author: Baker, J.

text:
    William Whalen, Adm’r, etc. v. Illinois and St. Louis Railroad & Coal Co.
    1. Duty of railroad company. — A railroad company is bound to exercise reasonable care to furnish safe machinery, road-bed, track and structures connected therewith, and a person entering its employment has a right to presume that the company has discharged its duty in this regard.
    2. Master and servant — Presumption of knowledge. — Where a person is engaged in a dangerous employment, the presumption of fact arises that he has knowledge of the ordinary perils of such employment, but there can be no presumption of knowledge of special dangers arising from a peculiar and exceptional state of affairs.
    3. Negligence — Question for jury. — Where a switchman, while in the discharge of his duties, was fatally injured by striking against the corner of a structure in the yard, and the evidence showed the company to have been culpably negligent in building the structure so near the track, and there were circumstances tending to prove a want of knowledge of the nearness of the eorner of the house on the part of deceased, as well as circumstances tending to prove otherwise. Held, that it was error to instruct the jury that their verdict must b; for the defendant; the appellant had a constitutional right to have the issue of fact submitted to the jury.

      Appeal from the City Court of East St. Louis; the Hon. William P. Launtz, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. A. R. Taylor and Mr. J. M. Freels, for appellant;
    as to the duty of railroad to furnish safe machinery, road-bed, track and structures connected therewith, cited I. C. R. R. Co. v. Welch, 52 Ill. 186; C. & I. R. R. Co. v. Russell, 91 Ill. 303; T. P. & W. Ry. Co v. Conroy, 68 Ill. 561.
    The question of negligence should have been submitted to the jury: C. & A. R. R. Co. v. Bonifield, 104 Ill. 224; Penn. C. Co. v. Conlan, 101 Ill. 94; Wabash Ry. Co. v. Elliott, 98 Ill. 481; Lasure v. Grassville Mfg. Co., 18 S. C. 275; I. & St L. R. R. Co. v. Morgenstern, 106 Ill. 220.
    Messrs. G. & G. A. Koerner, for appellee;
    that plaintiff to succeed must allege and prove that the danger or defect which caused the injury was known to the defendant and was not known by the deceased, cited Dillon v. U. P. R. R. Co., 3 Dill. 120; Gibson v. Erie R. R. Co., 63 N. Y. 449; Baylor v. D., etc., R. R. Co., 40 N. J. L. 23; Wells v. B. C. R. & N. R. R. Co. (Ia.), 2 A. & E. R. R. Cases, 243; Clark v. St. P. & S. C. R. R. Co. (Minn.), 2 A. & E. R. R. Cases, 240; Nelson v. A. & P. R. R. Co., 68 Mo. 593; Rains v. St L., I. M. & S. R. R. Co., 71 Mo. 164; Priestley v. Fowler, 3 M. & W. 1; Griffith v. L. & St. C. D. Co., Central L. J., Jan. 16, 1885; Clark v. Richmond R. Co., 30 Albany L. J. 252; Dewett v. Pacific R. R. Co., 50 Mo. 252; Owen v. N. Y. Cent R. R. Co., 1 Lans. 108; B. & O. R. R. Co. v. Striker, 51 Md. 47.
   Baker, J.

This was an action on the ca=e by appellant, as administrator, against appellee, to recover damages for the death of his intestate, alleged to have been caused by the wrongful act and default of appellee. John Whalen, the deceased, was in the employment of appellee in its yards at East St. Louis as a switchman, and on the 19th of December, 1882, while in the discharge of his duties as such, was brought in contact with the southeast corner of the scale shed of appellee, and knocked from the engine and killed by being run over and crushed by' the cars of appellee thereto attached. The deceased was one of the three men constituting the switching crew, and on that day he was front man or foreman, and as such, it was his duty to be and remain with the engine, turn switches for it, make its couplings, etc. The engine was what is called a “dummy” or regular switch engine, and was used only for switching, making up trains, and similar work in the yards of the company. It had a step in front, another in the rear, and one on each side of it, and these steps were all so placed for the accommodation and use of the switchman, as his duty and convenience might require. If the road is properly built and all structures placed at a reasonably safe distance from the track, the switchman can discharge his duties unharmed by such structures, whether he be on the rear, front or side step of the engine.

Immediately before the accident, deceased had made the coupling of the car in rear of the engine to the rear end of the engine, and the coupling pin being bent he was unable to drive it down,' and he was warned by the engineer the pin was liable to fly out or break and injure him, and thereupon he left the rear and got round on the side step of the engine, where he would be ready to jump off and turn two switches that were located a short distance beyond the scale house. The space between the side of the engine and the southeast corner of the shed where he was knocked off and killed, was only seven inches; and the shed had been erected by appellee, and maintained in this close proximity to this track for a period of several years.

At the trial, and after the introduction of appellant’s testimony, appellee declined to produce any evidence. Thereupon the court refused to give the following instruction asked by appellant:

“ The court instructs the jury that a railroad company is bound to exercise reasonable care to furnish safe machinery, road-bed, track and structures connected therewith, and that a person entering its employment has a right to presume that the company has discharged its duty in this behalf; and if the jury believe from the evidence that the scale shed in question was constructed by the defendant, and that it was an unsafe and dangerous structure, and that the defendant had notice thereof before the injury, and negligently failed to use ordinary care to make it reasonably safe, and that by reason thereof the deceased, John Whalen, without notice of the unsafe or dangerous character of said shed, while in the discharge of his duty, with due care and caution, was without fault then and there killed, and that the plaintiff and next of kin have thereby sustained pecuniary loss in their means of support, then the jury will find for the plaintiff and assess his damages at such sum as they believe from the evidence to be just compensation for the pecuniary loss so sustained, not, however, to exceed $5,000.”

And the court at the instance of appellee, and over the objections of appellant, instructed the jury as follows: “ The court instructs the jury that in this case their verdict must be for the defendant.”

In the case of the Chicago & N. W. Ry. Co. v. Swett, Adtm’r, 45 Ill. 197, it was held that a railroad company is bound to provide suitable and safe materials and structures in the construction of its road and appurtenances, and that if. from a defective construction of its road and appurtenances, an injury happens to one of its servants, the company is liable; and in the opinion of the court it is said that the fireman was not required to know anything about such defective construction, and that the implied undertaking of his employers that the road and culverts and bridges were properly constructed and safe for the passage of trains, was sufficient for him.

In the case of I. C. R. R. Co. v. Welch, 52 Ill. 183, the corporation was held liable where a brakeman, engaged in the discharge of his duties, was knocked off the car by collision with a projecting awning from one of the station houses on the line of the road. The court refer to the rule announced in the Swett case and say: “When the appellee entered the service of this company he had a right to presume that it had in these respects discharged its obligations. The or-din ary perils of railroad life he of course assumed, and also any special dangers arising from the peculiar condition of the road so far as he knew of their existence. For exposure to such dangers he would he supposed to demand and receive an increased compensation, and his exposure to them would be his voluntary act.” In the case of the C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272, the court held, under the circumstances therein evidence, the corporation liable on account of the killing of a fireman on a locomotive, who was looking out for signals, and while so doing was struck by a “ mail-catcher ” which had been placed near the track by the company. The court there said: “ Railway companies have no right to erect machines for any purpose, so near the track that the slightest indiscretion on the part of the employe will prove fatal. It is culpable negligence so to do.” In the Chicago & Iowa R. R. Co. v. Russell, 91 Ill. 298, where a brakeman was killed by coming in collision with a telegraph pole standing near a side track, the court said: “It certainly was culpable negligence in the railroad company to permit, for so long a time, such an obstruction to be in such close proximity to its track that an operative of the road should come in contact with the obstruction and be killed, when on a car, engaged in the necessary performance of his duties in the management of the train.” See also in this connection the case of the T. P. & W. Ry. Co. v. Conroy, 68 Ill. 560. There can he no serious doubt in the suit now before us, as to the culpable negligence, under the evidence in this record, of appellee. The question of its legal liability to respond in damages, seems to turn upon the point whether or not the deceased had knowledge of the danger or defect which caused the injury, and possibly upon a further point involving the doctrine of comparative negligence.

There was no direct or positive evidence whatever respecting his knowledge or want of knowledge of the existence of the obstruction and danger under investigation. The lips of the party who best could testify upon that issue have been sealed in death. There were but two witnesses who were examined upon that branch of the case. One of these witnesses was Charles O. Molla, and he had worked with the deceased but one day, and he stated expressly that he did not know anything about Mr. Whalen’s knowledge of the danger as respects “ the nearness of that place.” It appeared from the testimony of the other of said witnesses, Jacob linden, that the deceased had worked in the yards of appellee for about two weeks prior to the injury, and out on the belt road about two or three months, and that his duties while working on the belt would bring him into the yards twice a day. The witness further stated that during the time deceased was working on the belt, the engine would likely pass daily through the scale house, but he did not know, if deceased did; that he couldn’t say that deceased was working ahead at that time, and that he might have been at the hind end of the caboose, and that he couldn’t saj' as to whether he ever went through the scale house during the time he was out on. the belt. lie further stated that he supposed Whalen would not have done as he did, if he had known how near it was.

There was no evidence to show that deceased, during the two weeks he was working in the yards, had ever worked in or about the scale house prior to the time he was killed, or to show the extent of the yards of appellee. The question under consideration is as to knowledge on the part of deceased.

