author: Bakes, J.

text:
    Independent Order of Mutual Aid v. Emma J. Paine.
    Pleading.—Where the performance of the defendant’s contract depends on some act to be done or forborne by the plaintiff, or on some other event, the plaintiff must aver the fulfillment of such condition precedent, whether it is in the affirmative or negative, or tobe performed by plaintiff or defendant or any other person, or' plaintiff must show some excuse for non-performancr
    Error to the Circuit Court of LaSalle county; the Hon. George W. Stiff, Judge, presiding.
    Opinion filed December 4, 1885.

      Mr. A. J. Hopkiits, Mr. M. J. AlCeich and J. H. Thatcheb, for plaintiff in error.
    Mr. L. W. Beeweb, for defendant in error.
   Bakes, J.

This was assumpsit by defendant in error against plaintiff in error, upon a beneficiary certificate issued by the latter and payable to defendant in error, in case of the death of Lucius B. Paine, her husband.

A general demurrer to the declaration was overruled by the court; and, thereupon, a final judgment was rendered in favor of defendant in error for §2,360 and costs.

The circuit court erred in not sustaining the demurrer to the declaration. Where the performance of the defendant’s contract depends on some act to be done or forborne by the plaintiff, or on some other event, the plaintiff must aver the fulfillment of such condition precedent, whether it is in the affirmative or negative, or to be performed or observed by the plaintiff or by the defendant, or by any other person, or must show some excuse for the non-performance. 1 Chitty Pl. pp. 320 and 321; People v. Glann, 70 Ill. 232. In this case, by the terms of the contract, the sum insured was payable cnly upon due notice and satisfactory proof of the death of Lucius B. Paine; and it does not appear from the declaration that proofs of death were either furnished or waived. So, also, the averments in the declaration show that the promise of plaintiff in error was to pay the §2,000, upon the surrender of the beneficiary certificate, legally receipted; but the declaration fails to allege either such surrender, or an offer or readiness to surrender, or any matter of excuse. The rule of pleading is, that where there are mutual conditions to be performed at the same time, the plaintiff must aver performance or a readiness to perform his or her part of the contract. 1 Chitty Pl., pp. 321 and 322. In the case of Mass. Mut. Life Ins. Co. v. Kellogg, 82 Ill. 614, it is held, that in order to sustain an action on a life insurance policy, upon general demurrer, or motion in arrest, or on error, the declaration must show the making of the policy, the conditions of the contract, the performance of all conditions that plaintiff is bound to show were performed, and the happening of the contingencies ujion which defendant becomes liable to pay, and the failure of defendant to pay.

For the error indicated, the judgment is reversed and the cause remanded, with instructions to sustain the demurrer to the declaration.

Reversed and remanded.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    Moline Plow Company v. Elijah Booth.
    Contract fór services—Continuing after expiration of contract.—A person entering into the employment of another under a contract for a specified time, and continuing after the expiration of the term, will be considered as working under the original contract.
    Error to the Circuit Court of Rock Island county; the Hon. J. J. Glenn, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. Eugene Lewis and Mr. Ira A. Wilkinson, for plaintiff in error.
    Mr. William H. Gest, for defendant in error.
   Baker, J.

Elijah Booth, defendant in error, on the Í2th day of July, 1882, made a proposition in writing to the Moline Plow Company, plaintiff in error, to take charge of the foundry “ at a salary of §1,000 per annum.” This proposition was duly accepted, and the effect of such acceptance was to make the arrangement between the parties a binding contract for an entire year’s services at the compensation stated-The year’s work was performed and paid for. At the end of the year Booth did not quit the employment of the company but continued to act as foreman of the foundry until the 31st (f January, when he was discharged. His wages were paid to that date at the agreed rate. He notified the company he considered he was hired by the year, and had made his arrangements accordingly; that his being discharged was a damage to him, and he would hold the company responsible on its contract, and was willing to fill his part of it at any time it was demanded. It is not claimed that there was any unreasonable cause for his discharge.

Afterward, at the end of- the second year, Booth, on the theory of a contract to take charge of the foundry for such second year, from July, 1883, to July, 1884, brought suit against plaintiff in error to recover damages for breach of such supposed contract.

The verdict of the jury and judgment of the court were in his favor, and for §416.65 damages.

If a person is hired under a contract for services, at a fixed salary and for a specified time, and is discharged without reasonable cause before the expiration of that time, then he may, at the end of such period, bring his action and recover damages for the wrongful discharge. The measure of damages will usually be the amount he was to receive by the terms of the hiring. This amount the defendant may diminish by showing that plaintiff had earned, or might have earned, wages in some other employment of the same general character. Williams v. Chicago Coal Co., 60 Ill. 149; Trustees, etc. v. Shaffer, 63 Id. 243; Chiles v. Belleville N. M. Co., 68 Id. 123. Upon the point whether in June, 1883, there was an express and specific agreement to continue the contract for another year, the evidence is conflicting; but, in the view we take of the case, it is unnecessary to discuss this branch of the testimony.

The original contract was for a year, at a salary of §1,000 per annum. It is not claimed by plaintiff in error that at the expiration of the first year any new or different contract was made. A person entering into the employment of another under a contract for a specified time and continuing after the expiration of the term, will be considered as working under the original contract. It is the same in principle as a holding over by a tenant under an annual lease, when the premises-.can not be abandoned and the rent avoided except at the end of the year. McKinney v. Peck, 28 Ill. 174; G. & B. S. M. Co. v. Bulkley, 48 Id. 192. The case of Beeston v. Collyer, 4 Bing. 309, is in point. There the original hiring was on the first of March, 1793, for a year, and the plaintiff was discharged on the 23d of December, 1826, and a judgment for the residue of the current year’s salary sustained. Best, C. J., said: “ The contract is for a year at first, and if the parties do not disagree, it goes on from one year to another.” In Wallace v. Floyd, 29 Penn. St. 184, it was held that if a man agree to serve another for a month or year, and silently continues longer in the service, it will be on the old terms. See, also, N. H. Iron Factory Co. v. Richardson, 5 N. H. 294.

If it should be conceded that the weight of the evidence fails to show a specific agreement that the old contract should continue for another .year ; yet, our conclusion, in the absence of proof of a change, is that the first contract renewed itself for a second year, and was equivalent to a new contract of hiring upon the same terms. The presumption of law is that the original contract, both as to rate of compensation and time of service, and as to all its provisions, was continued.

This view of the law obviates the necessity of considering the objections made to the rulings of the court upon the instructions, and otherwise. Under the law and the evidence, the verdict of the jury could not properly have been other than it was, and if there was any error of the trial court by it the plaintiff in error was not damnified.

The judgment is affirmed.

Affirmed.


text:
    City of Joliet v. Maria Conway.
    1. Injury on sidewalk.—One may go upon a sidewalk known to be out of repair and dangerous, and if injured may have a right of recovery if ordinary and reasonable care is used.
    2. Damages.—A judgment for $2,000 damages for injuries caused by a fall on a defective sidewalk, causing a miscarriage. Held, that the damages are not excessive.
    Appeal from the Circuit Court of Will county; the, Hon-Charles B. Blanchard, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. J. H. Breckenridge and Messrs. Snapp & Breokenridge, for appellant
    Mr. J. L. O’Donnell, for appellee.
   Baker, J.

The appellee, Maria Conway, recovered a judgment for two thousand dollars damages against the city of Joliet, appellant, for personal injuries occasioned by a fall on a sidewalk in said city. That the sidewalk was defective and that the corporate authorities had notice of its condition and were guilty of negligence, is not controverted. We find nothing in the testimony showing a want of reasonable care on the part of appellee, or that she was guilty of contributory negligence. . It is intimated that if she knew, or by the exercise of reasonable diligence might have ascertained, and with such knowledge or opportunity for knowledge went upon it and was injured, she can not recover. The walk here was not palpably dangerous and practically impassable, like that in the City of Centralia v. Krouse, 64 Ill. 20. It was in daily and constant nse by the public, and many persons were passing over i.t at the time appellee was hurt. One may go upon a sidewalk known to be out of repair and dangerous, and yet if injured, may have a right of recovery if ordinary and reasonable care is used. Bloomington v. Chamberlain, 104 Ill. 271; Aurora v. Dale, 90 Id. 46; Aurora v. Hillman, 90 Id. 61; Lovinguth v. Bloomington, 71 Id. 238.

Ho objections are suggested in the briefs to the ruling of the court upon the instructions.

