author: Lacey P. <J.

text:
    Robert Sharp et al. v. The People.
    1. Judges of election. — The words of section 86, subdivision 5, of the statute relating to elections, “if any judge of any election shall [refuse to receive the vote of any qualified elector at such election, who will make the affidavit and proof required by this act,” etc., mean who shall make and present the affidavit. It is not a violation of this statute, forjudges of an election to say in advance of an affidavit being presented, that they will not allow a party to vote, even if he does make the statutory affidavit. Such, statement is only a threat to violate the law — not an actual violation of it.
    2. Challenge to vote. — Where there is a challenge to a vote, judges of election can not waive the affidavit. If they do, they are liable to a criminal prosecution.
    3. Indictment — What pabty must defend. — Where judges of election are indicted under the specific clause of the statute which provides a penalty against refusing a vote of a qualified elector, in case he presents his affidavit under the act, they are not called upon to defend against a charge of violating any other provision of the statute.
    Error to the Oounty Court of Livingston county; the Hon. R. R. Wallace, Judge, presiding.
    Opinion filed February 29, 1884.
    Mr. George Torrance and Mr. J. T. Terry, for plaintiffs in error;
    as to instructions, cited St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 257; Cushman v. Cogswell, 86 Ill. 62; St. L., A. & T. H. R. R. Co. v. Pflugmacher, 9 Bradwell, 300; Evans v. George, 80 Ill. 51; C., B. & Q. R. R. Co. v. Griffin, 68 Ill. 499.
    Mr. R. S. McIlduff, for defendant in error;
    as to intent, cited McCutcheon v. The People, 69 Ill. 601; Farmer v. The People, 77 Ill. 322; Anderson v. The People, 63 Ill. 53; Humpeler v. The People, 92 Ill. 400; State v. Goodenow, 65 Me. 30.
   Lacey P. <J.

This was an indictment charging the plaintiffs in error of a violation of subdivision No. 5 of section No. 86, R. S., entitled “Elections,” in refusing the vote of one August Reising at a certain school election held April 15, 18S2, by plaintiffs in error, as school directors, at which election the subject being voted on was to fill a vacancy in the school board of directors in District No. 7, in T. 28, R. 7, East, 3 P. M. The election was held under section 42 of the school law. Subdivision No. 5 of said section 86, reads, in connection with the opening and closing clauses, as follows: If any judge of any election shall refuse to receive the vote of any qualified elector, at such election, who shall make the affidavit and proof required by this act, he shall, on conviction thereof, be fined in a sum not exceeding §1,000, or imprisoned in the county jail not exceeding one year, or both, in the discretion of the court. Sections 67 and 68 of the same act prescribe the occasion and manner and form of the affidavit required of the proposed voter referred to in said subdivision No. 5, and are as follows:

Section No. 67: “’Whenever at any general or special election in any precinct, district, city, village, town or ward, any person offering to vote is not personally known to the judges of election to have the qualifications mentioned in the two preceding sections, if his vote is challenged by a legal voter at such election he shall make and subscribe an affidavit in the following form, which shall be retained by the judges of election and returned by them with the poll books.” Then follows the form of the affidavit, which requires the elector to swear that he was a citizen of the United States, or was an elector, on the 1st day of April, 1848, or that he had obtained a certificate of naturalization before a court of record in this State prior to the 1st day of January, A. D. 1870; that he had resided in this State one year; in the county ninety days, and iii the election district, thirty days next preceding the election, and that he was twenty-one years of age and had not voted at the election. Section 68 provides that, “in addition to such an affidavit the person so challenged shall produce a witness personally known to the judges of the election, and resident in the precinct (or district), or who shall be proved by some legal voter of such precinct or district known to the judges to be such, who shall take the following oath,” etc., which provides among other things that the witness shall make affidavit that he is well acquainted with the person offering to vote; that he is an actual bona fide resident of this precinct and has resided therein thirty days, and that he verily believes, in the county ninety days, and in the State one year preceding this election. By section number 27 of the school law, the penalties of the above election law are made applicable to the judges of elections under the school law; and by section 42 of the school law, the directors are the judges of elections for directors.

The indictment was found in the circuit court but certified to the county court, and the case was there tried and resulted in the conviction of plaintiffs in error and their being fined $25 each.

In appears from the evidence that the proposed voter, August Keising, was a young man without a family and had resided in his father’s family in the district, and had lived there sixteen years; but it appears that he had been out of the district at work during the last twenty-five days, but claimed he had his washing in the district, and claimed his residence with his father in the district all the time.

When he presented his ballot, the judges refused his vote on the grounds that he had not been a resident of the district for the required time. The clerk of the election, Elbert, as August swears, got the book, and he held up his hands and tlie clerk, read the oath, and his father and Peck were sworn as witnesses. He offered to vote again, bat the judges refused. The oath was a verbal one administered by the clerk, who had not the power under the statute to administer it. The clerk went for the book to write an affidavit when the judges told him to keep his seat, and then the clerk got up, and the plaintiffs in error told him to keep his seat or they would get another clerk. They then, after some more parley, decided that he had no right to vote. Beising signed no paper and no affidavit was drawn up. The clerk, Elbert, testified that he “ got up to get a book to write an affidavit when Sharp, one of the plaintiffs in error, said, ‘its no use in making an affidavit, they would not take his vote if he did’ and for me to sit down. I thought I could swear him; there was no affidavit drawn or presented.”

That part of the testimony in regard to the plaintiffs in error saying that they would not let Beising vote even if he presented an affidavit, is denied by plaintiffs in error. It is claimed by the attorney for the people that the plaintiffs in error waived the necessity on the part of Beising “ to make and subscribe an affidavit” such as the statute requires, and to produce the witness to take the proper oath, by telling him beforehand it would be useless, as his vote would not be received even if he did.

"We do not think that it is a violation of the statute to say in advance of an affidavit being presented, that they would not allow him to vote even if he did make the statutory affidavit. They had a right, when he was challenged, and it was their duty under the statute, to refuse his vote, and he had a right, if he desired, to bring the judges to a decision of his right to vote on his affidavit and proof, to present such affidavit and proof before the judges, and then demand that they receive his ballot; then the judges would be called upon to decide, and would have jurisdiction of the question; not otherwise. As the matter stood when the vote was rejected, the plaintiffs in error were not violating the said 5th subdivision of said section of the election law. There is no analogy between a case like this and the waiver of a tender of money or property by the person entitled to it in a case of civil rights, as supposed by counsel for the people.

At most, the threat, if one was made, to reject the vote in case an affidavit was made, was only a threat to violate the law; it was not an actual violation of it.

The words of the clause of the statute under which this indictment is brought, “shall refuse to receive the vote of a qualified elector at such election who will make the affidavit and proof required by this act,” etc., mean who shall make and present the affidavit, which will readily be seen by refer ence to section 6T of the same act, which prescribes the elect- or’s duty in case he is challenged.

In case the affidavit is made according to the statute, and the judges refuse the vote, and it turns out that the party whose vote is rejected is a qualified elector, then the judges would probably be liable to the penalty without reference to their good or bad faith; but to make them so liable, the statute must be complied with. The judges would no doubt have a right to show in defense, even with an affidavit, that the vote- was rightfully rejected. By the first clause of section 86 the judges are equally liable to the same penalty if they shall permit a person to vote whose vote is challenged, without the proof required by the act.

If there was a challenge, which the evidence appears clearly to show, they could not waive the affidavit; if they did they were liable to a criminal prosecution; hence they were strictly fulfilling their duty in rejecting the vote.

There is some question or claim made that there is no proof of any challenge,' and that in rejecting the vote the plaintiffs in error were guilty of willful neglect of duty when they knew Beising was a legal voter, and that they acted from some corrupt motive, such as partisanship and partiality in the discharge of their duty. A sufficient answer to this is, that they are indicted under the specific clause of the statute which provides a penalty against refusing a vote of a qualified elector, in a case where he presents his affidavit under the act, and the plaintiffs in error are not called upon to defend against a charge of violating any other provision of the statute. The very charge pre-supposes a challenge of the voter, or some equivalent requiring an affidavit.

If the indictment had been drawn under the 8th subdivision of the same section, charging some other willful neglect of duty provided for in that clause, then with proper proof, conviction might be had in accordance with the charge.

But in this the prosecution is confined to the one charge, and, as will be seen, we do not think the proof sustains it.

As a matter of course, in accordance with the view we take of the case, a number of the people’s instructions are -erroneous; but it is not necessary for us to notice them specially, as-the evidence fails to support the verdict. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Lacey, P. J.

license: Public Domain

text:
    Village of Momence v. Charles B. Kendall.
    Negligence — Notice op deeect in sidewalk. — An excavation had. been made for a cellar, and stones had been placed upon the sidewalk to prevent persons from attempting to pass; but some, instead of going around, jumped across the corner of the cellar, and the owner, fearful that they might fall, laid planks there. Appellee,who was well acquainted with the excavation, having helped to dig it, and having passed by it several times a day, instead of going around or crossing to the opposite side, attempted in the night time to cross over the plank, fell and was injured. Held, that appellee was grossly negligent and can not recover.
    Appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed February 29, 1884.
    Mr. H. Boring, for appellant;
    that the burden of proof was on appellee to show he was not guilty of negligence, cited Dyer v. Talcott, 16 Ill. 300; Galena, etc., R. R. Co. v. Fay, 16 Ill. 588; C. B. & Q. R. R. Co. v. Gregory, 55 Ill. 272; Dickey v. Me. T. Co., 13 Me. 192; Parks v. O’Brien, 23 Conn. 337; Lucas v. Taunton, etc., R. R. Co., 6 Gray, 64; Evansville, etc., R. R. Co. v. Hiat, 17 Ind. 102; Dressler v. Davis, 7 Wis. 527; Owings v. Jones, 9 Md. 108.
    Appellee was guilty of gross negligence: City of Aurora v. Puller, 56 Ill. 270; City of Centralia v. Krouse, 64 Ill. 19; Lovinguth v. City of Bloomington, 71 Ill. 283; City of Quincy v. Barker, 81 Ill. 300; Kepperly v. Ramsden, 83 Ill. 357; City of Aurora v. Dale, 90 Ill. 46.
    Knowledge on the part of appellee of the danger, is presumptive evidence of negligence on his part, so much so as to call upon him to rebut it: Achtenhague v. Watertown, 18 Wis. 321; Folsom v. Underhill, 36 Vt. 580; Fox v. Glastenburg, 29 Ct. 204; Wilson v. Charleston, 8 Allen, 137.
    A person who is old or infirm would be guilty of culpable negligence in. taking risks which might be properly assumed by a healthy, young and vigorous person: Shearman & Redfield on Negligence, § 30; Winn v. Lowell, 1 Allen, 177; I. C. R. R. Co. v. Buckner, 28 Ill. 299.
    Mr. Stephen R. Mooee, for appellee.
   Lacey, P. J.

