text:
    John Wagner v. Joseph Aultman.
    1. Malicious prosecution—What will be considered in such actions.—In cases of malicious prosecution, the question is not whether the plaintiff he really guilty of the crime charged, but whether, under all the circumstances in proof, the defendant had reasonable ground to believe him guilty.
    2. Probable cause—Motive immaterial.—In this case the appellant found a person fainting from the effects of a wound upon the head; was told that appellee had inflicted the wound; the physician present was unable to tell how serious the wound might prove, and the appellant, on being advised by the physician and an attorney whom he consulted, swore out a warrant for the arrest of appellee. Under the circumstances, appellant was fully justified in taking such a course; there was probable cause, and where this exists, the motive of the prosecutor is immaterial.
    Appeal from the Circuit Court of Bureau county; the Hon. Francis Goodspeed, Judge, presiding.
    Messrs. Eokles, Kyle & Stipp, for appellant;
    argued that the burden of proof is on the plaintiff to show that the defendant acted maliciously, and cited Calef v. Thomas, 81 Ill. 478; Ames v. Snider, 69 Ill. 376.
    Where a person consults competent legal counsel, who advise the arrest or prosecution, the party causing the arrest should not be held to respond in damages, notwithstanding it may appear on trial that the accused was not guilty: Ames v. Snider, 69 Ill. 376; Collins et al. v. Hayte, 50 Ill. 337; Skidmore v. Bricker, 77 Ill. 164; Ross v. Innis, 35 Ill. 488; Murphy v. Larson, 77 Ill. 172.
    Want' of probable causé cannot be inferred from malice: Ames v. Snider, 69 Ill. 376.

      Malice cannot be inferred from the fact that the prosecution was upon information and not upon direct knowledge: Harpham et al. v. Whitney, 77 Ill. 32.
    Messrs. Kendall and Lovejoy, for appellee;
    that the existence of malice is a question for the jury: cited Harpham v. Whitney, 77 Ill. 32; 2 Greenleaf on Ev. § 453.
    The prosecution of a person with any other motive than that of bringing the offender to justice, is a malicious prosecution: Krug v. Ward, 77 Ill. 603; Connelly v. The People, 81 Ill. 379.
    It is a question of fact for the jury, whether the party acted in good faith upon the advice received from counsel: Anderson v. Friend, 71 Ill. 475.
    If groundless charges are maliciously and without probable cause coupled with others which are well founded, they are not the less injurious, and constitute a valid ground of action: Brennan v. The People, 15 Ill. 511; Savage v. Brewer, 16 Pick. 455; 1 Bishop Crim. Law, § 795; 2 Greenleaf on Ev. § 449.
   Pillsbury, J.

Action on the case for malicious prosecution. Verdict and judgment for $500 for plaintiff, and the defendant appeals.

The first count in the declaration charges that the appellant “falsely, maliciously, and without any reasonable or probable cause, went and appeared before one Robert Gibons, a justice of the peace, and then and there charged him, the plaintiff, with having unlawfully assaulted and beat one Augusta Walter with a lantern, which, as used by the said Aultman, was a deadly instrument, with the intent her the said Walter to kill and murder. That warrant was issued, plaintiff was arrested, and subsequently tried and acquitted of such offense.”

The second count is substantially like the first.

The third count charges in substance that the defendant instigated and procured one Elizabeth Smith to cause plaintiff’s arrest upon a charge of rape; that he was bound overby the justice to the Circuit Court to answer said charge, arid no indictment being found, he was discharged, etc.

There is no evidence in the record connecting appellee with the arrest alleged in the third count of the declaration; on the contrary, it shows clearly that he had nothing whatever to do with it, but that it was caused by Mrs. Albrecht and the complaining witness, Elizabeth Smith.

The evidence introduced under the first and second counts shows that one Jacob Albrecht owned a brewery near the city of Princeton, and that Aultman was employed by him as foreman. That Albrecht was a very old man and much under the influence of appellee.

That Aultman and Mrs. Albrecht were at enmity and had frequent quarrels and fights. That, in February, 1877, Mrs. Albrecht saw proper to remove a bed from the bar room attached to the brewery, and while so engaged, Aultman came in and told her she should not remove it.

