author: Green, J.

text:
    Henry Binger v. The People of the State of Illinois.

      Criminal Lato — Elections—Indictment under Sec. 86, Ch. 46, E. S.— Contents of — Alteration of Ballots — Election of Town Officers — Application of General Laws.

    1. An indictment charging the defendant, as judge of an election, with having altered and defaced ballots legally voted at such election, need not contain the names of the electors whose ballots are alleged to have been altered.
    2. The mere fact that a name on a ticket is scratched raises no presumption against a judge of the election that he made the erasure.
    3. It is no objection to such an indictment that the defendant is charged therein as a judge of election at an election for township officers. The general laws of the State apply to elections for town officers at elections held under the Township Organization Act.
    4. In the case presented it is held that the evidence does not show the defendant to have been a “ legally qualified judge of election,” another person having been chosen moderator of the town meeting.
    [Opinion filed November 24, 1886.]

      Appeal from the Circuit Court of Madison County the Hon. William H. Snyder, Judge, presiding.
    Mr. William P. Bradshaw, for appellant.
    Mr. George F. McNulty, for appellees.
   Green, J.

Appellant was indicted by the grand jury of Madison County for an alleged violation of the provisions of Chap. 46, Eev. Stat. 1883, entitled ‘-Elections,” and, waiving a jury, was tried by the court, found guilty, and a fine of $200 imposed. The court entered judgment for the amount of fine and costs, to reverse which judgment this appeal was taken. The indictment in substance charged that defendant, while being a legally qualified and acting judge of election, at an election held in the township of St. Jacob, in said Madison County, for the election of certain township officers of said township, as such judge of election did fraudulently, corruptly, wilfully and illegally alter and deface certain ballots legally voted at such election, by drawing a pencil mark on each of said ballots through the name of Jacob Schroth, then and there a candidate at such election for the office of township Assessor, with the intent of depriving such electors from voting for said Jacob. Schroth for said office at said election, as they intended to do. This prosecution is based upon the 6th clause of Sec. 86, of said Chap. 46, which provides: “ If any judge of any election shall be guilty of any fraud, corruption, partiality, or manifest misbehavior, the penalty, on conviction, shall be afine not exceeding $1,000, or imprisonment in the county jail not exceeding one year, or both, in the discretion of the court.” A motion to quash the indictment was interposed on behalf of defendant in the court below, but the court overruled the motion, and this decision is one of the errors assigned. The indictment is said to be bad for the reason the names of the electors are not given, whose ballots are alleged to have been altered and scratched, and that defendant should have been informed by the indictment who they were, in order that he might have an opportunity to prove, by the voter himself, that he altered or scratched the ballot, and voted it as it appeared when canvassed. There is no force in this objection. The mere fact that a name on a ticket is scratched raises no presumption against a judge of election that he made the erasure. Nor did the omission o'f the names work defendant any injury or abridge the measure of proof necessary to convict. The wrongful and corrupt act must be proven as alleged, notwithstanding such omission.

It is also urged as another objection to the indictment that defendant is charged therein as a judge of election at an election for township officers/ that an election for such purpose is unknown to the law, but a town meeting to select township officers, and not an election, is provided for by the statute, Chap. 139, Rev. Stát. 1874, title “ Township Organization,” and that under this statute such officers, as judges of election, are unknown. An examination of this statute will demonstrate that an election for town officers is provided by Sec. 1, article 7, and by See. 3, same article. The moderator so chosen shall have the same power and be subjected to the same penalties as other judges of election. It clearly appears such an officer as judge of election is known under the statute, and if guilty of such official malfeasance as is charged in said indictment would, as a judge of election, be subject to punishment for such offense under the act upon which this prosecution is based; but to remove all doubt on this question, Sec. 8 of said article 7, “Township Organization Act” provides: “ The general laws of the States in regard to elections and qualifications of voters shall apply to all elections to be held under this act. * * * ” Now the only elections to be held under that act are for township offi-. eers, or for adopting or discontinuing township organization ; and the general law which shall apply thereto is Chap. 46, entitled “ Election.” The intent and purpose of this section is (among other things) to subject judges of elections held under said Township Organization Act, and voters at such elections, subject to the operation and effect of the provisions of said Chap. 46. If this See. 8 and the other statutes cited do not bear the construction we have placed upon them, then in this State we are without a statute under which illegal voting at an election for township officers, or official misconduct of judges of such election, can be punished. Satisfied with the construction we have given these various clauses of the statute, we hold the indictment good, and the court below properly overruled the motion to quash.

_ We are obliged, however, to' reverse the judgment because, the proof fails to establish the material- allegation that defendant was “alegally qualified, judge of election,” but on the contrary it appears from the evidence a person other than himself was chosen moderator, acted as such, and thus 'became judge of the election; hence defendant was not and could not have been legally qualified to act as a judge of such, election, and. while he might be estopped from denying this, if he had acted in that capacity at an election when he could by law have been such judge while another lawfully chosen was acting as such, this was not the fact here. We think the proof shows that, defendant wilfully mutilated ballots at said election, and had the grand jury indicted.him as an individual for a violation of See. 93, Chap. 46, he would have been liable and could have been punished. . The judgment is reversed.

. Reversed.


source: Caselaw Access Project

author: Wilkin, P. J.

license: Public Domain

text:
    Clovis Soucy v. The People ex rel. Nicholas McCracken.
    ■ Quo Warranto -to Try Title to a Public Office — Decision of the Supreme Court on Former Appeal, Conclusive — Fraud.
    Upon a second appeal, in a proceeding in the nature oí a quo warranto to try the title of the respondent to the office of Supervisor, it is held: That the decision of the Supreme Court, reversing the decision of this court, affirming the original judgment of ouster of the court below, is conclusive of the case as presented by the present record, the ground of said reversal being the failure of the relator to establish his election as successor to the respondent; and that it is immaterial whether the respondent was elected, there being no one else elected to succeed1 him.
    [Opinion filed November 24, 1886.]

      Appeal from the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
    Messrs. Koerner & Horner, for appellant.
    Messrs. R. A. Halbert and M. Millard, for appellee.
    The case was reversed and remanded upon the former appeal, without any direction whatever, on the single point that the affidavit for a continuance was sufficient. This was the only error noticed by the court or assigned as a reason for sending the case back for another trial. Ho other question was decided, notwithstanding some remarks which were evidently based upon the assumption that the affidavit was true. It was thought the affidavit gave the correct state of facts, but that was far from the truth.
    It was proper to re-try the case on all questions affecting the merits. Chickering v. Failes, 29 Ill. 294; Elston v. Kennicott, 52 Ill. 272; Mohler v. Weltberger, 74 Ill. 163.
    It is said in these cases that the very object in remanding is to enable the parties to furnish additional evidence and obtain a decision upon their legal rights, regardless of technical objections.
   Wilkin, P. J.

This was a proceeding, begun in the Circuit Court of St. Clair County, in the nature of a■ quo warranto, to try the validity of appellant’s claim to the office of supervisor of the village of Cohokia. The case was previously submitted to this court, and a judgment of ouster rendered by the said Circuit Court affirmed. On appeal to the Supreme Court that judgment was reversed and the cause remanded with directions to reverse the judgment below and remand the case. On a second trial judgment of ouster was again rendered and appellant appeals. We hold that the decision of the Supreme Court, reported in Volume 113, page 109, Illinois Eeports, is decisive of .this case as presented by the present record, and that upon its authority the judgment of the Circuit Court must be again reversed. It' is true that one reason assigned by the Supreme Court for the reversal of the former judgment (the overruling appellant’s motion for continuance) does not appear from this record, but it is maniEest from the language used by Justice Scott, who delivered the opinion of the court, that the substantial ground of reversal was the failure of relator to establish his election to the office of Supervisor as successor to appellant. From a careful comparison of the facts appearing in the present bill of exceptions with those recited and referred to in that opinion as existing in the record then before the Supreme Court, we are convinced that the same conclusion must be reached now as was then on the • issue, as to whether or not there was such fraud and violence used at the election at which relator insists he was elected, as to defeat his claim of title to the office in this proceeding. Therefore, whether appellant was duly ' elected at that election or not is immaterial. No one else appearing to have been legally elected to succeed him, and lie being by law authorized to hold the office until his successor should be elected and qualified, he can not, as is expressly decided in the former appeal to the Supreme Court, be held an usurper of the office as adjudged by the Circuit Court, and its judgment must therefore be reversed.

Reversed.


author: Pillsbury, J.

text:
    Northwestern Benevolent and Mutual Aid Association of Illinois v. Lee Woods, Guardian, etc.