The suit was by appellee, to recover from appellant in not properly protecting an excavation being made by one Knightheart by its permission, for a cellar along one of the streets of the village, called Front street, by means of which the appellee fell into the cellar and was injured. The declaration avers that the appellant wrongfully permitted large quantities of stones to be placed and remain in Front street, and failed to place boards or guards to prevent persons falling into the excavation, and that the appellant, while passing along the street, fell from the street into the excavation and broke his collar bone. The appellee recovered a verdict and judgment against the appellant for $375, from which |appeal is taken.

' It appears that there was a cellar being dug on a lot belonging to Knightheart, on the south side of Front street, a street running east and west. The east side of the lot abutted on vacant ground, and the north side on the south side of Front street, the excavation extending some eighteen inches into the street. The sidewalk opposite the point where the injury occurred was ground sidewalk, and the cellar was about five feet deep. There was a pile of stones placed on the sidewalk, that came up to the corner of the cellar, to keep people from going over it while the cellar was being dug. The stones came up close to the cellar. It one passed over the sidewalk on the inside, he would have to go over the stones, and if on the west side, into the street, where there was a small ditch easily crossed, it being ten or fifteen feet around into the street.

After the stones were placed on the sidewalk, people got to jumping across the corner of the cellar. The greater part of the travel went around by the street, crossing on the opposite side of the street, but some people who were venturesome would jump across the corner of the cellar onto the east side, on Knightheart’s land. One day Knightheart came along and saw the children jumping across the corner of the cellar, and’for fear some one might fall in, he ordered the workmen to place some planks on there; so the workmen placed six planks, ten inches wide and two inches thick and eighteen feet long, diagonally across the corner of the cellar excavation from the north side, one end resting on the sidewalk and the other on the vacant lot on the east side. • The planks were solid, and there was not much travel over them. The appellee lived about three hundred feet east of the cellar. On the night of the 13th of March, 1882, he, about eight o’clock in the evening, being at a saloon on the west side of this excavation, it being very dark, started home, going east along the sidewalk by this cellar, and coming to the stones, undertook to walk over the plank onto the vacant lot on the east side, and when about the middle of the plank, in some way lost his balance and fell into the cellar and was injured as charged. He was well acquainted with the excavation, having helped to dig it, and having passed by it daily several times a day, and knew about the planks as well as the men who put them there.

The main point relied upon for reversal is that the appellee was grossly negligent in attempting to cross over those boards in the night time when he knew the condition of the walk, the cellar and the boards, especially when there were other streets and walks over which he could have passed and avoided the danger, and appellant’s counsel cite City of Aurora v. Pulfer, 56 Ill. 270; City of Centralia v. Krouse, 64 Ill. 19; Lovinguth v. City of Bloomington, 71 Ill. 282; City of Quincy v. Barker, 81 Ill. 300; Kepperly v. Ramsden, 83 Ill. 357; City of Aurora v. Dale, 90 Ill. 46; Achtenhague v. Watertown, 18 Wis. 321; Fulsom v. Underhill, 36 Vt. 580; Fox v. Glastenburg, 29 Ct. 204, and Wilson v. Charleston, 8 Allen, 137; and also it is insisted that there is a variance between the declaration and proof.

We are inclined to think that the points insisted on for reversal are well taken. The gravamen of the charge in the declaration is that the appellant failed to put up guards and barriers to prevent persons passing along the sidewalk’from falling into the excavation.

But the evidence shows that the stones were placed on the sidewalk to prevent persons from attempting to pass while the cellar was being dug. This was notice of itself that the sidewalk was not to be used. What need of any barrier or other notice? The appellee knew the condition of the cellar and sidewalk and was not deceived or misled in the least; he knew when he undertook to cross those planks that they had no railing; that.the night was dark and that he was liable to walk or stumble off into the cellar.

He deliberately, in the dark, attempted to walk the planks lying across the corner of the cellar, taking his chances for his own safety rather than to go ten or fifteen feet farther around, or to go on the opposite side of the street; he failed in the attempt, as any reasonable man would have supposed he would be likely to do.

Persons are bound to use ordinary care for their own safety, and in this case the appellee was grossly negligent and careless in attempting to walk the planks under the circumstances. The appellee was seventy-three years old, and we can see but little difference between his attempting to walk the planks in the manner and under the circumstances, and attempting to jump into the cellar. The declaration avers that appellee, while walking along the sidewalk, fell into the cellar; but the proof shows that at that time he was not walking along the sidewalk at all, but was entirely off it, in the middle of the plank where he had voluntarily gone, attempting to cross the corner of the cellar. The .averments of the declaration are not supported.

It is unnecessary to notice the instructions. Because the verdict was manifestly against the weight of the evidence the judgment is reversed.

Judgment reversed.


text:
    Edwin F. Reeves v. William J. Hyde.
    Lease under seal — 'Parol agreement. — Where appellant brought suit against appellee for $25, due on a lease under seal which contained no covenants to repair, and appellee showed that shortly after taking possession under such lease, appellant verbally agreed to build a new cistern, and endeavored to recoup the damages caused by a failure to fulfill such agreement. Held, that without anew consideration, the executory lease under seal could not be changed by parol so as to form the basis of an action or for recoupment.
    Error to the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    Opinion filed February 29, 1884.
    Mr. Frank Crosby, for plaintiff in error;
    as to adding to the terms of a written instrument by parol evidence, cited Chapman v. McGrew, 20 Ill. 101; Hume v. Taylor 63 Ill. 43; Barnett v. Barnes, 73 Ill. 216; Dutton v. Gerrish, 9 Cushing, 94.
    As no new consideration for the alleged agreement moved between the parties, it was void in law: Merkle v. Wehrheim, 32 Ill. 534; I. B. & W. Ry. Co. v. Rhodes, 76 Ill. 285.
    As to implied covenants in a lease: Gazzolo v. Chambers, 73 Ill. 75.

      Mr. J". A. Bussell, for defendant in error;
    as to tlie right to recoup damages of the character sustained by defendant, cited Lunn v. Gage, 37 Ill. 19; Tupper v. Rowley, 73 Ill. 262.
   Lacey, P. J.

This was a suit commenced before a justice of the peace and taken by appeal to the circuit court, and there tried before a court and a jury and resulted in a verdict in favor of appellee, who was the defendant below. The suit was based on a lease under seal by which appellant had leased to appellee a cottage in the city of Elgin for one year from May 1, 1882, for the sum of $300, $25 payable monthly, with ordinary covenants. The plaintiff, appellant, showed in order to sustain his case that there was $25 due on the lease at the time the suit was commenced, and rested.

To sustain the defense the appellee testified that he occupied the premises for nine months; that shortly after taking possession he had a talk with the plaintiff about the well on the premises and about a cistern, and he agreed to put in a new cistern that should be as good as any in town; also that he would put the well in good order; he finally put in a cistern about a month after appellee took possession, but the cistern leaked and he did not have soft water more than six weeks of his tenancy, and five of his boarders left on that account. The damage from failure of cistern and bad condition of the well was reasonably worth $2 per week.

The verdict was for the appellee and judgment against appellant for costs; and he appealed to this court and assigns for error that the court erred in not giving his first refused instruction. The verdict was against the law and the evidence and the court erred in not granting a new trial.

The point made by the appellant is that the lease, being under seal and no new consideration having passed, could not be changed, altered or enlarged by parol agreement; and as the original lease contained no covenant for repairs the appellant was not bound to repair. That the only implied covenant was for quiet enjoyment. That therefore the agreement to build a new cistern or repair the well was void, and could not form a basis for recoupment.

Appellant cites for authority the following decisions of the Supreme Court, to show that an executory lease under seal can not, without a new consideration, be- changed by parol so as to form the basis of an action, or for recoupment; to wit: Chapman v. McGrew, 20 Ill. 101; Hume Bros. v. Taylor, 63 Ill. 43; Barnett v. Barnes, 73 Ill. 216; Dutton v. Georist, 9 Cush. 94.

We think the authorities sustain the proposition, and that the evidence should have been excluded, or disregarded by the jury, as such contract was void; and that the first instruction offered by appellant should have been given, which is to the effect that “ if the jury believe from the evidence that the defendant went into the possession of the premises named in the lease, and that in such lease no agreement is made by the plaintiff to provide a cistern or well, then as a matter of law the defendant can be assessed no damages for any defects in respect to a cistern or well, unless you believe from the evidence that by an agreement made between plaintiff and defendant after the execution of the lease, the plaintiff, for a consideration, agreed with the defendant to provide him with a cistern and well on the premises, and that defendant, by reason of plaintiff’s failure to comply with such agreement, suffered money damages.” The instruction is in harmony with the decisions of the Supreme Court and should have been given. By the terms of the lease the appellant was not bound to repair the well or make a new cistern, and no such covenant could be implied: Gazzolo v. Chambers, 73 Ill. 75. Hence any agreement to do these things without a new consideration would be changing, a lease under seal while it was still executory, and would be void under the law.