To say the very least, it is not an admitted fact of the case that deceased had knowledge of the nearness of the track to the corner of the scale house. It is always difficult to prove a negative, and especially to make proof of a want of knowledge on the part of a person who is dead. Where a person is engaged in a dangerous employment the presumption of fact arises that he has knowledge of the ordinary perils of such employment; but there can be no presumption of knowledge of special dangers arising from a peculiar and exceptional state of affairs.

In the Swett case, the court said “ the fireman was not required to know;” and the Welch case is to the effect the employe has a right to rely and act upon the assumption the employer is not exposing him to peculiar and exceptional dangers.

It would seem to be a reasonable rule, deducidle from the cases cited, that the right of the employe to act upon the assumption the employer has conformed to his legal duty by providing safe machinery and structures, has the effect to cast the burden of proof as to knowledge of defects upon the latter. In Wharton’s Law of Evidence, chapter on Presumptions, section 1355, it is said “it will he inferred that a person of ordinary intelligence on being advised of danger will, take ordinary care for self-preservation.” But assuming there is no presumption the one way or the other, there were in evidence circumstances tending to prove a want of knowledge on the part of deceased, as well as circumstances tending to prove otherwise; and it was a question for the .jury to decide upon a consideration of all the circumstances in proof, and of the testimony as a whole. As the matter stood, an issue of fact was presented, and appellant had a legal and a constitutional right to have that issue of fact submitted to the jury. This case is to be distinguished from Abend v. T. II. & I. R. R. Co., 111 Ill. 202, and some other cases, where there was no evidence proving or tending to prove one or more facts essential to a recovery.

We are of opinion it was error to refuse the instruction asked by appellant; and that it was also error to instruct the jury that their verdict must be for the defendant.

The judgment is reversed and the canse remanded, with instructions to award a venire facias de novo.

Beversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Daniel Welker et al. v. Frederick Hinze et al.
    1. Agency — Pkhsonal liability of agent. — Where a party undertakes to do an act as the agent of another and has no authority from the principal therefor, he will be personally responsible to the person with whom he deals. But the agent acting wit bout authority would not be held personally liable under some circumstances when the want of authority was known to both parties or unknown to both parties.

      2. Equity jurisdiction. — Where appellant, an employe of appellees, police commissioners, recovered a judgment at law against appellees, and appellees come into a court of equity claiming that the Police Act being declared unconstitutional, they, as agents, had no authority to bind the city, but were legally and personally liable on the contracts made by them, and that therefore equity should afford relief against such unjust judgment. Held, that if there was no personal liability resting on appellees they hadas full opportunity to make that appear on the suit at law as in this suit. And as regards the question the matter is res adjudicate.
    3. Garnishment — Exemption.—The employer, when garnished as the debtor of his employe for wages due him, he being the head of a family and residing with the same, is bound to set up that i'act for such employe and claim the benefit of the exemption for him. If the employer fails to do so and loss results thereby, it should fall upon the employer.
    Appeal from the City Court of East St. Louis; the Hon. "William P. Launtz, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. Frank B. Bowman, for appellant;
    as to garnishment proceeding, cited C. & A. R. R. Co. v. Ragland, 84 Ill. 375; C., R. I. & P. R. R. Co. v. Mason, 11 Bradwell, 525; Elder v. Frevert, 19 Reporter, 178.
    Mr. E. R. Davis, for appellees;
    as to right to relief in equity, cited Gregg v. Brower, 67 Ill. 526; Abrams v. Camp, 3 Scam. 290; Vennum v. Davis, 35 Ill. 568.
   Baker, J.

In 1879, Daniel Welker, an employe of the Metropolitan Police Commissioners of East St. Louis, recovered a personal judgment against appellees, such commissioners, before a justice of the peace, to the amount of $25 for services rendered. From, that judgment an appeal was taken to the City Court of East St. Louis, but the appeal was afterward dismissed and a procedendo awarded. Thereupon an execution issued and was placed in the hands of constable White. Appellees then filed in the City Court of East St. Louis, this bill in chancery against said Welker and said White, appellants, and enjoined the collection of the judgment. At the January term, 1885, of the court, a final decree was entered making the injunction perpetual, and against appellants for costs.

The theory of the bill seems to be twofold. In the first place, it is admitted the Metropolitan Police Act for East St. Louis was unconstitutional and void (see Hinze et al. v. The People, ex rel., 92 Ill. 406), and that appellees had no authority as agents of the city of East St. Louis to bind if, and were, in a court of law, legally and personally liable on the contracts made by them. But it is urged, a court of equity has jurisdiction to afford relief against unjust judgments, and that it would be inequitable and unjust appellees should personally pay for services rendered for the city of East St. Louis as policeman.

It is the general rule, that where a party undertakes to do an act as the agent of another and has no authority from the principal therefor, he will be personally responsible to the person with whom he deals. But, the agent acting without authority, would not be held personally liable under some circumstances when the want of authority was known to both parties, or unknown to both parties. Story on Agency, section 265. If,-under the circumstances of this particular case, there was no personal liability resting on appellees, thej’- had as full opportunity to make that appear in the suit at law as in this suit. Ho fact or matter, as respects this ground of relief, is suggested by the bill or evidence that could not have properly been adjudicated in the suit before the justice. And so appellees have had their day in court as regards this question of personal responsibility, and the matter is res adjudicate5. There is no merit in this branch of the cause.

The other ground upon which the bill is predicated, briefly stated, is that one Joyce recovered a judgment before a justice of the peace against Welker; that execution issued thereon and was returned “ no property found;” that thereupon garnishee proceedings were instituted against appellees, who appeared and answered they were indebted to Welker in the sum of $25, and that judgment was entered against them in favor of Welker for the use of Joyce for $25, which judgment they afterward paid.

The fourteenth section of the Garnishment Act, as amended in 1879, provides that the wages and services of a defendant being the head of a family, and residing with the same, to an amount not exceeding fifty dollars (§50), shall be exempt from garnishment. The answer and proofs show the Welker judgment was for wages and services, and that when they were rendered, and thence hitherto, Welker was the head of a family and residing with the same. The employer, when garnisheed as the debtor of his employe, for wages due him, he being the head of a family and residing with the same, is bound to set up that fact for such employe and claim the benefit of the exemption for him. C. & A. R. R. Co. v. Ragland, 84 Ill. 375; C., R. I. & P. Ry. Co. v. Mason, 11 Bradwell, 525.

Appellees neglected to perform this legal duty they owed their employe, and if a loss is occasioned by their fault it should fall upon themselves.

There is no equity in this case. The decree is reversed and the cause remanded, with instructions to dissolve the injunction and dismiss the bill at the cost of the complainants therein,

Beversed and remanded.


text:
    William P. Launtz v. Louis Gross et al.
    1. Lien of execution. — The lien of an execution except as to property levied upon, ceases with the return day of the writ. After that time, when no seizure has been made, the writ, whether returned by the officer or held in his hands, is functus officio and has no vitality whatever.
    2. Unlevied execution — Injunction.—Where an execution is issued, but before levy an injunction is obtained restraining the collection of the execution, and the injunction is not dissolved until after the return day of the writ, such writ is functus officio.

    3. Construction of statute. — As section 8 of chapter 77, which provides that executions shall be made returnable in ninety days after the date thereof, is not mentioned or designa" ed in section 2 of chapter 77, the rule that the expression of one thing is the exclusion of another applies. Section 8 of the Injunction Act is to be regarded as in pari materia with the provisions of chapter 77.

      Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. James M. Hay and Mr. M. Millard, for plaintiff in error;
    that the writ was functus officio, cited Hargrave v. Penrod, Beecher’s Breese, 401; Bowen v. Parkhurst, 24 Ill. 257; Corbin v. Pearce, 81 Ill. 461; Berry v. Lovi, 107 Ill. 612.
    Mr. W. H. Bennett and Mr. J. M. Freels, for defendants in error;
    cited Gibbes v. Mitchell, 2 Bay, 123; Duckett v. Dalrymple, 1 Rich. L. 142; Wood v. Dwight, 7 Johns. Ch. 296; Young v. Davis, 1 Monroe, 152; Knox v. Randall, 24 Minn. 497; Lamorere v. Succession of Cox, 32 La. Ann. 249; State v. Second District Court, 20 La. Ann. 521; Overton v. Perkins, Martin & Yerger, 373; Herrington v. Herrington, 11 Bradwell, 126.
   Baker, J.

It is only necessary to decide one question involved in this controversy. The personal property in regard to which the litigation arose was sold on an execution issued October 10, 1882, and levied April 26, 1883. Section eight of chapter 77 of the Revised Statutes provides that executions shall be made returnable ninety days after the date thereof. The rule is that the lien of an execution, except as to property levied upon, ceases with the return day of the writ. After that time, when no seizure has been made, the writ, whether returned by the officer or held in his hands, is functus officio and has no vitality whatever. Corbin v. Pearce, 81 Ill. 461.