She replied that she would, whereupon Aultman seized a lantern, broke the glass over the stove and then struck Mrs. Aultman with it. Augusta Walter was present assisting Mrs. Albrecht by her order in removing the bed, and during the fight she was hit on the forehead by the lantern in the hands of Aultman, causing a wound from one to one and a half inches long and penetrating to the skull.

At this time the appellant was not present but was sent for and found there upon his arrival, his wife, Dr. Thompson and some other parties. He was informed-by his wife and Mrs. Albrecht that Aultman had struck the girl with the lantern. He asked the doctor if the cut was dangerous, and was informed by him that he could not tell until after an examination, but that Aultman should be arrested, and directed Wagner to procure a warrant.

Thereupon appellee went to the office of Geo. W. Stipp, an attorney at law and stated to him the facts as he had learned them, and was advised by Stipp that he ought to be arrested for an assault with intent to kill.

Appellee then swore to the complaint chai’ging appellant • with that crime, and he was arrested, and upon trial the justice found him guilty of assault and battery. For this prosecution appellee seeks to recover damages.

In cases of malicious prosecution, the question is not whether the plaintiff he really guilty of the crime charged, hut whether, under all the circumstances in proof, the defendant had reasonable grounds to believe him guilty; in other words, was there reasonable and probable cause for the arrest? The appellant found the girl in a fainting condition, covered with blood from a ghastly wound upon the head; was told by the surgeon that he could not determine whether it was dangerous until further examination, but that Aultman ought to be arrested; was informed by Mrs. Albrecht that Aultman had inflicted it with a lantern; was advised by one of the best attorneys in the State what, in his opinion, the offense was under the law, and acting under impressions thus received, he caused the arrest.

What reasonable man would have done otherwise?

We have no hesitation in holding that, under the circumstances in proof, he was justified, as there was probable cause. If there be probable cause, the motive of the prosecutor is immaterial: Ames v. Snider, 69 111. 3Y6.

The judgment will he reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Leland, J.

license: Public Domain

text:
    The Chicago, Burlington and Quincy R. R. Co. v. Alfred Hale.
    1. Common carrier—Limiting liability.—It would seem that the common law liability of a common carrier may be limited by a special contract signed by both the contracting parties, except that public policy requires that the carrier should not be allowed to stipulate against the consequence of its own actual negligence or willful default.
    2. Action eor loss—Description oe contract.—In an action against a common carrier for injuries or loss, whether the form be in assumpsit or-ease, the contract of shipment should be correctly described in the declaration.
    3. Instructions—Duty oe court.—In instructing the jury as to the contract, upon the question of its construction, or whether there was duress or false representations or any other reason why the contract executed by the coirignor was invalid, or whether it was signed by an agent without authority to conse.-t to a limitation of the carrier’s liability, the court should have stated to the jury, the facts which would render the contract invalid, and not have left it to the jury to determine whether they would consider it a lawful, binding contract or not.
    4. Distinction between contract and conditional receipt.—An instruction that unless the consignor assented and knowingly intended to assent to the restrictions in the contract, the defendant would not be relieved from its common law liability, and that the jury were to determine whether the consignor understood the terms of the receipt, is erroneous. Although this may be the rule where the consignor merely took a receipt containing conditions, yet where a contract is executed by the shipper, and there is no reason why it should not be held valid, it is not a question to be left to the jury to determine whether or not the consignor understood its terms.
    5. Measure op damages.—If the consignee had been under a binding contract for the use of the article transported, for the breach of which he might have been made liable in damages, and the carrier had notice of such contract, it would be proper to make the carrier liable for the injury to which the consignee might have been subjected by such breach, and it would then become an element of damage, but in the absence of proof of some such special loss, only a fair compensation for the actual injury sustained should be allowed, which would be the actual diminution of the market value, by the injury, if caused by the negligence of the carrier; and not to exceed one hundred dollars, as limited by the contract, if there were such a contract.
    Appeal from the Circuit Court of Warren county; the Hon. Abtitob A. Smith, Judge, presiding.
    Mr. W. C. Nobcboss, for appellant;
    that the damage should he limited to actual compensation—the difference in value of the pi'opertv before and after the injury—and that the court erred' in refusing defendant’s instruction upon that question, cited Ill. Cent. R. R. Co. v. Finnigan et al. 21 Ill. 648; T. P. & W. R. R. Co. v. Arnold, 43 Ill. 418; Faulkner v. South Pacific R. R. Co. 51 Mo. 311; Poucher v. N. Y. Cent. R. R. Co. 49 N. Y. 263; Mulligan v. Ill. Cent. R. R. Co. 2 Am. R’y R. 322; Hadley v. Baxendale, 26 Eng. L. & Eq. Rep. 402; G. W. R’y Co. v. Redmayne, C. & P. 329; Farnham v. C. & C. R. R. Co. 55 Pa. St. 53; Clark v. R. & C. R. R. Co. 14 N. Y. 570; Hamilton v. McPherson, 28 N. Y. 76; Ottawa Gas Light & Coke Co. v. Graham, 28 Ill. 73; Robinson v. Varnell, 16 Tex. 382; Sedgwick on Damages, 201; 2 Parsons on Con. 241; Kennedy v. North Mo. R. R. Co. 36 Mo. 351.