      Action on Certificate of Mutual Aid Association — Default—Presump, tion as to Amount of Judgment — Jurisdiction—Waiver of Statutory Privilege — Issue of Writ to Sheriff of another County — Certainty—Construction.

    1. A defendant is entitled to know from the summons where he is to appear.
    2. If, taking the whole writ together, he can determine where he is required to appear, it is sufficient.
    3. In the case presented, it is held: That a writ issued from one county to the Sheriff of another is sufficiently certain, the application of the words, “said county,” being made clear by considering all the parts of the writ together. '

      4. Where a statute confers a mere privilege, upon a defendant, of exemption from suit except in the county where found, he will be presumed to have waived such privilege unless he especially relies upon it by way of plea.
    5. In an action on a certificate of membership in a mutual benefit association, entitling the children of the holder to participate in its relief fund to a certain amount, or such part thereof as might be collected, as specified in the constitution and by-laws of the association, it is held by this court, in reviewing a judgment by default for the full amount of the certificate, that in the absence of a bill of exceptions it is to be presumed that the finding of the court below was supported by the evidence heard by that court.
    [Opinion filed November 24, 1886.]
    In error to the Circuit Court of Edwards County; the Hon. C. C. Boggs, Judge, presiding.
    Statement of the case, by Pillsbury, J. The record in this case shows a summons and return as follows:
    State of Illinois, 1
    Edwards County. f
    The People of the State of Illinois to the Sheriff of McLean County. Greeting: We command you to summon the Northwestern Benevolent and Mutual Aid Association of Illinois, if it shall be found in your county, personally to be and to appear before the Circuit Court of said County on the first day of the next term thereof, to be holden at the Court House in Albion in said County on the second Monday in November, 1885, to answer unto Lee Woods, guardian of Ernest G. Mann and Herman L. Mann, in a plea of assumpsit, to the damage of said plaintiff, as he says, in the sum of §2,000; and have you then and there this writ with an indorsement thereon in what manner you shall have executed the same.

    William B. Tribe, Clerk.
    By Charles Emerson, Deputy Clerk.
    Upon which summons there appears the following indorsement and return:

      State oe Illinois, )
    McLean County. ( ss
    Executed the within writ this 7th day of July, 1885, by reading it and delivering a true copy of the same to Peter Whitmer, President of the Northwestern Benevolent and Mutual Aid Association of Illinois, as I am therein commanded. W. H. Swaim, Sheriff.
    C. W. Hitch, Deputy.
    A declaration was tiled from which it appears that on the 27th day of December, A. D- 1883, the defendant below issued a certificate of membership to Mal inda T. Mann in and •by which she was entitled to participate in the beneficiary or relief fund of the association to the amount of $3,000 or such part as should be collected in accordance with the constitution and by-laws, payable within sixty days after her death, $2,000 to John C. Mann, her husband, and $1,000 to her children. This $1,000 to the children is involved in this suit. On the first day of the term the defendant was defaulted and the court heard the evidence and assessed the damages at $1,000 for which judgment was rendered and the defendant sued out a writ of error and had the record removed into the court.
    Messrs. McNulta & Weldon and Hamilton Spencer, for plaintiff in error.
    It was unlawful to issue the writ in this case to the Sheriff of McLean County, and all proceedings under it are void. Starr & C. Statutes, 1771, Sec. 1; 1773, Sec. 2; 1775, See. 3; 1350, Sec. 130.
    The writ upon its face is void for uncertainty, in commanding the defendant to appear before the Circuit Court of McLean County, at the court house in Albion, in said county. Orendorff v. Stanberry, 20 Ill. 89; Gill v. Hoblit, 23 Ill. 473.
    This action not being within the exceptions named in the statute, and the defendant, as shown by the record, being a resident of McLean County, and not found elsewhere, suit against it elsewhere is expressly prohibited and made unlawful. Pacts shown by the record need not be pleaded. This record shows all facts requisite to make a good plea to the jurisdiction. Humphrey v. Phillips, 57 Ill. 137.
    It appears, upon the facts of the record, that this is not a local action; that there is but one defendant, which is not a railroad or bridge company, and that the home of this defendant is Bloomington, Illinois, and that this suit was not brought under the attachment laws of this State. By section 2 of the Practice Act, it is provided: “ It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides, or may bo found, except in local actions.”
    Messrs. Robinson & Johns, for defendant in error.
   Pillsbury, J.

The assignment of errors upon this record questions the action of the court in assuming jurisdiction over the defendant upon the grounds:

First, that the sutnmms was void upon its face for uncertainty as to where the defendant was to appear; and second, that the summons was issued to a foreign county. It is claimed under the first ground that the summons being directed to the Sheriff of McLean County commanding him to “ summon the defendant, if it shall be found in your county, to appear before the Circuit Court of said county, on the' first day of the next term thereof, to be holden at Albion in said county on, etc.,” is so uncertain as to where the defendant is to appear as to render the process void. Under the rule announced in Orendorff v. Stanberry, 20 Ill. 89, and Gill v. Hoblit, 23 Ill. 473, if the above quotation from the writ -was all that appeared therein to apprise the defendant of the place where it was to appear, we should be obliged to hold that it fell within the cases named; but it is to be noticed that in the attestation clause of the writ in this case, the county of the venue is named as well as the town from which the writ issued, and therein is the case distinguished from those cited; the defendant is required to appear at a Circuit Court to be holden in Albion in said comity and the uncertainty consists in determining whether “said county” refers to the county of the Sheriff serving the writ or to the county of the clerk issuing it as stated in the venue of the writ; but when it is remembered that the place where the court is to be held is not only.named in the body of the writ, but is also stated in the attestation clause as being in 11 said Edwards County,” it is made quite • certain that “ Albion in said county ” named in the body of the writ refers to “ Edwards County ” as named in the venue of the writ and not to the County of McLean, to the Sheriff of which the writ is directed to execute, as was held in the case cited from the 23d Ill. “ A defendant has the right to certainly know where he is to appear,” and when the writ fails "to give him this knowledge he has the right to remain quiet and do nothing, as was held in Gill v. Hoblit, 23 Ill. 473. But if taking the whole writ together, the defendant can see therefrom where he is required to appear, it would seem that he could not be misled to his prejudice, and in such case the object of process would be sufficiently accomplished. The Sheriff returns, that he served the writ by reading it to the president of the company and giving him a true copy of it, and the presumption must be indulged that his return is true, and if so, can it for a moment be supposed that any man of reasonable intelligence with a copy of the entire writ before him would conclude that Albion,, the place designated for the defendant to appear, was in McLean County. It is stated in another part of the writ to be in Edwards County, and it would require extreme credulity to believe that the county seat of each county was a town or city named Albion. As the writ informed him that the defendant was to appear at .Albion and in which county Albion was situated, the ambiguity that appeared upon the face of the writ in the two cases relied upon does not exist in this case.

As to the second ground urged in support of the objection that the court below had no jurisdiction, it is sufficient to observe that the statute confers a mere privilege upon the defendant which he can waive, and will be deemed to have done so unless he shall especially' rely upon it by way of plea. Such is the holding of the court in Drake v. Drake, 83 Ill. 626, where it is said that all the cases since Kenney v. Greer, 13 Ill. 432, agree in this construction of the statute. No plea was interposed in this case, and the plaintiff in error is not in a position to rely upon the objection.

It is objected .to .the judgment that it is for a sum certain, when the certifícate gave the right only to participate in a relief fund to the amount of $3,000, or such part thereof as may be collected, etc. The record shows that the court heard evidence and assessed the damages, and there being no bill of exceptions, we are to presume that the evidence was such as to support the finding of a certain sum. From aught that appears in the record the court may have found from the evidence that all the requirements of the constitution and by-laws relating to the collection of the mortuary benefit provided for in this certificate had been complied with, and that the defendant had the money on hand at the commencement of this suit, but was wrongfully withholding it from the plaintiff. If so, we can not see wherein the judgment was not properly entered for the amount of the certificate. We find no substantial error, and the judgment will be affirmed.

Judgment affirmed.


text:
    Northwestern Benevolent and Mutual Aid Association of Illinois v. John C. Mann.

      Practice — Error without Injury — Damages—Computation.
    This court will not, upon a writ of error, reverse a judgment for an error which worked no injury to the plaintiff in error.
    [Opinion filed November 24, 1886.]
    In error to the Circuit Court of Edwards County; the Hon. C. C. Boggs, Judge, presiding.
    -Messrs. McNulta & Weldon and Hamilton Spenoee, for plaintiff in error.

      Messrs. Robinson & Johns, for defendant in error.
   This case is like the preceding one in all respects except a recital in the record that after default the plaintiff’s attorneys ' computed the amount due at $2,000, and reported the same to the court, which proceeding is claimed to he erroneous.