It is urged that the damages are excessive. The amount assessed is quite large, but the evidence shows that appellee received numerous and severe hurts, resulting in a miscarriage, and in much and long continued pain and suffering otherwise^, and in ills peculiar to her sex which have unfitted her for labor, and from which she has not yet fully recovered, and possibly may never recover. We are unable to say that the damages awarded are so excessive as to justify us in setting aside the verdict of the jury and the judgment of the court below.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Michael Donahue v. Elizabeth Donahue.
    Divobce—Burden oe proof.—In a case of divorce where the claim is that the first marriage was avoided within the age of consent, or that a divorce was procured, the burden of proof is upon the party relying upon the avoidance or divorce.
    Appeal from the Circuit Court of Kendall county; the Hon. C. W. Upton, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. A. J. Hopkins, Mr. H. J. Aldkioh and Mr. F. H. Thatcher, for appellant;
    cited Hood v. State, 56 Ind. 263; People v. Dawell, 25 Mich. 248; Litowich v. Litowich, 19 Kansas, 451; Gettys v. Gettys, 3 La. 260; Commonwealth v. Boyer, 7 Allen, 306.

      Messrs. Snow & Stead and Messrs. Fowler Bros., for appellee;
    cited Rex v. Truyning, 2 B. & Al. 385; Best on Evidence, § 334; Wharton on Evidence, § 1297; Sharp v. Johnson, 22 Ark. 79; Lockhart v. White, 18 Texas, 102; West v. State, 1 Wis. 209; Greensboro v. Underhill, 12 Vt. 604.
   Baker, J.

Elizabeth Y. Donahue, appellee, exhibited her bill against Michael Donahue, appellant, in the Circuit Court of Kendall county, for a divorce, on the ground of extreme and repeated cruelty. He answered, denying the cruelty charged, and also alleging that at the time of the ceremony of marriage between them, he supposed she was the widow of one Eric Simpson, but had since learned said Simpson is still living, and averring that the supposed marriage between appellee and himself was null and void.

At a subsequent term he filed a cross-bill, charging the fact of the prior marriage with Eric Simpson, and that he was still living, and that such marriage had never been dissolved or annulled ; and praying that the marriage with him, appellant, be decreed null and void. An answer was interposed to this cross-bill, to the effect that in 1876, and before the intermarriage of appellant and appellee, a decree of divorce was entered, upon bill duly filed, dissolving the marriage between appellee and said Simpson, which decree it was averred, was regular, legal and in full force. Issues were formed upon the bill and cross-bill, and submitted to a jury, and the verdict returned was that appellant was guilty of extreme and repeated cruelty as charged in the original bill, and that appellee' was not a married woman at the time of her marriage with appellant. A final decree was rendered, granting appellee a divorce^ solicitor’s fees and alimony.

The evidence sufficiently shows the charge of extreme and repeated cruelty to be true.

It is admitted that the Utah divorce, purporting to decree a dissolution of the marriage relation between appellee and Eric Simpson, a certified copy of the record of which is in evidence, was an absolute nullity.

But, it is suggested, two presumptions arise out of the case ; «.presumption of the continuance of life, and that Eric Simpson was at- the time of the subsequent marriage, and still is alive; and, secondly, a presumption of innocence, that appellee Ayas not guilty of bigamy, and, consequently, of the legality of the last marriage ; and it is urged that the presumption of innocence is the stronger of the two and must prevail OATer that of the continuance of life. The subject of these presumptions was under consideration in this court in Harris v. Harris, 8 Bradwell, 57. The doctrine there held, would seem, however, not to have application to the case in hand. The question of the competing presumptions of life and of innocence and of their relative force, is not involved in the issues formed in this cause, and submitted to the jury by the instructions of the court.

The defense interposed by appellee to the cross-bill, is that she was divorced from her first husband, and not that he Avas dead at the time the second marriage was contracted. There not only Avas no testimony introduced to prove his decease, bu * there was positiAre testimony of one witness that he was alive long subsequent to the second nuptials.

This controversy appears to have been heard and determined in the trial court upon a different theory from that now agreed in the brief of appellee. The holding of that court Avas, that the presumption of innocence and of the legality of the later marriage obtains where the contention is that the first marriage has been dissolved by a divorce, and casts the burden of proof upon the 'party alleging the continuance of the first marriage, to affirmatively show it has not been annulled. The court expressly instructed the jury that the burden of proof was upon appellant to show by a preponderance of evidence that the former marriage contract had not been dissolved at the date of the second wedding; and gave a further instruction, that the law presumes, prima facie, that the marriage with Simpson had, at the date mentioned, been legally dissolved. The instructions on this branch of the case Avere erroneous, and misled the jury. The point decided in Harris v. Harris, supra, was that the presumption of innocence and of the legality of the second marriage overcomes the presumption of the continuance of life, and that the burden of proof is on the party alleging the invalidity of the second marriage. The doctrine of that case is based on the decision in Rex v. Twining, 2 B. & Al. 385, and numerous decisions thereafter made. But, the same presumption does not prevail where the claim is that the first marriage was avoided within the age of consent, or that a divorce was procured; in such latter cases the burden of proof is upon the party relying upon the avoidance or divorce. McDeed v. McDeed, 67 Ill. 546; Commonwealth v. Boyer, 7 Allen, 306; People v. Dawell, 25 Mich. 248. When a person is shown to have done an act which was unlawful, unless distinctly authorized to do it, and the subject-matter constituting the authority is peculiarly within the knowledge of such person, then the burden of proof is imposed upon him oilier. In the case at bar, the fact of a decree of divorce annulling the bonds of matrimony between herself and Simpson, and information respecting the state and form in which it was procured-, are peculiarly wi hin the knowledge of appellee. It may bo added, the circumstances of the void Utah divorce would seem to lead to the inference that no other divorce had been obtained, and that appellee, in contracting a second marriage, acted upon the faith of the validity of that decree. The case presented by this record stands upon a different footing from the Harris case, where the question turned upon the continuance in life of a husband who had disappeared years before, and of whose death or continued existence, there could be no legal presumption, the abandoned wife had peculiar cognizance.

In the view we take of the law, not only were the instructions indicated, erroneous; but the verdict was against the law and the evidence, and the motion for a new trial should have prevailed.

The decree is reversed and the cause remanded.

Reversed and remanded.


author: Welch, J.