      Instructions not resting on evidence in the case are erroneous: Hooley v. Brooks, 20 Ill. 116; Paulin v. Howser, 63 Ill. 312; Gibson v. Webster, 44 Ill. 483.
    Prospective or speculative damages should not be allowed: Wilson v. Lancashire, etc. R. R. Co. 30 L. J. C. P. 232; 2 Greenleaf on Ev. 240.
    The court erred in modifying defendant’s sixth instruction. As originally asked it was correct: Davis v. M. S. & N. Ind. R. R. Co. 22 Ill. 278; Warren v. President, etc. 15 Ill. 236; C. R. I. & P. R. R. Co. v. Fahey, 52 Ill. 81; Sutphen v. Cushman, 35 Ill. 186.
    Testimony as to probable profits should not have been allowed: I. B. & W. R. R. Co. v. Barney, 71 Ill. 399; Sedgwick on Damages, 82; Sherman & Redfield on Negligence, 599.
    The damages cannot exceed the limit-named in the special contract: Pierce on Railroad Law, 420; I. C. R. R. Co. v. Owens, 53 Ill. 391; Lang v. N. Y. Cent. R. R. Co. 50 N. Y. 76; 2 Kents’ Com. 638.
    Mr. J. W. Davidson, for appellee;
    that 'unless restricted in their liability by special contract, the company were insurers of the property, and by accepting the.property its liability became fixed, cited 1 Parsons on Con. 653; C. & A. R. R. Co. v. Koener, 77 Ill. 11; C. & A. R. R. Co. v. Shea, 76 Ill. 47; Mer. Dispatch Co. v. Moss, et al. 76 Ill. 520; Mer. Dispatch Co. v. Smith, 76 Ill. 542.
    Probable profits may be considered in estimating the damages if the plaintiif prove that such profits were reasonably certain: Sherman & Redfield on Neg. § 594; Frazer v. Smith, 60 Ill. 145; Ill. Cent. R. R. Co. v. Cobb, et al. 64 Ill. 128.
    The jury are to judge of the weight to be given to the testimony of witnesses, and two juries having passed upon this case with the same result, their verdict ought not to be disturbed: Wallace v. Wren, 32 Ill. 146; White v. Clayes, 32 Ill. 325; Umlauf v. Bassett, 38 Ill. 96; C. & R. I. R. R. Co. v. Coal & Iron Co. 36 Ill. 60; Tolman v. Race, 36 Ill. 472; C. & R. I. R. R. Co. v. Hutchins, 34 Ill. 108; Schultz v. Lepage, 21 Ill. 160; Smith v. Schultz, 1 Scam. 490; Allen v. Smith, 3 Scam. 97; Ellis v. Locke, 2 Gilm. 459; Evans v. Fisher, 5 Gilm. 572; Dawson v. Robbins, 5 Gilm. 72; Mann v. Russell, 11 Ill. 586; Weldon v. Francis, 12 Ill. 460; Morgan v. Ryerson, 20 Ill. 348; Martin v. Ehrenfels, 24 Ill. 189; Pullian v. Ogle, 27 Ill. 189; Deferest v. Oder, 42 Ill. 500.
    If the verdict is warranted by the evidence, it should not be disturbed: Lowry v. Orr, 1 Gilm. 70; Brown v. Crum, 24 Ill. 78; Jenkins v. Brush, 3 Gilm. 18; Sullivan v. Dollins, 13 Ill. 85; Raney v. Monegan, 3 Gilm. 85; Green v. Lewis, 13 Ill. 642; Ill. Cent. R. R. Co. v. Hays, 19 Ill. 166; O. & M. R. R. Co. v. Brown, 25 Ill. 124; Keely v. O’Brien, 66 Ill. 358; Dunning v. Fitch, 66 Ill. 51; O’Brien v. Palmer, 49 Ill. 72; Bradley v. Griselman, 22 Ill. 494; C. B. & Q. R. R. Co. v. Stumps, 69 Ill. 409.
    Where the testimony is conflicting, it is' the province of the jury to weigh it, and their decision will not be disturbed unless there is manifest injustice: Summers v. Stark, 76 Ill. 208; Edgmon v. Ashelby, 76 Ill. 161; Clifford v. Lehring, 69 Ill. 401; Bishop v. Busse, 69 Ill. 403; Jackquin v. Davidson, 49 Ill. 82; Baker v. Robinson, 49 Ill. 299; Hartly v. Hartly, 49 Ill. 302; Labor v. Scanlon, 49 Ill. 152; McCarthy v. Mooney, 49 Ill. 247; Keightlinger v. Egan, 75 Ill. 141; Plummer v. Rigdon, 68 Ill. 222: Miller v. Balthasser, 68 Ill. 302; Gilbert v. Bone, 79 Ill. 341; Holcomb v. The People, 79 Ill. 409.
    Instructions should be based on the evidence: Reno v. Wilson, 49 Ill. 95; Hartford v. Obrecht, 49 Ill. 146; Baker v. Robinson, 49 Ill. 299; Ill. Cent. R. R. Co. v. Burton, 69 Ill. 174; Gilchrist v. Gilchrist, 76 Ill. 281; Olsen v. Upshal 69 Ill. 273; Baker v. M. S. & N. Ind. R. R. Co. 42 Ill. 73.
   Leland, J.