It does not appear from the record that the court acted upon such computation in assessing the damages. On the contrary, it recites that the assessment was made upon evidence produced in court, so no harm was done by any action of the counsel in computing the amount due.

Judgment affirmed.


text:
    Pierson W. McNail and Martha J. McNail v. Andrew Welch.

      Foreclosure — Usury—Commutation of Amount due on Note — Reversal for Error in Remittitur — Mistake in Amount of Note — Practice.
    1. This court reverses a decree of foreclosure on the ground that it does not satisfactorily appear that a remittitur, filed by the complainant, will correct an error in the amount of the decree.
    2. While this court is not inclined to disturb the finding of the court below on the question whether there was a mistake in the amount of the note sued on, it is suggested that either party should be allowed to introduce further evidence on that issue, if desired, upon the rehearing.
    [Opinion filed January 8, 1887.]
    Appeal from the Circuit Court of Washington County; the Hon. George W. Wall, Judge, presiding.
    Mr. J. M. Durham, for plaintiff in error.
    Messrs. A. H. Carter and W. S. Forman, for defendant in error.

      A higher court will be very cautious in disturbing a judgment solely on the ground of its being against the weight of testimony. Bishop v.Busse, 69 Ill. 403; Sturman v. Streamer, 70 Ill. 188; Illinois & St. L. R. R. Co. v. Ogle, 92 Ill. 353.
    Defendant in error files herewith his remittitur for §25, which cures the only error in the record. It has been repeatedly'held that the higher court will not reverse a judgment on this account when a remittitur is filed. Cheney v. City Rational Bank, 77 Ill. 562; Pixly v. Boynton, 79 Ill. 351; Convey v. Sheldon, 1 Ill. App. 555; People v. Steele, 7 Ill. App. 20.
   Wilkin, P. J.

On the 10th day of May, 1882, plaintiffs in error executed to defendant in error their deed of mortgage of that date, to secure the payment of a promissory note then made by the said Pierson W. McRail, for §1,250, due three years after date, with eight per cent, interest from date, and if not paid within three days after due the maker to pay two per cent, damages. This is a proceeding in chancery to foreclose that mortgage. The answer admits the execution of the mortgage and note, but avers that the note was given in renewal of another note, and that by mistake a payment which had been made on the former note of §1,000 was not deducted, and also pleading usury.

The court below found for defendant in error on the issue of payment and against him on the issue of usury, and adopting a computation by the Master in Chancery rendered a decree of foreclosure, as prayed in the bill, for §1,025.

The errors assigned are: 1st. That the Circuit Court erred in its finding on the issue of payment; 2d. The Circuit Court erred in finding §1,025 due,and decreeing that amount in favor of defendant in error. It is admitted by defendant in error that this last error is well assigned, but he seeks to avoid a reversal on that ground by filing a remittitur in this court of §25. It is also conceded that the court below found correctly on the issue of usury, and that defendant in error was only entitled to a decree for the amount of the principal of said note, less the payments made thereon. Therefore in determining whether or not the remittitur will reduce the decree to the proper amount, (assuming that the finding is correct on the issue of the payment of $1,000,) it is only necessary to ascertain, if we can,’ what payments were made after this note was given. On the back of the note appears the following indorsements made in the following order:

May 10, 1883, interest paid to this date; March 16, 1884, received on principal $25; November 17, 1884, received $80, on interest; May 10, 1884, all interest paid to this date. If these indorsements correctly state the account between the parties, the amount of all the payments may be readily obtained by computation. The interest to May 10, 1883, was $100; to March 16, 1884, when $25 was paid on principal, $85; to May 10, 1884, on $1,225, $14.96, which, with the $80 paid November 17, 1884, makes the total amount of interest paid', $280.46, and this sum added to the $25 paid on principal March 16, 1884, gives the total amount of the payments, $305.46, and. $80.46 more than was allowed by the court below. It is true that plaintiff in error McNail, on cross-examination, only mentions payments amounting to $250, but he gives amounts wholly differing from those indorsed on the note, and does not say that the payments he mentions were all he made. For instance, he states that he gave a mare at $150 at one time. No such payment appears on the note, nor does defendant in error deny it. On the contrary, he says the $25 credited on the principal was paid at the same time he got the mare.' Nor does he or any other witness undertake to explain how the $150 was applied, if credited. It may be that the several indorsements on the note are susceptible of an explanation consistent with the assertion of counsel that only $250 was paid, but without such explanation the record does not sustain it. There seems to have been very little effort on the hearing to get at the payments with any degree of certainty, perhaps for the reason that other issues were then deemed more important. At least the evidence, as it appears from the record before us, is so uncertain and unsatisfactory that we can not undertake to state the account between the parties; and holding that it does not satisfactorily appear that the remittitur filed, will correct the error in amount, the decree must be reversed and the cause remanded. Recognizing the superior opportunity of the Judge who heard the case in the Circuit Court to settle the issues of fact, so far especially as they rest in oral testimony, we should not feel inclined to disturb his finding on the question as to whether there was a mistake in the amount of the note sued on, resulting from an omission to credit the alleged payment of $1,000 or $1,010, as it is said in the evidence. It can not, however, be denied that the evidence strongly tends to show that a payment of some amount was made about the time alleged, of which no account was taken when this note was executed. Of course all the presumptions arising from the transactions between the parties strongly corroborate the defendant in error, and we are not to be understood as expressing any opinion on this question of fact, farther than to say that inasmuch as the cause must be remanded either party should be allowed to introduce further proof on this issue, if they so desire, upon the rehearing.

Reversed cmd remanded.


text:
    Gerhard W. Garrels, Impl’d G. W. Cone v. Geo. C. Meyer, E. Meyer, A. F. Bandelier and H. R. Morten.

      Foreclosure of Trust Deed — Alleged Agreement for a Release between Subsequent Purchaser and Agent of Holders of Notes Secured — Review of Evidence — Agencg, not Sustained.

    Upon a bill to foreclose a trust deed of lands, forty acres of which are claimed by a subsequent purchaser who claims to have paid a certain part of the purchase money due the maker of the trust deed to the agent of the holder of the notes secured thereby, upon an agreement with said agent to procure the release of said forty acres, it is held, upon a review of the evidence, that the agency claimed is not established thereby.