text:
    Illinois Central R. R. Co. et al. v. James H. Wathen.
    1. Grant or land for railroad and depot purpokrs.—Where certain Jand was granted to railroad companies for “railroad and depot purposes.” Held, that the fact that the companies permitted, without the payment of rent, the erection and use of elevators, corn cribs, lumber yards and lime houses on the ground in question, which facilitated the business of the companies in the receipt, transportation and discharge of freight, was not such a violation of the terms of the grant as would warrant the court in restraining the further use for such purposes, and compel the parties to respond in damage^.
    2. Estoppel.—Appellee by his grant is estopped from claiming that the use is not within his grant, since the use to which it is - now applied is the same that it was when the grant was made.
    Appeal from the Circuit Court of Woodford county ; the Hon. ¡N. M. Laws, Judge, presiding.
    Opinion filed December 4, 1885.
    This is a hill in chancery, alleging that the complainant, on the 28th February, 1879, was the owner in fee of a parcel of land in controversy being the Y made of the junction of the lines of the two railroads and the track connecting them, except the right of way of the two railroads passing through it. That on that day, he and one Gibson conveyed the same to the Illinois Central Railroad Co. and to A. L. Hopkins, receiver of the Toledo, Peoria and Warsaw Railway Co. That the Wabash, St. Louis and Pacific Railway Co. is now in possession of part of the said property under a lease from the Toledo, Peoria and Western, the successor of the Toledo, Peoria and Warsaw and the Illinois Central Railroad Companies, the remainder.
    The deed of February 28th referred to, is an absolute conveyance, except that it contains a clause for “ depot grounds and railroad uses only.”
    It is claimed that the railroad companies have violated this clause of the deed and permitted the ground to be vised for storing, keeping and selling lumber for private uses by individuals, and for a lumber office in connection with such lumber yard, and as a place to keep and sell tiling, cement, building materials, and other heavy articles, and have allowed unsightly corn cribs and places for storing corn in the ear to be maintained thereon 'by private individuals for private use and gain, and also a warehouse and elevator for the storage of grain and other articles of mercantile traffic. That the companies refuse to interfere and prevent' such use. That the railroad companies either have, or by proper diligence could have, received large rents, etc. Plaintiff prays an account and an injunction restraining any such further uses of the premises.
    The answers deny that complainant was owner in fee of the premises on the 28th of February, 1879, and say that prior to that time, on September 1, 1856, the complainant and one Gibson executed their deed of conveyance to respondent, I. O. R. R. and the Peoria and Oquawka Railroad Company and to their successors. That the companies immediately entered into possession of the land and have ever since had the continuous and undisputed possession of it, paid all taxes, etc. They admit the execution of the deedto the I. C. R. R. Co. and Hopkins, as receiver of the T., P. & W., by complainant and Gibson, and claim they have not violated its terms. That such erections and buildings as they have allowed to be maintained upon that portion of the “ Y,” not immediately required for other purposes, are proper and necessary conveniences in accomplishing the objects of the railroads and their husi?iess interests. That the public in general are greatly benefited. That private parties owning corn and other produce which they desire to ship on respondent’s cars from the different stations, derive a great benefit in being permitted, at their own expense, and without paying rent or other compensation, to have the privilege of storing it temporarily along its line. This is more especially so in this part of the country, where at certain parts of the year the roads and highways are almost impassable, and the farmers necessarily divide their work to suit the season, and so many do their hauling when the roads are good, and wait for their prices. These principles hold good in ail the other matters complained of. The elevators must be contiguous to the tracks for loading and unloading, and so it is with the lumber and heavy articles shipped over the road.
    That the companies charge no rent for any of these privileges, nor do they intend to, but only permit such temporary uses of the ground for the benefit of the public and to facilitate their own- interests as common carriers.
    That the plaintiff is not engaged in any business the profitable use, of which has been diminished or interfered with in any respect. That he lived near by and saw these buildings erected and the uses to which the land was being put for many years, without any objections.
    That there was no favoritism or discrimination shown these men, and that there is room enough on these grounds and other places on the right of way for all such business as the town affords.
    The other defendants are the persons who use the buildings and carry on the, business, and answer substantially as the railroad companies.
    The decree finds that the railroad companies have, in viokition of the terms and uses of the conveyance of February 28, 1879, and against the consent of the complainant, used and permitted the premises to be used as a lumber yard for private uses, and also for corn cribs, and used the same for storing corn in the car and for shelling the same upon the premises, and grain scales in connection therewith, for private gain, and a warehouse and elevator for the storage of grain and other articles, and that the railroad companies refuse to prevent such use, but permit it under the lease. The court finds that no rent was reserved in the leases, and that neither of the railroad companies has ever received rents on account of the use of the land, etc.
    The court then finds that neither of the railroad companies is liable to account to the complainant touching the rents and profits mentioned in the bill, and that the question as to the right of the complainant to call upon defendants, Elder, MeClellan and Metzger, for an account of rents and profits touching the real estate, is not, in the judgment of the court, included in this case, but they are remitted to such remedies and proceedings touching the same between them respectively as may be according to law and equity.
    It then strictly enjoins all the defendants from using or permitting to be used, the land for lumber yards, offices, sheds, storehouses, building materials or warehouses, or elevator for storing.
    M. F. T. Hughes, Mr. W. S. Gilson and Messrs. Williams & Capen, for appellants;
    that there has been no violation of the conditions of the deed, cited Hamilton v. A. & E. R. R. Co., 1 Md. 568; Morawetz on Private Corporations, §§ 189, 192; C., B. & Q. R. R. Co. v. Wilson, 17 Ill. 123; Armstrong v. Penn. R. R. Co., 9 Vroom (N. J.), 1; Simpson v. West M. P. H., 2 DeGex, Fisher & Jones, 141; Pierce on Railways, 506; Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454; Hill v. W. V. R. R. Co., 32 Vt. 68; Low v. G. & C. U. R. R Co., 18 Ill. 324; S. C. R. R. Co. v. Dix, 109 Ill. 237; Smith v. C. & W. I. R. R. Co., 105 Ill. 511; Fisher v. C. & S. R. R. Co., 104 Ill. 323; In re N. Y. C. & H. R. R. R. Co. v. M. G. & L. E., 63 N. Y. 326; Giesy v. C. W. & Z. R. R. Co., 4 Ohio St. 308; O. C. R. R. Co. v. Evans, 6 Gray, 25; Worcester v. W. R. R Co., 4 Metcalf, 564; In re N. Y. C. & H. R. R. R. Co., 77 N. Y. 248; Wardens v. S. E. Ry. Co., 9 Hare, 489; Crawford v. Longstreet, 43 N. J. L., 325; Simpson v. Westminster Pol. Hotel, 2 D. G. F. & J., 141; In re B. & A. R. R. Co., 53 N. Y. 574; C. & P. R. R. Co. v. Speer, 56 Pa. St. 325; P. P. & C. I. R. R. Co. v. Williamson, 91 N. Y. 552.
    Messrs. Shaw & Edwards and Mr. W. G. Eandall, for appellee;
    cited Proprietors of Locks and Canals v. N. & L. R. R. Co., 104 Mass. 1; Eldridge v. Smith, 34 Vt. 484; N. Y. & H. R. R. Co. v. Kip, 46 N. Y. 546; R. & S. R. R. Co. v. Davis, 43 N. Y. 137.
   Welch, J.

In the view we take of this case we shall confine our examination to the third and fourth assignments of error. Has the condition of the grant been violated?

, Conceding that appellant's title depends on the moaning of the phrase “ railroads and depot purposes,” the real controversy is whether the company in permitting, without the payment of rent, the erection and use of elevators, corn cribs, lumber yards and lime houses, on the ground in question, is such a violation of the terms of the grant as will warrant the court in restraining the further use for such purposes and compel appellants to respond in damages.

A railroad purpose for which a railroad company holds land is such as may he necessary for the construction and maintenance of its railroads and stations, depots and other accommodations, necessary to accomplish the object for which the corporation is created. Justice Caton in C., B. & Q. R. R. Co. v. Wilson, 17 Ill. 126, in defining what a railroad company has power to do in acquiring and using land, quotes the statute then in force as follows: “ To purchase and by grants and voluntary donations receive, and by its officers, engineers, surveyors and agents enter upon, take possession of and hold and use all such lands and real estate and other property as may be necessary for the construction and maintenance of its rail, roads and stations, depots and other accommodations, necessary to accomplish the object for which the corporation is created.” Under the statute he holds that a workshop is included, and in Law v. Galena & Chicago Union Railroad Co., 18 Ill. 325, it is held that a paint shop is included by the terms of the same statute. Chapter 114, Rev. Stat. 1874, section 20, subsection 3, provides that such corporation shall have power “to pmrchase, hold and use all such real estate and other property as maybe necessary for the construction and use of its railway, and the stations and other accommodations necessary to accomplish the objects of its incorporation, and to convey the same when no longer required for the use of such railway. And subsection 8 provides that they shall have power “ to erect and maintain all necessary and convenient buildings and stations, fixtures and machinery, for the construction, accommodation and use of passengers, freights and business interests, or which may be necessary for the construction or operation of said railway.” Section 80 of the same chapter provides, among other tilings, that railroads shall receive grain in bulk, and load the same either upon its track at its depot, or at any warehouse adjoining its track or side-track when demanded.

“ Whether or not a particular act be authorized is often a question requiring nice discrimination. A transaction may ' prima facie appear to be wholly foreign to the business for which a corporation was formed, and yet if it be auxiliary to any legitimate purpose of the company and adapted to carry ' out the same more advantageously, is impliedly authorized.” Morawitz on Private Corporations, section 190. In the case of the Grand Trunk R. R. v. Richardson, 91 U. S. 454, Richardson had erected and used a saw-mill on the right of way of the railroad company, which was destroyed by fire started by a locomotive, and this was an action by the owner of the saw-mill against the railroad company to recover for the value of the mill so- destroyed, and it became a material question whether the mill was rightly there or not. Justice Strong says, “If-the buildings of the plaintiff were rightfully where - they were, if there was no trespass on the roadway of the com-0pany, it was clearly pertinent to be shown. And while it must be admitted that a railroad company has the exclusive control of all the land within the lines of its roadway, and is not at liberty to alienate any of it so as to interfere with the full exercise of the franchise granted, we are not prepared to assert that it may not license the erection of buildings for its convenience even though they may also be for the convenience of others. It is not doubted that the defendant might have erected similar structures on the ground on which the plaintiff’s buildings were placed, if in its judgment the structures were convenient for the receipt and delivery of freight on its road. Such erection would not have been inconsistent with the purpose for which its charter was granted, and if the company might have put up the buildings, why might it not license others to do the same thing for the same object, namely the increase of its facilities for the receipt and delivery of freight. The public is not injured and it has no right to complain, so long as a fre,e. and safe passage is left for the carriage of freight and passengers.” The rule deducidle from this opinion is, that if the. company, to facilitate its business, could have erected similar structures, it could license others to do the same thing for similar purposes. Justice Ranney, in Gessy v. C. W. & Z. R. R. Co., 4 Ohio St. 327: “ Indeed, without the use of grounds upon which to receive and discharge freight and passengers the track would be useless, and if the proceeding could only be referred to that provision of the constitution which specially .regulates the appropriation for right of way, there could be very little doubt that such indispensable appendages would be covered by its terms.” “ Convenience and consequent cheapness of transportation are in most cases essential and in many vital to their maintenance.” Green, J., in Getz’ Appeal, Am. & Eng. R. R., Vol. 3, page 193.

