar with the entire situation and having taken the risk, the verdict for appellee can not he sustained.
    Appeal from the City Court of East St. Louis; the Hon. W. P. Launtz, Judge, presiding.
    Opinion filed December 14, 1885.
    Mr. L. H. Hite, for appellant.
    Messrs. Elannigen & Caney, for appellee.
   Wilkin, J.

This action was brought by appellee against appellant to recover damages for a personal injury, received, as he alleges, through its negligence in permitting a hole to be and remain in its yard, by the side of its track, which was at the time partially filled with loose ashes.

The declaration also alleges that the appellee was, at the time of the injury, in the employment of the appellant as a switchman in its yard; “was walking along its side track near said hole and attempted, in the performance of his duties, exercising due care, to jump upon the foot-board of a certain engine belonging to defendant, and in so doing placed his right foot on said foot-hoard and caught hold of the hand rail on the tender of said locomotive, and at the same time with his left foot stepped in the ashes in said hole, thereby slipped, lost his footing, and in attempting to swing himself around on the foot board his left foot caught under the wheels of the engine and 1ns great toe was mashed.”

The only evidence offered by appellee as to the manner in which he received his injury was the following:

He testified: “ I live in Venice; on April 30, 1884, I was working in the Chicago and Alton round house at night. I and the hostler took out engine 28; I held turn-table while ho backed engine off ; then it was my duty to go back and throw switches some little distance back from turn-tab1 e, and I walked on past the engine, which was running slow. I came to a place betwixt two tracks ; it was probably two feet and a half deep and at each end the ashes were loose; there was an engine on both sides, and to step on back part of the switch engine backing out it was necessary to run around the head of the engine, and I aimed to step on the step-board with my right foot, and my left foot was in the ashes in the hole, and. in throwing the weight on left foot the a'shes gave way with me and slipped down in the hole. I grabbed with my hand the railing on the end of the tank, and in pulling myself up the left foot swung under the hind wheel of the tank and it went over my toes—mashed all my toes, but did not injure any of them only the big toe. I pulled myself on the engine and went back to throw switch for engine to back out. That hole is just across what we call the house track; it was in the company’s yard. The hole was right against the track; part of the ties are sticking over the hole ; they dig it out on both sides; it must be about twenty feet long and two feet deep; there was some loose ashes in it at each end ; in the center they had cleared ashes out whole length I was right at the hole when I jumped on engine, and in stepping my left foot went in; did not notice appearance of it; I thought the edge of the hole was solid ; I jumped on engine at this point because I thought I had to be back there to turn switch. I was obliged to go through this hole; don’t know that I was compelled to get on there, but it was convenient to step on. I was there and engine was there and if I had let it pass I could not get on on account of the hole. My duty there was to help take in engines to clean, wipe, give sand and water and also take engines out of the round house and turn these switches ; it is usual and customary to jump on the hind end of an engine- when going to turn a switch. There were two tracks that were used alongside this one ; one was for the engines to clean the fire out over the pit, and this track I got hurt on was used for running engines in there and running to the turn-table and round house. This engine was being used and operated by the Chicago and Alton company.”

On cross-examination he testified: I was right at the ash-pit, standing over it. Did not get on engine after it backed off because it was running, and I wanted to get on back end so I could'be there to turn switch—it was running very slow, and I walked past it. Did not get on engine till it was clear off, because I had to hold the table firm. I was on west side of coaling track when I got on. I stepped with right foot on foot-board of the engine on back end of tank; then stepped with left foot in this ash pit; was standing with left foot in the ashes when I stepped on, and then when I threw weight of myself on the left foot the ashes gave way and let-tliat foot down in the hole; the engine was alongside of me and when I went to step on the foot-board the weight of my left foot gave me a shove and the ashes went down; the hole was partly filled with ashes at that point; down the center it was two feet deep or more; this hole was used to put ashes into that were shoveled out of the ash pit. I knew there was a hole there as it had been there to hold ashes to be put on cars ever since I was there—about eleven months ; held turn table often before; it was daylight at the time of the accident; I saw the ground as I walked up after the engine, and liad seen it often before; I knew there was a hole there—of course I did ; I knew it when I went to get on the engine.”

On re-examihation he says: “ It was my duty to hold on to the arm of turn-table until engine was entirely off; after that I had to run past engine, which passed slowly, and get on front end as it was going, to tliroiv switch when I got there ; it was always my custom to do this way in switching. Where I fell in between this railroad track was a deep hole made by scooping out ashes. I could not get on engine as soon as first trucks were off turn-table because there was no one there to hold table firm for engine to get off; I could not leave it so.”

Y. P. Giddings testified for plaintiff: “I-know Mr. Murphy ; work for the 0. and A. I know the ground between the two tracks by the ash pit; it is either a hole or a ridge; they throw the ashes from the pit in there and then take it out on cars, and it takes a short time before the hole is filled again. That hole is not very deep when first taken out; probably two feet deep. It extends from one track to the other, probably eight feet; when the ashes are taken out it leaves a hole there.”

On cross-examination this witness says: lc I am an engineer at work there ; this hole near this ash pit is a necessary arrangement; I should judge it was; every round house has it. When first truck of an engine comes off turn-table it is not always safe to let go ; it depends on how it is built; don’t think it would be safe to let engine 28 off. That engine does not have what is called a cow-catcher; it has a board and hand rail.”

Frank Hines testified: “I know condition of ground between tracks opposite ash pit They had a hole at ash pit, to clean ashes into. There was a hole there when Murphy was hurt; there were some ashes in it.”

The evidence introduced on behalf of appellant docs not materially differ from that of appellee.

This proof wholly fails to support the allegations of the declaration in two essential particulars. First, there is no proof of negligence on the part of the appellant, and second, there is an entire absence of proof of due care on the part of appellee. The reversal of this case might therefore properly be placed on either one of the above grounds. All of the evidence introduced on that branch of the case ¡noves that the hole into which appellee - slipped was necessary and proper for the hauling and management of appellant’s locomotives, and hence it was not negligence to have it there.

Appellee does not pretend that it was any part of his duty to board the moving locomotive, nor that it was necessary for him to do so in order to discharge his duty, and it was therefore negligence on his part to attempt to jump on the engine while in motion. The fact that it was convenient for him to do so, or that it was customary to do so, can not change a negligent act into one of due care and diligence. The evidence clearly shows—in fact the appellee himself swears—that he was perfectly familiar with the entire situation and in his own language he took the risk.

Surely a man can not be allowed to voluntarily place himself in a position or place of known danger, saying he will take the risk, and then come into court and recover for an injury resulting from that risk.

Exception was taken to the only instruction given on behalf of appellee. By that instruction the court sought to give the jury the law of contributory negligence. Ho benefit could result from a critical examination of the instruction, or an attempt to discuss the doctrine of contributory and comparative negligence. That doctrine has no application to this case, and the instruction was improperly given for the reason that there was no evidence upon which to base it.