The appellee sued appellant in an action on the case for injury sustained by an ass which was shipped at Burlington, Iowa, to Monmouth, Ill., April 23d, 1874. The first count was for the injury and consequent total loss of the ass. The second was like the first, with an additional allegation that the animal was bought and owned for the sole and only purpose and use, and to be kept and stood by plaintiff for service as a foal-getter, and that the use for 1874, as such foal-getter, was reasonably worth $400, etc. After this case had been to the Supreme Court (83 Ill. 360), the second count of the declaration was amended by. adding a statement that the railroad company had notice, when the animal was shipped, that appellee intended to use him as a foal-getter, and the further statement that appellee had contracted for a large number, to wit: twenty-five mares to be bred to said jack for the year 1874. There was a verdict of $300 for appellee. It was contended by appellant that the animal was shipped under a written contract by the terms of which the amount of the damages, if any, was limited to one hundred dollars, and that appellant was not to be liable for injury or damages which the ass might do to himself. Appellee, Who was not acquainted in Burlington where he bought the animal for $200, left it to a colored person, one Dr. Tyler, the vendor, to attend to the shipping of the ass, and went home. The doctor did enter into a written contract to the

*' his mark.”

effect as stated, and which he signed thus: “ Dr.+Tyler.” The contract was one of the long, printed live stock contracts used by appellant, of which each of the contracting parties had a copy. The doctor says he gave his copy to the appellee, and the latter says he did not get it, and never saw it.

It becomes necessary, perhaps, to state more fully than usual the evidence on the subject of the physical disability of the jackass.