But it is suggested, that in this instance the defendant in execution wrongfully obtained an injunction, which restrained the collection of the execution from the 5th of December, 1882, to the 14th of April, 1883, when it was dissolved; and it is claimed that at common law the officer has the full lifetime of the execution in which to execute it, and that when he is prevented by a writ of injunction, the time he is so enjoined forms no part of the time allowed by law for the execution and return of the writ. It is undoubtedly true that the general rule is, that the dissolution of an injunction against the enforcement of an execution restores the execution creditor to the position he occupied before the granting of the writ. This rule was, under the old practice, frequently applied in determining the time within which a fieri facias might be returned for renewal, without the necessity of issuing a scire facias. It may be doubted whether the principle has any application, as respects the matters of lien and leviable capacity, in cases where no levy is made prior to the injunction, and the time limited by law as the lifetime of the execution has expired pending the stay. With the exception of Lynn v. Gridley, Walker's Rep. 550 (which we have been unable to procure) we have examined all the cases cited by defendants in error on this point, and none of them seem to go far enough for the purposes of this case. In Gribbes v. Mitchell, 2 Bay, 120, Overton v. Perkins, Martin & Terger, 36, Lamorere v. Succession of Cox, 32 La. Ann. 249, and in Knox v. Randall, 24 Minn. 497, the lien of the execution had been fixed by-levy on particular property before the injunction issued. And in such case it is undoubtedly the duty of the officer, as soon as the fetters are removed, to advertise and sell, and make the money. In Duckett v. Dalrymple, 1 Rich. (Law) 143, the officer held two writs, and the elder was enjoined, and the property was levied on and sold under the junior writ, but prior to the sale the injunction was dissolved, and it was held the senior execution was entitled to be first paid out of the proceeds of the sale. It does not appear from the statement of the case, whether or not the senior execution had been levied prior to the injunction, or whether or not the dissolution and sale were before the return day of that writ.

Suits in equity frequently continue many years undetermined; and it would be a rule of doubtful propriety to allow an execution, upon which no property has been seized, to be a sort of floating and uncertain lien upon all the goods and chattels of a defendant, for an indefinite space of time; it would be ruinous to the execution debtor, and hazardous to innocent purchasers relying on his apparent ownership; it would hinder and delay other creditors from making their debts, and would hamper and tie up personal property, and greatly interfere with lawful and meritorious commerce and trade.

We are of opinion, however, that this whole matter is settled, in this State, by the provisions of the act of March 22, 1872 (R. S. Chap. 77). The act is entitled “An act in regard to judgments and decrees, and the manner of enforcing the same by execution, and to provide for the redemption of real estate sold under execution or decree.” This statute covers the whole subject-matter indicated by its title, and was intended as a substitute for the then existing law. Section two of the act provides that when the party in whose favor a judgment is rendered is restrained, by injunction, out of chancery, or by appeal, or by the order of a judge or court, or is delayed on account of the death of the defendant, either from issuing execution or selling thereon, the time he is so restrained or delayed shall not be considered as any part of the time mentioned in sections one or six of this act.” Section one is in respect to the lien of judgments on real estate, and section six provides that no execution shall issue upon any judgment after the expiration of seven years from the time the same becomes a lien. But section eight, which provides that executions shall be made returnable ninety, days after the date thereof, is not mentioned or designated in said section two. The rule that the expression of one thing is the exclusion of another, applies. The eighth section of the Injunction Act (R. S. Chap. 69) is to be regarded as in pari materia with the provisions of chapter 77, and it provides, in express terms, that before an injunction shall issue to enjoin a judgment the complainant shall give bond to the plaintiff therein, in double the amount of such judgment, with sufficient surety, approved by the court, judge or master, conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved. This statute is mandatory, and it affords ample security to the judgment creditor for his debt, and as complete a remedy for the injury occasioned by the wrongful procurement of an injunction as the nature of the case will well admit of, and, at the same time, not be productive of complications and evils of great magnitude, by the establishment of any such rule as that the lien and vitality of an unlevied fi-fa. would continue for the long and wholly uncertain time that a chancery suit might be pending, upon all the goods and chattels of the debt- or, however numerous and valuable they might be.

In our view, it was error to admit in evidence, over the objections of the plaintiff, the execution and indorsement showing a levy on goods and chattels made over six months after the date of the execution, as the writ was functus officio when levied. It was also error, under the admitted facts of the case, to instruct the jury that if they believed from the evidence that the property in question was taken by the sheriff under execution against the plaintiff, and sold to satisfy it, then there was no trespass.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Jeff McWilliams v. County of Richland.
    1. Practice — Objection made too late. — Where plaintiff accompanied his claim by affidavit of merit, and defendant did not verify his plea of non-assumpsit by affidavit. Held, that as plaintiff did not move in the court below fur judgment, as in case of default, or to strike the plea from the files, but formally took issue thereon and went to trial, he has waived his rights in that respect, and can not now object.
    2. Deputy sheriff — Suit for services as bailiff. — Plaintiff was duly appointed and served as bailiff of the circuit court. To an action of assumpsit for such services it was objected that he was a deputy sheriff a,t the time. Held, that if the sheriff was personally in attendance on the court, or by a deputy other than plaintiff, and the services in question were rendered by plaintiff in the capacity of a constable or bailiff, he has a right of action against the county.

      3. Allowance by board to shebief — Form of words. — The mero form of words used by the board of supervisors in making the allowance for the sheriff under section ten, article ten, of the constitution, is not deemed essential to its validity.
    4. Compensation op deputy sheriffs. — The matter of the compensation and mode of payment of a deputy sheriff is wholly a matter of contract and arrangement between the sheriff and the deputy. An .instruction that if the jury believe from the evidence that plaintiff was deputy sheriff at the time the services sued for (as bailiff of court) were rendered and contracted with the defendant (the county) to serve for $300 a year as such, and that the services sued for come under the head of the duties of a deputy sheriff, then, etc. Held, erroneous, in being based on a false theory of a contract between plaintiff and defendant, and in submitting a question of law to the jury.
    Appeal from the County Court of Richland county; the Hon. Phinney D. Preston, Judge, presiding.
    Opinion filed April 6, 1885.
    Messrs. Allen & Fritchey, for appellant.
    Mr. R. B. Witcher, for appellee.
   Baker, J.

This was assumpsit by appellant against the county of Richland, for seven days services at $2.50 per day as bailiff, at the November term, 1831, of the Richland Circuit Court. The verdict and judgment were for defendant. A preliminary point is made, that as plaintiff filed with his declaration an affidavit, showing the nature of his demand and the amount due, and defendant filed no affidavit of merits with its plea, the judgment should have been for appellant for the amount claimed.

Plaintiff did not move in the court below for judgment as in case of default, or to strike the plea from the files, but formally took issue thereon and went to trial, and he must be held to have waived his rights in that respect, and can not now object the plea was not verified by affidavit.

It seems to be admitted that appellant was duly appointed and served as bailiff as claimed by him, but it is objected to his right of recovery, that he has, since 1882, been a duly and regularly appointed deputy sheriff of the county, and was such at the time the services sued for were rendered. There was given in evidence an order of the board of supervisors made in 1882, and showing that, on motion, the salary of the deputy sheriff was fixed at $300 per annum for the ensuing term.

The court instructed the jury, that if they believed from the evidence-that the plaintiff was deputy sheriff at the time the services sued for were rendered, and contracted with the defendant to serve for $300 a year as such, and that the services sued for come under the head of the duties of a deputy sheriff, that then they should find for the defendant.

We do not understand the evidence as showing, or tending to show, a contract between the plaintiff and the defendant, to the effect that plaintiff would serve as deputy sheriff for $300 a year, nor do we understand that it is within the power of the board of supervisors to appoint, or make contracts for the services of deputy sheriffs. The sheriff alone is authorized to appoint deputy sheriffs. R. S. Chap. 125, sections 7, 8 and 9. Such deputy may perform any and all of the duties of the sheriff, but they are performed in the name of the sheriff, and his acts are held to be the acts of the sheriff, and the sheriff is personally liable for any wrongful acts, and for any neglect or omission of duty on the part of his deputy. Chap. 125, sections 12 and 13.

The matter of the compensation of the deputy and the mode of its payment, is wholly a matter of contract and arrangement between the sheriff and the deputy; the law has not assumed to regulate it. If the sheriff sees fit to give his entire compensation and allowances, and even more, to the deputy, as a consideration for his services, neither the board of supervisors, nor any one else, has a right to complain. The law nowhere gives the board authority to fix the salary of a deputy sheriff. The tenth section of article ten of the constitution does, however, impose upon the board the duty to fix the “ compensation ” of the sheriff, with the amount of his necessary “ clerk hire, stationery, fuel and other expenses,” and an allowance for deputy hire properly falls within the purview of this provision.

The mere form of words used in making the allowances, is not deemed essential to its validity. In People v. Gregory, 11 Brad well, 370, an allowance of $1,500 to the sheriff “ to pay his deputies,” was held as intended to cover “clerk hire, stationery, fuel and other expenses;” and in Jennings v. Fayette county, 97 Ill. 419, the allowance was $800 per year for “ pay of deputies,” and in that case it was expressly held the county was not liable for such allowance any more than it was for the sheriff’s compensation or salary, and that the only effect of the order was to allow the sheriff to retain, in addition to his compensation, so much as might he necessary for an additional sum of $800 for pay of deputies, if fees sufficient were collected.

The only item of the order of the board made in 1882 that is in evidence in this case, is the item we have mentioned, and which states that the salary of the deputy sheriff was fixed at $300 per annum. But, as we have seen, the board had no power to fix the deputy’s salary. However, we must disregard the mere form of words, and hold this order was, in substance, an allowance to the sheriff of $300 a year toward paying his deputies, should the expenditure of as much as that become necessary, to be paid, however, only out of fees collected. The order was in no sense a contract, or the basis of a contract, between the county and whoever might he appointed deputy by the sheriff thereafter to be elected.