While it is true that the degree of appellee’s negligence, as compared with that of the appellant, would be a question of fact for the jury in a proper case, the appellant’s negligence must have been first established by the evidence. Until that was done there was no basis for comparison.

Ho importance, however, is attached to the giving of the instruction, as we hold that the judgment must he reversed because it was unauthorized by the evidence.

¡Reversed.


text:
    Joseph Laur et al. v. The People, use, etc.
    1. Practice—Parties.—In a suit on a bond by the people for the use of H., guardian, etc., against appellant, judgment was rendered, but II. died before executionissued; it appearing that the estate of H. had no interest in the judgment, and that the ward had become of age, held, that although H. might have maintained the suit in his own name, and may have had the right to control the judgment during his lifetime and the minority of Ms ward, it does not follow that the judgment passed to his executor, and no court should require the empty form of making the executor a party to the proceedings to collect the judgment.
    2. Same—Remedy at law barred .—A court of equity having the power to declare an execution void or irregular and grant relief against it, and appellant having invoked that power, and the court of chancery having taken jurisdiction of his cause, he can not be allowed to now resort to a court of law for the same relief which he could then have obtained, if entitled to it, by presenting his claim.
   Wilkin, J.

It appears from the record in this case that appellee recovered judgment against appellant in the Circuit Court of Jefferson county on the 12th day of September, 1878, for §2,000 debt, and §604.67 damages and costs, to be satisfied on the payment of the damages and costs. That after the rendition of the judgment, and before this execution issued, the said Robert Hughes died testate, Robert Hughes, his son, being his executor. That after the death of Hughes, the said Margaret Hackett, now Margaret McDonald, assigned the said judgment to one Charles T. Moore. On the 24tli day of July, 1884, execution and fee bill issued on said judgment by the direction of the said Margaret McDonald and Charles T. Moore.

On the 5th of June, 1885, appellants presented their motion to the Hon. Tlios. S. Casey, in vacation, to quash said execution and to stay proceedings thereunder, and on that day it was ordered that further proceedings he suspended until the order of the court should he made upon said motion. At the following May term of the said Circuit Court of Jefferson county, the motion to quash the execution and fee bill was overruled and appellants prayed an appeal.

We find no written motion filed by appellants, and the grounds of the motion can therefore only be gathered from the notices given to the sheriff and appellees, and from the evidence introduced in support of the motion.

In the argument of the case here, but one objection is urged against the validity of the execution and fee bill, and that is the death of the said Robert Hughes, prior to their being issued. It further appears by a stipulation filed on the hearing of the motion. On the 16th day of September, 1884, the appellant filed his hill in - chancery against Margaret Hackett and Charles T. Moore, to enjoin proceedings on said execution and fee bill, claiming that prior to the issuance thereof the whole amount of the said judgment had been paid. That upon issue joined on said bill, the court found that complainant was entitled to certain credits and ordered the same credited on said execution, and “ declared the injunction granted them perpetual as to said sums, and dissolved as to the remainder of said judgments.”

It clearly appears from the manner in which the suit was brought, the evidence in the case, and the agreement of parties, that the judgment rendered on the 12th of September, 1878, was for the sole benefit of Margaret Hackett, and that any balance remaining unpaid belongs to her or her assignee, and that the estate of George Hughes claims no interest whatever in it. It is also admitted that the ward for whose benefit said judgment was rendered became of age prior to the death of Hughes, her guardian.

Ho argument whatever is adduced to show that it was necessary that the executor of Eobert Hughes should have become a party to the judgment under the provisions of section 37, chapter 77, R. S., nor why it was necessary to revive the judgment by scire facias in order to protect the rights of parties interested. Something is said in the argument about the rights of the estate of Hughes. It is agreed in the stipulation of the parties that the estate of Hughes has been settled and the executor discharged. There is nothing in the evidence to show that the estate at any time claimed an interest in the proceeds of the judgment.

Had the executor proceeded as counsel for appellant insist he should have done, and collected the judgment, he would have been bound to pay it over to Margaret Hackett. Additional expense would have been incurred, but no benefit would have accrued to any one.

Although Hughes might have maintained the suit in his own name and may have had the right to control the judgment during his lifetime and the minority of his ward, it does not follow that the judgment passed to his executor; and when it is conceded that the estate has no interest whatever in the judgment, that it in fact belongs to a person who is a party to it and who is living, no court should require the empty form of making the executor a party to the proceedings to collect the judgment, thereby passing the proceeds through the forms and subjecting it to the delays of administration, unless the rules of law imperatively demanded it.

We do not think this case falls within the provisions of Sec. 37, Ch. 77, R. S. That section provides that the collection of a judgment shall not be delayed “by reason of the death of any person in whose favor such judgment shall be,” and is but a cumulative remedy with scire facias to revive judgment. The judgment was rendered in this case in favor of Margaret Hackett, and she is not dead. There was therefore no necessity for reviving it. In Freeman on Executions, Sec. 36, it is said that “ the general rule in regard to revivor is that it is indispensable wherever a new party is to be charged or benefited by a judgment. When any new party is to be' better or worse by the execution there must be a scire facias because he is a stranger to make him party to the judgment, as in the case of executors and administrators; otherwise when the execution is neither to charge nor benefit any new party.” Margaret Hackett being a party to the judgment, and it being for her sole benefit, no new party being directly or indirectly interested in it, the execution properly issued without the executor becoming a party by filing his letters of executorship or reviving the judgment. The case is clearly distinguishable from those cited by appellant, in which it is held that the death of a sole plaintiff suing for his own use and benefit before execution issued, renders void the execution and all things done under it, unless letters of executorship or administration have been recorded in conformity to Sec. 37, or the judgment revived by scire facias.

The position of counsel for appellee, that the words “ who sue for the use of Bobert Hughes, guardian of Margaret Hackett, may be treated as surplusage ” is not tenable, nor does the opinion in I. & St. L. R. R. Co. v. The People, 91 Ill. 452, support that view. That was an action to recover a penalty under a section of the statute providing that the action should be debt, in the name of the people of the State of Illinois, or by any person who may sue for the same. The suit Avas in the name of The People, etc., for the use of Maurice L. Whiteside. The Supreme Court treated the Avords for the use, etc., as surplusage,for the reason, as stated, that “ they add nothing to or detract nothing from the right to recoA7er.”

This action, as appears from the recitals in the judgment, Avas upon a bond for the payment of money, and we apprehend that it would be difficult to draft a declaration on such an instrument that would show a liability Avithout alleging that the suit Avas for the use of some one. We have no criticism to make upon the manner in which the suit Avas brought. It Avas in conformity Avith the usual practice, and made Margaret Haclcett a party to the judgment.