The principal use to which the-right of way is put in small towns and villages is to furnish places for warehouses and storage for commodities, carried or to be earned by the road, and these warehouses and places of storage are used by private parties for private gain. But at the same time the use is ■ a public use, a railroad use, because it greatly facilitates and accommodates the carrying out of the objects of the corporation, and is in fact necessary to a proper carrying out of these objects. In N. Y. C. & H. R. R. R. v. M. G. & S. E., 63 N. Y. 326, Justice Miller says: It is claimed that the design of the proposed acquisition is also for collateral enterprises, and among others, for the benefit of the stock yards, elevators, and to meet the requirements of this class of business to be carried on in connection therewith by other persons outside of the company. This evidently is not the purpose of the application. All of these may follow as a consequence^ and some, if not all of them, may be very properly connected with the business of a great railroad corporation.” In this case there is no claim that this occupancy in any way interferes with the convenience of the public, or was any damage to the complainant or any prejudice to the railroad companies in the discharge of their duties to the public. Complainant’s sole claim is that under this clausé in the deed he ought to recover from these occupants the rental value of the ground, and that the railroad companies ought to be enjoined from permitting such occupancy without his consent. The evidence discloses that this occupancy facilitates the business of the railroad companies, that it is necessary and is the universal practice in the western States to permit such use of their right of way at stations. The lumber and grain business constitutes a very large part of the business of all the railroads in this country, and without these facilities for receiving, storing and discharging the same, the transportation of such articles by rail would be greatly impeded if not wholly destroyed. The evidence further shows that the railroad companies have received no rent and that these buildings were erected and used for the purposes for which they are now used, prior to the deed of appellee made in 1879, and were so used at the time of his making his deed, that he saw the buildings as they were being erected. It is claimed by appellee that the case of Proprietors of Locks and Canals v. Nashua & Lowell R. R. Co., 104 Mass. 1, is decisive of this case. In that case the defendants had converted certain buildings from their original design into private stores or shops, and they were occupied for the general purposes of trade and mechanical and manufacturing business by lessees,, having no other connection with the operations or interests of the corporation than as its tenants paying rent. Such occupation and use placed them beyond the scope of the corporate purposes and functions. The occupancy by the lessees in the case at bar is to facilitate the business of the railroad companies, to furnish needed and necessary accommodations for the receipt, storage and discharge of freight, and is without rent.

It is clear that under the statute of this State, "chapter 114. section 18, subsection 3 of section 20, that railroads have the power to acquire and hold real estate to the extent that may be required for the purposes of its incorporation, the transac. tion of its business, or for its depots, stations, buildings, machine and repair shops, or for right of way, or other accommodations necessary to accomplish the object of its incorporation. And by subsection 8 of section 20, same chapter, the right of way is given . to erect and maintain all necessary and convenient buildings and stations, fixtures and machinery for the construction, accommodation and use of passengers, freights and business interests, and which may be necessary for the construction or operation of said railway. Under the statute of 1849, which was not as broad in its term as this statute, it was held that repair and paint shops were included; they were held to be embraced in the term, u other accommodations necessary to accomplish the object of its incorporation,” used in that statute. One of the leading branches of the business of railroads is that of carrying freight. In order that it may carry on this business with facility and dispatch, it is necessary to have suitable grounds and buildings for the receipt and deposit of freight to be transported and for the discharge of freight received. All such grounds and buildings are clearly within the power given. And under the authorities above referred to of Morawetz on Private Corporations, 4th Ohio Stat. 63 N. Y. and 91 U. S., the ground and buildings that were used by the lessees in this case were necessary to enable these railroad companies to carry on their business as carriers of freight with dispatch and convenience. If the ground and buildings had been used by the railroad companies themselves, in the same way and for the same purposes that they have been used by the lessees, their right to so use them would no* and could not have been questioned. Does the fact that such right is permitted by the railroad companies to the lessees without rent affect the question ? Under the authority in 91 U. S. supra, whatever could be done by the railroad companies under their powers to facilitate their business could be permitted to be done by their license to others. The evidence in this case clearly establishes that the use to which the ground and buildings has been put is to facilitate the business of these railroad companies in the receipt, transportation and discharge of freights.

We hold that such use does not violate the terms of appellee’s grant. We hold, further, that appellee by his grant is es-topped from claiming that the use is not within his grant, the use to which it is now applied being the same that it ivas Avhen the grant was made. We are of the opinion that the court erred in granting the injunction and in not dismissing the hill.

For the errors herein indicated this cause is reversed and remanded Avith directions to dissolve the injunction and dismiss the hill.

Eeverscd and remanded with directions.


author: Lacey, P. J.

text:
    Stephen Sherwood v. First National Bank of Morrison.
    1. Instructions—Evidence.—In an action on a promissory note where the plea was that the signature had been obtained by fraud and circumvention, an instruction “ that such allegations of fraud must always be maintained, not only by a preponderance of the evidence, but such evidence should he clear and cogent, and the jury will in no case be permitted without evi' deuce t.o presume that fraud ivas committed,” is erroneous. In a civil ease a preponderance of evidence is sufficient.
    2. Care in buying such note.—An instruction in such case which ivould require the assignee of the note to use care and caution in buying the note in order to ascertain if it were valid, is erroneous.
    Appeal from the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. W. & W. D. Barge and Mr. C. J. Johnson, for appellant;
    that in civil cases a preponderance of evidence is sufficient, cited P., etc., R. R. Co. v. Lane, 83 Ill. 448; Carter v. Gunnels, 67 Ill. 270; Crabtree v. Reed, 50 Ill. 209.
    The assignee of the note is hound to use ordinary care: Taylor v. Atchison, 54 Ill. 196; Sims v. Bice, 67 Ill. 90; Vanbrunt v. Singley, 85 Ill. 281; Auten v. Gruner, 90 Ill. 300; Murray v. Beckwith, 48 Ill. 391.

      Mr. O. F. Woodruff and Mr. J. D. Andrews,for appellee ;
    that mere negligence on the part of the assignee in purchasing a negotiable instrument, however gross, is not sufficient to deprive him of the character of a bona fide holder, cited Comstock v. Hannah, 76 Ill. 530; Shreeves v. Allen, 79 Ill. 553; Smith v. Coulton, 5 Bradwell, 422; Murry v. Lardner, 2 Wall. 120; Goodman v. Simonds, 20 How. 343.
   Lacey, P. J.

This suit was on a promissory note claimed to have been given by appellant to one William Frost, for $260, dated July 6, 1882, due in nine months-from date, and indorsed to appellee before maturity by Frost.

The appellant filed the plea of the general issue sworn to, and also plea that the signature to the note was procured by fraud and circumvention, in that one George Strawn and Robert Hanna, acting for the payee, came to the defendant and represented to him that they were engaged in the business of selling anvils; that a shipment of anvils had been made to them and were then in the depot, at Sterling, in said county, and solicited the defendant to go to Sterling to obtain the anvils and to deliver them to Strawn and Hanna, at defendant’s residence, and gave appellant the sum of six dollai-s with which to pay for the freight on said anvils; that said Strawn & Hanna then and there gave said money to said appellant, and represented to him that it was necessary that they should have a receipt for the same for the purpose of accounting to their employer, Frost, for said money ; and that they presented to him a paper to sign, which they falsely and fraudulently represented was a receipt for $6, and the appellant relying on the said statements so made, believing that the paper was in fact a receipt, executed said paper, and the paper was in fact a note, the one described in the declaration.

The appellant was at that time about eigbty-one years of age and somewhat blind, not being able to see the writing plainly and to read the note, and relied on the statements of the parties who procured his signature, and testified substantially supporting the plea.

The point was made by appellee before the jury, that there was not sufficient proof of the use of due care on the part of appellant in guarding against imposition in signing the paper,, as it was executed, and also, that there was no sufficient proof of fraud and circumvention.