The sheriff takes his office cum onere-; he is bound to perform its duties either in person or by deputy; is responsible for both malfeasance and nonfeasance in such performance; not only his compensation, but the expenses of his office for deputy hire, clerk hire, stationery, fuel or otherwise, are payable only out of fees collected, and even out of such fees only to the extent fixed by the county board; and he is onlj allowed to charge fees to the amount and in cases allowed by law.

The nineteenth section of the Sheriffs Act, R. S., Chap. 125, provides, in express terms, that each sheriff shall, in person or by deputy, attend upon all courts of record held in his county when in session, and obey the lawful orders and directions of the court. This duty, thus imposed upon him by the statute, may he well performed, either by his personal attendance or that of his deputy, and such attendance of the deputy would, in law, be held to be the attendance of the sheriff. The sheriff would be bound to so attend the court, even though no fees or compensation were allowed him therefor; but, all that the statute requires of him in that behalf is, that either he himself be personally present, or that he be present by deputy— one deputy; it docs not impose upon him the burden of attendance both in person and by deputy, or of attendance by two or more deputies, and of paying such additional deputy or deputies either out of his personal compensation or private means, or out of the sum fixed by the board for the expenses of his office. The Fees and Salaries Act, section 19, does, however, grant him, for attending circuit court, either in person or by deputy, a fee of three dollars per day, to be allowed and paid out of the county treasury; such fee, of course, to be reported and accounted for in his semi-annual reports.

It is plain, that the business and the practice of the circuit court is such, that it would be wholly impracticable such court could properly perform the functions imposed upon it, with but a single sheriff or deputy in attendance, and without constables or bailiffs to assist. In very early times there were bailiffs to attend the judges and justices at the assizes and quarter sessions. 1 Blackstone, 345. To meet a like necessity, a like custom and practice has always prevailed in this State. The power of the circuit court to appoint bailiffs to serve at the term, is fully recognized in the case of McCann v. The People, 88 Ill. 103; and it is provided in section 5, chapter 16, P. S., that no bailiff shall be permitted to be special bail; and it is the plain intendment of section 41 of chapter 53, that constables may be required to attend on the circuit court; and their per diem therefor is fixed, and is provided to be paid out of the county treasury.

lYe think the question of the liability of the county to the plaintiff in this action depends altogether upon the capacity in which he performed the services for which the suit is brought. As matter of course, whether the services rendered were in the capacity of deputy sheriff, or in that of constable or bailiff, they would be of like character; the duty, in either event, would be to attend upon the court as an executive officer and obey its lawful orders and directions, in furtherance of the transaction of business coming before it for disposition. If plaintiff was present in the capacity of deputy sheriff, and in conformity with the requirement of the statute that the sheriff in person, or by deputy, should be in attendance, then his attendance was to all intents and purposes the attendance of the sheriff, and he has no right of recovery in this suit. In such case, the sheriff would be entitled to a fee of $3 for each day of such attendance; and the deputy would have to look to his principal for compensation, while that principal would have to account in his reports for the fees so collected, and whatever he might pay the deputy in that behalf would necessarily be a component part of the $300 allowed by the board for deputy hire; and it would also follow, that if the amounts so paid by the sheriff'for such attendance, resulted in bringing up the amount expended by him for deputy hire, to a sum greater than that allowed by the order of the board, then the excess would be the loss of the sheriff. If, however, the sheriff was personally in attendance on the court, or by a deputy other than plaintiff, and the services in question were rendered by the plaintiff in the capacity of a constable or bailiff, then, and even though he was a regularly appointed deputy sheriff, lie has a right of action against the county. The substance of the whole matter is this: that as respects attendance on the circuit court, the only burden or charge imposed on the sheriff by the statute, is his attendance in person, or by one deputy; and to that extent, a.nd to that extent only, did, or could attendance on the court enter into consideration as an element, when the county board fixed the compensation of the sheriff, and his allowances for deputy hire and other expenses. The instruction of the court was erroneous; it was based on the false theory of a contract for services as deputy sheriff between plain tiff and the county, and it also submitted a question of law to the jury.

The judgment is reversed and the cause remanded.

Eeverscd and remanded.


text:
    Almus G. Damron et al. v. Sweetser, Caldwell & Co.
    1. Practice’Act — Construction of statute. — The court is of opinion that the true intent and meaning of section 2 of the Practice Act is that one or any number of defendants may he sued, either in the county where he or they reside, or where he or they may be found.
    2. Pleading — Non-joinder of co-defendant. — In an action ex coir tractu, the non-joinder of a co-defendant can he taken advantage of only by a plea of abatement. But where it appears on the face of the record that another joint obligor has not been joined, advantage may be taken of it, either by motion in arrest of judgment, or on error.
    3. Parties. — Where it was claimed as an exception to the general rule, that if one of several co-contractors is resident out of the jurisdiction, all, or any of them may be sued, and the person or persons sued can not object to the non-joinder of their co-contractors. Held, that the expression, “resident out of the jurisdiction,” contemplates the case of one who is resident in a sovereignty other than the sovereignty in which the tribunal implicated is located, and has power; and therefore, if the claimed exception were good, it does not apply in this case.
    4. Measure of damages — Attachment bond. — The measure of damages to be recovered on the attachment bond is the actual expenses and loss resulting from the attachment, including counsel fees for professional services rendered in relation to the attachment, but not for attorney’s fees paid in defense of the principal suit.
    5. Same — Personal services. — The traveling expenses and hotel bills of appellee, incurred by him in coining to the trial, were proper to he considered in the assessment of damages for the wrongful suing out of the attachment; as to the matter of his personal services, it must be shown by the evidence that the loss of such services was an injury or detriment to the business of the firm.
    6. Witnesses — Hotel bills, etc. — Where there was no evidence in the record to show that the personal presence of appellees’ witnesses was necessary, it was error to allow their traveling expenses and hotel bills in the assessment of damages.
    Appeal from the County Court of Saline county; the Hon. Boen Phillips, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. John M. Lansden, for appellants;
    that where there is more than one defendant the suit must be commenced in a county in which some one resides, cited R. S., Practice Act, § 2; Hamilton v. Dewey, 22 Ill. 490; Semple v. Anderson, 4 Gilm. 546; Haddock v. Waterman, 11 Ill. 474; Linten v. Anglin, 12 Ill. 384.
    As to damages on discharge of attachment: Patton v. Garrett, 37 Ark. 605; Hughes v. Brooks, 36 Tex. 379; Alexander v. Jacoby, 23 Ohio, 358; Bolling v. Tate, 63 Ala. 417; Transit Co. v. McCerren, 13 La. Ann. 214; Penny v. Taylor, 5 La. Ann. 714; Norton v. Cammacki, 10 La. Ann. 10; Waples on Attachment and Garnishment, 447; Johnson v. Partners Bk. 4 Bush (Ky.), 283.
    Messrs. Gregg & Parish, for appellees;
    as to damages, cited Drake on Attachment, 4th Ed. § 173; Bliss v. Heasty, 61 Ill. 338; Churchill v. Abraham, 22 Ill. 461; Burnap v. Wight, 14 Ill. 302.
    As to pleading non-joinder of co-defendants: Dicey on Parties to Actions, 249-250.
   Baker, J.

On the second day of March, 1883, Charles O. Patier sued out, before a justice of the peace, in Johnson county, a writ of attachment against Sweetser, Caldwell & Co.? appellees herein, who ivere residents of Evansville, Indiana. The writ, which was for $200, was not levied upon any property, but was served upon certain debtors of appellees as garnishees. The judgment of the justice was against Patier, who thereupon appealed to the Johnson Circuit Court, where the case was tried de novo and with a like result.

The suit for now decision, was begun by appellees in the County Court ofSalinecounty, upon the attachment bond given at the time the above mentioned attachment writ was issued. Patier was the principal, and appellants Almus G. Damron and Matthew Leftcovitch were securities on the bond; and they were all three made defendants in this suit. There was service upon Damron and Leftcovitch in Saline county, and service was had upon Patier on a writ issued to Alexander county. Pleas in abatement of the writs or to the jurisdiction of the court, were filed by each one of the defendants, respectively. These pleas stated the facts of service upon Damron and Leftcovitch in Saline county, and upon Patier in Alexander county, and further alleged Patier and Leftcovitch were residents of Alexander county, and Damron was a resident of Johnson county. Thereupon appellees dismissed their suit as to Patier, and demurred to the pleas of Leftcovitch and Damron, respectively, and such demurrers were sustained by the court. Appellants then pleaded to the merits of the cause. A trial resulted in a judgment in favor of appellees and auainst appellants, for $400 debt and $140.85 damages and costs.