It is insisted that the chancery proceeding begun September 16, 1884, Avliicli resulted in a decree at the December term, 1884, is a bar to this motion. From the meager presentation of Avhat was actually contained in the bill then tiled, it is impossible for us to determine what was in fact decided in that case. There is nothing in the stipulation filed on the hearing of this motion from which we can infer that the A7alidity of the execution Avas then called in question, except on the ground that it had been fully paid off. Enough, however, does appear, to sIioav that that proceeding was between the same parties ; that it involved the same subject-matter, and that all the facts Avhich now exist, existed then and were known to the complainant. That the principle of res adj-udicata embraces not only what actually was determined in the former case, but also all other matters properly involved and Avhich could haA'e been raised and determined in it, certainly does not require the citation of authorities. The authorities referred to by counsel for appellant are in perfect harmony Avith this rule in so far as they treat of the doctrine of res adjudicata.

It is said, hoAArever, that a court of equity was not the proper jurisdiction in which to question the validity of this execution, on the ground that the plaintiff Avas dead when it Avas issued.

The authorities cited do not support this position, though we have no doubt but that, if this was the only question involved, the proper remedy would be by motion, and a court of equity holding that the remedy was complete at law might properly refuse to take jurisdiction of the case. The same is equally true when relief is sought against an execution on the ground that the judgment has been fully paid off. Russell v. Hugunin, 1 Scammon, 562; McHenry v. Watkins, 12 Illinois, 233 ; and therefore, as far as we can determine from this record, there was no necessity whatever for resorting to a court of equity. It is admitted, however, in this case, that the chancellor did take jurisdiction, and having done so in obedience to an elementary rule of equity practice, he would have retained it to do justice between the parties, although he should have had to pass upon matters which alone would not have been cognizable in a court of equity.

It can not be seriously insisted that a comí of equity has not the power to declare an execution void or irregular and grant relief against it to the fullest extent. Therefore, appellants having invoked that power, and the court of chancery having taken jurisdiction of his cause, he can not be allowed to now resort to a court of law for the same relief which he could then have obtained, if entitled to it, by presenting his claim. If we may judge of the scope of this motion and the reasons relied on below for quashing the execution, from the affidavit of appellant the payment of the judgment in full was insisted upon, thereby renewing, in part at least, the identical objections raised by the bill in chancery. The chancery proceeding was, in our opinion, a bar to this, and the judgment of the court below might be sustained on that ground alone. Again, appellant’s negligence in presenting and urging this motion in view of the facts might well be held a waiver of the irregularity, if any existed in the issuing of the execution, and “an irrevocable renunciation of his right to quash the writ,” Freeman on Executions, Sec. 76, and cases cited.

Affirmed.


author: Per Curiam.

text:
    Charles Butler v. Alonzo R. Hill.
    Justice’s judgment.—The record presents only a certified transcript of a judgment of a justice of the peace, filed in the office of the clerk of the circuit court, together with the execution issued out of that office and the sheriff’s returns of his levy and sale. Held, that this court can not review such a judgment or the ministerial acts of clerks and sheriffs.
    Ebbob to the Circuit Court of Vermilion county.
    Opinion filed December 4, 1885.
    Hr. L. Reilly, for plaintiff in error.
   Per Curiam.

No brief has been filed for the defendant in error, but we have looked into what stands for the record, and find it presents only a certified transcript of a judgment of a justice of the peace filed in-the office of the clerk of the circuit court, together with the execution issued thereon out of that office and the sheriff’s returns of his levy and sale of certain real estate by virtue thereof, and that all the errors assigned are in terms imputed to said justice, clerk and sheriff respectively.

Notwithstanding such filing of the transcript the judgment remains but the judgment of a justice of the peace (Seymour v. Haines, 104 Ill. 557); and as this court cannot in this way review sucha judgment, or the ministerial acts of clerics and sheriffs, the writ of error in this case will be dismissed.

Writ of error dismissed.


author: Wall, P. J.

text:
    City of Bloomington v. Luella Tebballs.
    1. Variance—Time to make objection.—The court is of opinion that the variance between the declaration and the proof is not material, but if it were important, objection should have been made in the court below.
    2. Evidence—-Discretion op trial court.—Unless there is some special reason for it the trial courtis not bound to allow a mere repetition of questions.
    3. Instructions.—Where, in an action against a city for negligence, the main purpose of a certain instruction was with reference to the measure of damages, and the terms of such instruction referred the jury to the declaration where the allegation of due care was to be found, and other instructions abundantly presented the element of due care. Held, that such instruction was not erroneous.
    - Appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed December, 4, 1885.
    Mr. T. C. Herrick, for appellant.
    Mr. John T. Lillard, for appellee.
   Wall, P. J.

This was an action on the case by appellee against the appellant, to recover for injuries alleged to have been sustained by appellee in consequence of a fall caused by a defective street crossing. The appellee recovered a verdict for §2,500 and had judgment thereon with costs. The appellant assigns various errors which will be noticed in their order as they appear in the brief. It is first urged that there is a fatal variance between the declaration and the proof in this: It is alleged the defect in the crossing was caused by a plank or board being broken and decayed, and the broken or decayed part removed, whereas the proof only shows the board was broken and decayed and that a certain board wore off at the edge by gradual decay, and it is not shown that the broken part or any part of the board was removed and taken away. Admitting or assuming tile proof is as stated, in its effect we think the variance in the description of the defect is not important; but if it were important the objection should have been made on the trial, so that it might have been obviated by an amendment if deemed material. City of Elgin v. Kimball, 90 Ill. 356; I. & St. L. Ry. Co. v. Estes, 96 Ill. 473. It is next objected that the court erred in not j>ennitting appellant to put certain questions to the witness Dr. Mason, called by appellee, and to the witness Dr. Dunn, called by appellant. The question proposed to ask of the latter witness was leading and objectionable for that reason, and in both instances the question was but a repetition of a preceding question which had been fairly answered. The trial court has a large discretion in matters of this sort. It may permit the same question to he propounded more than once and in several different forms if the ends of justice seem to require it, but unless there is some special reason for it, it is not bound to allow a mere repetition. There was no apparent necessity for such repetition in the present case, and we can not say the court improperly exercised its discretion. City of Aurora v. Hillman, 90 Ill. 61. The next objection urged by counsel is the giving of the fourth instruction for plaintiff which reads as follows:

If the jury believe from the evidence that plaintiff was injured by reason of a defect in a public sidewalk of the city of Bloomington, in manner and form as stated in her decoration, and that of the defect defendant had due notice, and that as a natural, necessary and unavoidable result of such injury the plaintiff suffered a miscarriage, then the jury in fixing the amount of damage to be allowed plaintiff for such injury have a right to take into consideration such miscarriage, with all its consequent pain and suffering, if any such is shown by a preponderance of the evidence.” It is said of this instruction that it requires the jury to assess' the plaintiff’s damages regardless of whether her own negligence contributed to the result. The jury are told that if the plaintiff was injured as stated in the declaration, then, etc., etc. The declaration stated that the plaintiff in passing over the crossing, and while using ordinary care for her personal safety, stepped into the hole, etc. The terms of the instruction would refer the jury to the declaration where the allegation of due care is to be found. Such mode of instructing the jury has been approved in Miller v. Balthasser, 78 Ill. 302, and in O. & M. R. R. Co. v. Porter, 92 Ill. 437. The main feature and purpose of the instruction was with reference to the measure of damages in case the jury should find the particular injury mentioned had necessarily followed as a consequence of the accident in question.