And, upon appellee’s request, the court gave to the jury appellee’s instruction, Ho. 1. To the effect that the burthen of proof was on appellant to show fraud and circumvention, and that such allegation must always be maintained not only by a preponderance of the evidence, but such evidence should be clear and cogent, and the jury will in no case be permitted without evidence to1 presume that fraud was committed.

This instruction should not have been given. Instead of requiring defendant only to prove his plea by a preponderance of the evidence as the law requires, it compels him in substance to make out his case by proof strong enough to remove all reasonable doubt.

This the law does not require in any civil case. Stratton v. The C., C. H. R. W. Co., 95 Ill. 25. The case of Shinn et al. v. Shinn, 91 Ill. 477, in which it is stated by Judge Dickey, in writing the opinion, that “The allegations of fraud must be proven by more than suspicions. The evidence must be clear and cogent, and must leave the mind well satisfied that the allegation is true,” was said in reference to the ¡woof in a case in equity where the title to real estate was in dispute and is not applioaffie to a case like this, even if intended by the judge writing the opinion to be understood in the sense claimed in the appellee’s brief.

We regard instruction Ho. 5, given for appellee as also erroneous. There was nothing in the evidence to show blank spaces, unless from the appearance of the note, and the evidence tended strongly to show that appellant- could not see, and was defrauded in procuring the signature under the blank spaces as well as the signature to signing a note supposing it to be a receipt, as he claims he was induced to believe.

If appellant had known it was a note he was signing, then the rule in regard to blank spaces might apply. If it was simply a receipt that he signed, what odds could it make about the blank spaces. If a receipt, and it had been fraudulently raised, the only effect would have been to show a receipt for a larger amount than for six dollars.

The appellant did not claim that the note had been raised from a smaller one than the note in question. There was no such issue, and the only effect of introducing such element, immaterial as it was, into the case, would be to distract the minds of the jury and lead them from the issue.

If the appellant had knowingly signed a small note, then there might have been a proper issue raised on the question of the blank spaces, but the note was void, even as a small note, if his signature had been procured by representing to him that it was a receipt, and he had exercised due care in trying to protect himself against fraud. It is claimed by counsel for the appellant that the court erred in refusing to give his third refused instruction.

We think the instruction was properly refused ; first, because it fails to include in it the hypothesis of care and caution on the part of appellant to prevent imposition, unless that may be included in the term, “ obtained by fraud and circumvention,” which we think is not specific enough, and secondly, it erroneously requires the appellee to use care and caution in buying the note, in order to ascertain if the note were valid, which we do not understand to be the law in this State, since the decisions in the cases of Comstock et al. v. Hannah, 76 Ill. 530, and Murray v. Beckwith, 48 Ill. 391, although some expressions to the contrary may be found in other cases decided by the Supreme Court, not so well and thoroughly considered as the case in 76 Ill. 530, above cited. For these reasons the judgment in the case is reversed and the cause remanded.

¡Reversed and remanded.


author: Lacey. P. J.

text:
    John W. Smith v. August Grapple.
    Discretion op trial court.—It is only in case of a plain and palpable abuse of the trial court’s discretion in not granting a motion to vacate an order of dismissal that an appellate court will interfere.
    Appeal from the County Court of Will county; the Hon. C. B. Garnsey, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Haley & O’Donnell, for appellant.
    Mr. C. W. Brown, for appellee.
   Lacey. P. J.

This case was originally commenced before a justice of the peace, and upon a trial before the justice judgment was rendered against appellant for §11 and costs of suit, from which judgment appellant, being the plaintiff before the justice, took an appeal to the county court, whereupon, afterward, on the 25tli day of ¡November, A. D. 1884, the said appeal was dismissed for the want of prosecution, the case having been set for trial by the county court on that day, and upon the cause being called for trial, and the appellee appearing with his witnesses, and appellant not appearing, the appeal was dismissed by the county court. Hpon the 28th day of same month the appellant moved the county court to vacate the order of dismissal and set aside the judgment for costs, which motion the court overruled.

The motion was based upon appellant’s own affidavit, and that of P. 0. Haley and E. Meers, two attorneys. The affidavit of appellant, by the way of showing merits, sets up that the appellee occupied a farm belonging to appellant in Will county, as tenant, from March 1,1881, to March 1,1884, under a written lease between' them, and that on account of the failure of appellee to comply with the terms of the lease he commenced suit against him, and that after allowing the defendant all of his just deductions, credits and set-offs, he had, and then had, a meritorious claim against the defendant for at least $55. By way of showing diligence in prosecuting the appeal, the affidavits show that the firm of Ilaley and O’Donnell had, prior to the trial before the justice of the peace, been the usual attorneys of appellant, to attend to all his legal business requiring a lawyer, with the exception of this case.

That on the trial before the justice of the peace, Haley and O’Donnell having been retained by Smith to try the cause before the justice of the peace, and failing to do so on account of the absence of O’Donnell and the engagement of Haley in another cause, Meers, at Haley’s, suggestion, was employed to try it. That after the trial and appeal, Meers deemed his connection with the case at an end, and Haley and O’Donnell thinking that Meers was employed in the case for the county court, and appellant thinking Haley and O’Donnell would attend to it, no one appeared in the county court, which accounted for the default. Appellant never had any conference with either Haley and O’Donnell, or Meers, in which he distinctly employed them or requested them, or either of them, to take charge of the case in the county court, although he says he talked with Haley about the suit and supposed he was retained.

It is claimed by counsel for appellant that the county court abused its discretion in not granting the motion, and for that reason the judgment of the court below should be set aside and reversed.

We are of the opinion that there is no such abuse-of discretion in the matter as would warrant this court in interfering. As a general rule the trial court has a legal discretion to grant or not a motion of this kind, and it is only in case of plain and palpable abuse where the appellate court will interfere with such discretion. The appellant was clearly negligent in not employing some one of the attorneys or some attorney to attend to the suit for him, or in not looking after it himself. He may have been in good faith enough in supposing Haley and O’Donnell were attending to the case without special contract, or a general one that would cover such employment, of which there is no claim.

The law will not excuse appellant’s ignorance or inattention, whichever it may have been. Besides, the appellant’s affidavit does not set up and detail facts from which the court could have seen that he had a just cause of action. Nothing more appears than that he claimed that there was a breach of covenant of the lease on appellee’s part on account of which he had a just demand against appellee for $55, without showing what the covenant broken was, and how he sustained the damages. On both grounds we think the county court was justified in overruling the appellant’s motion and that there was no abuse of its discretion. Constantine v. Wells, 83 Ill. 192.

The judgment of "the court below is therefore affirmed.

Judgment affirmed.


text:
    The People, etc., v. William Smith.
    Bastardy—Death op mother.—In an action brought under the Bastardy Act, it is error to dismiss the suit on account of the death of the prosecuting witness.
    Error to the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Doyle & Morris, for appellant.
    Mr. T. B. Harris, for appellee.
   Lacey, P. J.

This was a proceeding under the Bastardy Act, commenced on complaint of Sarah Carroll, before a justice of the peace, before whom defendant in error entered into recognizance to appear before the county court, which was filed therein April 13,1883. Afterward^appellee appealed the cause from the county court to the circuit court, and filed his appeal bond in the county court, November 8, 1884.

In the circuit, the appellee moved the court to dismiss the proceedings on account of the death of the prosecuting witness, and to suppress her deposition taken just prior to her death, and for an order on the county court to certify judgment in accordance with the facts. The court thereupon dismissed the proceedings on account of the death of the prosecuting witness, to which action of the court plaintiff in error at the time excepted.

The bill of exceptions shows that the death of the prosecuting witness was admitted. The plaintiffs in error bring the record to the court on error, and assign for error the action of the court in dismissing the cause on account of the death of the prosecuting witness, and that is the question to be decided by this' court.

The fact of the death of the prosecuting witness was no sufficient ground for the dismissal of the suit, as was held in the case of The People v. Nixon, 45 Ill. 353, which was a case similar to this.

The court in thatcase held this language: “ The object of the prosecution under the Bastardy Act is to compel the father to secure the public as well as the mother against liability for the support of the child. The action is in the name of the People of the State of Illinois. The mother is not a beneficiary, nor is a party to the record, although allowed to control the suit and made liable for the costs in case the defendant is discharged. The mother not being a party, there is no technical reason for the abatement of the suit, and its prosecution may be more important to the public than if the mother had not died.” In the case of Hauskins v. The People, 82 Ill. 193, the court hold the death of the child was not sufficient ground to abate the suit, but that the father of the child should be held to pay to, and reimburse the mother for advances made by her during the time she kept the child. It was also said in that case quoting former cases, that “ it has been well settled in this State that an action of this character is of a civil and not of a crim'nal nature, and the mother of the child has an interest therein as well as the people.”