Bor the error of the court in refusing the instruction and because the verdict is manifestly against the weight of the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Laoey, P. J.

text:
    Thomas G. Riley v. John Du Bois.
    Salé — Delivery.—Appellant was to sell appellee a cow at so much per pound live weight. She was picked out from among others in the pasture and was to he weighed on the latter’s farm, and it appeared to be the intention that she should be paid for when taken away. The nest day appellee’s agents came for the cow and put appellee’s ropes on her, but the cow broke loose from them and ran into a neighbor’s field, where she was pursued by appellee’s agents and appellant. Appellant caught and tied her to some willows, where appellee’s agents agreed to come and kill her. They did not come until Sunday morning, when, it is claimed; they agreed to kill her and give so much per pound, dressed meat. When they went to look for the cow, she was found dead. Held, that if the cow was accepted by appellee where tied, the delivery was complete, and the loss resulting from the death of the cow would fall on appellee, no matter whether the price was paid or not; and the fact that the price was agreed on, if it was, on Sunday before they went to look at the cow where she had been left tied, would not change the status of the parties.
    Appeal from the Circuit Court of Livingston county; the Hon. Fkahklln Blades, Judge, presiding,
    Opinion filed February 29, 1884.
    Mr. D. L. Murdook, for appellant;
    as to instructions, cited Adams v. Smith, 58 Ill. 421; Cusick v. Campbell, 68 Ill. 510; T. P. & W. R. R. Co. v. Patterson, 63 Ill. 305; Ogden v. Kirby, 79 Ill. 555; Sterling Hydraulic Co. v. Williams, 66 Ill. 393; I. C. R. R. Co. v. Maffitt, 67 Ill. 431; Village of Warren v. Wright, 3 Bradwell, 602.
    Mr. G. W. Pattoít, for appellee;
    that title does not pass by the mere contract of sale unless it affirmatively appears that such was the intention of the parties, cited Benjamin on Sales, 336, § 329; T. W. & W. Ry. Co. v. Chew, 67 Ill. 378; Hunt v. Eldridge, 5 Bradwell, 529.
   Laoey, P. J.

This suit was brought by the appellant against the appellee to recover the price of a cow, sold by appellant to appellee for four cents per pound, live weight; and she was picked out from among others in the pasture of appellant, and was to be weighed on the latter’s farm on his scales. It appeared to be the intention that she should be paid for when taken away. This took place on Thursday, and the next morning appellee’s man and agent came down to the farm, and they caught the cow and put appellee’s ropes on her, but she was unmanageable and broke loose from the men with the rope on her and they could not handle her. She then ran onto the neighboring farm of Fugate, where she was pursued by appellant’s aud appellee’s agents, and appellant caught and tied her to some willows, when appellee’s agents agreed to come down that evening or the next day and kill her where she was, but did not come until Sunday morning following, when, as appellee claims, but is denied by appellant, they agreed that they would kill her and give seven cents per pound dressed meat; but afterward, when they went on Sunday morning to look after the cow she was found dead. If the cow was accepted by appellee where tied, the delivery was complete and the loss resulting from the death of the cow would fall on appellee, no difference whether the price was paid or not; and the fact that the price was agreed on, if it was, on Sunday morning before they went to look at the cow where left tied, could make no difference, or change the status of the parties. This fact and principle of law was ignored by appellee’s instruction Ho. 5, which was erroneous and highly misleading.

At the time the cow was tied at the willows, appellee agreed to kill her there, and employed Fugate to water her, and she was tied with appellee’s ropes. By the agreement to kill the cow at the willows any claim appellant might have for payment before delivery was waived, of necessity; because, as the matter then stood, the price could not be ascertained because she could not be weighed on the scales. It must have been the intention that the title to the cow should pass as manifested by the agreement to kill her, and appellee’s putting Fugate in charge of her. It appears to us the verdict was manifestly against the weight of the evidence.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    W. M. Darlington et al. v. James P. Garrett, Adm’r, etc.
    1. Partnership — Drawing of draft — Bad faith of partner.— In the ease of an overdraft, drawn payable to the order of one partner, where the power exists to overdraw in the name of the firm, notice to the drawee of had faith of the partner overdrawing, would be necessary in order to release the defrauded partners from liability on such t draft. The court does not recognize any distinction as to liability, in a case where .a partnership has funds in the hands of a third party, and a check or draft is drawn payable to the order of one partner, and a case where a partner is borrowing money and pledging the firm credit.
    2. Notice. — The mere fact that overdrafts were drawn payable to a member of a partnership drawing them, would not be sufficient to charge the drawee with notice of such partner’s had faith.
    3. What will constitute notice. — In order to defeat the right of a drawee to hold all the members of a firm liable to the payment of a draft, notice of the bad faith of the partner may he shown by such surrounding circumstances as would be sufficient to put a reasonable man on inquiry, if such inquiry would have brought actual notice. The court is of opinion that the circumstances in this case were not sufficient to show notice of the bad faith of the partner overdrawing.
    Appeal from the County Court of Marshall county; the Hon. John Burns, Judge, presiding.
    Opinion filed February 29, 1884.
    Messrs. Shaw & Edwards, for appellants;
    that the verdict was against the weight of evidence and should have been set aside, cited Pahlman v. Taylor, 75 Ill. 629; Walsh v. Lennon, 98 Ill. 27; Winship v. Bank, 5 Peters, 529; Boardman v. Gore, 15 Mass. 330; Bank v. Winship, 5 Pick. 11; Etheridge v. Burney, 9 Pick. 272; Ex parte Bonbonus, 8 Ves. 540; Swan v. Steels, 7 East, 210; Reidley v. Taylor, 13 East, 175; Story on Bills, §§ 78, 416, 417; Story on Partnership, §§ 105, 106, 126, 140; Comstock v. Hannah, 76 Ill. 530.
    Messrs. Barnes & Muir, for appellee;
    as to the authority of a partner, cited Marsh v. Thompson Nat. Bk., 2 Bradwell, 217; Wright v. Brosseau, 73 Ill. 381; Parsons on Partnership, 183; Davis v. Blackwell, 5 Bradwell, 32; Collier on Partnership, 678; Zuel v. Bowen, 78 Ill. 234-237; Wittram v. Van Wormer, 44 Ill. 425-527; N. T. Firemen Ins. Co. v. Bennett, 5 Conn. 574; Livingston v. Rooswell, 4 Johns. 251; Wilson v. Williams, 14 Wendell, 146.
    Taking payment by the individual creditor out of the firm assets is an actual fraud. And in this State it makes no difference whether the creditor knew he was getting firm effects or not: Buchanan v. Meisser, 105 Ill. 638-644; Casey v. Carver, 42 Ill. 225; McNair v. Platt, 46 Ill. 211; Rainey v. Nance, 54 Ill. 29; Parsons on Partnership, 202.
   Lacey, P. J.

The appellants were live-stock commission merchants doing business at the Union Stock Yards, in the city of Chicago, and the appellee was the administrator of the estate of Joseph Thompson, deceased, who was a member of the firm of J. Thompson & Co., composed of deceased and one Henry Titus, which firm during the life-time of the deceased was doing business at Sparland, Marshall county, Illinois, in buying and shipping live stock to Chicago.

The claim of appellants, who were the members of the firm of Darlington, March & Co., was filed in the county court against the estate of the deceased Thompson, and was founded on four drafts drawn by J. Thompson & Co. in favor of Henry Titus, the other member of the firm, upon Darlington, March & Co. Three of the drafts were dated Chicago, Dee. 26,1881, one for $200 and the other two for $300 each. The fourth was dated Chicago Dec. 27, 1881, for $200; all of them were indorsed in blank by Henry Titus. Each had on its back a second indorsement to “ pay to the Union Stock Yards National Bank account First National Bank Chicago for collection,” signed L. J. Cage, cashier. The first three were paid by Dai*lington, March & Co. at the Union Stock Yards National Bank, Dec. 28, 1881, and the last on Dec. 30, 1881, and also indorsed and taken np by Darlington, March &Co. The case was tried before the court and a jury and resulted in a verdict for the appellee, and the appellants bring the case here by appeal, and ask for a reversal on the grounds that the verdict was manifestly against the weight of the evidence, and that the court erred in misdirecting the jury as to the law, and in admitting improper evidence on the part of the appellee.

The defense is based on the fact that Titus, after he had drawn on appellants to the above amounts and it had been paid, converted the money to his own use and absconded, immediately upon the payment of the drafts, and that the appellants were negligent in paying them under the circumstances; and that the circumstances were such as to put them on inquiry, and that for that reason Thompson’s estate is not liable for the payment of the drafts.

The facts are that the firm of J. Thompson & Co. commenced' business in Novmber, 1879, at Sparland, and continued in business until the time Titus left, the last of December, ’81. Their business was buying and shipping live stock to the Chicago market, and they shipped to different firms while in business, and the last few months before Titus left they shipped their stock to Darlington, March & Co., and did their business mostly on credit; Titus was the active business man of the firm, Thompson being a farmer living on his farm in the country, a few miles from Sparland. The drafts in question were drawn by the firm by Titus and indorsed by him without any actual knowledge of Thompson, or special authority to draw them. Titus was in the habit of drawing overdrafts like these on other banks in the firm name, and had, with the knowledge of Thompson, drawn on the First National Bank of Lacón an amount of about $31,886.56 since April 7, 1881, and on the last of December, ’81, owed the bank $1,700 overdrafts. There were fifty-eight of those checks.