      [Opinion filed January 8, 1887 ]
    Appeal from the Circuit Court of Marion County; the Hon. Amos Watts, Judge, presiding.
    Statement of the case by Wilkin, P. J. This was a chancery proceeding to foreclose a trust deed. The bill avers that on the 3d day of February, 1880, George C. Meyer and wife executed to F. Hyhiner & Co., their four promissory notes, aggregating in amount" $3,500, due five years after date, with eight per cent, interest payable semiannually at the office of F. Hyhiner & Co., their receipt therefor to be good and valid against any subsequent holder of such notes. The principal also payable at the office of F. Hyhiner & Co., sixty days before maturity of said notes. On the same day said Meyer and wife executed and delivered to one Adolphus F. Bandolier, as trustee, a deed of trust to secure the payment of their said notes on real estate in Marion County, Ill., George W. Cone being named as the successor in trust of Bandolier in case of his death, removal, etc.
    On the 23d day of March, 1880, F. Hyhiner & Co. assigned all of said notes to Gruner, Haller & Co., of Berne, Switzerland. Subsequently Gruner, Haller & Co. assigned them to different parties, and they to appellant Garrels, who, with George W. Cone, successor in trust, etc., are complainants in the bill. Hugh P. Morton, one of appellees, is made a party defendant, the bill alleging that he claims some interest, which, if any, is junior to and subject to their lien. He alone answers, and so much of his answer as is material to be considered in deciding this case is as follows : By his answer he admits the execution of said notes and mortgage, and also the several assignments of said notes as stated in the bill of complaint, and that the complainant Garrels is the legal holder of said notes as stated in the bill, avers that he is the owner in fee of part of the lands described in the bill, and that his interest therein is not subject to the lien of said deed of trust or of the complainant Garrels as the holder of said notes. That the complainant Cone is now and for more than six years last past has been engaged in loaning money for different persons, and that said Cone procured the loan of said Ryhiner & Co. to the defendants, George C. and Elizabeth Meyer, mentioned in the bill, and that he acted as the agent of said Ryhiner & Co. in negotiating said loan and also the agent of the complainant Garrels in purchasing the said notes, collecting interest thereon and, receiving payments, and generally acting as the agent of said Garrels, securing loans and collecting moneys fen' said Garrels. That i/n the year 1883, and while said Gone was such agent of said Garrels as aforesaid, the respondent and one Wyatt were about purchasing of said Meyer some 400 acres of land, among which land was the said above described forty-acre tract. That said Cone being anxious to collect from said Meyer the moneys coming from them to said Garrels on the notes and trust deed in the bill of complaint mentioned, and to induce this defendant to make such purchase, agreed with this defendant, in consideration that $1,200 out of the purchase money which this defendant and said Wyatt were to pay to said Meyer for said 400 acres of land, should be paid on said indebtedness of said George C. and Elizabeth Meyer to said Garrels, said Garrels would have the said trust deed released from the said forty acres of land. That in pursuance of said agreement the defendant and said Wyatt purchased of said George C. Meyer 400 acres of land among which were the above described forty acres for $4,800, and which said forty acres were then and there conveyed by said George C. Meyer and wife by warranty deed, and the defendant then and there took possession of said land, and from thence hitherto and now is in possession of the same. That the defendant caused to be paid to said Cone the said sum of $1,200 to be applied on said trust deed and notes to said Garrels, and that said sum of $1,200 so paid on said notes is much more than a pro rata part of said indebtedness on ail of said land described in the bill agreeable to the value of said lands, and that the other lands described in the bill are ample security for the balance due on said notes and trust deed. And that bv reason of the aforesaid agreement of said Cone to release said forty acres, the defendant took no security from said Meyer that he said Meyer, would pay off rnd discharge said trust deed upon said' forty acres, and that said Meyer has no more means than is exempt under the exemption laws of this State. The defendant further denies the allegation that no part of said notes have been paid off and discharged, but alleges that the complainant Cone, agent mid collector for said Oarrels, has received besides $1,200, $800 in all, $2,000 or more on said notes, which said sums are credits to be allowed on said notes. The court below found for complainant and decreed a foreclosure as prayed, exceptas to the forty-acre tract claimed by appellee Morton, which it held was released, etc. On the hearing the complainants read in evidence the notes with the indorsements thereon, as set out in Exhibits “A,” “ B,” “C ” and “ D ” to the bill. Also the deed of trust, with the certificates of acknowledgment and recording, as set out in “ Exhibit E.” The defendant thereupon testified in his own behalf, as follows: "I and one Wyatt bought 400 acres of land from George C. Meyer for $4,250; of this land forty acres were covered by the deed of trust involved in this suit, being the same forty acres described in the answer. And there was a mortgage on the rest of the land purchased in favor of E. By Inner & Co. for $3,000 which was assumed and paid off. We paid the money to George W. Cone, the agent of F. Byhiner & Co., and he procured a release for the same and did all the business. The principal and interest was all received by him; we did not know any one else in the whole transaction, and the balance of the money we paid to George C. Meyer. This money, the $1,200, was to be used to get a release of the forty acres. I had made the contract to purchase, with Meyer, and then I went to Nashville and saw Mr. Cone; did not see him the first time and made the second trip, when I saw him, and he promised that if he got the $1,200 that I was to pay to Meyer for this land that he would procure a release of these forty acres, but said it would be some time. He said he was glad that I made the arrangement, because he considered the $1,200 more than the jro rata share of the mortgage. I may not have spoken to Cone about a release till after I paid the $1,200, but I am pretty sure I did, and paid Meyer the money to deposit in the Salem bank subject to Cone’s order. Soon after, I got possession of the forty acres from Meyer and have been ever since in possession. The forty acres are worth about $500 or $600. Mr. Cone promised me to get the forty acres released several times, but never would fix a time, always saying it would take some time, until the last time I spoke to him when he said he would get the release “by the first day of next January,” which was January 1, 1886. George C. Meyer testified: I received $1,200, mentioned by the defendant Morton, and deposited them on January 29, 1883, in the bank at Salem, Ill., for George W. Cone, to be applied on this mortgage to release Morton’s forty acres I sold him. Afterward, about the next day, I deposited $800 more for the purpose of being credited on the same mortgage. Cone promised to get a release for the forty acres sold to Morton, and pretty soon. Morton bought the land from me in December, 1882. I wanted to stop the interest on the mortgage. Cross-examined: Cone told me to pay in the money and he would see it applied on three notes to keep interest paid and on the principal when due. They bought the 400 acres- at $12 per acre. Cone told. me that Eyhiner & Co. were broke, and I would lose the whole of it unless I took some notes and mortgages on land in Jefferson County, and I took them rather than lose it all. I went to see about these, and learned the notes and mortgages he gave me were worthless. In that way Cone paid me the whole money. We made a final settlement on January 29, 1886, and I then gave him this receipt. Cone gave me, at the settlement, $1,250 in securities, and he had paid interest for me on this mortgage for several years, and he accounted to me for the whole $2,000 in that way, and I took them because he told me I would get nothing unless I settled that way as Eyhiner & Co. were broke all to pieces. These forty acres I sold to Morton are worth about the tenth part of the whole 340 acres included in the deed of trust involved in this suit. It was here admitted between the parties that the money deposited by Meyer in the bank as above stated was afterward drawn out by Mr. Cone. George W. Cone testified: Hugh B. Morton never spoke to me about obtaining a release for these forty acres until long after the money - had been paid over to him, and I never promised absolutely to get him a- release. I never was agent for any of the assignees of the notes involved in this suit. I was agent for F. Byhiner & Co. to collect the interest but not the principal. I was not agent for F. Byhiner & Co. in receiving these $2,000 from Meyer, but that was a matter exclusively between me and Mr. Meyer. I received the money to invest for Meyer until the mortgage should be due, and I used the interest accruing on the investment in paying interest on the mortgage involved in this suit. I invested that money in April, 1883. Used the blank notes of F. Byhiner & Co. because I liked the form the best, and 1 assigned the notes to Meyer at the time but kept them in my safe until this receipt was signed. These notes, taken for the $2,000 paid to me by George O. Meyer, were made payable to F. Byhiner & Co. and remained in my hands until two days after this bill was filed, and in them was included the $1,200 paid by Morton to Meyer, if I got that money, and then on the 29th day of January, 1886, 1 delivered the notes to Meyer and he gave me the receipt identified by Meyer and which reads as follows:
    McLeansboro, Ills., Jan. 29th, 1886. Beceived of W. G. Cone, sixteen hundred and twenty-three dollars in full of said amount deposited in Salem National Bank by me to credit of account of said Cone. This rec’t to be a full settlement of said amount and accrued interest on same. Said deposit was made 1883. George C. Meter.
    I told him I could not take money before it was due. Cross-examined: I had authority to assign the notes to Meyer. I had been paying interest for Meyer on these notes involved in this suit, and when I made final settlement with Meyer I paid him part in money. I do not think I ever promised Morton to get a release of his forty acres in this mortgage, but did promise I would get it if I could. Don’t think I told him I would get it by January 1, 1886.

      Messrs. W. C. Kueffner and T. E. Merritt, for appellant.
    Ryhiner & Co. were constituted the agents of the assignees of the notes for the sole purpose of collecting the accruing interest and principal “ against receipt of said F. Eyhiner & Co. therefor, and the receipt of said F. Ryhiner & Co. for interest and principal to be good and valid toward any subsequent owner of said notes.”
    This was a special limited agency, to be exercised in a special manner. It gave Ryhiner & Co. no power of substitution, and no power to do any act other than that specially authorized, and persons dealing with them were bound to inform themselves of the extent of their authority.
    “ Where parties deal with an agent having written authority, they must inform themselves of its extent and its limitations.” Rawson v. Curtiss, 19 Ill. 456.
    An agent to collect a note has no power to extend the time of payment. Lawrence v. Johnson, 64 Ill. 351.

      “ An agent appointed for a special purpose can not go beyond the scope of such appointment and bind his principal.” Denman v. Bloomer, 11 Ill.177; Baxter v. Lamont, 60 Ill. 237.
    Persons dealing with agents must know their authority. C. & G. E. R. R. Co. v. Fox, 41 Ill. 106; Dutcher v. Beckwith, 45 Ill. 460 ; Peabody v. Hoard, 46 Ill. 242; Davidson v. Porter, 57 Ill. 300; Reynolds v. Ferree, 86 Ill. 570.
    Mr. Henry C. Goodnow, for appellee.
    The mortgagor, Meyer, sold part of the mortgaged land to Morton, with the agreement that it would be released, without any notice, actual or constructive, that the notes had been assigned.
    The mortgage not being negotiable paper, the purchaser of notes takes it as an incident and subject to all equities in favor of the mortgagor and his grantees. Olds v. Cummings, 31 Ill. 188 ; Haskell v. Brown, 65 Ill. 29 ; Bryant v. Vix, 83 Ill. 11; Silverman v. Bullock, 98 Ill. 11; Melendy v. Keen, 89 Ill. 395, 404.
    The mortgagor, to release himself from liability on his note, must see that he pays the money to the holder of the note who has received it by assignment before maturity, but not so to discharge the mortgage because it is not assignable at law. Towner v. McClelland, 110 Ill. 542, 551.
   Wilkin, P. J.