So that it seems that neither the death of the mother, nor the child, is sufficient ground for dismissal. The people have an interest in the prosecution after the death of the mother, in order to save them from a possiffie support of the child, and the "mother, for the purpose of compelling reimbursement for advances. We are satisfied with these decisions, and are bound by them, and therefore can not consider the arguments of counsel against the reason of them. It is claimed in argument that there were other grounds for dismissal, as shown by the motion and the record, and that this court should presume that proceedings were properly dismissed. We observe, however, that the bill of exceptions shows that the suit was di¡ - missed on account of the death of the prosecuting witness. That must govern us in this matter. The bill of exceptions always governs the record and controls.

Judgment of the court below is reversed and cause remanded.

Reversed and remanded.


text:
    The People, use, etc., v. Isaac W. Hamilton et al.
    1. Chattel mortgage—Justice’s entry.—Inan action of debt brought on a justice’s bond, where the declaration alleged that the justice, in making an entry of a chattel mortgage, had omitted the date of the entry, the date of the mortgage, date of the acknowledgment, and even the certificate that it was acknowledged at all. Held, that it was error to sustain a demurrer to such declaration. In making these entries, the justice is a ministerial officer and liable for negligence in failing to comply with the statute.
    2. Notice.—Actual notice of a chattel mortgage will not suiplythe place of acknowledgment or record against subsequent purchasers or incumbrancers.
    Appeal from the Circuit Court of Marshall county ; the Hon. D. McCulloch, Judge, presiding.
    Opinion filed December 4, 1885.
    This was an action of debt, brought on the justice of the peace bond of appellee Hamilton, the other appellees being security on the bond. Among the requirements of the bond was that the principal was “ well and truly to perform all and every act and duty enjoined on him by the laws of the State to the best of his skill and abilities.” The declaration shows that on the 17tli of August, 1882. B. F. Ridgeway, then residing in the town of Steuben, was indebted to the usees on four promissory notes, one for $100, due November 1, 1882; one for $135, due January 1, 1883; one for $200, due January 1, 1884; one for $100, due August 15, 1884; with 8 per cent, interest.
    That said Ridgeway was owner of certain chattel property: one bay mare, twelve years old, called Flora; one bay mare, twelve years old, called Fanny ; one black mare, eleven years old, called Lady; one sorrel mare, ten years old, called Nellie ; one Schuttler farm wagon; one set harness; one Nichols, Sheppard & Co. separator, complete, with stacker, belts, fixtures and track; one Nichols & Co. ten-horse triple gear power, with trucks, and tumbling rods complete, and on agreement with usees made a chattel mortgage on same to secure the notes. That after making the mortgage, Ridgeway went before the said Hamilton, J. P., to have the acknowledgment taken in form of law.
    That Hamilton took the acknowledgment and certified the same on the mortgage.
    That it was the duty of Hamilton, J. P., to make entry on his docket according to statute, according to his best skill, but that he negligently made an improper entry. The entry is as follows:

      “ State of Illinois, )
    Marshall County, j ss"

      “ Chattel mortgage was given by B. F. Ridgeway to Charles Jamison and Gustavus Schimpft.
    “ One Nichols, Shepard & Co. separator, complete, belts, fixtures, and trucks; one Nichols, Shepard & Co. ten-horse triple gear power, with trucks and tumbling rods complete; one bay mare, twelve years old, named Flora; one bay mare, twelve years old, named Fanny; one black mare, eleven years old, named Lady; one sorrel mare, ten years old, named Nelly ; one Selmttier farm wagon ; one set double harness. Promissory notes. One note due FTov. 1, 1882, for §100 ; one note due 1st 1883, for §135; one note due 1 1884, for §200 ; one note due Aug. 15, 1884, for §100.
    “ I. W. Hamilton, J. P.”
    Alleges recording of mortgage 21 Aug., 1882, and alleges the mortgage good and valid but for the insufficient entry in docket.
    Alleges value of property in the chattel mortgage ample to pay the mortgage debt, and but for the mere carelessness, etc., of said justice of the peace, the usees would have made their debt out of the property.
    Alleges that after record of chattel mortgage, the property in the chattel mortgage was on valid execution issued after record of the mortgage seized and taken on such execution.
    Alleges usees replevined under their mortgage, and were defeated because only of the insufficient entry in the docket. That afterward the property on writ retorno, was re-delivered to officer holding the execution, and property all used and exhausted under that execution.
    Alleges that therefore the usees lost the chattel mortgage security. Alleges insolvency of said debtor, B. F. Bidgeway. Shows that usees had no notice of the defect in the entry till after the property had been seized, June 3, 1883.
    This declaration was demurred to and the demurrer sustained, the court below holding that the entry was sufficient, and that the chattel mortgage was good .and valid. The appellant abided his declaration, and’ judgment was given against him for costs.
    And an appeal is taken to this court and error assigned, alleging the error of the court in sustaining the demurrer and rendering judgment.
    Messrs. Barnes & Barnes, for appellants;
    cited Durfee v. Grinnell, 69 Ill. 371; Koplin v. Anderson, 88 Ill. 120; Wall v. Trumbull, 16 Mich. 235; Christopher v. Vanliew, 57 Barbour, 28; Noxen v. Hill, 2 Allen, 215; Howe v. Mason, 14 Ia. 510; Tompkins v. Sands, 8 Wend. 462.

      Messrs. Shaw & Edwabds, for appellees;
    cited Funk v. Staats, 24 Ill. 644; Pike v. Colvin, 67 Ill. 227; Schroder v. Keller, 84 Ill. 46; Madison Co. v. Rutz, 63 Ill. 65; Kimball v. Ritter, 25 Ill. 276; Swingley v. Haynes, 22 Ill. 214; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 105.
   Lacey, P. J.

The entry made by the justice of the peace shows the name of the mortgagor and two of the five grantees, but the date of the entry, date of the mortgage or the date of the acknowledgment, or the certificate that it was acknowledged at all, are entirely omitted.

The statute requires that the justice shall, if the acknowledgment is of a resident of the State, enter in his docket a memorandum thereof substantially as follows:

A. B., Mortgagor, )

to > Mortgage of

C. D., Mortgagee, j (Here insert the property mortgaged.)

“ Acknowledged this......day of.........., 18.... ”

This entry does not appear to be a compliance with the above requirements of the statute, as by it the date of the acknowledgment is to be given. It is a part of the required form. The justice wholly failed to enter the required fact that any acknowledgment of the mortgage had been made or taken, or the date thereof, and no one could tell, by an examination of the entry, whether the mortgage was in fact acknowledged, or if acknowledged, was in force.

The acknowledgment is necessary to its validity, and unkss acknowledged it was of no force or effect. It could not even be ascertained by such inspection when this entry was made, and whether ever made, up to the day the property was seized, June 3, 1883, the time the notes were due. It was not an entry in compliance with the statutory requirement to enter on the docket that “chattel mortgage was given by B. F. Bidgeway to Charles Jamison and Gustavus Schimpfh” The mortgage may have been given but not acknowledged, and of that fact the entry was silent. The omission to state all the names of the grantees might not have been fatal to the validity of the mortgage, but we think the other omissions were, and rendered the mortgage voidas between the grantee and judgment or attachment creditors, or purchasers. The justice must substantially comply with the statute. It is not enough that the entry would be sufficient to put the examiner on inquiry as to whether the mortgage had been in fact acknowledged and the date thereof. It was held in Koplin v. Anderson et al., 88 Ill. 120, that it was essential to the validity of a mortgage that the requirements of the statute that the justice should make entry of the mortgage on his docket, in the form prescribed, be complied with. That an omission by the justice to make the proper entry rendered the mortgage invalid, and it did not matter that it was properly acknowledged and recorded. If the justice entry was not made it was invalid.

The court say “ after these preliminary acts have been performed, to become valid as against subsequent purchasers and incumbrancers, there remains the further indispensable act of filing the mortgage in the proper office, to be recorded; nor is this last requirement intended to supersede or dispense with the prior acts required by the statute. The act of recording is obviously designed to afford additional facilities for learning whether the property is incumbered. There is nothing in the statute from which it can be inferred that the recording the mortgage should dispense with or supply the place of the other requirements.

“To hold that the entry in the justice docket is not essential would be a virtual repeal of the requirement, whilst there would seem to be no doubt it was intended to have operation and effect, and we can see no other practical operation that can be given to it.”