The instruction was not designed as a critical statement of the grounds upon which a recovery might be had, though if it were so intended it will, when carefully considered, be found to include the element of due care. But conceding that it is not sufficiently clear and definite in this respect, it does not conflict with other instructions which are full and explicit enough. The element of care by plaintiff is repeatedly presented in the other instructions, both of plaintiff and defendant, as fundamental to a recovery, and there is no want of harmony in either or between either series. The jury were abundantly instructed on this branch of the case, and we are not able to see that appellant has any just ground of complaint herein. T., W. & W. Ry. Co. v. Ingraham, 77 Ill. 309; St. L., V. & T. H. R. R. Co. v. Funk, 85 Ill. 460; Hayward v. Merrill, 94 Ill. 349; Belt v. The People, etc., 97 Ill. 463.

Moreover, as we read the proof, it is not really a matter of serious controversy that the plaintiff was duly careful at the time she was hurt. We are not inclined to consider that feature of the case as at all difficult, and if the instruction were justly subject to the criticism made upon it, we would not deem the error of such gravity as to reverse the judgment, because in the light of the evidence we coaid not reasonably suppose the jury were misled by the instruction. Finally, it is urged that the evidence does not support the verdict, and that a new trial should have been granted for this reason. The evidence has been very carefully examined as it appears in the record as well as the abstract, and we can discover no sufficient ground to disturb the verdict. We think the jury had ample evidence upon which to base the conclusion that the plaintiff was entitled to recover. The difficult question was as to the measure of damages, and the solution of this was in ascertaining what subsequent suffering and physical derangement were due to the fall. Upon this point the jury heard a large amount of medical testimony, in which, as frequently happens, there was no little conflict of professional opinion. If the jury accepted the views of plaintiff’s witnesses, the damages assessed are not unreasonably high. It was for the jury to reconcile the testimony if possible, and if not, to give credit to that portion of it which they deemed most credible. They have performed this task, as far as we can see, without passion or prejudice, and we find no occasion to interfere.

The judgment of the circuit court will therefore be affirmed.

Affirmed.


text:
    John D. Gillett v. Robert Webb et al.
    Court and jury—Acceptance.—This court is not inclined to hold refined and metaphysical distinctions as to the respective powers of court and jury, and is of opinion that no sound legal principle was violated by the statement of the court in this case as to what constituted an acceptance"
    Appeal from the Circuit Court of Logan county; the Hon. George W. Hebdman, Judge, presiding.
    Opinion filed December 4, 1885.

      Messrs. Blink- & Hobltt, for appellant.
    Messrs. Beach & Hodkett, for appellees.
   Wall, P. J.

This was an action of assumpsit by the appellees against the appellant to recover a sum alleged to be due for sawing lumber.

The pleas were general issue, payment, and tender of 8685,, The case was tried by a jury, and there was a verdict and judgment for §900.

The appellant employed the appellees to saw a quantity of timber growing upon the land of the appellant into lumber. The price to be paid ivas §10 per thousand by the original agreement, but afterward it was fixed at §8 as to a certain portion. The whole amount sawed as claimed by appellees was 362,315 feet, of which 305,435 was under the §10 contract, and the residue was charged at §8. There were certain credits about which there was no dispute and the appellees claimed the balance due them was §1,025.29.

The appellant, by his plea of tender, admitted that there was due about §680, the sum tendered being §685, and the cost then due less than §5. The real contention ivas with regard to the amount of rotten lumber for which under the contract appellant was not bound to pay. There was conflicting testimony on this point and the jury by their verdict made an allowance for this item, of §125.29. After an examination of the evidence we are not prepared to say that this finding is unjust to either party.

It is urged on behalf of appellant that several of the instructions given for appellees were calculated to mislead the jury because there ivas not sufficient evidence upon which to base them.

"We think this objection is not well taken. A further objection is presented as to the 6th of the instructions given for appellees, that it undertakes to inform the jury that the supposed facts therein referred to, would, if true, constitute an acceptance; that what would prove or amount to an acceptance ivas a pure question of fact which should have been left to the jury.

We are of opinion the facts stated, if true, should estop the appellant from insisting now upon the right to reject the lumber, and that no sound legal principle, was violated by so advising the jury.

Theoretically it may be true that what is an acceptance in such a case is for the jury. This in a general way, but we can see no good reason why the court may not inform the jury as to the legal effect of certain acts in this respect, leaving the jury to find whether there were such acts or not.

The fourth instruction is objected to because it is too argumentative, and calls especial attention to particular -facts as tending to show an acceptance of the lumber ; but we do not consider it so faulty as to furnish ground for reversal.

Refined and metaphysical distinction as to the respective powers of the court and jury would often render it very difficult if not impossible for the court to assist the jury by its instructions.

We are not inclined to hold with such technical nicety. Under our practice the court must supervise the conclusion of the jnry and set aside the verdict when it is clearly unjust. Thus the court is ultimately responsible for all its judgments, and as it should not hesitate to grant a new trial in a proper case, it should also give the jury all reasonable aid in solving the questions before them, taking care of course not to overstep the plain boundary that separates the two. The instructions for the appellant were very full upon all the points involved, and considering the whole record, we think substantial justice has been done.

The judgment of the circuit court will therefore be affirmed.

Affirmed.


text:
    Jasper Weidekin et al. v. James Snelson.
    1. Drainage—Easement.—Where tlie claim that a previous owner had established a system of drains upon the property now owned by others, and that having severed the heritage each subsequent owner took subject to the burden thus imposed, is sought to be established, the marks of the burden must be open and visible, and the easement must be apparent, necessary and continuous.
    2. Obstructing artificial drain.—In an action of trespass for the obstruction of certain artificial drains on the lower estate, where the natural flow of the water would be otherwise, and there was no right by prescription or contract, and no burden on the servient estate. Held, that the act of appellant in tiling and partly filling up the ditch, even if it produced the loss complained of, is a damnum absque injuria for which no action lies.
    Appeal from the Circuit Court of Christian county; the Hon. W. L. Gross, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. A. MoCasicill and Mr. W. M. Provine, for appellant^;
    cited Peck v. Herrington, 109 Ill. 618; Com’rs, etc., v. Whitsitt, 15 Bradwell, 318; Gormley v. Sanford, 52 Ill. 162.
    Mr. H. M. Vandeveer, and Mr. James M. Tatlor, for appellee;
    cited Washburn on Real Property, 283, § 13; 288, § 16; Ingals v. Plamondon, 75 Ill. 118.
   Wall, P. J.

This was an action of trespass on the case, by Snelson, appellee, against Weideldn and Copenbarger, appellants, to recover for damages alleged to have been caused to the lands of the appellee by the obstruction of certain drains.