The action of the court in sustaining demurrers to the pleas in abatement of Damron and Leftcovitch is assigned as error. The second section of the Practice Act provides that it shall not be lawful for any plaintiff to sue any defendant, out of the county where the latter resides or may be found, except in local actions, and except that in every species of personal actions in law, when there is more than one defendant, plaintiff commencing his action where either of them resides, may have his writ or writs issued, directed to any county or counties where the other defendants, or either of them, may be found. It is urged, that while this statute permits a sole defendant to be sued either in the county where he resides or in any county in which he maybe found, yet that where there is more than one defendant the suit must be commenced in a county in which some one of them resides; and that liad all three of the original defendants been found in Saline county, suit could not rightly have been commenced against them there, as no one of them resides in that county. We do not so understand the statute. One or any number of defendants, may be sued either in the county where he or they reside, or where he or they may be found. A statute must be interpreted according to its intent and meaning, and not always according to the letter. The first section of chapter 131 E. S., in express terms provides, that in the construction of the statutes, all general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the legislature may be fully carried out, and that words importing the singular number may extend and be applied to several persons or things. It would be absurd to hold, that when there are two or more defendants and both or all of them are found in a county where neither of them resides, then either one of them may be sued there, but not both or all. The residence of one or more of the defendants in the county where the suit is prosecuted, is only essential when process is to be sent to another county. In this case, the plea in abatement of Patier was a good plea, and it was admitted to be such by the dismissal of the suit as to him. The demurrers to the pleas in abatement of Damron and of Leftcoviteh were properly sustained, as they were served with process in the county where the suit waspending.

But, it is further urged, the attachment bond is a joint and several contract; that the action should be against all three or some one of the obligors; and that the motion in arrest of judgment should have been sustained. We take it, that upon the dismissal as to Patier, the action-stood upon the same footing it would have occupied had he not been made a party defendant in the first instance; and th t appellants might then have interposed a plea of non-joinder This was not done, and the general rule is that in an action ex contractu the non-joinder of a co-defendant can be taken advantage of only by a plea in abatement. But, in this case, the fact ap-. pears on the face of the declaration that Patier, as well as appellants, executed the bond, and that it isa joint and several bond. The rule is, that if such defect appears on the record; it maybe availed of by motion in arrest of judgment or on error. 1 Chitty, Pl., 43 and 46. The case of Cummings v. The People, 50 Ill. 132, is directly in point, and in that case the court say: “Plaintiffs, by their own showing, inform the court there is another joint obligor, who has not been joined in the action; it was patent of record, and no plea was necessary to bring the fact before the court.”

Appellees, however, suggest there are exceptions to the general rule that a defendant can plead the non-joinder of a co-defendant in abatement, and claim that one of these exceptions is where a co-contractor is resident out of the jurisdiction. They claim Dicey on Parties, 249, 250, as authority for saying, that if one of several co-contractors is resident out of the jurisdiction, all or any of them may be sued, and the person or persons sued can not object to the non-joinder of their co-contractor; and further claim, that when the three pleas in abatement were filed, they showed on the record Patier was resident out of the jurisdiction, and that when he was dismissed from the suit the action properly proceeded against the other two. If, without examination as to its correctness, we admit the exception suggested as good law, yet it would seem to have no application in the case at bar. Jurisdiction, as intended by said exception, signifies the territorial limit within which power may be exercised. The tribunal in question, is the County Conrb of Saline county, and the residence of Patier is Alexander county, and both counties are but legal subdivisions of the sovereign State of Illinois. The process of said court can, in all proper cases, be issued to Alexander county, and have the same vitality and authority there, that it has in the county of Saline; a subpoena for a witness can thus be issued, or an execution on final judgment, or an attachment for contempt, or a capias for a defendant to an indictment or information, or a summons ora writ of attachment in a civil action, when such circumstances exist as by the law of the common sovereignty call upon the court to exercise the power and jurisdiction involved in the particular act to be done. We think the expression “resident out of the jurisdiction ” as used in the statement of the claimed exception, contemplates the case of one who is resident in a sovereignty other than the sovereignty in which the tribunal implicated is located and has power.

The case, then, is not within the supposed exception to the general rule, and as it is patent upon the record the bond is joint and several, and the suit not against one obligor or all the obligors, but against an intermediate member, it follows, the court erred in overruling the motion in arrest of judgment.

The question which mainly constitutes the matter of difference between the parties, is as to the measure of damages in suit upon an attachment bond. The condition of the bond was to prosecute the suit with effect, or in case of failure' therein, to pay and satisfy such costs and such damages as appellees may sustain by reason of wrongfully suing out the attachment. The affidavit for attachment stated two facts: that appellees were indebted to Patier, and that they were nonresidents of the State of Illinois. The truth of both these statements was essential in order to make the attachment rightful. Appellees admitted the fact of non-residence, but traversed the fact of indebtedness, and succeeded upon that issue in defeating both the suit and the attachment. In the case of Bliss et al. v. Heasty et al., 61 Ill. 338, the Supreme Court, in speaking of an attachment, say: “ If nothing is due, plaintiff, undeniably, has wrongfully sued out the writ.” See Drake on Attachment, section 173, to same effect. It follows then, from the result of Patier’s suit, that his attachment was wrongfully sued out, and that there was a breach of the condition of the bond in that respect.

The Supreme Court of Indiana, in Wilson v. Boot, 43 Ind. 486, held that when the action and the attachment have both been defeated, there having been no foundation for the action and consequently no right to sue out the attachment, there can be no distinction made between services rendered in the defense of the action and those rendered in defense of the attachment; and that the reasonable attorneys’ fees of the defendant in the action in which the attachment was issued, for defending both the action and attachment, may be included in the damages allowed in a suit on the bond. Tiie conclusion of the Supreme Court of Arkansas, in Patton v. Garrett, 37 Ark. 605, was directly to the contrary, and to the effect no attorneys’ fees can be included in the assessment of damages. In Heath v. Lent, 1 Cal. 410, alike result was reached. The great weight of authority, however, seems to be in favor of a rule intermediate those announced in the cases above cited, and to the effect the measure of damages to be recovered on the attachment bond is the actual expenses and loss resulting from the levy of the attachment, including counsel fees for professional services rendered in relation to the attachment, but not for attorneys5 fees paid in defense of the principal suit. Transit Co. v. McCurren, La. Ann. 214; Phelps v. Coggshall, Ibid. 440; Johnson v. Farmers Bank, 4 Bush, 283; Tropnall v. McAfee, 3 Met. 34; Alexander v. Jacoby, 23 Ohio St. 358; Campbell v. Chamberlain, 10 Iowa, 337; Vorse v. Phillips, 37 Iowa, 428; Hughes v. Brooks, 36 Texas, 379. This rule, also, is in analogy with the rule as held in this State with reference to damages upon injunction bonds. In numerous actions on such bonds our courts have distinguished between the costs and expenses incurred in procuring a dissolution, and those incurred in defending against the chancery suit itself. It is urged, however, by appellees, that they were and are non-residents of the State, and consequently no personal service was or could he had on them; that the attachment proceedings afforded the only way of obtaining jurisdiction, and that but for the attachment writ which was wrongfully sued out, no occasion for employing counsel would have arisen, and no loss or expenses would have been occasioned. It may be answered, that Patier claimed, and believed he had, a valid and just demand against appellees, and non constat but that he would have brought suit against them in Evansville, Indiana, where they resided; the payment of attorneys’ fees would have been necessary in any event, as he had the legal right, if done in good faith, to test the question of the validity of his claim against them, and there can be no presumption the charges for service rendered in Johnson county were greater than they would have been for services rendered at Evansville. The whole controversy was as to the indebtedness alone; and the evidence does not show the expenses for professional services were increased by reason of the service on the garnishees, or by reason of the locality in which the litigation was had. Our conclusion is, the attorneys’ fees paid by appellees were not a proper element, under the circumstances of the case, to be considered in the assessments of damages on the bond.

F. D. Caldwell, one of the appellees, made a trip from Evansville to Hew Burnsides to attend the trial before the justice of the place, and afterward made three trips to Vienna for alike purpose. It is fair to presume his personal attendance was necessary, and probably appellants would be estopped from claiming it was not. On each of these trips he was detained a number of days, and paid various sums for railroad fares and hotel bills; and his services during these times were lost to appellees in the transaction of the firm business in Evansville. It would seem these several items would be proper to be considered in the assessment of damages for the wrongful suing out of the attachment, with the qualification, as to the matter of the personal services of Caldwell, that it should be shown by the evidence the loss of such services was an injury or detriment to the business of the firm.

It also appears that Sontag and Brentano, residents of Evansville, were witnesses for appellees, and in attendance, as such, at the several trials. They made claim to the witness fees fixed by law, and the same have been paid by Patier. Besides this, their depositions might have been taken. The evidence shows that appellees paid said witnesses (in addition to the fees allowed by, law) their hotel bills and traveling expenses, in order to secure their personal attendance at the trials. There is no testimony in the record to show the personal presence of said witnesses was necessary; and in its absence the amounts so paid were improperly allowed in the assessment of damages.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Bailey, J.

text:
    The People, etc., v. Michael W. Ryan.
    Jurisdiction. — As the object of the petition filed in this case is to compel the conveyance of certain lands to the relator in fee a freehold is involved, and this court has no jurisdiction of the appeal.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Opinion filed April 8, 1885.
    Messrs. Abbott, Oliver & Showalter, for appellant.
   Bailey, J.

This was a petition filed by Philiskey E. Stanley against Michael W. By an, county clerk of Cook county, praying for a writ of mandamus commanding the defendant to execute and deliver to the relator a deed conveying to him certain lots of lands, in Cook county, heretofore purchased by the relator at a sale of lands for taxes. The defendant appeared and filed a plea to which the relator demurred. Said demurrer having been overruled and the relator having elected to abide by the same, judgment was rendered dismissing the petition at the relator’s costs, and from that judgment lie has appealed to this court.

The object of the petition being to compel the conveyance of certain lands to the relator in fee, it is clear that the case involves a freehold, and this court therefore, under the present statute, has no jurisdiction of the appeal. B. S., Chap. 110, § 89.