We have quoted enough of the opinion of the Supreme Court to show the view it takes of the law and the manner in which it construes the statute. The doctrine requiring subsequent purchasers and incumbrancers to be put upon inquiry applies only in case of real estate deeds and mortgages, not to chattel mortgages. In case of real estate deeds and mortgages, actual notice may cure the omission to acknowledge and record, but in case of chattel mortgages, being wholly a creation of the statute, in order to make them valid, the statute must be substantially complied with. Actual notice will not supply the place of acknowledgment or record as against subsequent purchasers or incumbrancers, and as the Supreme Court has decided that the justice docket entry is just as essential as either the acknowledgment or record, we suppose it would follow that the entry as well as the acknowledgment or record must stand or fall by itself; in fact that each one must be complete in itself and mustbe a substantial compliance with the statute; that a failure to substantially comply with the statute is as fatal in its effect as an omission altogether. In this, the entry, the acknowledgment and date being omitted, was as much a lack of and as much a failure to comply with the statute as to have omitted the entire docket entry. In making these entries the justice is a ministerial officer and liable for negligence in failing to comply with the statute. Harlow v. Birger, 30 Ill. 425. Because'we hold that the declaration shows a good cause of action and the court erred in sustaining the demurrer to it, we reverse the judgment and remand the-cause to the court below.

Reversed and remanded.


text:
    William Cockeram v. Catherine Cockeram et al.
    Evidence.—Declarations of the deceased testator, made shortly before his death and before and after the execution of his wiP, are competent to establish his mental capacity and the condition of his mind at the time the will was made.
    Appeal from the Circuit Court of Grundy county; the lion. J. McRobeets, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Doud, Wing & Carter, Mr. J. H. Sampson and Mr. A. B. Jordan, for appellant.

      Messrs. Hill & Dibell and Mr. E. Sanford, for appellees.
   Lacey, P. J.

This was a bill in equity by appellant as complainant and appellees as respondents, the object of the bill being to set aside the will of Samuel Cockeram, deceased, dated August 2, 1879, he having died December 2, 1879, leaving appellant, his son, and Catherine Cockeram, his widow, Samuel Cockeram, Jr., Benj. Cockeram, his sons, and Hannah, his daughter, intermarried with Isham, Mary Ann, his daughter, now intermarried with'Baker, Emma, his daughter, intermarried with Jacob Griggs, one of the executors of the will, and all respondents and appellees herein. The deceased, the bill alleges, was of the age of seventy-six years. That the will was admitted to probate December 6,1879, and letters testamentary were granted to appellees, Samuel Cockeram, Jr., and Jacob Griggs, who were proceeding to administer the estate. The averments against the validity of the will are that the testator, at the time of its execution, was not of sound mind and memory, but was in his dotage, and that his mind and memory was so impaired as to render him wholly incapable of making any just distribution of his estate. The bill further charges that Jacob Griggs and Catherine Cockeram and others used and exorcised many undue arts and fraudulent practices, etc. * * * * to induce deceased to execute the pretended will, and that in fact in executing the will he was acting under improper restraint and undue influence from such arts and fraudulent practices. Prays that the instrument and the probate thereof be set aside, .etc.

The respondents Samuel Cockeram, Jacob Griggs and wife, and Catherine Cockeram and Hannah Isham answered denying the allegation, and Benj. Cockeram and Mary Ann Baker made default. It appears that deceased was worth in effects at his death some $18,000 to $20,000, and that appellant was only left by the will $500; all the balance was left to Griggs and wife and one or two other of his children. The main grounds of complaint by appellant are that the court below excluded all the evidence of declarations of the deceased testator, made shortly before his death and before and after the execution of the will tending to show his mental condition and feelings, and relationship between himself and contestant and other members of the family, offered by appellant in the trial, and also the giving of the 11th of proponent’s instructions.

It appears to be a well settled law that while evidence of this character can not be admitted to show an express revocation of a will, or the fact that it was executed under duress or from undue influence, they may nevertheless be proved and used to show his mental condition at the time of the execution of the will, or so near the time the same state of affairs must have existed. Such evidence tends to show the mental condition of the testator, the annoyances he may be subjected to by continual importunities of his wife and others, his susceptibility to the influence of those in whose care he' was, and his helplessness in their hands, and his want of mental vigor to resist those influences. It fact it is regarded as a part of the res gestae. Reynolds et al. v. Adams, 90 Ill. 135. We will purposely abstain from discussing the question of the weight of the evidence offered and introduced in this case on either side, hut content ourselves with deciding as to the competency of the rejected evidence as tending to prove the points -which it is competent to establish, mental capacity, and the state of mind of the testator at the time the will was made. In this case the testator was an old man living with his second wife, all of his children having been born to him from his first wife, and the contestant herein was a son by his former wife. Some of the circumstances were the same as in the case above cited.

There is direct testimony on each side of the question of the testator’s mental capacity to make a will. The wife of the testator seemed to have entertained ill will against appellant as well probably as against other members of his family, and felt particularly friendly to Griggs, who was her son by a former husband and son-in-law of the testator. It is competent to show by declarations of the testator made before and after the time the will was executed, his mental capacity and condition of mind at the time the will was executed, and other and a wide range of testimony is allowable “ in support of and in reply to evidence tending to show undue ínílúónce and weakness of mind as to the moving and proximate causes of the will.” Red. on Wills, Part I, p. 536, Sec. 51. It is also competent to show by his declarations the relations of the family, the terms upon which he stood with them, and the claims of particular individuals as well as other evidence to the same point.

The most of the rejected testimony, offered by appellant, of Win. E. Cockeram, Edgar L. Cockeram, Mary A. Baker, Benj. King, John B. Hopkins, Mrs. Phila F. Harrison, Mrs. Anna Hazzard, Ebenezer Baker, Clinton W. Card, Robert Hazzard, W. T. Hopkins, Benj. Cockeram, and perhaps others, was competent and improperly rejected by the court.

The lltli of appellees’ instructions we regard as erroneous in excluding from the jury by implication, at least, the agreement of marriage settlement between the testator and his wife as evidence for any purpose. It was no doubt competent evidence as a circumstance to show the relationship existing between the testator and his wife, and this instruction would seem to exclude it as evidence for any purpose. We have not undertaken to particularly specify what part of the excluded evidence was wrongfully excluded, trusting that it will not be difficult on a new trial to regulate the matter in accordance with the rules announced.

For the above reasons the decree is reversed and the cause remanded.

Reversed and remanded.


text:
    George B. Joiner v. Drainage Commissioners, etc.
    Pbivilege—Attendance on genebal assembly.—Where an affidavit alleged that the attorney for the defendant was a member of the general assembly, and that the assembly was to he in session on and after January 7, 1885 (the application being made January 5, 1885), and that the affiant would at the time of the application for continuance be in actual attendance, etc. Held, that such affidavit is not sufficient. The affidavit was not made during the session and the attorney was not in actual attendance on the general assembly.
    Appeal trom the County Court of Iroquois county; the Hon. S. G. Bo vie, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. George B. Joiner, for appellant;
    cited St. L. & S. E. Ry. Co. v. Teters, 68 Ill. 144.
    The parties were in court and the appeal should not have been dismissed: Langenham v. Stickney, 90 Ill. 361; Kilian v. Clark, 9 Bradwell, 431; Section 50, “Drainage Act,” R. S.
    Mr. T. B. Harris, for appellees.
   Lacey, P. J.

Two points are made by the appellant for reversal. The first is, that the court erred in overruling the motion made by appellant for a continuance of the cause, on account of the absence of Free P. Morris, a member of the legislature elect; and the second is, that the court erred in dismissing the appellant’s appeal from the judgment of the county court. We will notice the first, the refusal of the court to continue.

The affidavit made by Morris himself, shows that he was attorney for the defendant, and that he was a member of the general assembly of the State of Illinois, and that the said assembly was to be in session on and after the 7th of January, 1885 (the application being made January 5, 1885), and that the affiant would, at the time of the application for continuance, be in actual attendance on the session of the said general assembly, and that the affiant’s presence was necessary to a fair and proper trial of the cause and that he was actually employed by defendant prior to the commencement of the present session of the general assembly.

This was manifestly insufficient and fails entirely to comply with the provisions of Section 46, Chap. 110, of the Revised Statutes, which provides that “ such affidavit shall be sufficient if made at any time during the session of the general assembly ; showing that at the time of making the same,.such party, attorney, solicitor or counsel is in actual attendance upon such session of the general assembly, etc.” The affidavit was not made during the session and the attorney was- not in actual attendance on the general assembly.