Thompson had an arrangement with the First National Bank of Lacón, to draw checks upon it for stock, and when they shipped to Chicago and the stock was sold, the proceeds were placed to the credit of the bank with the Merchants National Bank in Chicago, which latter bank sent statements of amounts to the Lacón bank from time to time and placed them to its credit, and it had no shipping bills. Titus usually-settled up for the firm. Titus was in the employ of Chas. F. Hitchcock, of Peoria, who did business in Sparland, as business manager at Sparland, and went from Sparland on the night of Friday, Dec. 23, ’81, and it was not known until Dec. 31st that he had absconded. Up to that time his standing as to business integrity and honesty was good, and Ditch-cock was in the habit of trusting him with large amounts of money to use in grain buying at Sparland; there was no limit to the amounts and sometimes he did a large business. Titus stood well in and about Sparland. Thompson and Titus did not cease to do business together until Titus left. Thompson did the most of the buying of the stock, and Titus the most of the weighing of the stock and drawing the cheeks when the stock was bought in. The firm of J. Thompson & Co. had no capital. Titus went several times to Chicago, and so did Thompson. It appears that it was the habit at the Union Stock Yards, among commission men, to allow overdrafts by shippers when the shipper was in good credit, and J. Thompson & Co. was in good credit at the stock yards. The last shipment was made about the middle of December, 1881, by J. Thompson & Go. to appellants, and was paid by draft for $600, drawn to Asa Daw. When the drafts in evidence were paid appellants did not know that Titus had absconded, and it was not unusual for shippers to draw away from their home office upon their commission men, or in Chicago, and without giving notice, as shown by Overman the book-keeper of appellants; but J. Thompson & Co. never drew before, except accompanying shipment of stock, to meet it, and the appellants had never before advanced money to or for J. Thompson & Co. The usual way is to draw drafts at the time stock is shipped and advise commission men of shipment.

Thompson was sick from and after November 29,1881, and was unable to do business, and did not know of the business transactions of the firm; but this was not known to appellants. Thompson died in January, 1882.

In order more clearly to understand the evidence and its bearing in the case, we 'will first consider what effect the fact that the drafts were all drawn payable to Titus, one of the members of the firm of J. Thompson & Co., and indorsed by him, had in law and fact as a notice to appellants that he was not intending to act fairly with Thompson, and that he was intending to appropriate the money to be obtained on the draft to his own use, in fraud of the rights of his partner. For if this is sufficient notice in itself, that should end the controversy in favor of the appellee, for the appellants would be chargeable with bad faith in paving the drafts; and if this is not notice in itself of bad faith, we fail to see how it could be connected with other facts and circumstances, so as to strengthen the evidence and establish notice which would not otherwise be proven.

It is admitted in argument by counsel for appellee, “ that if a partnership has funds in the hands of a third party, that a check or draft payable to the order of one partner should be honored because of the power each member of the firm has to collect all debts due the partnership, and the control he has over its funds.”

But it is argued that where one member of a firm is borrowing money and pledging the firm credit, the rule is different. In the latter case, the transaction must be, apparently at least, for the interest of the firm, and it must appear that the money was to be used for firm purposes.”

We are unable to perceive any grounds for distinction in the two cases put. While Titus had a right by entire virtue of his being a member of the firm, to draw out the money on deposit, on a draft like the one in question, he would have the same right under the facts of this case to borrow money for the benefit of the firm, and to draw for it by overdraft. He. obtained both rights by virtue of being a partner and the scope of the partnership dealing. If, in the case of money on deposit, it were the design of Titus to draw out the money for the purpose of absconding, and converting it to his own use in fraud of his partner, and that fact was known to appellants at the time, and he was attempting to do an act he had no right to do by virtue of his position as a partner, we can see no reason why appellants would be protected any more than if he was attempting to draw out the money on his individual check; for in substance that would be what he would be doing with full knowledge on the part of the drawee. And in the case of overdraft, where the power exists to overdraw in the name of the firm, notice to the drawee of bad faith would alike be necessary in order to release the defrauded partner from his liability on the draft. The fact that the draft was drawn by the firm in favor of the partner drawing, would be equal notice of bad faith in the one case as in the other. But on principle we do not think the form of the draft should make any difference. Honesty and not fraud is to be presumed in all cases, until the contrary appears; and in case of a stranger dealing with a member of a firm, he has a right, as to transactions within the scope of the partnership, to presume, as his partner has trusted him and given him these extraordinary powers, that he will deal honestly with his partner and not betray his trust; and that as between him and the other partner the law gives him the right to trust him and confide in his integrity.

In the case under consideration, Titus might be drawing the money against the credit of the firm for the purpose of repaying money that he had advanced for the firm, or he might be using the draft in that form as a mere instrument to obtain possession of the money for the use of the firm. ■ The money goes into his hands at all events, and he might as easily appropriate it to his own use if drawn out in any other way. All reasonable instruments should be in favor of the drawee. In Ex parte Bonbonus, 8 Ves. 540, it is said, “But if it is in the ordinary course of commercial transactions, as upon discount, it would be monstrous to hold that a mere borrowing money on a bill of exchange pledging the partnership, without any knowledge in the bankers — that in a separate transaction, merely because the money is all carried into the books of the individual, therefore the partnership should not be bound.”

It is further said in the same case, “ There is Ao doubt now the law has taken this course, that if, under the circumstances, the party, taking the paper can be considered as being advised in the nature of the transaction that it was not intended to be a partnership proceeding prima facie, it will not bind him;” thus showing that with notice to the drawee the firm would not be bound; but that the mere fact that the money was carried to the individual credit of the partner drawing the draft, would not amount to such notice to the drawee of the fraudulent intent.

We are of the opinion therefore that the mere fact that the drafts were drawn payable to Titus, the member of the firm drawing them, would not be sufficient to charge the appellants with notice of his bad faith. It remains then to consider whether appellants are chargeable with such notice of bad faith on any other grounds appearing in the evidence. It is contended by counsel for appellee that they are, and that the fact that the draft was drawn in Chicago, away from the home office, and where the firm of J. Thompson & Co. could have no possible use for the money, was sufficient to put appellants on inquiry and was therefore notice. We can not view the transaction in that light. The authority of Titus as a partner of the firm to draw drafts in the name of the firm was not restricted either as to the time or place. He had a right to draw whenever he could get money, and we can see nothing suspicious in the fact that he drew from Chicago, where he often went to do business, and where drafts are often drawn by shippers. Having drawn the money in Chicago, he could very easily carry it home or place it to the firm credit in his bank in Chicago, where they often deposited money to meet the overdrafts on the First National Bank of Bacon.' It is contended also that because the drafts were not accompanied with a shipment of stock as is usually done, that that was a suspicious circumstance and was out of the ordinary course of business. The custom requiring drafts to be drawn in that way is simply for the benefit of the drawee, because they are dealing with all sorts of men, and often strangers, and their own safety requires it. Such rule is not established for the purpose of preventing one partner from defrauding another in the shipping business. Wherever it so happens that the commission merchant has perfect confidence in the financial ability and honesty of the shipper the evidence shows that he relaxes that rule and allows overdrafts without security. In this case appellants did have that confidence in the ability and honesty of J. Thompson & Oo. They had long known them and had dealt a good deal with them and everything had been satisfactory. Their reputation also was good for honesty and integrity, both in Chicago and in Sparland, and wherever else they were known in the State; and Thompson was a man of considerable means, worth five or six thousand dollars. Appellants felt safe in trusting the firm with this advance of $1,000 without security. They certainly did have faith in the firm or they would not have trusted them. When everything is summed up, about the only ground for suspicion is that the firm of J. Thompson & Co., by Titus, one of the members, asked credit of appellants for $1,000 without offering security, at a time when the company was in good financial standing with them and were old customers. The appellants granted the request out of an accommodating spirit, and now it is claimed that they should lose the amount because they ought to have kuown that Titus was intending to defraud his partner Thompson.

We see no evidence upon which to base a charge of bad faith on the part of the appellants toward Thompson. It is claimed on the part of the appellants that the rule of law in such case is, that the drawee of the draft, in order to defeat his right to hold all the members of the firm liable to the payment of the amount of the draft, must have had actual notice of the design of the partner so drawing, or act in actual bad faith, and that even gross negligence would not be sufficient to charge him. On the part of the appellee, it is claimed that notice may be shown by such surrounding circumstances as would be sufficient to put a reasonable man on inquiry if such inquiry would have brought actual notice. The appellant cites Comstock v. Hannah, 76 Ill. 530; and appellee claims that the doctrine was overruled in the latter case of Auten v. Gurner, 90 Ill. 300. The first cited case undoubtedly lays down the rule as contended for by appellants, and that in a very carefully prepared opinion, in which is expressly overruled any expression of opinion to the contrary in any of its former decisions as being judicial dicta. The point in theComstock case was whether actual badfaithon thepartofthe indorsee of a promissory note was necessary in order to let in the defense of want of consideration on the part of the maker, and the court decided that it was. The Gurner case was where the defense against the note in the hands of the payee was that of fraud and circumvention, and the indorsee claimed that the maker was negligent in not protecting himself against the fraud at the time of executing the instrument, and the judge writing the opinion, after deciding that there was no negligence, by way of argument said that there was negligence on the part of the indorsee in not taking notice of suspicious circumstances surrounding the purchase;but the Comstock case was not alluded to, and the observations were mere dictum; and we are not able to say that the court intended to overrule the doctrine so deliberately announced in the first case. Conceding the rule to be as claimed in regard to negotiable instruments in the hands of the indorsee before maturity, we think that it would by no means follow that the same rule would apply in a case like this, where it is a question of the liability of partners in case of an overdraft ostensibly for the benefit of the firm, but in reality for the individual benefit of the member drawing the draft; and where the draft is paid by the drawee on presentation. The rule applicable to commercial papér might not be held to be the rule in the latter case, and we find the decisions and authority are conflicting.