The appellee, Snelson, owns two forty-acre tracts lying north and south. Appellant, Weideldn, owns one forty-acre tract lying south of Snelson’s, and the lands of appellant,, Copenbarger, lie east of the land of Snelson and Weideldn.

Snelson’s land is flat but drains to the south. There is or was a pond of several acres near the northeast corner of W eidekin’s land and extending over his east line into the land of Copenbarger. Into this pond the water from a considerable part of Snelson’s land would naturally flow, and when full it would spread out to the west, then southeast, running finally into a depression leading to a branch on the land of Copenbarger. South of this pond was a ridge of several feet in height. The evidence tends to show that one Hughes, who formerly owned the three forties now owned by Snelson and Weidekin, made some ditches by means of a plow, by which the water would flow more freely from the south part of Snelson’s land into this pond, and that he also plowed a furrow across this ridge; but this furrow or ditch was not sufficient to drain the pond, though when full the overflow would, to some extent, pass through it. Afterward, when Snelson and Copenbarger owned the lands as they do now, and when Weidekin was but a tenant of the land he now owns, the two former, at joint expense, deepened this furrow or ditch so as to drain the pond, and Snelson carried the ditch from the north edge of the pond up to the southeast corner of his land, there connecting with other drains on his premises. To this arrangement Weidekin made no objection, though he refused to bear any part of the expense or take any part in it, upon the ground that he had no interest in the matter, being only a tenant and not the owner.

Subsequently he bought the land, and still later he and defendant Copenbarger laid a tile drain extending through this ditch and the pond, and passing southwest into, and perhaps across, the land of Copenbarger, extending from the pond also in a northeastern course into Copenbarger’s land. It is contended on behalf of Snelson that the tile drain operated unfavorably to him, and that the ditch was to an appreciable extent filled up so that it did not carry off the water as well as formerly, whereby his land was damaged in its rental value, and that he lost a good part of the crop of corn raised in 1881 —the year the tile drain was put in. The case was tried by jury and the plaintiff recovered a verdict for $300, upon which, after overruling a motion for new trial, the circuit court rendered judgment.

It is not denied by appellants that under the law, as well settled in this State, Snelson had a right to insist that as his land was higher than Weidekin’s, the water should be allowed to flow as by nature it would from the former to the latter, and that for any damages occasioned by an obstruction of such natural flow the plaintiff might recoArer.

It does not appeal-, however, that the'plaintiff’s claim is for such an interference, but is, rather, for obstructing this artificial drain on the land of defendant, Weidekin. It is- true that counsel for appellee, in his brief, insists that the pond would OArerfloAV in the direction where the ditch now is, and an argument is drawn from this statement; but such a position can not well be maintained on the evidence in the record. The great Aveight of proof as we find it, after a careful reading, is otheiwise, and it seems quite Avell established that, in a state of nature, the water accumulating in the pond when it was full would spread out west and then south and southeast, and that it was not until a furrow was cut across the ridge that any part of the overflow took that course, and it Avas not until the ditch Avas made by Snelson and Copenbarger that the pond Avas drained that Avay. So that the important question noAV is as to the duty of Weidekin and the correlative rights of plaintiff in respect to this artificial drain. So far as it is upon his land Weidekin has an undoubted right to obstruct or change it, or wholly dispense with it, as he may see fit, unless in so doing he infringes upon the rights of others.

Snelson can not claim a right by prescription for the reason that the time required by laAV to establish such a right has not elapsed. Nor can he claim under any contract with the defendant, or those with whom l:e is in privity. It is argued by counsel that a former owner, Hughes, had established a system of drains upon the whole property now owned by Snelson and Weidekin, and having severed the heritage, each subsequent OAvner takes subject to the burden thus imposed.

In such cases “ the marks of the burden must be open and visible,” and the easement must be apparent, necessary, and continuous. Ingals v. Plamondon, 75 Ill. 118. There is no such burden to be inferred from the act of Hughes in plowing the farrow across this ridge. It is not reasonable that an easement should be established by so casual and insignificant an act. It lacks all the elements essential for such a purpose. But were it otherwise, it would seem impossible to base the plaintiff’s claim upon this theory of the case, for the reason that had the furrow been left or kept in order as Hughes made it, the pond would not have been drained.

The plaintiff must recover then, if at all, upon the proposition that the defendants unlawfully and injuriously interfered with the ditch as it was made by plaintiff and C openbarger. Assuming that the operation of laying the tile and subsequently filling up the ditch to the extent shown by the evidence obstructed the flow of water and produced the damage complained of, the question is whether the defendants are liable therefor.

The ditch wras made before Weidekin became the owner of the land, and so far as the evidence shows, without the consent of the owner. Weidekin was the tenant and made no obj ection. He afterward bought. Had he owned the land when the ditch was made and consented thereto, his consent would have amounted merely to a license revocable at will, and for the revocation thereof there would be no liability. Woodward v. Seely, 11 Ill. 157; Kamphouse v. Gaffner, 73 Ill. 461; St. Louis Nat’l Stock Yards v. Wiggins’ Ferry Co., 102 Ill. 514; Same v. Same, 112 Ill. 384. These cases settle the principle announced so clearly, and state it so fully, that we deem it only necessary on this point to refer to them. In Peck v. Herrington, 109 Ill. 611, the Supreme Court, while reiterating or restating the rule as to the general right of the owner of an upper field to have the water run therefrom to and over the lower field, take occasion to say that such owner can not construct drains or ditches so as to create new channels for water in the lower field, though he may, for the purposes of good husbandry, increase the discharge of water from his field into the regular and natural channels of the field below.

We are of the opinion that the act of defendant Weidekin in tiling the ditch and partly tilling it up, even if it produced the loss complained of, must be regarded as “ damnum, absque injuria,” for which no action lies.

The trial court in its instructions to the jury adopted a different view of the legal rights of the parties, and in this there was such substantial error as requires a reversal of the judgment.

Upon the question of fact whether the plaintiff’s loss is fairly attributable to the act of def endant, we have examined the proof with great care and are very strongly impressed with the belief that the finding in this respect is against the clear preponderance of the evidence.

We entertain little doubt that the verdict should have been the other way; and it is proper to say in this connection, that we think the trial court was unduly strict with the defendant in admitting and excluding evidence to the condition of the ditch and its capacity to carry off the water after the tile was laid. However, on the evidence that was admitted, we regard it a reasonable conclusion that there was as ample facility for draining all the water that came into the pond after the tile was laid as before, and that the plaintiff’s loss, whatever it may be, is due to other causes.

It appears that since the tile was put in, Weidekin has always raised good crops on the ground formerly covered by the pond, and it is not easy to understand how a system of drainage that benefits him at this place can injure the plaintiff at other and higher places which naturally drain to this.

Other features of the case tending to the same view might be referred to, but we do not care to further discuss a mere question of fact, about which there is more or less conflict in the evidence; and we also pass without examination the point that there is not sufficient proof to hold Copenbarger as a co-defendant with Weidekin. The judgment of the circuit court will be reversed and the cause remanded.