The only question presented for our decision is, did the court below err in decreeing that the forty acre tract, owned by Morton, is held by him discharged of the lien of the trust deed sought to be foreclosed. In the foregoing statement of the case so much of Morton’s answer raising that issue and substantially all the evidence bearing upon it is set out, and a casual examination thereof will, we think, make clear our reasons for reversing the decree. The argument of counsel seems- to proceed upon the assumption that the defense set up is that Ryhiner & Co., after the assignment of the notes secured by the trust deed, by their agent Cone, agreed to release, or procure a release of the forty acre tract, and authorities are cited on both sides as to defenses available to the mortgagor or his grantee against the assignee of the debt secured by the mortgage, growing out of equities between the defendant and the mortgagee, appellee relying upon the case of Towner v. McClelland, 110 Ill. 542, to sustain the decree, while appellant, arguing on the same hypothesis, cites Keohane v. Smith, 97 Ill. 156. Applying .the elementary rule of practice both in law and equity, that the allegation and proof must agree, the question discussed does not arise. By, his answer the defendant, Morton, did not pretend that in his negotiation for a release he dealt with Cone as the agent of Ryhiner & Co. On the contrary he avers in every part of it that he was the agent of the complainant, Carrels, and that whatever contract he made with him was in that capacity. By his answer he admits that at the time he contracted with Cone he knew that the complainant, Garrels, was the owner of the negotiable notes secured by the trust deed, which were then not due, and by that averment he is bound. How can it then be said that any question- as to the equities between Ryhiner & Co. and Morton is involved in the decision of this case? The issue, submitted to the court, was whether or not the legal holder of the notes and the equitable owner of the trust deed, Garrete, by his agent, George W. Cone, agreed to procure the release. On this issue the burden of proof was upon appellee Morton. There is no evidence in the record tending to prove it. Cone swears positively that he “never was agent for any of the assignees of the notes involved in this suit.” Whatever equitable rights appellee Morton may have under a proper state, of pleading, this decree can not be sustained. It is therefore reversed and the cause remanded with directions to the court below to allow the defendant, Morton, to amend his answer if he shall so desire.

Reversed cmd rema/nded.


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    Jas. C. Waugh, Impl. C. H. Camfield and Chas. M. Glaser v. Casimir Andel, Trustee of Company “A” Belleville Guards.

      Equity Jurisdiction — Note Payable to Captain of Military Company— Bill Filed by Trustee.

    1. The trustee of a military company, which has no Captain, may maintain an action in equity on a note made payable to its Captain for money borrowed of the company.
    2. The transfer of the note by vote of the company to the trustee, for collection, conferred upon him sufficient interest in the note to enable him to maintain suit thereon.
    [Opinion filed January 10, 1887.]
    In error to the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding
    Statement of the case by Pillsbury, J. Company “A,” Belleville Guards, was organized as a part of the militia of the State, and for service rendered the State, and from other sources, it became possessed of quite a sum of money which it deposited with the treasurer of the company, and from time to time, loaned the same. August 3, 1880, having about §400 in the treasury, one C. H. Camfield applied for a loan of that amount, and the company directed the treasurer to loan the same, taking note with security therefor. The said Camfield thereupon presented to the treasurer of the company the following promissory note- and received the money. §400.00. Belleville, III., August 9th, 1880.
    Six months after date we, or either of us; promise to pay to the Captain, of Company “A ” Belleville Guards, or order, the sum of four hundred dollars for value received, with eight per cent, interest per. annum from maturity, at the office of the First National Bank of Belleville.
    C. H. Camfield,
    Chas. M. Glasee,
    J. C. Waugh.”
    The treasurer reported the loan to the company and being approved, he retained the note in trust for its members. The Captain of said company resigned about November 1, 1881? which resignation was accepted, and no other Captain was thereafter elected, and some time in August, 1884, the company, asan organization, ceased to exist. At the time said company voted to disband in August, 1884, they ordered the treasurer to turn over said note to the appellee to be held by him in trust for the company, and to collect the same and account for the proceeds. The treasurer complied with this direction and delivered the note to appellee who filed this bill against the makers alleging the above facts, and asked a decree for its amount. The appellant, Waugh, filed a general demurrer to the bill, which was overruled, and he abided and sued out this writ of error.
    Mr. Marshall W. Weir, for plaintiff in error.
    Mr. E. L. Thomas, for defendant in error.
   Pillsbury, J.

The money loaned to Camfield belonged to •the company, and the note, payable to the Captain would, when ■ delivered to him, be held by hitii in trust for the company. There being no Captain of the company there is no payee in existence who can bring a suit at law or in whose name the ‘company "can bring such suit for its use. Ho adequate remedy at law exists to enforce payment of the nóte and equity will •therefore take jurisdiction. The company retained the note -in its treasury as its property until it voted to transfer to the appellee to be held and collected by him for the use of the company and this we think Conferred upon him a sufficient interest therein to maintain this bill. He thereby became the •lawful holder of it and a recovery by him will discharge the ■note, and that is all the makers ■ have any right to demand. The decree will be affirmed.

Affirmed.


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    Adde Aden v. Julia Ann Cruse.

      Dram Shop Act — Srict Construction — Eight of Action of injured Person —Sec. 9 Only Applies Against Those Engaged in Liquor Traffic — Treat-tug, Not Within.

    1. The Dram Shop Act being highly penal in its provisions must be strictly construed in keeping with the object of its enactment. • ■
    2. Sec. 9 of said act, giving a right of action to one injured in his means of support in consequence of the intoxication, habitual or otherwise, of any person, only applies, when fairly construed as part of the act, against those who are directly or indirectly engaged in the liquor traffic.
    3. Said section does not give a right of action against a person not engaged in such traffic, who, as an act of courtesy or politeness, treats another to a glass of intoxicating liquor without any purpose of gain or profit.
    [Opinion filed March 9, 1887.]

      Appeal from the Circuit Court of Union County; the Hon. Oliver A. Barker, Judge, presiding.

    Messrs. Crawford & Bussey, for appellant. .
    .In the case, of Albrecht v. People, 78 Ill. 510, it is declared that every section of the,Dram Shop, Act is aimed at dram shops and those who beep them, and that its provisions do not'extend to those who-Only treat a friend as an act of hospitality or friendship. :
    “ The statute gives the wife a right ■ of action only in cases when, by the selling, liquor to a drunken husband, the wife has .been injured thereby in person or property or means of support.” Fentz v. Meadows, 72 Ill, 542. We believe this to be the true intent of the, law. .The Legislature in passing this act evidently had in mind the business of dealing in liquors. The statute throughout refers to the business. The words “selling or giving away” were evidently intended, taking this entire statute into consideration, to apply to gifts or sales at such places, and by those engaged (legitimately or otherwise) in such business. The provision as to gifts of liquor is, we think, the outgrowth of the necessity of providing against sham sales and devices for evading the penalties of these liquor laws, and were only intended to affect those who make commerce of intoxicating liquors, and provide places and means for persons to supply themselves with such liquors. In this case the treating of Cruse by defendant was a mere incident of their friendly meeting on that occasion. There was nothing sinister of mercenary about it. He could have had no other object than that, of cementing the friendship between himself, Cruse and Mowery by a practice common among men, as was the case • with Cruse in treating Aden and Sensmeyer. Legally he was guilty of no wrong and no negligence.
    In all the cases heretofore brought under the provisions of the Dram Shop Act, we believe the defendants were dealers in or manufacturers of intoxicating liquors and therefore amenable to the act, as it was for the regulation of their business (and for no other purpose) the act was passed. In this case the defendant was not a dealer in or manufacturer of liquor and not connected with the business in any manner.
    Messrs. W. S. Day, P. E. Hileman and D. W. Karraker, for appellee.
    .Appellant’s counsel claim that Sec. 9 of the Dram Shop Act was not intended to reach any persons except those engaged in the liquor traffic. It would be sufficient answer to the logic of this objection to ask the question, what difference is it to appellee whether her husband’s death was caused by liquor given to him by friends or by a saloon keeper? But it is answered legally by referring to the statute itself. The 9th section commences with these words: “Every husband, wife, child, parent,” etc., and in naming who the recovery could be had against, says : “Against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole or in part,” etc. The wording of Sec. 9 is similar to the wording of Sec. 6, with reference to sales to minors, which has been construed by the Supreme Court in case of Johnson v. People, 83 Ill. 431, where the word “ whoever ” is construed to apply to others than dramshop keepers, and the word “ whoever” can not be said to be more comprehensive than the wbrds “ any person” as used in Sec. 9; this case seems to entirely overrule the case of Albrecht v. People, 78 Ill. 510.
    Aden went seven and a quarter miles to get to Mill Greek. He took a jug of liquor along. Appellant claims that his business was to go to Elco with Charley Sackett, but the first thing he does is to call for Cruse and get a stable and unhitch his horses and take the harness off of them and then “treat the boys ” and go to the voting place. This was general election day. Appellant himself says: “I stayed around awhile and told the boys that I was for Frank Heibauer and the Stock Law. After being with Cruse and others around there several hours and getting Cruse thoroughly drunk, he leaves him under a tree about 100 yards from Mill Creek bridge, and drives back to Dongola without going to Elco or transacting any business with Sackett. He left his own precinct and drove six 'miles from his voting place in order to “ cement the friendship .between himself and Cruse and Mowrey” and declare himself for “Frank Neibauer and the Liquor Law.” He was there on general election day at the polling place with liquor, giving it away, in violation of the laws of the State of Illinois, and there was no friendly treating about it. It was an electioneering scheme.
   Green, J.