But we are inclined to hold with the appellee on this point. Marsh v. Thompson National Bank, 2 Bradwell, 217. Collier on Partnership, 678 ; N. Y. Fireman Ins. Co. v. Bennett, 4 Conn. 574; Livingston v. Roswell, 4 Johns. 251; Wilson v. Williams, 14 Wend. 146.

The third instruction given for appellee is faulty in being argumentative in calling the attention of the jury to certain facts, such as to the payee of the draft, the place where drawn, facts insignificant in themselves but which by being specially mentioned might lead the jury to think that the court supposed them of controlling weight. Instructions like this have often been condemned by the Supreme Court, but such error may not in all cases- be of such importance as to reverse; yet in some cases where the evidence is close it will be sufficient. The fifth of appellee’s instructions is liable to the same fault. It undertakes to enumerate all the facts especially relied on by appellee, to show notice of bad faith on appellants’ part, and only covers appellants’ facts by the general statement of all other facts and circumstances in evidence. In fairness it should have mentioned as particularly, the facts that J. Thompson & Co. were old customers of appellants and the standing of the firm was excellent with them in Chicago, Lacón, and wherever else the firm was known; and that the rule requiring drafts to be accompanied by shipments of stock was particularly for the benefit of the commission merchant; and where the merchant was satisfied with the financial ability and integrity of the shipper he did not always require security; and that shippers sometimes drew drafts in Chicago, and other special facts, so as to give appellants’ side as fair a summing up as appellee’s.

The sixth instruction was wrong as asked, and should have been refused instead of being modified by the court and given as modified. The instruction was that if the loan was made to the individual order of one partner and for the individual use of such partner, then the other member can not be held, no matter how the firm name may be signed or used, as the firm can in no case be held for private loans to one member of the firm, and one partner has neither the right nor power to bind his firm for his individual debts and loans.” The court added “ this is the law if the plaintiff knew of the intended misapplication of the funds or had reason to believe it was so intended at the time of the loan, if misapplied by Titus.”

The instruction as modified was illegal and misleading. The instruction as first written placed stress on the fact that the drafts were drawn in the name of one member of the firm, and this fact, connected with the other fact, which was not disputed, that the money was for Titus’ individual benefit, was intended to be controlling, and was of itself notice to appellants that the money was intended for Titus alone. And if the form of the draft was a controlling fact and constructive notice the instruction would have been correct. But the modification left the jury to say whether the form of the draft as to payee was not sufficient to put appellants on inquiry. And understanding it that way, the jury would be very likely to say as the appellants could read the drafts they ought to have taken notice. The instruction was not framed with reference to such a modification, and with it it was not unintelligible.

On the questions on, cross-errors we see no fault with the admission of evidence on appellants’ part or with the tenth instruction. It was proper to tell the jury, as it did, that neither the form of the draft nor the fact that it was drawn in Chicago was any evidence under the circumstances to impeach the good faith of appellants, and the instructions for appellee should have been in harmony with it. We have fully examined all the evidence and are of the opinion that aside from the errors of the instructions the verdict was wrongfully against the weight of the evidence, and that the court below erred in not setting aside the verdict and granting a new trial, and for these errors the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Timothy Moshier v. David Norton et al.
    Evidence as to receipts. — Where the Supreme Court had twice passed upon a case and directed that appellant should be charged with actual receipts, and the court below, when the case came up a third time,“made an interlocutory order adopting a different rule, by which the master was directed to assume the average of the grain raised subsequently to 1870, as the amount that was raised and received by appellant for each year of the years 1865 to 1870, inclusive. Held, that under the decisions of the Supreme Court, this was error. Such evidence in view of the positive evidence as to the receipts given by appellant and his witnesses, should have but little if any weight.
    Appeal from the Circuit Court of Stark county; the Hon. H. M. Laws, Judge, presiding.
    Opinion filed February 29, 1884.
    Mr. John C. Pepper, and Mr. Miles A. Fullee, for appellant;
    cited Moshier v. Norton, 88 Ill. 519; 100 Ill. 63.
    An objection to the admission of alleged newly discovered evidence on the ground that it consists of the testimony of witnesses who have been once examined is well taken: Ruggies v. Eddy, 11 Blatchf. 524; Jones v. Purefoy, 1 Vernon, 45; Finley v. Tyler, 3 T. B. Monroe, 400; Brewer v. Bowman, 3 J. J. Marshall, 492; Rogers v. Marshall, 15 Chicago Legal News, 51.
    Mr. H. Bigelow and Mr. C. C. "Wilson, for appellees.
   Lacey, P. J.

This case has been twice in the Supreme Court, and will be found reported in 83 Ill. 519, and 100 Ill. 63. The suit was a bill in equity brought by appellant to foreclose a mortgage which he held upon the land of appellee, Horton, to which the latter filed an answer setting up that usury existed in the inception of the contract by which the original debt was created, and for that reason claiming a rebate of all the interest; also setting up that the appellant had taken possession of the mortgaged premises in 1862, and had received the rents and profits to an extent equal to the entire debt. The cause was tried on three issues, and prior to the first appeal the court found that the contract was usurious, and that the appellant had received out of the rents and profits enough to satisfy the debt, with the exception of about $30, and decreed accordingly. From the decree the appellant took an appeal to the Supreme Court, and upon a hearing in that court the decree of the circuit court was reversed and the cause remanded for a rehearing, the Supreme Court finding that there was no usury in the contract, and that the appellant should be charged with the rents and profits actually received, or what might have been received by the use of reasonable diligence, less the taxes and necessary repairs, and would be answerable only for gross neglect, which might result in loss to the mortgagor whose possession appellant held. See 83 Ill. 519. The case was again heard in the circuit court upon the same, and some additional evidence taken on the question of usury as well as the question of rents and profits; and on rendering another decree it found that there was no usury in the contract, in harmony with the holding of the Supreme Court; but the court then departing from the rule of the Supreme Court, further held that it could not, from the evidence, find the amount of the actual products of said land, or the value thereof for the years 1862 to 1879, inclusive, and discarding the rule of actual receipts from the evidence found the reasonable rent as follows: for the years 1862 and 1863, at $1 per acre; for the years 1864 to 1867, inclusive, $3 per acre, and from the year 1868 to 1879, inclusive, $3.50 per acre; and the case being referred to the master to state the account on that basis, the .latter reported that the entire mortgage and interest had been paid by the rents and profits, and the appellant re-imbursed for all expenditures on account of taxes and necessary repairs, and that besides that amount there was due appellee the sum of $2,111.62, which report was approved and the bill dismissed; upon appeal to this court the decree was affirmed, and further appeal was taken to the Supreme Court. In the Supreme Court, cross-errors were assigned, to the effect that the court below erred in not finding usury. The Supreme Court upon hearing, reversed the decree of the appellate court and ordered it to reverse the decree of the circuit court. The Supreme Court held on the last appeal as well as the first that there was no usury in the contract, and though some additional evidence had been taken, the case on that question was not substantially variant from what it was when it was before it on the first appeal. It was further held that the circuit court erred in adopting the reasonable rental value of the lands as the proper basis upon which to charge appellant, instead of the actual receipts as prescribed by the Supreme Court when the case was there on the first appeal. This court having reversed the decree of the circuit court and remanded the cause, the court below proceeded to hear and determine the case on the same evidence, together with some additional evidence, which, however, does not greatly change the case from what it was at the last trial by that court. Instead of following the directions of the Supreme Court in regard to charging-appellant with actual receipts, the court below adopted in its interlocutory order another and different rule, as follows: for the years 1865 to 1870, inclusive, it directed the master to first ascertain the number of bushels of corn and oats received by appellant during the years after 1870, so far as he might be able, and adding the same together and dividing the gross number of bushels by the number of years, the quotient should be the basis of corn and oats presumed to have been delivered to appellant, as his rent for each year from 1865 to 1870, inclusive, and appellant should be charged with the market value of said crops at G-alva during each year, deducting the expense of marketing the same, taking the average market price between December 1st and March 1st of each year. From the years 1871 to 1881 inclusive, the master should take appellant’s evidence and his witnesses.

The master in following out this direction took the average amount of corn and oats raised for the years 1875 to 1881 inclusive, except the year 1877, not being able to find from the evidence for the other years, ’71, ’72, ’78 and ’74, the amount raised, and fixed the average amount the best he could.

For the years 1862,1863 and 1864, the master attempted to adjust the amount chargeable to appellant on the basis of actual receipts, and as for the years 1862 and 1863, we think that there can be no just complaint made on either side. The'final result of the master’s finding was that on January 1, 1874, the whole of appellant’s claim was paid and there was due appellee $487.90, and that at the date of the decree, JSTov. 9, 1883, there was due from appellant to appellee the sum of $10,524.10, and the court approved the report; whereupon complainant Norton in the cross-bill remitted the snm of $5,524.10 and decree was rendered against appellant for the snrn of $5,000, that the same be paid within ten days, and that appellant deliver up possession and appellee pay costs. From this decree appeal is again taken by Moshier to this court.

The appellee assigns cross-errors and again insists on his claim of usury. We need not examine that question farther as it has been finally put to rest by the decision of the Supreme Court, when the case was last before it, adversely to appellee. 100 Ill. 68.

In accordance with such decision we must hold that there was no usury in the contract. There is no additional evidence to in any manner change the features of the case from whaf it was on the first and second hearing in respect to the question of usury.