It would only be a matter of opinion or conjecture that Morris would be in attendance on the general assembly. Although he had been elected he might not qualify ; and although he then intended to do so and to be in attendance he might change his mind. Manifestly the affidavit did not bring the case within the provisions of the statute. The court did not err in refusing to continue the case on this affidavit. The next question is, did the court err in dismissing the appeal upon overruling the motion for continuance for the want of prosecution ? The bill of exceptions shows that an exception was taken to the order of the court in dismissing the appeal, as well as to the order refusing the continuance.

The record does not show that the cause was called for trial in its regular course, or that it was set down for trial at that time; but simply upon the overruling the motion for continuance the order of dismissal was made, not in the regular order of business.

If there had been such order for trial at that time or if the cause was regularly called for trial the bill of exceptions should show it, for the record negatives the idea that the appeal was dismissed on the regular call of the docket for trial and the appellant failed to prosecute. “When the court is not proceeding in accordance with its ordinary powers, there is no presumption of its correctness.” Kilian v. Clark, 9 Bradwell, 426; and the case of Longenham v. Stickney, 90 Ill. 361, is very similar in its facts, and in principle entirely so with the present case. See also the provisions of the Drainage Act, Sec. 50. For the error of the court in dismissing the appeal the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


author: Lacey, J.

text:
    Benjamin F. Townsley v. Jennie Quinlan.
    Breach of contract of marriage—Instructions.—Instructions that ‘ ‘ a mutual engagement may be inferred from constant and devoted attentions gladly welcomed, from reciprocal affection and the interchange of letters expressive of earnest love,” and that “ evidence of her preparation of marriage and her carrying herself as consenting to and approving Ills promise, if such evidence has been introduced, would be sufficient to establish a contract of marriage between the parties." Held, that the court usurped the province of the jury by telling them what would be sufficient evidence, speed" fyin'g a few circumstances, some of which were not in evidence, and telling them that such circumstances were alone sufficient to establish the existence of the contract.
    Appeal from the Circuit Court of Mercer county; the Hon. J. J. Glenn, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. John C. Pepper, for appellant.
    Messrs. Bassett & Wharton, for appellee.
   Lacey, J.

This was an action in assumpsit brought on an alleged marriage contract between apiaellant and appellee, made on April 23, 1882, and broken in September, 1883, and suit brought by appellee February, 1884. A trial was had before the court and a jury, and a recovery of $1,500. There were pleas of general issue and accord and satisfaction. It appears from the testimony that appellant frequently visited the appellee from some time in 1879 to October, 1883.' The appellee testified that slid promised in 1882 to be appellant’s wife, and there was no time fixed for the marriage. His attentions were increased after that. That she was sick in 1882, and he called on her; “he said we were going to be married.” That she was sick in Princeton from February until April, 1883, and he called on her there; was very sick. He was very kind, etc. It appears that appellant had been furnishing appellee money during the time he visited her to a considerable amount, some hundreds of dollars. Appellee rested her case without disclosing that she had been improperly intimate with the appellant during the time of their acquaintance.

The appellant then took the stand and testified in substance that during all the time he visited her from November, 1879, to the time she got sick in 1882, he had sexual intercourse with her, and at different places, and that she had even gone with him to Rock Island and Davenport for purposes of assignation, and this intercourse was carried on between them in that -way under an understanding that he was to furnish her money from time to time in payment of favors. He produced many letters from her strongly corroborating this theory of the case, which letters, all but one, in which it is admitted in substance that an abortion had been produced upon her in Princeton in February, 1882, at the time she was sick there, she admits tobe genuine, and of this letter the evidence as to its genuineness is quite strong. The tone and character of all the letters passing between them seem quite strongly to negative the idea of a marriage contract having existed between them.

Upon the rebuttal the appéllee for the first time admitted that improper relations had existed between them, modifying his account of it somewhat, and claimed that her consent to the acts of sexual intercourse was procured by appellant under the promise of marriage, and claims increased damages on that account. Appellee admitted that the sexual relations had existed between them from 1881, a considerable time before she claims that any promise was made by appellant, to marry her, but avers this intercourse was had with her with the expectation on her part that he would marry her.

We may say that taking the whole evidence together the proof of the existence of a contract of marriage is far from satisfactory.

Under the state of the evidence we think the court below erred in giving instructions Nos. 1, 3 and 7 for the appellee.

The first instruction tells the jury “that a mutual engagement may be inferred from constant and devoted attentions gladly welcomed, from reciprocal affection and the interchange of letters expressive of earnest love.” The third lays down the proposition that “Evidence of her preparation of marriage and her carrying herself" as consenting to and approving his promise, if such evidence has been introduced, would be suifi-. cient to establish a contract of marriage between the parties.” The seventh holds, that if the jury believe the appellee, through, an implied understanding that the appellant was to marry her, permitted him to have sexual intercourse with her, then the jury should find for appellee and may take such seduction into account in assessing damages, etc., unless she had been guilty of sexual intercourse with other men, etc.

Aside from the instructions calling the attention of the jury to facts not in evidence, such as making preparation of marriage and carrying herself as consenting to and approving his promise and letters expressive of earnest love, etc., the court usurps the province of the jury, by telling them what would be sufficient evidence, specifying a few circumstances, some of which were not in evidence, and telling them that such circumstances were alone sufficient to establish the existence of the contract.

This had a strong tendency to nullify in the minds of the jury all of the appellant’s very important testimony and cause the jury to look on the side of the appellee alone. It would lead the jury to believe that such facts being established as set out in those instructions proved the contract as a matter of law, as the court without reference to any of the other evidence in the case told them those facts were sufficient, if established, and by referring to them the jury would naturally infer that there was evidence at least tending to establish them, as the court had called their attention to such supposed facts. An instruction very similar to these given, to be found in the case of Walinsey v. Robinson, 63 Ill. 41, has been condemned by the Supreme Court. In that case the jury were instructed that they might. infer the existence of a marriage contract, 1st, from the conduct of the parties; 2d, from the circumstances which usually attend an engagement to marry, as visiting, the understanding of friends and relatives, preparation for marriage, and the re-ception of the defendant by the family of Sarah Robinson ¿as suitor. The court say in that case “ the instruction was too broad; it gives the jury a latitude too great. It by no means follows that because a gentleman is a suitor of a lady, and visits her frequently, that a marriage contract exists between them,’’ and the judgment was reversed for the error in giving that instruction, not more damaging than'the above instructions given in this case. The courts recognize the inclination of a jury to strongly lean toward the woman in this class of cases, and guard with care the rights of all parties. It is true that the Supreme Court, in Rockafellow v. Newcomb, 57 Ill. 186, hold this language: “ An express promise need not be proved. A mutual engagement may be inferred from constant and devoted attentions gladly welcomed, reciprocal affection, and the interchange of letters expressive of earnestlove.” But this was said in a suit in equity, where the court was finding and establishing the facts, and the court was saying what might, under certain circumstances, be sufficient to establish such contract, and under the circumstances of that case it was sufficient, and it is not doubted that it would be sufficient in many other cases, but it is not always sufficient and is not a matter of law. Then again the seventh instruction was erroneous in being too indefinite, in telling the jury “that if sexual intercourse was obtained with appellee under an implied understanding that appellant was to marry her, the jury should find for appellee, and might take such fact into consideration in assessing damages.” The appellee does not claim that there was an existing contract of marriage, on'y she inferred he would marry her, etc., and submitted to the sexual intercourse in consequence. The jury would be liab’e to think that this was the implied understanding referred to by the court, which evidently would not be sufficient.

Then, again, the jury were not only to take such fact into consideration in the assessment of damages, but they were to find a verdict on such proof if they thought the facts established a contract not declared on, as this was not. The contract declared on was alleged in the declaration to have been made April 23, 1882, whereas the sexual intercourse first took place in 1879, according to appellant, and in 1881, according to appellee. The idea that a contract of marriage existed either express or implied prior to or contemporaneously with the first act of sexual intercourse, strongly appears to have been first suggested on the trial, and it was never advanced until the appellee, on rebuttal to the evidence of appellant, brought it forward in justification to the numerous undeniable acts of sexual intercourse had prior to the marriage contract as set out in the declaration.

There might be a case where instructions like the above, if given, would not be held sufficient error to reverse; but in a case like this, where the evidence is not strong, we. feel bound to reverse, because the instructions in themselves are erroneous and probably misled the jury. We find no error in the refusal by .the court to give the second refused instruction offered by appellant.

For the reasons above set forth the judgment is reversed and cause remanded

Reversed and remanded.