Appellee brought suit to recover damages for injury to her means of support, alleged in the declaration to have been caused by appellant giving intoxicating liquor to her husband, whereby he became intoxicated, and being in a state of intoxication so caused, and by means thereof being in suchmental and physical condition as to beunableto ride, guide and manage his horse, he fell off his horse upon .the ground, and thereby received fatal wounds and injuries, from which he in eight days afterward died, etc. The declaration concludes, “and by force of the statute in such case made and provided, an action has accrued to her against defendant, for the recovery of her said damages in the premises, and therefore she brings her suit, etc.” The jury found defendant guilty, and assessed plaintiff’s damages at $800. Defendant’s motion for a new trial was overruled. The court rendered judgment on the verdict, to reverse which judgment this appeal was taken. It appears from the evidence, appellant and Cruse, the deceased, were farmers and friends. About 11 o’clock in the morning of election day, in November, 1884, appellant drove into the village of Mill Creek, inquired for Cruse of a person who was a witness on the trial, and who found Cruse, came with him to appellant, and the latter asked Cruse to got him some place where he coiild put up his team. Cruse did so, and together with the witness rode with appellant in his buggy to the barn, and after putting up the team there appelkn!; invited the two to drink with him out of a flat bottle or flask containing less than a pint of apple brandy; all three drank, and after talking together there a short time, upon the invitation of appellant they drank again, finishing the contents of the flask. These two drinks were the only ones given Cruse by appellant. Cruse was not then intoxicated. The three then left the barn and went to the polls together. It further appears Cruse was in company with other persons at Mill Creek at an early hour the same morning, when whisky was being drank, and between 8 and 9 o’clock same morning he had a quart bottle of whisky, and a witness upon his invitation took a drink out of it, Cruse remarking he had got the whisky the day before to treat his friends. Shortly after 12 o’clock, same day, Cruse again met appellant and another p'er-son, invited them to go with him to the barn where the team of appellant had been left, which they did, and there Cruse produced a quart bottle partly tilled with whisky, and each took a drink out of it, upon his invitation. This was the only drink taken there. Cruse was then intoxicated. The team was then hitched to the buggy, all three got in, appellant drove out of the village about three quarters of a mile, turned around, came back, and Cruse and witness left the buggy and separated from appellant, who drove home and saw them no more. Shortly after Cruse got out of the buggy he said the liquor had made him sick, and vomited, after which he said he was better and proposed to go home. His horse was then brought, he was assisted to mount it and rode off evidently intoxicated. After riding a short distance his horse started and ran away, and either stumbled or stepped on the halter strap. Cruse was thrown or fell upon the ground, and was so injured as to cause his death within a few days.