The appeal will be dismissed at the costs of the relator.

Appeal dismissed.


author: McAllister, J.

text:
    Emma A. Sharp v. William Sharp.
    Divorce — Extreme and repeated cruelty. — In a bill for divorce under our statute, if the evidence shall be considered as fairly showing at least two acts of physical violence committed upon the wife by the husband, and those acts, viewed in the light of attending circumstances, are sufficient to actually or apparently endanger her physical safety or health, to a degree which renders it impracticable for the wife to discharge properly her marital duties, she is entitled to a decree. The court is of opinion that the evidence makes out a case of extreme and repeated cruelty.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed April 8, 1885.
    Messrs. Holden & Farson, for appellant;
    that there may he desertion without absence, cited Stein v. Stein, 5 Col. 55; Rie v. Rie, 34 Ark. 37; Yeatman v. Yeatman, L. R. 1 P. & D. 489; Fellows v. Fellows, 31 Me. 342; McDermot’s Appeal, 8 W. & S. 251; McGahay v. Williams, 12 Johns. 293; Hanberry v. Hanberry, 29 Ala. 719.
    As to cruelty: Farnham v. Farnham, 73 Ill. 497; Ward v. Ward, 103 Ill. 483; Poor v. Poor, 8 N. H. 307.
    Messrs. Abbott, Oliver & Showalter, for appellee;
    that the acts in question do not constitute the extreme and repeated cruelty known to our law, cited Vignos v. Vignos, 15 Ill. 186; Turbitt v. Turbitt, 21 Ill. 438; Carter v. Carter, 62 Ill. 446; Embree v. Embree, 53 Ill. 395; Henderson v. Henderson, 88 Ill. 248.
    As to consent to desertion: Gray v. Gray, 15 Ala. 779; Gillinwaters v. Gillinwaters, 28 Mo. 60; Cornish v. Cornish; 23 N. J. Eq. 208; Meldowney v. Meldowney, 27 N. J. Eq. 328
   McAllister, J.

This was a bill by Emma A. Sharp against William Sharp for a divorce, upon the grounds of desertion and extreme and repeated cruelty. There was a hearing upon pleadings and proofs, but the court below dismissed the bill for want of equity, and complainant appealed to this court.

From our examination of the record which contains all the evidence, we are of opinion that much the strongest tendency of the evidence is toward sustaining the charge of cruelty. So we shall confíne ourselves to a consideration of the question. Was a case of extreme and repeated cruelty made out by the evidence?

A very learned and philosophical author lias given an affirmative definition of legal cruelty thus: “ Cruelty, therefore, is such conduct in one of the married parties as endangers, either apparently or in fact, the physical safety or health of the other to a degree rendering it physically or mentally impracticable for the endangered party to discharge properly the duties imposed by the marriage.” Bishop on Marriage and Divorce, 5th Ed., § 717.

While this definition properly embraces some of the necessary elements of a case, and may be considered as an accurate condensation of the principles of the most leading cases as to the general doctrines of legal cruelty, yet it is not a sufficient definition of extreme and repeated cruelty, as our Supreme Court has construed those words in the statute of this State. By that construction, one instance of physical violence by one party, no matter how wanton or serious, and though attended with such circumstances of .malignity and aggravation as to create the nqost reasonable apprehension of further bodily harm to the other, and therefore to render it physically or mentally impracticable on the part of such endangered party to properly discharge the duties imposed by the marriage, yet if such single instance fall short of a malicious intent to take the life of the victim, the case, while it would be within the definition of Bishop, would not come up to the requirements of our statute, under the construction which the Supreme Court has felt constrained to give it on account of the words, “ and repeated” which the legislature saw fit to use in defining that particular cause for divorce. But the court has given it, in a majority of the cases, as humane and liberal construction as the language of the statute would admit of. Thus, in Harman v. Harman, 16 Ill. 90, Mr. Justice Skinner, who, upon questions involving the construction of statutes, was one of the most learned and able of judges, construed it in this language: “There must be acts or threats which raise a reasonable apprehension of bodily hurt; the causes must be grave and weighty, and show a state of personal danger incompatible with the duties of married life.”

In Farnham v. Farnham, 73 Ill. 497, the court, by Mr. Justice Scott, says: “Two distinct acts of physical violence to the person of appellee are clearly proven. It is shown by testimony every way worthy of belief, outside that of appellee, that appellant, on two occasions, struck his wife in anger. This would constitute, under our statute, technical cause for divorce. Ho great physical injury was inflicted upon appellee on either occasion; but the jury could very properly consider the abusive language, which the evidence shows he applied to her, not only in their private room, but in the presence of strangers, as characterizing these acts of physical cruelty, and as giving to them a poignancj they would not otherwise have. It was proven he addressed to her in the coarsest terms, language that implied a want of chastity.”

In the course of the opinion in Henderson v. Henderson, 88 Ill. 250, Mr. Justice Walker says, “This court., as well as all other courts acting under similar statutes, has held that it must be bodily harm, in contradiction to mere harsh or even opprobrious language or mere mental suffering; that the cruelty must be grave and endanger life or limb, or at any rate, subject the person to danger of great bodily harm, and this is the rule of the English ecclesiastical court. Evans v. Evans, 1 Hagg. C. R. 35. This is referred to as the leading case in that court.” Upon a careful examination of the opinion of Sir William Scott in Evans v. Evans, we fail to find the rule as to legal cruelty laid down in such a restricted sense. On the contrary, in Lockwood v. Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 114, Dr. Lushington stated that the doctrine laid down in Evans v. Evans, was, “ that there be either actual violence committed attended with danger to life, limb or health, or there must be a reasonable apprehension of such violence.”

In Ward v. Ward, 103 Ill. 477, the opinion of the court was by Mr. Justice Scholfield; and it is significant that he quoted with approval the above statement from Harman v. Harman and Farnham v. Farnham, but makes no mention of Henderson v. Henderson, supra,, in which a rule is announced which is incompatible with the doctrine of the other cases. We think, therefore, from those circumstances, and upon principle, that the restricted rule of Henderson v. Henderson should not govern this case.

We are then brought to the conclusion that if the evidence in this case shall be considered as fairly showing at least two of the acts of physical violence charged in the bill of Mrs. Sharp to have been committed upon her by her husband, and if those acts, viewed in the light of attending circumstances, were sufficient to actually or apparently endanger her physical safety or health, to a degree which rendered it impracticable for her to discharge properly her marital duties, then she was entitled to a decree, and it was error to refuse it; a serious error, too, because a divorce for such a cause has its foundation in nature, by invoking the great law of self-preservation, which is higher than any obligations imposed by the marriage.

We have carefully examined this record, and are of opinion that Mrs. Sharp has made out a strong case for divorce. They were married in October, 1859. He is a trunk maker by trade, and an able bodied man. She was, and is, aslendei, delicate woman, in very bad health. The' inference is irresistible, that he began a course of ill-usage toward her not many months after the marriage. About six months thereafter she was very sick with spinal difficulty, accompanied with weak eyes, so that she had to be in a darkened room. She was helpless and had no help provided. For weeks he would each morning put some bread and water on a chair, and thus leave her alone the rest of the day. After some three weeks, a young, inexperienced girl was employed to take care of her. The girl, by mistake, gave Mrs. Sharp an overdose of medicine. This seriously affected her, and she thought she was dying. Mr. Sharp was there, and he evidently thought so too; but her repeated requests to him to get a physician were disregarded by him. At another time she was painfully affected with neuralgia; a lady friend had told her the extract of lettuce was good for it. Getting a bottle, she handed it to him, requesting him to go to a drug store and get the extract. Pretending to comply, he took the bottle and went out as if going to the drug store; but instead, he found a wash tub with dirty water in it and some fish for ’'he cat. From that he filled the bottle, probably putting some coloring to it of something else, and took it to her for the extract of lettuce, and actually permitted her to take it, under the belief that it was what she had sent for, and then to harass her he tantalized her with the declaration that what she had been taking was made of nastiness, to which he gave a name, but which name it is needless to repeat. ITe fully admitted this outrage in his evidence, seeming to think the court and others would regard it as a capital joke upon that poor, sick woman. To our minds, it is a pretty good key to the malicious cast of his secret disposition toward his wife, and the danger to which she was subject; and it appears that in connection with the fact that he repeatedly saw her use that vile compound, he said it would be a good job when she was dead. In the fall of 1866, they being together about a mile from where they lived, here in the city, about half-past ten at night, he wanted her to get into a street car and go home alone. She being weakly, nervous and timid, insisted that he should go along. He refused, got angry, declared he would live with her no longer, and in this mood went away and left her alone in the street. One night in 1872, as she was about preparing to go to bed, without any just or reasonable provocation to any violence on his part, he forcibly pushed her out of the door of their house5 shut the door behind her, then re-opened while she was pleading for re-admission to the house, threw her bonnet after her and bade her go away. Under this seeming disgrace of having been turned out doors by her h usband, she was compelled to go alone at that hour, to the house of an acquaintance to find shelter.