Reversed and remanded.


text:
    John Endsley v. Joshua Johns.
    1. MisbefbEsentations as to solvency—Instruction.—In an action for a misrepresentation as to the financial ability of a person, an instruction that the law is that if a person makes an untrue statement to another, knowing it to be untrue, and the person to whom it is made has no knowledge of its untruth, but relied on such statement as true, and acted upon the same and was injured thereby, then the person so making such statement is liable for the damages accruing to the party thus acting. Held, that as the only fact about which there was misrepresentation, if there was any, was a material one, such instruction is not fatally defective, because it omits that the actionable misrepresentation must be as to a material fact.
    2. Same—Use ov obdinaby cabe.—The above instruction is not erroneous in that it omitted the qualification that the plaintiff must use ordinary care. This being a case for deceit in recommendation as to credit, and under the circumstances of the case, as stated in the declaration, it not being necessary to insert the qualification as to ordinary care, it was not necessary to insert it in the instruction.
    Appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. ¡Robinson, Golden & Fryer, for appellant;
    as to instructions, cited Am. Cent. Ins. Co. v. Rothchild, 82 Ill. 166; O. & M. Ry. Co. v. Porter, 92 Ill. 437; Schwabacker v. Riddle, 99 Ill. 343; Williams v. McClure, 50 Ill. 390.
    Messrs. Wiley & Heal, and Mr. Horace S. Clark, for appellee
    ; as to what is necessary to prove to recover in an action of deceit, cited Dwight v. Chase, 3 Bradwell, 67; McBean v. Fox et al., 1 Bradwell, 177; Merwin v. Arbuckle, 81 Ill. 501; Wheeler v. Randall, 48 Ill. 182; Hiner v. Richter, 51 Ill. 299; Benton v. Pratt, 2 Wend. 386; Patton v. Gumly, 17 Mass. 182; Nolte v. Reichelm, 96 Ill. 425; Gallagher v. Brunel, 6 Cow. 347; Kerr on Fraud and Mistake, page 53; Brandt on Suretyship and Guaranty, Sec. 59; Addison on Torts, Sec. 38.
   Wall, P. J.

This was an action on the case by the appellee against the appellant. The declaration contains two counts. In the first it is alleged that defendant, who was known to plaintiff to be a person of means and responsibility, falsely and fraudulently represented to plaintiff that the check of one John Kimlin for §1,041.74 was good and would be honored by the bank, etc.; that said Kimlin was good; that his check was good and that he would pay the plaintiff for any cattle he might purchase of him; that these representations were made with intent to injure and deceive; the plaintiff, relying upon their truth, sold his cattle to said Kimlin and received his check therefor, which was never paid, and that plaintiff has thereby wholly lost said amount.

The second count is upon the same cause of action and is in substance like the first.

There was a trial by jury upon a plea of not guilty and the issue was found for plaintiff.

Judgment followed and the record is brought here by defendant. We will consider the errors assigned in the order as they appear in the brief.

It is first urged that the second instruction for plaintiff is erroneous, because it advised the jury that if defendant made the representations alleged in the declaration, or the material part of them, and that such representations, or the material part of them, were false, etc., etc., then the verdict should be for plaintiff. The objection is that the jury were thus authorized to determine what part of the alleged representations were material; that this is a question of law for the court and not for the jury. The proposition is correct that the court must determine what allegations in a pleading are material and necessary to be proved, and that it is improper to submit such a question to the jury; and if any substantial injury is occasioned by such a course it would be a just ground of complaint.

In such a case as this it is not necessary for the plaintiff to prove all the misrepresentations set out in the declaration. Such allegations are divisible and he may succeed if he can prove any one of them which of itself makes a cause of action. Looking at the allegations here it will he seen that they are all very much the same in effect, and that each so called misrepresentation, when coupled with the general averments of the court, would constitute a cause of action. It is difficult therefore to see how the jury could have been misled, or the rights of defendant substantially affected by the inaccuracy of this instruction. There was conflict in the testimony, and the jury may have reached an unjust conclusion ; but considering the evidence in connection with the declaration, we can not suppose the verdict is due to a misapprehension of what allegations the plaintiff was required to prove, and while the instruction is subject to criticism in the respect indicated, we are not inclined to reverse the case for that reason.

The next objection is to the 6th instruction for- plaintiff, which is as follows:

The law is that if a person makes an untrue statement to another, knowing it to be untrue, and the person to whom it is made has no knowledge of its untruth, but, relied on such statement as true, and acted upon the same, and was inj tired thereby, then the person so making such statement is liable for the damages accruing to the party thus acting.

It is urged this is an incorrect statement of the rule of law applicable in such a case as the one at bar. The first instance in which it was adjudged that an action of tort was maintainable for a misrepresentation respecting the financial ability of a tim'd person is the case of Pasley v. Freeman, 3 T. R. 51. This celebrated case was decided in 1789, and is an acknowledged precedent.

It has been said that one of the consequences of this decision was to considerably qualify that enactment of the Statute of Frauds and Perjuries which requires guarantees to he in writing, and in England the statute has been amended in this respect by what is commonly known as Lord Tenterden’s Act, 9 G. 4, C. 14. 1 Smith’s Lead. Cases, 79. In this country the decision has been generally approved and may he regarded as well settled law.

As was said by Chief Justice Marshall, in Russell v. Clark, 4 Cranch, 69 : “ That a fraudulent recommendation (and a recommendation known at the time to be untrue would be deemed fraudulent) would subject the person giving it to damages sustained by the person trusting it—seems now to be generally admitted.

“ The case of Pasley v. Freeman recognizes and establishes this principle. Indeed if an act in itself immoral, in its consequences injurious to another, performed for the purpose of effecting that injury, be not cognizable by our laws, and punishable, our system of jurisprudence is more defective than has hitherto been supposed.” The ground of action is fraud and damage. There must be the scienter, a misrepresentation, and a consequent loss.

Fraud includes an intention to deceive. If there is no such intention, the party giving honestly his own opinion, believing he was stating the truth, he is not liable though the statement was wholly untrue. Where, however, he knowingly states what is untrue, a fraudulent purpose must be inferred, and when the statement relates to the matter inquired of, and being relied on necessarily brings damage to the person so misled, he having no knowledge of its untruth, the action will lie.

For an extended discussion of the subject see 2 Smith’s Leading Cases, *55 ; also 2 Kent. Com. 9; Ed. 661. Counsel for appellant argues, however, that on the authority of Schwabacker v. Riddle, 99 Ill. 343, this instruction must be held fatally defective. In that case the action was based upon a false declaration as to the amount of goods belonging to a certain firm, an interest in which the plaintiff was proposing to purchase. The Supreme Court there held that an instruction ■which merely announced that if a party misrepresent a fact within 1ns own knowledge to the injury of another, an action will lie for damages, was faulty.