We omit the evidence concerning the support furnished appellee by the deceased, and touching his habits and ability to work, as also the property he left, but deem the evidence sufficient to show appei'ee was injured in her means of support by the death of her husband; and we think also, that the jury might fairly infer from the evidence the two drinks given deceased by appellant contributed to cause the intoxication, and that such intoxication was the proximate cause of * the accident which resulted in the death of Cruse; nor were the damages assessed excessive; but there yet remains to be decided the graver question. Had appellee, under the statute, upon the facts proven, a right of action against appellant, he not being a dram-shop keeper, or engaged directly or indirectly in the traffic of selling intoxicating liquor, at the time he gave Cruse the two drinks ? Such right of action appellee claims is given by this 9th section of the Dram Shop Act. “Every husband, wife, child, parent, guardian, employer or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence • of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall by selling or giving intoxicating liquors have caused the intoxication in whole or in part of such person or persons, and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, or who, having leased the same for other purposes, shall knowingly permit therein' the sale of any intoxicating liquors that have caused in whole or in part the intoxication of any person, shall be liable severally ' or jointly with the person or persons selling or giving intoxicating liquors as aforesaid, for all damages sustained, and for exemplary damages, * * * and the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the tenant under any lease or contract of rent, upon the premises where such unlawful sale or giving away shall take place * * * It has not been generally understood by the profession in this State that this section was intended to give a right of action to recover damages for the injuries mentioned, against others than dram shop keepers, their agents or servants, and those owning premises where intoxicating liquors were sold, and for this reason, probably, no suit has been brought precisely similar in character to this, and taken up to the Supreme Court for final determination. Hence we have not the benefit of the light which an opinion of that court would give us in a case exactly like this, but must give a construction to this section justified by the title of the act, the apparent purpose of its provisions, and the language used in said Sec. 9. We find the title of the act is “ Dram Shops,” and it is further entitled “An act to provide for the licensing of, and against the evils arising from the sale of intoxicating liquors.” The title would indicate the traffic in liquor as carried on in dram shops to he the subject-matter in- . tended to be regulated and controlled by this act; and the several sections thereof, we think, carry out such purpose. Sec. 1 defines a dram shop, and what is meant by intoxicating liquors. Sec. 2 prescribes the penalty for selling without a license. Sec. 3 how a license may be granted. Sec. 4 the form of license, rights under it, and for its revocation. Sec. 5 requires dram-shop keepers to give a bond, fixes the amount and conditions of it, and provides for suit thereon. Sec. 6 provides for the punishment of “ whoever by himself, his .agent or servant,” shall sell or give intoxicating liquor to a minor. Sec. 7 declares places to be nuisances, where intoxicating liquors are sold in violation of the act, provides for the punishment of those keeping such, and for the abatement thereof. Sec. 8 provides that every person who, by the sale of intoxicating liquor, with or without license, shall cause the intoxication of any other person, shall pay a reasonable compensation and $2 per day additional, to any one taking charge of, and providing for such intoxicated person. Sec. 10 provides what property shall be liable to execution for the payment of any judgment for damages and costs recovered ' against any person in consequence of the sale of intoxicating liquors under Sec. 9, and for proceedings to enforce payment of such judgment. Sec. 11 gives jurisdiction to Justices in certain cases. Sec. 12 provides for indictment. Sec. 13 provides, “The givingcmay of intoxicating liquors, or other shift or device to evade the provisions of this act, shall beheld to be an unlawful selling.” Sec. 14 relates to indictment and evidence. Sec.' 15 provides that it shall be no objection to a recovery under the act that the offense is punishable under city, village or town ordinance. Sections 16, 17 and 18 comprise the “Harper Act,” and need not be here repeated. The sections cited seem to have been so worded as to exclude doubt that the scope and purpose of the act was limited to providing in what manner the traffic in intoxicating liquors would be permitted, who might engage in such traffic, under what conditions and restrictions, the penalties incurred for a violation of the provisions of the act, and the mode of enforcing them, also providing a remedy for injuries resulting from the sale or gift of intoxicating liquors by dram-shop keepers, their agents or servants, in the course of business, and the 9th section fairly construed as a part of the act does not include persons other than those engaged in the traffic, or one who sells or gives away intoxicating liquor without license for some profit or personal advantage, as persons against whom a right of action is given. After giving a right of action severally or jointly against “ any person or persons selling or giving intoxicating liquors causing intoxication, etc.,” and in connection therewith, it is provided, the person who rents the premises with knowledge that intoxicating liquors are to be sold therein, or knowingly permits therein the sale of such liquors that have caused the intoxication of any person in whole or in part, shall be severally or jointly liable with the person or persons selling or giving intoxicating liquors as aforesoAd, for all damages, etc.” This provision-defines the person or persons with whom the landlord or owner of the premises is made jointly liable to be the person or persons selling or giving intoxicating liquors in the premises where the sale of such liquors is carried on, and against whom a right of action is given in said section, and plainly indicates the person or persons intended are those only engaged in said traffic; but continuing, the section further provides, “ the unlawful selling or giving away of intoxicating liquors shall work a forfeiture of all rights of the tenant under any lease or contract, upon the premises where such unlawful sale or giving away shall take place.” The “ giving ” in this part of the section mentioned is evidently (like the same word when used in the first part of Sec. 9) intended to mean, by one engaged in the traffic of a dram shop, because no other, could be a tenant guilty of unlawful sale or giving away, whereby such forfeiture could be incurred. Sec. 10’ also supports our construction. It provides what property shall be liable to execution for the payment of a judgment recovered against any person under Sec. 9, and to satisfy such judgment subjects to sale the premises used or occupied for the sale of intoxicating liquors by the person against whom such judgment is rendered. Can it be fairly insisted this section does not further define the person intended by Sec. 9 to be made liable for damages resulting from the sale or giving intoxicating liquors, to be a person engaged in the traffic of a dram shop or who, as a" part of his business, sells intoxicating liquor, as for instance a druggist ? Sec. 13 may also properly be referred to in this connection; it provides, “ The giving away of intoxicating liquors, or other shift or device to qvade the provisions of this act, shall be held to be an unlawful selling. ” As used in this section the word “giving,” is not to be construed as meaning the mere act of giving away intoxicating liquors by any person, as such construction would leave the context “ or other shift or device to evade the provisions of this act,” without significance; it means the act of giving in a manner to evade the law, by one not having a license — for instance, giving away the liquor, and at the same time selling some valueless article, taking pay for the latter only — and applies solely to those engaged in the liquor traffic. The Legislature surely did not intend that a person not engaged in that business, because he did not have a license, should become liable to fine and imprisonment, as for unlawful selling, for giving away a glass of wine or liquor to a friend or guest, and if the meaning and application we have given the word as used in Sec. 13 is correct, it would seem, for a similar reason, to have a like meaning and application when used in Sec. 9 ; there the phrase is “ selling or giving.” If others than dram-shop keepers, their agents and servants, were intended to be included, the word “ selling ” is superfluous. The evident purpose for which the word “ giving ” is inserted is to prevent a person engaged in the traffic from escaping the liability by resorting to the device of giving the intoxicating liquor, and as part of the same transaction selling some other thing and receiving pay for it; furthermore, if Sec. 9, by a fair construction, embraces all persons, and is not restricted in its operation to those engaged in the liquor traffic and “giving a/way intoxicating liguor” by any person, is to be held an unlawful selling under Sec. 13, a tenant of a dwelling house, who, in'the presence of, and without objection of his landlord, in such house, gives (as in this case) two drinks of intoxicating liquor to a friend, which does not produce intoxication, and the latter shortly after leaves and drinks elsewhere until intoxicated, and injures a person by reason of such intoxication, the tenant and landlord would be jointly liable to the injured party, if a jury should find the two drinks contributed to such intoxication, and in such case the tenant would be liable also to a forfeiture of his lease and eviction from the leased premises, the landlord would become so liable for permitting the giving of the drinks in the leased premises, and the tenant would incur the additional penalty of forfeiture and eviction, for the unlawful giving away of intoxicating liquor. We do not think the Legislature intended Sec. 9 to be given such construction, or intended the penalties and provisions contained in the Dram Shop Act, to apply to persons not directly or indirectly engaged in the liquor traffic, or one who for a consideration, pecuniary or otherwise, gives intoxicating liquor to another to drink, and if this is so, the right of action given by said section to one injured in her means of support, in consequence of the intoxication, habitual or otherwise, of any person, is not intended to be given against a person who, in his own house or elsewhere, asan act of courtesy or politeness, treats a friend to a glass of intoxicating liquor, without any purpose of gain or profit. However pernicious and prolific of evil the custom of treating, as it is termed, may be deemed, we have not the power to legislate in respect thereto for'the purpose of suppressing such custom, and in the absence of a statute giving a right of action against one who treats another, or providing means for preventing such act, we can not effect such purpose by giving a wrong or unreasonable construction to a law in force. We have said no precisely similar case to this has been before our Supreme Court, but in the case of Albrecht v. The People, 78 Ill. 510, the defendant was found guilty of a violation of the 6th section of the Dram Shop Act, and appealed from the judgment rendered against him. It appeared that he carried on a brewery but kept no dram shop. One Dewey, a minor, called with others to see defendant about some business, and all were invited by defendant to drink beer furnished by him — they accepted the invitation and all drank. The court in the opinion say, this was not ati act the statute intended to, punish, and was a mere-courtesy which the law was not designed to reach, and further say, “ the statute is highly penal in its provisions," and according to well recognized rules, must be construed strictly, keeping in view the great central object the Legislature had in its enactment, and the evils to be prevented. The title of the act is Dram Shops, and every section is leveled against them, not with a view to their suppression, for they are licensed to sell intoxicating liquors'. The provisions of the act are aimed at such.” The judgment below was reversed, and no member of the, court dissented. The construction we have given this act, is; in harmony with the views expressed in that opinion,, and is-not in conflict with the decision or opinion in Johnson v. People, 83 Ill. 431. Johnson was indicted under the 6th section for selling to minors, and set up in defense that he sold no liquor, but only assisted in making change for those, who did sell; in the opinion it is said, the language of Sec. 6 is sufficiently broad to embrace all other persons as well as the keepers of dram shops, and that defendant was present assisting in selling, but it is also said in the opinion, “it is not necessary to now determine whether a person would incur the penalty by giving liquor as an act of hospitality at his own house — that question is not before the court; the question is, whether a person having or not having a license to keep a dram shop, may sell intoxicating liquors to minors, and we think it is manifest they can not, without incurring the penalty provided by law.” This decision does not overrule the Albrecht case, or conflict with the construction we have given the 9th section and as such construction would necessarily preclude appellee from maintaining her action against appellant. This opinion need not be lengthened by a criticism of the instructions excepted to, and the judgment of the Circuit Court must be reversed.

Reversed.


author: Per Curiam.

text:
    Henry B. Kepley v. Carl Schmidt.

      Negotiable Paper — Want of Consideration — Bona Fide Holder.

    In an action upon a promissory note by a bona fide holder, the defense of want of consideration can not avail.
    [Opinion filed March 9, 1887.]
    Appeal from the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.
    Mr. S. F. Gilmore, for appellant.
    No counsel appeared for appellee.
   Per Curiam.

Action upon promissory note by the assignee against the maker, with defense of failure of consideration, with notice to plaintiff. An examination of the record discloses no error of the court in admitting or excluding evidence, nor in giving or refusing instructions, so far as error is assigned in that behalf. The evidence, however, while tending to show a want of consideration for the major part of the note, utterly fails to establish the fact that plaintiff bought the note with notice of such defense. He appears to be a Iona fide assignee for value before maturity, and as such, was entitled to recover. The verdict is therefore wrong, and the judgment founded thereon will be reversed and the cause remanded for a new trial.

Reversed and remanded'.


text:
    Farmers and Merchants National Bank v. John S. Barton and William L. Ballinger.

      Usury — Stipulation in Note for Attorney's Fee — Valid on Its Face— Indemnity — Reasonable Compensation, Extent of Recovery.

    1. Usury is not to be presumed but must be pleaded and established unless upon the face of the contract it is apparent.
    2. A stipulation contained in a note for attorney’s fees where suit- is brought, upon default in payment, is not usurious upon its face.
    3. Such a stipulation, being a contract for indemnity only, it seems that the plaintiff can recover only a reasonable compensation for the services of his attorney, not in excess of the limit of the stipulation.
    [Opinion filed March 9, 1887.]
    Appeal from the Circuit Court of Fayette County; the Hon. Jesse J. Phillips, Judge, presiding.
    This action is based upon a promissory note as follows: $300.00. Vandalia, Ills., Dec. 10th, 1884.
    Six months after date, for value received, we or either of us promise to pay to the order of the Farmers and Merchants National Bank of Vandalia, three hundred dollars with interest at eight per cent, after maturity. If this note is notpaid when due, we agree to pay an attorney’s fee of thirty dollars, if placed in the hands of an attorney for collection.
    John S. Barton,
    W. L. Ballinger, Benjamin Bhckmaster. '
    The declaration avers that the note not being paid at ma, turity, the plaintiff placed it in the hands of one B: W. Henry y an attorney at law, for collection by suit in the Circuit Court of said county, and then paid him the $30 attorney fee, named in said note. Two of the defendants being served with process suffered a default, and thereupon the court assessed the damages at the principal sum in the note, and eight • per cent, interest thereon after maturity of the note, but refused upon motion of the plaintiff to allow the attorney’s fee provided for in the note and paid by the plaintiff. The averment in the declaration above noticed was also proved upon the assessment of damages by the testimony of the cashier of the bank. The plaintiff excepted to the action of the court in refusing to allow such fee as a part of the damages, and appealed to this court. In this court a stipulation has been filed that the court might consider the case as though a plea of usury had been filed in the court below.
    Messrs. B. W. Henry and S. A. Prater, for appellant.
    Messrs. Webb & Cox and W. M. Folger, for appellee.
   Pillsbury, J.