As respects the question of the right of the court below to make the interlocutory order by which the master was directed to assume the average of the grain raised in certain years subsequently to 1870 as the amount that was raised and received by appellant for each year of the years 1865 to 1870 inclusive, we feel bound, under the decisions of the Supreme Court rendered in this case, to hold that it was error in the court below to so order. By this order the court virtually excluded and threw away all the evidence in the case as to the actual receipts for those years given by appellant himself and his agent Dunn and his tenant Osgood, and assumed to decide the amount of the rents and profits received on a theoretical basis of a most uncertain character, and almost certain to produce erroneous results. It might, under a certain state of the evidence bearing on the amount actually received for the years in question, be competent to show what the land produced in the years subsequently to 1870, as tending to show what it produced before, provided it was also shown that the seasons were the samé in character and that the same'amount of land was in oats and corn each year and that the cultivation and management were the same. But in accordance with the views of the Supreme Court such evidence, in face of the positive evidence of appellant and his witnesses, should have but little if any weight. The error of the circuit court in making such order was in substance the same as made by the same court in deciding to throw away all the evidence in regard to actual receipts, and in adopting as a basis the rental value of the land for a series of years, for which error the Supreme Court reversed the decree and ordered the cause to be remanded.

In fact we think it would be much more just to appellant if the evidence of the actual receipts is to be discarded, to adopt the reasonable rental value as a basis, than the rule adopted by the court below. There would not be so much liability to do injustice.

But why did the court below need to find the amount of corn and oats raised on the land for each of the years from 1865 to 1870 inclusive?

The court gives no reason, as did the court where the prior interlocutory order was made, and that was, that “the court can not, from the evidence, find the amount of the actual products of the said land or the value thereof for these years;” but we suppose the reason was the same.

By reference to the opinion of the Supreme Court, 100 Ill. 69, we find the following language in answer to a similar question when speaking in reference to the account- rendered by appellant of the rents in dollars and cents received for those years, as follows: “When we have the amount of the money received, what need for the number of bushels of grain raised? All utility that we can see would be in the way of furnishinga test for the determining of whether the full amount of money had been received which ought to have been received. But because that test was not furnished, it is not to be assumed that if it had been, it would have shown complainant did not get his one third share of the crops; and even if it had shown that, it would not have shown that it was through any willful default or gross negligence of complainant that he failed to receive more than he did.” * * * “Complainant renders an account of the amount of the actual receipts for each one of the years, but is not able to tell the number of bushels of grain raised in any year, and because of the inefficiency of the evidence to ascertain the amount of the actual products of the iand from year to year, or the value thereof, complainant seems to have been charged with a supposed rental value instead of with actual receipts.”

The court then shows that the'evidence of the complainant was corroborated, and that he used all the care that he need use under the circumstances, and if there were any laches it was chargeable to appellée instead of complainant. That the presumption of honesty must be indulged in in favor of appellant’s account, and, in short, his account rendered for the years in question, which included the years from 1865 to 1870 inclusive, should be allowed as he had rendered it, and he should be alone charged on that basis.

"We have examined the evidence carefully, and as respects the account for the last mentioned years, we see nothing in the present record to in any way materially change the status of the evidence as it appeared in the Supreme Court when last there. It therefore necessarily follows that the opinion of the Supreme Court should have been followed by the court below as respects those years, and in not doing so the court erred.

As to all the rents and profits charged to appellant b}' the master subsequently to the year 1870 there does not appear to be any complaint made by either party,' and in fact we do not see that there could be any; it therefore is not necessary for us to examine the accounts for those years further, and to approve the finding of the master in regard thereto. We are also satisfied with the finding of the master in respect to his adjustment of the account for the years 1862 and 1863. We now come to the account of profits for the year 1864, over which there seems to be the most serious dispute.

Appellant charged himself with having received 10,765 bushels of corn for that year at 38 cents per bushel, of which amount he had shipped and sold 2,993 bushels and received therefor net, 38 cents per bushel, and no hay. The master, in making up his account, charges appellant with 16,000 bushels of corn received, and 50 tons of hay at $8 per ton, and the master charges $33.65 more for wheat than appellant charges himself with, and $11 less for apples. We have examined all the evidence, and have arrived at the conclusion that the master has overcharged as to the quantity of corn. The master seems to have taken nearly the highest estimate of any of the witnesses as to the amount of corn raised, and besides, charged to appellant all the corn raised on the farm, overlooking the fact that Lewis Osgood cultivated 40 to 45 acres, paying one third for rent, and he testifies that his corn yielded some 40 bushels to the acre. The master’s report would seem, to charge appellant with the entire corn raised by Osgood, whereas only one third should have been so charged. The evidence that there were 300 or more acres of corn raised on the farm, and that it would yield 50 bushels per acre, rests alone upon the mere estimate of witnesses as to the quantity of land and the amount of the yield, and some collateral admissions of appellant and Dunn, his agent, also based on such estimate.

• blothing is more deceptive than such guess work as this, and it is very weak evidence upon which to base an estimate.

On the other hand, appellant and Dunn claim to have measured the corn, but as the corn was fed, and some, probably not a large quantity, fed from the stocks and never gathered, it is claimed it was never measured. But it is easy to measure corn in the crib, and cribbing was built for about 8,000 bushels, which we understand from the evidence was used. That portion of the corn left in the field could only be estimated, but having gathered nearly all the corn, and shelled and weighed nearly three thousand bushels, Dunn would certainly be in a better position to know the actual amount of corn than any person who should merely estimate it in the field; and as the Supreme Court say the accounts of the appellant must be looked upon as having been honestly rendered, we feel that the master has largely overestimated the amount of the corn raised. Concerning the oats there is no dispute either as to quantity or price. We are not disposed to find fault with the charge of hay or wheat, made by the master. The price per bushel received for the corn sold, 38 cents, is correct. As to the balance, the price, the average price of the corn about the time it was being fed to appellant’s stock would seem to be the proper rule.

The point made that the special master was a partner of one of the attorneys of the appellee, and hence interested and not qualified to act as master in the case,.need not he decided, as the case will he reversed on other grounds, and when the case is again referred, it can be sent to the regular master, or some special master not at all' interested or prejudiced. For the reasons above indicated, the decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


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    George W. Brent v. Kenner Brent.
    Degbee oe peooe in civil cause, — An instruction in a civil action that "before the plea of self-defense can avail the defendant as a defense, it is incumbent on the defendant to prove to the satisfaction of the jury by a preponderance of the evidence in this case, that the defendant shot the plaintiff in the necessary or apparently necessary defense of the person of defendant.” &eld, that as the jury were only required to believe from a preponderance of the evidence and not to be satisfied by the proofs, the instruction imposed a higher degree of proof than is required by law.
    Appeal from the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.
    Opinion filed February 29, 1884.
    This was an action in trespass by the appellee against the appellant for shooting both appellee and his horses. The first count charges appellant with shooting appellee, from which he was greatly injured and suffered, laying the damages, at $10,000. Second count for shooting appellee’s horse worth $150, from which the horse died, laying the damages at $500. The fourth count charges appellant with shooting another horse by which appellee was damaged $100. Pleas not guilty and to the 1st and 2d counts non-assault. There was judgment for appellee for the sum of $3,298.72 and 7-11 of a cent. It is claimed that the verdict was excessive; for the reason that there being a general ad damnum of $11,000, the judgment can not be sustained for injury done the horses because these special counts are not large enough in their claim. The actual damages to the colts being only $140, the balance must be vindictive damages, and therefore the right of appellee to recover must be based on injury to himself; and that is entirely unsupported from the evidence, $75 only being for medical attendance, the rest being guess work. There is no evidence to support the claim for damages to the person. It is claimed by appellant that he fired his pistol at appellee while the latter was beating him over the head with a stick about four feet long, an inch and a quarter to an inch and a half in diameter at top, tapering a little at the other end; had struck appellant four or five licks. The appellee testified that the attack was not in self-defense; that -the appellant first struck him with a club or piece of rail and wounded him on the right forehead, and thereupon caught his right pantaloons pocket with his left hand and run his right hand into his pants pocket, and that he knew he was in the act of drawing a revolver; that to prevent him from drawing his revolver he struck appellant probably four blows on the head and arms with his cane, then turned away and had gone three or four steps when the appellant came up behind exclaiming “ By the Etertjal!” and as appellee turned he was shot by appellant; appellee was shot through the joint and muscles of the right shoulder; the result might have been serious, and may cause trouble yet; it might interfere with the motion of the arm.
    There seems to be a palpable contradiction in the witnesses.
    It is.claimed that the court erred in giving appellee’s 1st, 2d, 3d, 4th, 5th and 8th instructions. The 3d instruction is as follows: “ The jury are instructed that before the plea of self-defense can avail the defendant as a defense it is incumbent on the defendant to prove to the satisfaction of the jury by a preponderance of the evidence in this case that the defendant, George "W. Brent, shot the plaintiff in the necessary or apparently necessary defense of the person of the defendant.”
    The other instructions will be noticed in the opinion.

      Messrs. Stewart & Stewart, Messrs. Porter & Porter and Messrs. Grier & Dryden, for appellant;
    cited Graves v. Colwell, 90 Ill. 618; Herrick v. Gary, 83 Ill. 89; Alexander v. The People, 96 Ill. 102.
    Mr. Wk. C. Hobcross and Mr. «J. W. Davidson, for appellee;
    cited Mitchell v. Milholland, 106 Ill. 175; Murphy v. The People, 37 Ill. 447; Peri v. The People, 65 Ill. 17; Farwell v. Warren, 51 Ill. 468; Love v. Moore, 45 Ill. 12; Vandermark v. The People, 47 Ill. 122; Logg v. The People, 92 Ill. 598; Gilmer v. Eubank, 13 Ill. 271.
   Lacey, P. J.