The court said the misrepresentation must be material and the plaintiff must exercise ordinary prudence to protect himself against the fraud, unless he has been thrown off his guard by the other party, and the instruction was held bad because it ignored these principles. These principles were no doubt applicable in that case, which was wholly unlike the present case. There the representation was not concerning the credit or solvency of a third person, but as to the amount and value of the property under negotiation; and it was quite reasonable the plaintiff should be held to the use of the means at his command to guard against deception; and in view of the representations involved, it was equally proper the jury should understand that for the misrepresentation of an immaterial matter there was no liability. Here the instruction must be taken to refer to the misrepresentations averred in the declaration, each and all of which were material, as already stated, and when coupled with other allegations made a good cause of action. The question of fact was whether defendant represented the check to be good.

The only fact about which there was misrepresentation, if there was any, was a material one, and it is not apparent why an instruction referring-to this controversy should necessarily say that an actionable misrepresentation must be as to material fact.

' We- think the instruction not defective because it omits this qualification. Then, is it defective because it omits the qualification that the plaintiff mnst use ordinary care?

In actions on the case for negligence such an allegation is necessary in the declaration, but not in actions for deceit in recommendations for credit. In the opinion of Lord Kenyon, in Pasley v. Freeman, a distinction is taken in this respect between representations as to ordinary facts, the proof of which is equally within the reach of both parties, as, for instance, the weight of goods delivered to a carrier, and representations as to credit and solvency. He said, “ There aie many situations in life, and particularly in the commercial world, where a man can not by any diligence inform himself of the degree of credit which ought to be given to the persons with whom he deals, in which cases he must apply to those whose sources of intelligence enable them to give that information. The law of prudence leads him to- apply to them, and the law of morality ought to induce them to give the information required.

In the case of Bulstrode-the carrier .might have weighed the goods himself, but in this case the plaintiff had no means of knowing the state of Falch’s credit but by an application to his neighbors.” These observations are apt and pertinent upon the facts as alleged by the plaintiff in the present case. He states that he had bargained the cattle to Kimlin at a certain price, and was to deliver them at the railroad station the next day. Arriving there he found defendant, who was the owner of the scales, ready to weigh the cattle. Kimlin not having come, that defendant did weigh the cattle, calculated the amount due at the agreed price,per pound, and was proceeding to fill up the check which Kimlin had previously signed and given defendant for that purpose, when plaintiff asked whether the check was good; to which defendant replied that it was.

It is no doubt true plaintiff might have suspended proceedings until he could inquire of the bank by telegraph or by some other means whether the check would be honored, but in view of the fact that such delay would have prevented the shipment of the cattle by the train on . which they were then being placed, and in view of the apparent familiarity of defendant with the affairs of Kimlin, this would seem tobe a case where, in the language of Lord Kenyon, the law of prudence led plaintiff to apply to defendant for the information, and the law of morality required the latter to give it truthfully or not at all. In such a case as here made, it is not necessary to aver and prove care and diligence on the part of plaintiff. Where in the course of trade or business one may thus inquire concerning the credit of another, the person answering must commit no deception. Why inquire at all, if before he can rely upon what he learns he must verify it by all the means which might be resorted to? The object of the inquiry is to obtain information for immediate use, and it does not come with good grace from the party who willfully misrepresented the facts, to say that the plaintiff should not have been so credulous, since by applying to another more reliable source he could have got the truth. Therefore, as it was not necessary to aver and prove due care on the part of plaintiff, in a case such as stated in the declaration, we are clear it was not necessary to insert such a qualification in an instruction which could be understood as applicable only to such a case as plaintiff had alleged, and as he had proved by his testimony. The issue of fact was whether the alleged representation was made, the defendant knowing it to be untrue, and plaintiff relying upon it to his damage. It could not be well denied that plaintiff might rely upon such a representation, under the undisputed circumstances of the transaction, and we are of opinion there was no error in the giving of this instruction. The defendant asked the court to give instruction No. 4, as follows:

The court further instructs the jury that it was the duty of the plaintiff, before acting upon any representations made to him concerning Kimlin, if any such representations have been proven, to have exercised ordinary care and caution to guard against deception and fraud, and if he co uld by the exercise of ordinary care and caution have ascertained the falsity of any statements or representations made to him, and he failed to do so, then he is not entitled to recover in this action, and the jury should find for the defendant. The court modified it by adding:

Unless yon believe from the evidence that the alleged statements of defendant were of such character as to induce plaintiff to ie7y entirely on their truth, and to induce plaintiff not to make such investigation as a reasonably prudent man would make under different circumstances.

It is urged that in this the court erred, because it was not a question whether the alleged statements were of such a character as to throw plaintiff off his guard, but as a matter of fact did they so operate upon him. We do not appreciate the force of this objection, and think it would be hypercritical to condemn the instruction on the ground stated.

We are asked to reverse the case on the evidence, and we have given this point a very careful examination. We find there is palpable and irreconcilable conflict in the evidence, the plaintiff and defendant disagreeing radically as to whether the alleged representation was made, and each party is corroborated by their witnesses.

The jury probably found they could not harmonize this testimony, and were compelled to believe one side and disbelieve the other upon this point. On other points—the insolvency of Kimlin, the knowledge of defendant as to this, the loss of plaintiff—there was no great difficulty.

Considering the superior opportunity of the trial judge and the jury, who saw all the witnesses, to determine between these conflicting statements, it must be apparent that we can not undertake to say the conclusion reached was not justified.

It is urged also that the court erred in permitting Kimlin to testify that he made an arrangement with defendant the day before the transaction to “ make the check good ” with plaintiff. This would be competent as tending to prove the defendant’s knowledge of the truth of the alleged representation. It is also objected that there was error in allowing the introduction of certain shipping bills in which Kimlin and defendant were jointly interested. We can not consider this because it does not appear that these matters of evidence were objected to when they were offered. The judgment is affirmed.

Affirmed.


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    W. H. Colby v. P. P. O’Donnell.
    Assignment—Jurisdiction oe county court.—Where an assignment had been made under the statute and the assignee had been appointed and was proceeding to execute the trust under the supervision of the county court, and appellee, claiming to be the owner of a part of the goods covered by the assignment, brought an action of replevin in the circuit court. Held, that the county court has exclusive iurisdiction. All such claims should be prosecuted to that court alone.
    Appeal from the Circuit Court of Sangamon county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed December 4, 1885

      Mr. A. H. J. Crook and Messrs. Patton & Hamilton, for appellant;
    as to jurisdiction, cited Freydendall v. Baldwin, 103 Ill. 325; Hanchett v. Waterbury, Chicago Legal News, Aug. 15, 1885, p. 412.
    Messrs. Palmers, Robinson & Shutt and Messrs. Bradley & Bradley, for appellee.
   Wall, P. J.

Vaughn made an assignment under the statute for the benefit of creditors.

Colby was appointed assignee, took charge of the property, and was proceeding to execute the trust under the .supervision of the county court. Subsequently O’Donnell, claiming to be the owner of a part of the goods covered by the assignment, brought an action of replevin therefor in the circuit court, against Colby, the assignee.