The only question presented by this record or the briefs of counsel is, whether the stipulation for attorney’s fees contained in the note is void per se. It is claimed that ft is usurious, against the policy of law and without consideration. Such stipulations in notes and mortgages have been before the . courts of several of the States, and the decisions thereon are somewhat conflicting. They have been held void in Ohio, Nebraska, Kentucky and Michigan. State of Ohio v. Taylor, 10 Ohio, 378 ; Dow v. Updike, 11 Neb. 95 ; Bullock v. Taylor, 39 Mich. 137; Witherspoon v. Mnsselman, 14 Bush. 214.

One of the principal grounds upon which the decisions in Michigan and Kentucky rests, seems to be that by the statutes of those States an attorney’s fee, to be taxed as costs, is provided for, and the amount that the court shall allow is fixed, and it is not competent for the parties to contract for a different amount of taxable costs. In Indiana, Tennessee, Iowa, Pennsylvania, Oregon and Texas, the courts have taken a different view and held such agreements valid. Smith v. Silvers, 32 Ind. 321; Johnson v. Crossland, 34 Ind. 512; Tuley v. McClung, 67 Ind. 10; Parham v. Pulliam, 5 Cold. 497; Williams v. Meeker, 29 Iowa, 292; McGill v. Griffin, 32 Iowa, 445; Huling v. Drexel, 7 Watts, 126; Finler v. Finler, 94 Pa. St. 372; Pejtion v. Cole, 11 Oregon, 39; Miner v. Exchange Bank, 53 Tex. 559.

These latter cases find support in our own decisions so far , as the courts have been called upon to determine the question. Thus, in Dunn v. Rodgers, 43 Ill. 260, where the note and mortgage provided for the payment by the debtor of an attorney’s fee of §10 if suit should be brought, it was held that such sum was properly included in the decree foreclosing the mortgage, and in Clawson v. Munson, 55 Ill. 394, where the question seems to have been more directly presented, the court held that the attorney’s fee, stipulated in the mortgage to be paid by the debtor, could be included in the decree, and in answer to the suggestion of counsel tliatthecase was an oppressively hard one, the court replies: “We can only say, that the appellants provided by their express agreement in the mortgage for all the consequences that have followed in case of default in prompt payment, and that they could have avoided all the hardships by paying the notes at maturity. It is not in the power of the court to relievo a party from the force and consequences of his own agreement.” So in McIntire v. Tates et al., 104 Ill. 491, the point was made that the decree was erroneous in that it included a solicitor’s fee of two per cent, upon the amount found due; but the court held that the decree was proper and that the case could not be distinguished from that of Clawson v. Munson, 55 Ill. 394. Besides those cases decided in equity, it has been expressly held that it was not error to include an attorney’sfee where judgment was confessed under power of attorney, if the power was broad enough to include such damages (Ball v. Miller, 38 Ill. 110), and sneliis believed to be the uniform holding in cases of that character. Here then we find that our Supreme Court, both at law and in equity, has sustained judgments and decrees which included an attorney’s fee, where the same has been expressly agreed to be paid by the debtor, in case of his failure or neglect to , pay his indebtedness, and in consequence thereof it became necessary for the creditor to incur expense in asserting his rights under the contract in the courts of law or equity. If such agreements were void upon their face, as being opposed to the statute against usury or the general policy of the law, such decisions could not have been made, and these cases are therefore to be "considered as adjudications that such stipulations are not open to the objections urged. If opposed to the policy of the law, they would be equally void whether, sought to be enforced either at law or in equity, as their validity could not be made to depend upon the forum, where their effect was to be determined. The cases of Nickerson v. Babcock, 29 Ill. 497, and Easter v. Boyd, 79 Ill. 325, simply hold that where the contingency upon which the attorney’s fee shall become due and payable does not arise until suit is brought, such fee can not be included in the judgment in the same suit at law; but at the same time there is a strong intimation in the Boyd case that if the stipulation had provided for the payment of such fee, upon default in payment of the principal and interest at maturity it might have been recovered. From these decisions of our Supreme Court, most fully supported by the rule in the other cases, from other States above referred to, we think that the stipulation in the note in suit is sustained by the weight of authority bearing upon the question. Independent of authority we arrive at the same conclusion upon principle. As to the objection that the stipulation makes the contract usurious, it can be said that usury is not to be presumed, but must be pleaded and established by the proofs, unless upon the face of the contract the usury is apparent. In this case, treating it under the stipulation filed in this court, as though a formal plea of usury was in the record, no proof was made that the stipulation was intended as a devise to evade the usury laws. Standing by itself, and giving to the language employed its usual and natural signification, it would seem that the intention of the parties was, that if by the default or neglect of the defendants to pay the note at maturity it became necessary for the plaintiff to employ an attorney at law to collect the note, they would reimburse the plaintiff for all expenses thus incurred, to the extent of $30, the amount named as the limit of the indemnity for which they should be liable. It docs not contemplate nor provide that the payee of the note can or shall reserve to itself any pecuniary benefit or compensation out of the amount, for the use of the money loaned, nor does it appear to be in the nature of a penalty for the non-payment of the note at maturity, and, consequently, is not within the prohibition of section 6, of the statute relating to interest. The condition upon which the right to exact payment of attorney’s fees rests, does not alone depend upon non-payment at maturity, but only attaches when thereafter the note is placed in the hands of an attorney for collection, and the payee has thereby incurred a liability in consequence of the neglect of the makers to comply with their contract. The note might remain unpaid for months, or years, even, but if not placed in course of collection through the hands of an attorney, the debtor could discharge the debts at any time by the payment of the principal sum with the agreed rate of interest. That part of the agreement relating to the non-payment at maturity, is for the benefit of the debtor, in that it prevents the creditor from putting it in the hands of an attorney before due, and thereby incur a liability to be charged against the maker of the note. In other words, the liability to pay attorney’s fees does not arise because the note is not paid when due, but only when, thereafter, the plaintiff shall become liable for an attorney’s fee in order to enforce collection of the note by the aid of an attorney, either with or without litigation. It being a contract for indemnity only, the' plaintiff would not be allowed to recover more than a reasonable compensation for the services of his attorney, to be limited by the sum agreed to be paid, and in case of a special contract for the collection of the note he would be limited to his actual expenditure, even if less than the services would be reasonably worth. Thus construed we fail to see wherein such stipulation renders the note usurious, or wherein it is opposed to the policy of the law. It gives to the creditor his money loaned and the interest thereon only, and this it is the policy of the law to give him. If, however, the provision is inserted for the purpose of evading the laws against usury, and thus be made to appear without doubt, the penalty prescribed by the statute would attach to the transaction. We look upon the provision as one for the recovery of special damages that the parties contemplate may arise from a breach of the contract by the defendant, which, though not recoverable under the general rule for the admeasurement of damages in ordinary actions, because not the necessary and natural results of the breach of the contract complained of, are nevertheless entirely competent for the parties to contract for, and thereby allow the plaintiff what in equity and good conscience he ought to receive in satisfaction of his contract, the money loaned and the interest thereon agreed to be paid. The incurring of the liability to pay attorney’s fees, caused by the wrongful act of the defendant in not complying with his contract, is a sufficient consideration to support the agreement for indemnity. We are therefore of the opinion that the stipulation is not void upon its face and that the court below should have enforced it as the contract of the parties and allowed the attorney’s fees paid by the plaintiff as a part of the damages in the case, as the proof shows that the payment made and liability incurred therefor occurred before the bringing of this suit and could therefore be properly included in the judgment as a part of the damages sustained by the plaintiff through the neglect of the defendants to comply with their contract. To the end that this may be done, the judgment below will be reversed and the cause remanded with directions to the court below to render judgment in this cause for the amount of the note and interest, according to its terms, and for the further sum of $30 as attorney’s fees, as provided in the note, such sum having been actually paid, and the presumption being from the contract of the parties, in absence of proof to the contrary, that such fee was a reasonable one. Smiley v. Meir, 47 Ind. 559.

It ever sed and remanded.