We think there was fatal error on the part of the court in giving the 3d of appellee’s instructions.

It was erroneous in telling the jury that they must he satisfied by a preponderance of the evidence. This was a civil action, and the jury were only required to find from a preponderance of the evidence that the plea of self-defense was made out. An instruction similar to this was condemned in Ruff v. Jarrett, 94 Ill. 475. In commenting on the instruction, the court say: “It imposed a higher degree of proof than is imposed by law. The jury were only required to believe from a preponderance of the evidence, and not to be satisfied by the proofs, as the instruction requires. Satisfactory evidence almost excludes doubt, whilst a belief from a preponderance of the evidence does not, but leaves the balance in the minds on one side of the proposition.”

For this, error alone, the judgment must be reversed. It is claimed that the error was cured by other instructions given by the court, both on the part of appellant and appellee, but we think that, under the close state of the evidence, the error' would not be cured thereby. The instructions should be consistent and harmonious, and the law correctly given.

Some complaint is made that the court erred in giving the instructions for appellee, that authorized the jury to aggregate the proof in all the acts of trespass charged, under one count, or what was'the same, to recover a greater amount under the counts for killing the horses than was claimed in those counts, when the defendant might not have been found guilty on the other count for personal injury. We do not deem it necessary to spend time to examine this question, as the judgment will be reversed, and the declaration can be amended so as to cure any such error hereafter, if appellee so desires. We see no serious error in the giving of the appellee’s first instruction in regard to the question of malice. The fourth instruction should have been so modified as to allow recovery under the circumstances stated, that appellee had provoked the quarrel by first striking appellant with a club, if, after striking, he had in good faith declined any further combat. Kinney v. The People, Chicago Legal News, 169, Feb. 2, 1884.

We see no serious fault with the other of appellee’s instructions complained of. The court, as we think, did not err in refusing the first and second appellant’s refused instructions, or the third.

For the reasons above stated, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Lacey P. J.

text:
    William Taylor v. Holmes S. Beach.
    1. Scheduling of property by debtor — Construction of statute.— The court is of opinion that the true construction of section 14, chapter 52, of the statute in force July 1, 1877, in regard to the scheduling of property by the debtor, is that the debtor need only swear, when making his affidavit, that the schedule contains a list of all his personal property in the terms of the law, on the day of the date of the oath. Whether the debtor in any case delays making his schedule until he loses his right of exemption under the statute, is another question; but whenever valid, the affidavit so far as relates to the date of the ownership of property would be equally valid when inferring to the same date.
    2. Schedule of property — Estoppel.—Where appellee, the sheriff, insisted that appellant lost his right to make a schedule because he refused to make one when demand was first made on him for property, which fact appellant denied, the schedule, made subsequently, should not be excluded on that ground while the fact of refusal is denied and is a question before the jury, even if the validity of the schedule depended upon the fact being found for appellee, as contended for by him; the fact that the sheriff accepted such schedule, appointed appraisers, who acted under it and appraised the property, would estop him from averring that the schedule was not made in apt time.
    Appeal from the Circuit Court of Whiteside county, the Hon. John V. Eustace, Judge, presiding.
    Opinion filed February 29, 1884.
    This was an action in replevin by appellant against appellee to recover the possession of a quantity of personal property, consisting chiefly of household goods and harness material, commenced June 21, 1883.
    Appellee plead non-cepit, non-detinet, property in defendant, and that he was sheriff of Whiteside county, and seizer of the same by virtue, of an execution issued from the circuit court of said county on the 6th day of June, 1883; and judgment in favor of the First National Bank of Morrison against appellant and Hugh A. Boyd, for the sum of $600 and costs, on that day recovered.
    It appears that appellant was a resident of Morrison, and was the head of a family and resided with the same, and that the goods were his and used as household goods. That demand was duly made. That appellee seized the harness material on the 6th day of June, 1883; he put the household goods in the sheriff’s office and the harness material in the barn and kept them till replevied, having the household goods about a week. 'Ihe appellee showed on the trial the judgment and execution, the levy on the harness material being June 6th, and household goods June 14th, ’83.
    Appellant being further sworn, testified that on the 6th of June, appellee having seized the goods on the execution, served the papers on him, and he went out of the blacksmith shop, where appellant and the jailor and he were, and came back in about half an hour, or twenty minutes, and asked him if he should schedule, and appellee said he would have to schedule; said he, appellee, would take counsel and see; he then went down and came back and said appellant would have to schedule, when the latter asked him when and how, and he said in the morning. Appellee left that evening for Chicago; and appellant did not see him any more till he got back, on Saturday or Monday following Wednesday, the day the goods were taken. The schedule was completed on the 7th of June, about six o’clock, and shown to the deputy sheriff, who had the goods, and at his suggestion it was copied off and handed to the deputy on the morning of the 8th, it being sworn tc on that day. The schedule and oath were in proper form. The property was only appraised by three householders, on the 9th of June. On the trial of the issue, the appellant offered in evidence the schedule, which was excluded by the court from the jury on the grounds that it did not purport tc show all the property owned by the debtor on the 6th of June, 3883, to which ruling the appellant at that time duly excepted. Appellant further offered to prove that the schedule was true according to its purport, and that the list contained in the schedule was all the personal property appellant had on the 6th day of June, 18S3, the day the execution came to appellee’s hands, and again offered the schedule in evidence, and appellant offered to prove that after the schedule had been given to the sheriff, and the appraisement made, he selected the goods in controversy as exempt from sale, and so notified appellee and demanded possession of them from him, but that it was refused; that appellee received the schedule and accepted the same on the 8th of June, and summoned three householders named therein, and caused the list of property to be appraised by said householders on the 9th day of June, 1883. To each of which said offers of proof the appellee’s counsel objected and the objection to each was sustained by the court, to which ruling appellant by his counsel duly excepted. The jury then found by their verdict that on the 6th of June, 1883, the property in question was appellant’s, and liable to appellee’s execution, set out in the pleading. The motion for a new trial was overruled and judgment rendered against appellant on the verdict, and the cause is brought here by appeal to reverse it.

      Messrs. Bennett & Green, and Mr. William Lane, for appellant;
    cited Watson v. Simpson, 5 Ala. 233; Blair v. Parker, 4 Bradwell, 414.
    Exemption laws should be liberally construed toward the debtor: Thompson on Homesteads and Exemptions, §§ 4, 730; Good v. Fogg, 61 Ill. 450; Deere v. Chapman, 25 Ill. 612.
    Mr. O. F. Woodruff and Mr. J. D. Andrews, for appellee;
    cited Cook v. Scott, 1 Gilm. 342; McCluskey v. McNeely, 3 Gilm. 578; Bingham v. Maxcy, 15 Ill. 290; The People v. Palmer, 46 Ill. 398; Chapin v. Hoel, 11 Bradwell, 310.
   Lacey P. J.

The only question presented in the record is, did the court err in excluding the schedule made out by the appellant and delivered to the sheriff % The objection urged against the schedule is that it did not show on its face that it contained a list of all appellant’s property of every kind and nature, owned by him on the 6th day of June 1883, the day on which the execution came to the appellee’s hands, and the day on which the demand was made by him of appellant, for property out of which to satisfy it. In this instance the day of the receipt of the execution and the demand for the property coincided. The proper solution of this question depends upon the proper construction of section 14 of Chap. 52 R. S., in force July 1, 1877, in regard to the scheduling of property by the debtor. It is as follows: “ Whenever any debtor, against whom an execution, writ of attachment or distress warrant has been issued, desires to avail himself or herself of the benefit of this act, he or she shall make a schedule of all of his or her personal property of every kind and. character, including money on hand and debts due and owing to the debtor, and deliver the same to the officer having the execution, writ of attachment, or distress warrant, which said schedule shall be subscribed and sworn to by the debtor, and any property owned by the debtor and not included in said schedule shall be not exempt as aforesaid. And thereupon the officer having the execution, writ of attachment, or distress warrant, shall summon ihree householders, who, after having sworn to fairly and impartially appraise the property of the debtor, shall fix a fair valuation upon each article contained in said schedule, and the debtor shall then select from such schedule the articles he or she may desire to retain, the aggregate value of which shall not exceed the amount exempt to which he or she may be entitled, and deliver the remainder to the officer having the writ; and the officer having such writ is hereby authorized to administer the oath required herein of the debtor and appraisers.”

It will be seen by reference to the above statute that the schedule is not required in terms to cover the ownership of property at any past time from the date it bears, nor that the property described in it was all the debtor had at the time the execution came to the hands of the officer, nor all he had when the sheriff made the demand, or he or she was first requested to make the schedule, or any time other than at the date of the instrument itself.

In the absence of such provision we would not feel justified in holding to a construction that would add such a clause to the section of the statute, nor do we find any other section warranting such a construction. It seems to us that the fair and natural meaning of the statute would be, that the debtor need only swear, when making his affidavit, that the schedule contains a list of all his personal property in the terms of the law, on the day of the date of the oath. Whether the debtor in any case delays making his schedule until he loses, his right of exemption under the statute, is another question; but whenever valid, the affidavit, so far as relates to the date of the ownership of property, would be equally valid when referring to the same date.