Judgment was rendered in favor of O’Donnell, and Colby brings the record here by appeal.

By virtue of the assignment the county court acquired full and exclusive jurisdiction to administer the estate of the insolvent, and to determine all conflicting claims, interests and priorities in regard to the' property assigned. The possession of the property was in the court, the relation of the assignee to the court in this respect being practically the same as that of a receiver, or an assignee in bankruptcy.

The jurisdiction of the county court having thus attached, it must not be interfered with by the process of other courts, at the instance of persons setting up adverse or exclusive rights to the fund or any part of it.

All such claims may be considered and decided by the county court, and to tliat court alone should they be prosecuted. Mersinger v. Yager, 16 Bradwell, 260; Freydendall v. Baldwin, 103 Ill. 329; Hanchett v. Waterbury, Opinion Sup. Ct. Chicago Legal News, Aug. 15,1885, page 412.

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

Reversed and remanded.


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    Joseph G. English v. William P. Cannon.
    Election bet—Action qui tam.—Action on the case qui tam to recover treble the amount lost and paid on an election het under the provisions of R. S. Ch. 38, § 132, where the loser gave his note, which the winner discounted in bank, and it was not averred that the note was paid. Held, that the giving of the note was not payment, and since the loser could not sue for this reason, the suit can not be maintained by a third person.
    Appeal from the Circuit Court of Vermilion county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. J. B. Mann and Mr. D. C. Frazier, for appellant.
    Mr. F. Bookwalter, for appellee.
   Wall, P. J.

Action on the case to recover qui tam threefold the amount lost and paid on a bet upon an election under the provision of section 132, Ch. 38, R. S.

The circuit court sustained a demurrer to the declaration, and as we think properly, because it does not appear that more than six months before action brought the supposed loser paid the money lost on the bet to the winner.

There must be a wager of money or other valuable thing, amounting in the whole to ten dollars, and the money or other thing so wagered must be paid or delivered by the loser to the winner; and if within six months after such payment or delivery the loser does not sue for such money or thing so lost, and paid or delivered, then suit may be brought by any person against the winner for treble the value of such money or thing; one half to the use of the county and the other to the person suing.

Here the money was not paid but the loser gave his note for §500, which the winner caused to be discounted in bank, and it is not averred that the note was paid. By sections 179, 183 and 184, chapter 38, such a notéis void and will he so held in the hands of all persons to whom it may come. Chapin v. Dake, 57 Ill. 295; Com. Nat. Bk. v. Spaids, 8 Bradwell, 493. Hence the giving of the note is in a legal sense nothing more than the repetition of the original promise to pay in case of loss. The loser could not sue under this statute when he had not paid, but had merely given his note for the money. The note is void and can not be regarded as equivalent to payment.

If the loser could not sue for this reason it would follow necessarily that the suit could not be maintained by a third person.

The judgment of the circuit court is affirmed.

Affirmed.


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    Linus Graves v. City of Bloomington.
    1. Ordinance requiring burial permits.—Power to regulate burial permits may properly be conferred on municipal corporations. And such power will be held to be given by authority to make police regulations or to pass by-laws respecting the health, good government and welfare of the place. The court is of opinion that the city’s charter gave authority to pass the ordinance in question as to burial permits.
    2. Construction oe ordinance.—Parties who, as a matter of business and for compensation, prepare the grave and fill it up after the body has been placed therein, are embraced within the provisions of the ordinance. '
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. F. T. Hamilton and Messrs. Fifer & Phillips, for appellant.
    Mr. T. C. Herrick, for appellee.
   Wall, P. J.

The city of Bloomington adopted an ordinance with regard to burial perinits, providing in substance as follows:

Sec. 1. No burial shall be lawful in said city until a permit therefor shall have been first obtained from the city clerk.

Sec. 2. Each permit shall be issued by the city clerk on the usual certificate of death, signed by the attending physician, etc.

Sec. 3. Any undertaker or sexton and each and every person engaged or concerned in a burial, in violation of the provisions of this ordinance, shall be subject to a fine, etc.

Sec. 4. Provides fór a record of permits to be kept by the city clerk.

The appellant was the general manager and chief stockholder of the Bloomington Cemetery Association, keeping an office on its grounds and devoting his time to its affairs. He sold a lot in the cemetery, within the city limits, to one Falk, and contracted with him to dig a grave for the burial of Falk’s son. On the next day an employe of the appellant, at his request, dug the grave and filled it up after the body was deposited therein. Appellant was present, directed the person in charge of the funeral procession the way to the grave, but took no other part in the interment.

No permit was obtained for this burial, as required by the ordinance, and this prosecution is to recover the penalty provided in section three. The case was tried by the court without a jury, by consent, and the finding was for the plaintiff. The first question is as to the validity of the ordinance. The charter of the city grants power to make any and all regulations necessary to secure, protect, preserve and restore the general health and to prevent the introduction of contagious diseases; also to regulate the police of the city, impose fines and forfeitures for the breach of any ordinance, etc. Items 3 and 27, Sec. 32, P. L. 1861, page 110 and 113. Dillon on Municipal Corporations, Vol. 1, Sec. 306, (2d Ed.) considering the subject of cemeteries and burials says: “ The public health, comfort and convenience are concerned in the proper regulation of burials, and the evils resulting from its neglect are especially to be apprehended in the crowded populations of cities.

“Power to regulate this matter may properly be conferred on Municipal Corporations; and power will be held to be given by authority to make police regulations, or to pass bylaws respecting the health, good government and welfare of the place.” The cases cited by the author support the proposition stated in the text. We entertain no doubt that the charter gives authority to pass this ordinance.

Its provisions are not unreasonable and are justified by the duty of the city to preserve the public health, prevent contagious diseases, and to detect and punish crime.

It is urged by appellant that this ordinance violates the chartered rights of the cemetery association which was incorporated before the city. We are unable to see anything in the charter which exempts it from the operation of the general laws of the State or the city. The corporation thus created is enabled to transact certain business, and own certain property, which would be competent for a natural person without a charter, but for which the artificial person thus created must have legislative authority. No exemptions are granted by the express terms of the charter, and none are necessarily to be implied from what is expressly provided.

No reason is suggested why this artificial person should enjoy a privilege in this respect which would not be conceded to a natural person engaged in the same business and owning the same property. This objection is untenable.

It is also urged that the evidence fails to show that the appellant violated the ordinance.

The provision of section three includes “the undertaker or sexton, and each and every person engaged or concerned in a burial.” The appellant may be regarded as the sexton. He contracted to dig the grave, had it dug by his servant and filled it up.

This also brings him within the words, “ Every person engaged or concerned in a burial.” This phrase is very general, and while it would not be construed to include all those who might be present, and from motives of friendship or sympathy, assisting in the interment, jet it would include those who cause or procure the burial and are responsible for the expense of it, and those who as a matter of business and for compensation prepare the grave and fill it up after the body has been placed therein. We are therefore of opinion that the judgment of the circuit court should be affirmed.

Affirmed.