In 1874, the upstairs part of Sharp’s house was rented to a family of the name of Jennings. Mrs. Sharp had a sister who was married to a man of the name of Bemis; this sister was in ill health, and Bemis wished to consult with Mrs. Sharp concerning her. He came to the house one evening, Mr. Sharp being at home below, and on account of Sharp forbidding his wife the privilege of having company, B. went into the part of the house occupied by the Jennings family. Mrs. Sharp was invited up and came. She was in conversation with Bemis about his wife, when pretty soon Sharp came up in a great rage, forcibly took hold of Bemis to put him out; but on the latter telling him he would go out, Sharp then violently seizing hold of his wife and starting her in the direction of the stairway that led down to his part of the house, there in the presence of Bemis and several of the Jennings family, gave her two kicks, bustled her downstairs, threatening her life as she went. This act, with what he said to her when down stairs, are sufficient to show the danger to which this poor, sickly, submissive, inoffensive woman was subject while under the power of a husband whose only feelings toward her were those of hate, which had prompted him to acts of personal violence, and which were likely to urge him to further and more serious ones. They had no children. It was against his wishes for her to have any company and she submitted. For two years and five months before she finally left him, which was in March, 1883, it was an iron rule with him, although dwelling in the same house, not to speak to her or occupy the same bed with her. Ho rule was ever better observed. We have not space to detail all the circumstances of aggravation. Though able to supply her, "lie denied her reasonable clothing, and sometimes even food. He so limited her in the use of fuel during the cold winters, that she actually suffered with the cold. He would complacently take the bed nearest the stove and compel her to sleep on a lounge; and when the weather was extremely cold, he would get up and shut the door to her room in order to secure more warmth in his. As was said by the great Sir William Scott: Undoubtedly justice is the first virtue of a court. Ihomanity is the second. But we are constrained to say that both justice and humanity are on the side of this most unfortunate woman. The decree of the court below will be reversed and the cause remanded with directions to the court below to enter a decree on behalf of Mrs. Sharp for a divorce.

Decree reversed.


author: Wilson, P. J.

text:
    Eliza McGinnis v. John Berven.

      1. Instructions. — Where appellee, a boarder in a flat, was injured by the fall of the back porch and claimed that the porch was in a dangerous and unsafe condition at the time of leasing, and the landlord, appellant, claimed that the porch fell by reason of its being overloaded by the tenant. Held, that the instruction given in this case was erroneous in not specifically directing the attention of the jury to the consideration of the nature of the use in respect to which the porch was claimed to be unsafe.
    2. Damages, instruction upon. — The third instruction was erroneous in riot confining the plaintiff’s right of recovery to his necessary losses and expenses, and in telling the jury that the plaintiff was entitled to recover for any injuries he had sustained, leaving the jury to include any elements of damage they might think proper.

    3. Same. — Where the jury are instructed that they may assess such damages as the plaintiff is legally entitled to recover without being instructed as to what constitutes legal damages, it is erroneous.

      Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed April 8, 1885.
    Mr. Rufus King, for appellant;
    as to damages, cited 1 Sutherland on Damages, 766; Baldwin v. West. R. R. Co., 4 Gray, 333; Squier v. Gould, 14 Wend. 159; Tomlinson v. Derby, 43 Conn. 562; Taylor v. Monroe, 43 Conn. 36; C. W. D. Ry. Co. v. Klauber, 9 Bradwell, 613: City of Chicago v. Brennan, 65 Ill. 160.
    Messrs. Swett, Haskell & Grosscup, for appellee;
    that a verdict manifestly right will not be set aside because of slight errors in instructions, cited Taylor v. Danville, O. & O. R. R. Co., 10 Bradwell, 311; Clark v. Day, 93 Ill. 480; Mass. Mut. L. Ins. Co. v. Robinson, 98 Ill. 324; Needham v. People, 98 Ill. 275.
   Wilson, P. J.

This was an action on the ease, brought by appellee against appellant, to recover damages for personal injuries. Appellant was the owner of a three-story brick building at the corner of West Indiana and Carpenter streets, in the city of Chicago, the two upper stories of which were arranged in flats for family residences. Appellant leased the upper flat to one Holm for a boarding house, and appellee was a boarder with her at the time of the accident which caused the injury.

Across the rear of the building was a porch for the use of the kitchen, the approach to which was by a separate stairway, the front rooms being reached by inside stairs near the other end of the building. Appellee, with six or seven others, was on the porch when it suddenly gave way and fell, throwing appellee to the ground below, and causing the injury complained of. It was claimed by appellee, on the trial, that the porch was in a dangerous and unsafe condition at the time of the leasing, by reason of its insufficient construction and subsequent decay. On the part of appellant, it was claimed that the porch fell by reason of being overloaded with a large box of ashes and other heavy substances, in addition to the persons upon it. There was evidence tending to support both these theories. The testimony of the witnesses was strongly conflicting, and the merits of the case doubtful. The jury found for the plaintiff, with damages in the sum of $2,500, and the defendant appealed to this court.

On the part of the plaintiff the court instructed the jury that if they believed from the evidence that at the time the premises were leased “ the porch was in a rotten, dangerous and unsafe condition, and that the defendant knew it, or by the use of ordinary care might have known it, * * * and that the plaintiff, without negligence on his part, was properly sitting upon said porch, as a boarder in said house, and on account of the rotten, dangerous and unsafe condition of the porch” it fell and the plaintiff was injured thereby, he was entitled to recover. The language of the plaintiff’s second instruction was substantially the same in that respect.

As the jury would have been justified, under the evidence, in finding that the porch was intended to be used for the convenience and accommodation of the kitchen, as a place for keeping the usual kitchen utensils, or for bringing up wood, coal or other needed household supplies, and not as a place of storage for heavy and ponderous articles, which might jeopardize its safety, the plaintiff’s first two instructions should have embraced as a part of their hypotheses that the porch was dangerous and unsafe for the purposes for which it was intended, since for such purposes it might have been safe, though unsafe if subjected to the weight of heavier burdens, which it was not built to sustain. The porch was constructed wholly of wood, with light timbers, and was inadequate to the bearing of a great weight; and this was known to the tenant at the time of the leasing. Proof was given tending to show that a large box of ashes, weighing about a ton, was standing on the porch at the time it fell, and which the jury might have believed largely contributed to, or was the cause of the disaster. If they found such to be the fact, the accident resulted from the fault of the tenant, and for this the defendant was not liable. It thus became important that the attention of the jury should have been specifically directed, in the instruction, to consider the nature of the use in respect to which the porch was claimed to be unsafe. By the omission to do so, the jury were liable to overlook one of the most material aspects of the case, and to thereby go astray.

The plaintiff’s third instruction was as follows:

“Thejury are further instructed that, if from the evidence and under the instructions of the court, they find the issues for the plaintiff, and that he has sustained damages, then the jury, in determining the amount of damages they will award, have the right to take into consideration the evidence as to the loss of time of the plaintiff in endeavoring to be cured, his expenses incurred in respect thereto, if any such loss or expenses have been proved, and also the pain and suffering he endured, and any injury he has sustained, if any such has been proved, and award such damages therefor as from all the evidence in the case they think he is fairly and legally entitled to.

This instruction is faulty, we think, in several respects. It does not confine the plaintiff’s right of recovery to his necessary losses and expenses, but authorizes a recovery for all his losses and expenses, whether necessary or otherwise. The claim in his declaration is for necessary losses and expenses, but whether claimed or not he could only recover for such as were reasonably necessary. Moreover the jury were told that the plaintiff was entitled to recover for any injuries he had sustained, leaving the jury to include any elements of damage they might think proper. It also submits a question of law to the decision of the jury in telling them they may assess such damages as the plaintiff is legally entitled to recover, without instructing them as to .what constitutes legal damages. The jury are thus left to embark on a sea of speculation, without chart or compass to guide them. Boris this instruction cured by any other given in the case.

As the case is to be sent back for another trial, we forbear the expression of any opinion, upon the merits.

Various other grounds for reversal have been urged, which it is unnecessary to pass upon, but for the reasons above indicated, the judgmen t below is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Henry M. Levy v. Alice Levy.
    1. Proof of offense. — The court is of opinion that the evidence in this case of the commission by defendant, since her marriage, of the off nse charged, is sufficient to establish her guilt.
    2. Marriage with immodest woman— Divoroe. — If a man knowingly marry a prostitute upon her promise of reformation, and she commit adultery after the marriage, the husband is entitled to a divorce.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed April 8, 1885.
    Mr. B. M. Shaffner, for appellant;
    cited 1 Bishop on Marriage and Divorce, 179; Baylis v. Baylis, 1 Law Rep. Probate and Divorce.
    As to proof of the offense: 2 Bishop on Marriage and Divorce, 626; Stewart on Marriage and Divorce, § 246; Astley v. Astley, 1 Hag. Ec. 720; Williams v. Williams, 1 Hogg. R. 303.
   Wilson, P. J.

This was a bill in chancery, brought by the appellant against the appellee for a divorce, on the ground of adultery. The defendant’s default having been entered, the bill was taken pro oonfesso, and upon an ex parte hearing the bill was dismissed at the costs of the complainant for want of equity.

We have carefully considered the evidence tending to prove the commission by the defendant of the offense charged in the bill, since her marriage with the complainant, and without referring to it in detail, we need only say, that, though mainly circumstantial, it is, in our opinion, sufficient to establish the defendant’s guilt.

It appears from the bill of exceptions that, previous to the marriage of the parties, the defendant, to the knowledge of the complainant, was a person of unchaste habits, and that the complainant himself had cohabited with her prior to the marriage, knowing her at tiie time to be a prostitute, but that he subsequently married her upon her promise to reform. Within a few days after the marriage he discovered that she was unfaithful to her marital obligations, and had committed adultery as charged in the bill.