But it is objected that this construction of the statute could not be the true one, because it would leave it in the power of the debtor to evade it by fraudulently disposing of a portion of his personal property, after the coming of the execution to the officer’s hands, and demand and notice to him, by scheduling the balance and claiming his exemptions. And such a result according to the argument, the legislature could not be supposed to have contemplated in passing the statute. We think this is not a sufficient reason for the giving the construction of the statute contended for by appellee; besides there are quite as many obstacles in the way of giving the construction of the statute contended for by him. The debtor might innocently dispose of a portion of his property after the officer received the execution and be by that means prevented from making the required affidavit. The law gives the officer the right to levy on all the personal property of the debtor held by him at the time he receives the writ, whether in the hands of the debtor or third party, unless it is exempt under the statute, or unless the debtor schedules it according to law and selects it as exempt property, or unless, the property remaining in the hands of the debtor, he fails to schedule, when any portion not scheduled can be seized. This gives the officer many advantages to protect himself against fraud. We can easily see that questions may arise as to the right of the debtor to select exemptions after fraudulently disposing of a portion of his property while the execution or other writ is in the officer’s hands, and then offering his schedule and demanding exemptions out of what remains, but no such question is raised on this record and we are not called on to decide any. Even in such case we can not see why the schedule should not be admitted in evidence as a part of it, and particularly where there are controverted questions of fact upon the determination of which its validity depends.

The appellee raises the question and insists that the appellant lost his right to make a schedule because he refused to make one when demand was first made on him for property, which, by the way, is denied by appellant. We can not see why the schedule should be excluded on that 'ground while the fact of refusal is denied and is a question before the jury, even if the validity of the schedule depended on the fact being found for appellee as contended for by him; and outside of that question it would seem that the sheriff should be estopped from averring that' the schedule was not made in apt time, having accepted it and appointed appraisers who acted under it and appraised the property, and having insisted on appellant making it after he at first refused, which the latter did. For the error on the part of the court below in excluding the schedule and appraisement, and the other evidence offered by appellant and excluded from the jury, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Chicago, Milwaukee & St. Paul Railroad Company v. Almina R. Phillips.
    1. Attorney’s fees — Common law and statutory negligence. — A declaration consisted of one count in which appellant was charged with killing a colt on'account of actual negligence in running a train, and again, statutory negligence in not fencing the road. There was evidence tending to show the appellant guilty of actual negligence aside from the question of fencing. The court instructed the jury that appellee had a right to recover for attorney’s fees in any case of the right to recover for the killing of the colt. Held, that such instruction was improper. Recovery of attorney’s fees is purely a statutory right. Attorney’s fees could only be recovered if the loss of the colt was chargeable to the statutory negligence in not fencing; but if the loss was chargeable to common law negligence, only the value of the stock could be recovered, and not attorney’s fees in addition.
    2. Negligence — Duty of engineer. — If an engineer or person conducting a train see cattle on the track and can by ordinary care, caution and diligence avoid injury to them, he is bound to do so, and if he fails the railroad company is liable, no matter if the owner of the stock was negligent in allowing his cattle to get on the track.
    Appeal from the Circuit Court of Winnebago county; the Hon. John V. Eustace, Judge, presiding.
    Opinion filed February 29, 1884.
    This was a suit commenced by the appellee against the appellant to recover the value of a colt, the property of appellee, killed by the locomotive of the appellant on its railroad track.
    There is but one count in the declaration, and in that the appellant is charged with killing the colt on’account of actual negligence in running the train, and again, statutory negligence in not fencing the road as the statute requires. A claim is also set up for recovery under the statute requiring roads to be fenced, for reasonable attorney’s fees for such services as the attorney for the plaintiff should perform in the case, in the circuit court or any court to which the case might be appealed. The verdict shows that appellee recovered $110 for the colt and $50 for attorney’s fees.
    There was evidence in the case tending to show that the appellant was guilty of actual negligence outside the question of the fencing.
    The 6th instruction given for the appellee told the jury that the appellee had a right to recover for attorney’s fees in any case of the right to recover for the killing of the colt and is as follows:
    “ If you find from the evidence that thé plaintiff is entitled to recover in this action, then the court instructs you that the plaintiff’s measure of damages against the defendant is the fair cash value of the colt in question, at the time and place the same was killed, and also such reasonable attorney’s fees for services rendered in this court, as you may believe from the evidence the plaintiff is entitled to recover.”
    There was a conflict in the evidence, whether or not the gate at Bennett’s crossing, where it was claimed the colt escaped from’the pasture from Bennett’s field onto the railroad right of way where it was killed, where it had strayed from Sheppardson’s pasture where the colt was kept, was a good and ,lawful gate. If the"1 gate was good, then the appellant would not be liable unless guilty of negligence in running the train.
    And it was claimed by appellee that even if the gate and fence there were such as the law required, yet there was actual negligence on the part of appellant in not carefully running the train, by means of which the colt was killed and the appellant thereby rendered liable; and such issue was fairly submitted to the jury by appellee’s 7th and 10th instructions and appellant’s 2d, éth, and 6th instructions. This is the only statement of facts there need be made in order to properly decide the case, except as are stated in the opinion.
    Mr. William Latiibop, for appellant;
    that by the public policy in this State, an express statute is required to enable a party to recover attorney’s fees, cited Dowty v. Holtz, 85 Ill. 525; Litch v. Boyington, 84 Ill. 179.
    Mr. H. C. Wabneb, for appellee;
    that a complaint is not to be deemed to unite several causes of action, simply because it sets forth several grounds on which the defendant might be liable in respect to the same transaction, cited Walters v. Ins. Co., 5 Hun, 343; The People v. Tweed, 63 N. Y. Appeals, 200.
   Lacey, P. J.

The judgment in this case will have to be reversed on account of the error in the court in giving the 6th instruction on the part of the appellee, and it will not be necessary to notice all other assignments of errors, as on a new trial the court below may correct them, if any.

It will be seen by the two issues presented by the double count charging the appellants with common law negligence and also statutory negligence in not fencing, and by the’evidence and instructions, thatit is impossible to tell which charge the jury found the appellant guilty of and to which act of negligence the death of the colt was attributable.

If the loss of the colt was not chargeable to the want of a good and sufficient fence, and was chargeable to common law negligence in running the appellant’s train, then, under the statute, it is plain that no amount could be recovered for attorney’s fees, for such fees can be recovered only where the railroad fails to fence as required by the statute, and damage accrues on account of it, for the recovery of attorney’s fees is purely a statutory right.

See. 48, Chap. 114 -of the Pevised Statutes, after providing the manner in which railroads shall be fenced, then further provides: “when such fences and cattle guards are not made as aforesaid, or when such fence and cattle guards are not kept in good repair, such railroad corporations shall be liable lor all damages which may be done by the agents, engines or cars of such corporation, to such cattle, horses, hogs, sheep or other stock thereon, and reasonable attorney’s fees in any court wherein suit is brought for such damages or to which the same may be appealed; but where such fences and guards have been duly made and kept in good repair, such railroad coiqroration shall not be liable for any such damages unless negligently or willfully done.”

If the statute did not contain the restrictive clause, there could be no possible doubt that no recovery for attorney’s fees could be had in a case where a good and sufficient fence was built and maintained. Then do the words but ydiere such fence and guards have been duly made and kept in good repair, such railroad corporation shall not be liable for any such damages unless negligently or willfully done,” change the law and make the company liable for attorney’s fees in the case of negligence or willfulness, and not through want of fence?

The purport of it is that none of the damages specified in the first part of the section, neither the value of the stock nor the attorney’s fees, shall be collected unless such stock is killed negligently or willfully.”

The statute does not provide, unless it be by necessary implication, that in case the fence is good and sufficient, and the stock is killed negligently or willfully,” there shall be recovery for the value of the attorney’s fee and the stock. Is it a necessary implication that both are to be recovered for? We think nqt; at common law, only the value of the stock could be recovered for, not attorney’s fees; and the legislature designed by this restrictive clause to make it clear that it did not intend to deprive the injured party of his remedy at common law, but as we think, did not intend to amend the common law so as to enlarge the measure of damages in case there was no fault in the fencing.

The object of the statute was to compel the fencing of railroads in the State and remedy the evils growing out of their remaining unfenced; and to accomplish its aim it fixed apenalty by the way of enlarged damages in case of loss in consequence of the fencing not being done and kept in repair. To allow damages for attorney’s fees where the road was not fenced, would create a strong incentive on the part of a railroad corporation to obey the law in regard to fencing, but it would not be more obvious that the legislature intended to enlarge the damages by allowing attorney’s fees to be collected in case of negligence in killing stock where there was no fault in fencing than there would be in numerous other instances where damages may occur on account of the negligence of the employes of railroad companies; attorney’s fees under this section not being collectible, it follows that the 6th of appellee’s given instructions was erroneous, for, by that instruction, in case any recovery was had on any ground, the jury were told that appellee had the right to collect attorney’s fees. The Appellate Court of the Third District has taken a similar view of this statute: W. St. L. & P. Ry. Co. v. Neekirk, 13 Bradwell, 387. We see no objection to the modification of the appellant’s second and third instruction by striking out the words “ willfully and maliciously,” and inserting with want of ordinary care, caution and diligence.”

If the engineer or conductor or person conducting a train see cattle on the track, and can, by ordinary care, caution and diligence, avoid injury to them, he is bound to do so, and if he fails, the corporation is liable, no matter if the owner of the stock was negligent in allowing the cattle to get on the track; but if the owner was negligent in allowing his cattle to get on the track, and it was not under the circumstances probable that the stock would be there, the engine driver might not be required to keep so sharp a lookout to discover the cattle as he otherwise would. T. P. & W. Ry. Co. v. Bray, 57 Ill. 514; C. & A. R. R. Co. v. Kellam, 92 Ill. 245; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512. The’ 7th of appellee’s instructions is erroneous in not being guarded enough in limiting the time in regard to the exercise of ordinary care from the time the engine driver saw the colt.

If the road was fenced with a good fence, the engine driver would not be required to keep looking out for stock on the track — he would rely on .the fact that the fence was put there to keep stock off, and would not be expecting any. See the Johnson case above. For the above reasons the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.