The court below seems to have entertained the view that having knowingly married an immodest woman, though upon her promise of reformation, the husband can not complain if she be guilty of adultery after the marriage. In this view we are unable to concur. The statute makes the commission of adultery by either party subsequent to the marriage cause for divorce. Ho exception or reservation is made in favor of or against any particular class of persons. It provides, “ that in every case in which a marriage has been, or may hereafter be contracted and solemnized between any two persons, and it shall be adjudged that either party * '* * has committed adultery subsequently to the marriage * * * it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract.” The language is of general application, and is not to be limited or extended beyond what its terms plainly import. Two years’ habitual drunkenness is also made a statutory cause for divorce, but we think it would hardly be contended that if a woman were to marry an habitual drunkard upon his promise to reform she would be thereby estopped from ever complaining, however much he might offend in that respect subsequently to the marriage. Ho difference in principle is perceived between such a case and the one in hand.

Aside from the promise of the defendant to reform, the vows at the marriage altar are themselves the most sacred promises that thenceforth, forsaking all others, the parties will lead chaste lives, and be faithful to their marital relations. However mistaken the complainant may have been in believing that, by conferring upon the defendant the honorable condition of wifehood, he would thereby restore her to a life of purity, he had a right to rely upon her promise to be true to him. To hold that when she thereafter was found sinning, the complainant is to be forever tied to a woman lost to every sense of decency and gratitude, and whom he had endeavored to clothe with the garment of respectability by making her his wife, is revolting to our sense of justice, and is not sanctioned by any sound rule of law. In Baylis v. Baylis, Law R. Prob. and Div. Vol 1, it is said: “ Whatever the previous life of a woman may have been, she binds herself to chastity, and if she breaks the conditions of marriage, her husband is entitled to claim its dissolution.” And in 1 Bishop on Mar. and Div., Sec. 179: “ In this country, where divorces a vinculo are granted for adultery, it is of little consequence whether the marriage of an nnreformed prostitute, to a person whom she deceives as to her character, is to be deemed void from the beginning or not, since it would be annulled on proof of the subsequent adultery.” The principle as thus enunciated we think salutary and just, and it is decisive of the present appeal.

The decree of the court below dismissing the bill will be reversed and the cause remanded, with instructions to enter a decree of divorce according to the prayer of the bill.

J udgment accordingly.


text:
    Edgar M. Reading v. Joseph H. Mead et al.

      1. Jurisdiction — Evidence showing claim in excess of. — When the evidence is all in, and it fairly tends to show a claim in excess of the jurisdiction of the court, then, before the case is submitted either to a court or jury, is the time for the plaintiff, if he has not done it before, to disclaim all right to recover any more than the sum in his ad damnum.

    2. Remittitur — Effect of. — If the plaintiff fails to so disclaim, a remittitur after verdict or the announcement of the finding of rhe court, will not do, and can not make such verdict or finding within the jurisdiction of the tribunal.

      Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Opinion filed April 8, 1885.
    Mr. J. C. Scovel, for plaintiff in error;
    as to jurisdiction, cited Happel v. Brethauer, 70 Ill. 166; Ellis v. Snider, Breese, 336; Korsoski v. Foster, 20 Ill. 32; Bates v. Bulkley, 2 Gilm. 389; Raymond v. Steobel, 24 Ill. 113.
    Messrs. Bisbee, Ahrens & Decker, for defendant in error;
    cited Eddy v. Roberts, 17 Ill. 505; Brown v. Strait, 19 Ill. 89; Bristow v. Lane, 21 Ill. 194; Steel v. Clark, 77 Ill. 471.
   McAllister, J.

This was assumpsit, brought in the county court by the Meads against Beading. The declaration was upon the common counts for one thousand dollars. The case was tried upon the general issue, by the court, jury trial having been waived. It appears from the record that the court, upon such trial, found for the plaintiffs, and the amount due to be eleven hundred and forty-five dollars and fifty cents. That sum being in excess of the jurisdiction of the court, which is limited to the sum of one thousand dollars, the plaintiffs’ counsel, after such finding, remitted the sum of one hundred and forty-five dollars and fifty cents therefrom, and the court thereupon gave judgment for one thousand dollars, upon which the defendant below brings error to this court.

It is well settled that such finding of the court must be regarded in legal effect the same as the verdict of a jury. Also that, in such case as this, the question whether or not the sum in question exceeds that of which the court has jurisdiction, must be ascertained from the evidence. When the evidence is all in, and it fairly tends to show a claim in excess of the jurisdiction of the court, then, before the case is submitted either to a court or jury, is the time for the plaintiff, if he has not done it before, to disclaim all right to recover any more than the sum in his ad damnum. It is perfectly plain, upon principle, that if the plaintiff fails to so disclaim, and submits his case, when the evidence fairly tends to show a claim beyond the jurisdiction of the court, he is submitting his case to a tribunal which has no legal authority to decide it. For that reason a remittitur after verdict or the announcement of .the finding of the conrt, will not do, and can not make such verdict or finding within the jurisdiction of the tribunal. The People ex rel. v. Skinner, 13 Ill. 287.

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

Judgment reversed.


text:
    Joseph Mabley v. Charles D. Irwin et al.
    1. Evidence. — Where the declaration was upon the common counts, and contained special counts alleging the employment of defendants as commission men by plaintiff, the placing money in their hands, etc., and plaintiff’s counsel began his case by inquiring of the plaintiff, as a witness, if he had at any time placed money in the hands of defendants, and whether that money had been accounted for by them. Held, that it was error for the court, upon general objection by defendants, to exclude such and other preliminary inquiries of a similar character. The effect of the ruling was to prevent plaintiff from developing his case.
    2. Agency — How proved. — Evidence of agency may he either direct or indirect. Agency may be directly proved by express words of appointment, whether orally uttered or contained in some writing.
    3. Same. — It may be indirectly p "oved by evidence of the relative situation of the parties, or of their habit and course of dealing and intercourse, or it may be implied or inferred from circumstances or from subsequent ratification. The court is of opinion that the evidence as to circumstances tending to prove (he alleged agency, to which the court sustained an objection, was competent, and should have been allowed to go to the jury for what it was worth.
    Appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Opinion filed April 8, 1885.
    Mr. Sidney Thomas, for appellant;
    as to proof of agency, cited 2 Greenleaf on Ev., § 60; Story on Agency, §45; 2 Kent’s Com. 612, 613; Paley on Agency, 2.

      Messrs. Grant & Brady, for appellee.
   McAllister, J.

This was an action by appellant, plaintiff below, against appellees, defendants below, who were sued as copartners. The declaration is upon the common counts, and contains special counts alleging the employment of defendants, as commission men, by plaintiff, the placing money in their hands under such employment, and alleged losses sustained by plaintiff by reason of disobedience by defendants^ of the instructions of plaintiff.

There was a trial before the court and a jury, resulting in a verdict and judgment for defendants, from which the plaintiff took an appeal to this court.

The bill of exceptions purports to contain all the evidence, and we think it is proper to remark that the case shows a great want of system on the part of the plaintiff on the trial. For, instead of beginning by showing where the defendants did their principal business, what that business was, and showing that plaintiff employed them as commission men and that such employment was for them to act for him in buying and selling grain or other articles in the Chicago market, when that employment was, the nature of it, and what was done under it, the plaintiffs counsel began liis case by inquiring of the plaintiff as a witness, if he at any time had placed money in the hands of the defendants, and whether that money had been accounted for by them. Upon a general objection by defendants, the court excluded the inquiry, and plaintiff’s counsel excepted.

There being issues in the case upon the common money counts in the declaration, we are unable to perceive why it was not competent to inquire of the plaintiff, as a preliminary question, whether he had ever placed money in the hands of the defendants. Of course, if answered in the affirmative, the inquiry would then be extended to the circumstances.

There were several other preliminary questions of similar .character to which the court sustained a general objection. It is quite impossible for counsel to try contested issues, without getting a starting point somewhere. The effect of the ruling was to prevent plaintiff from developing his case.

The plaintiff testified that the transactions he had with the defendants were conducted through one J. Blackman, who had an office at Jackson, Michigan, where plaintiff resided; and it was proposed to show, by facts and circumstances, that ¡Blackman was, as regards those transactions, the agent of the 'defendants.

Evidence of agency may be either direct or indirect. Agency may be directly proved, by express words of appointment, whether orally uttered or contained in some writing. It may be indirectly proved by evidence of the relative situation of the parties, or of their habit and course of dealing, intercourse, or it may be implied or inferred from circumstances, or from subsequent ratification: 2 Greenleaf on Ev., § 60; Story on Ag., § 45.

As a circumstance to be taken in connection with others tending to prove that Blackman was defendants’ agent, the plaintiff testified to the latter having a business office at Jackson, and that over the door of the office was the name of the defendants; and although the plaintiff’s counsel stated that he proposed to follow that up with other evidence of circumstances tending to show such agency, yet the court, on defendant’s motion, struck out all that plaintiff had testified to about the sign.

Plaintiff’s counsel then offered for the purpose of proving such agency, letters, statements, and oral declarations of defendants, having a tendency to prove such agency. But on objection by defendants, the court excluded the evidence so offered.

We think it was competent, and should have been allowed to go to the jury for what it was worth.

The judgment below will be reversed and the cause remanded for a new trial.

Judgment reversed.