Appellee, who was also a colored person, testifies that the ass was rendered so he could not walk; whether his ankle was broke clear loose or not, it was broke so that his leg dangled every way; that he led him down town on three legs; he could not put the fourth to the ground; that he did not, any time that day, put the fourth to the ground; that when he held his foot up, the ankle just swung loose all about; can’t say whether it was broken or pulled out; that his hip was perished away, etc-

Parry says that on the next day after his arrival, he was on three legs; could bear no weight on his left hind leg; that the injury (leg) at first did "seem like it might come kinder stiff, and he could use it to be of some service, but it appeared like it was a great while getting so. The last time he saw him, the leg appeared to have shrunk up, and the hip was swaning away; that he cannot recollect how limber the joint was at the bottom, but the hip was all swaning away, and that he considered that he was gone up; that he was permanently disabled the last time he saw him; that he stood on three legs at the time of the trial, in May, 1875.

■Todd says he was present when Hale took the jack from the depot; saw jack standing on three legs; thought the animal in much pain.

Arms, a railroad employee, who wrote the words “ received in bad order, very lame,” says, however, “ he did so because Hale refused to receive him. Did not notice there was anything the matter with him till after he was led into the depot building. He went out of the car the same as any other "horse would, on all four feet.”

Richey says he was lame in hind leg; don’t think he was fit for mares; did not make a careful examination when he saw him lame. The foregoing is all there is for appellee. Appellee’s counsel alludes to the evidence of Dr. Van Hoorbeke, a veterinary surgeon (who was taken by appellee to examine the animal just before the trial in May, 1875, but who was introduced by appellants as a witness on the last trial), as stating that the hip of the Jack was then perished. We have looked at the evidence of this witness carefully, and find it very strong for appellants. It is to the effect that he has experience as to such matters; that he made a very careful examination of the animal, at appellee’s request, and especially felt of his legs; that the animal was led around, that he walked perfectly well, and that there were then (May, 1875) no indications that he had ever received any injury of the kind claimed. He expresses himself strongly and emphatically that there was no perishing of the hip; no indication of any injury whatever.

Peter (alias Stonewall) Jackson says he saw the jack at the depot, discovered that he was some lame; that Hale led the jack by the halter. He walked a little lame when we led him away from the freight house; did not go on three feet, went away on all four of them. Oli! no, sir! his leg was not broken or dangling; noticed the hind legs of this jack, and felt them; had long pastern joints; didn’t think the injury was of any consequence.

Fargart says he saw the jack about first of June, 1874, in barn-yard, at Hale’s residence. He seemed to be some lame in one hind foot. He walked on all feet; think the injury to the leg was but slight; there was no swelling to the limb that he could, see. The injury would be very slight, not to exceed one-eighth or one-tenth of its value; perhaps less than that. Don’t know as he could examine him as careful as if he had handled him. Still he knows about what he was like.

Clark says he saw the jack about the time the case was tried-before (May, 1875); was requested to look at him; didn’t discover anything wrong with the jack’s leg; thinks he would have noticed the shrinkage of the hip if it had been shrunk; didn’t discover anything wrong with the jack at all; was very close to him in the stable. Jack moved around from side to side in the stall. He was standing in the stall, not lying down. He, witness, was right at the animal. He thinks they asked him if there was anything the matter with the ass’ legs. While he, witness, was in the stall, jack seemed to be all right.

Skinner says the jack had a very curious shaped hoof. It was long and turned up like a half-moon. It was grown out to a point like a toe. Should not have noticed it, but it was a curiosity.

Davidson, a witness, who says he was raised in a jack and mule country, and who, therefore, certainly ought to be able to tell whether a jackass was lame or not, was indiscreetly called as a witness by appellant, though he was the counsel for appellee. He gave an intelligent and interesting account of a joint observation of the animal while being led by himself and the attorney of appellant, in May, 1875, and while both were examining him as counsel with a view of settlement. As is not unusual under similar circumstances, the two could not agree whether the ass was lame or not, nor in which hind leg it was, if either. To the question, “Was there any lameness visible in that jack at that time?” witness said, “I say there was, and I say I selected the leg at once and pointed you to it, and you know it.” In answer to the question, “ Tell that jury whether that jack went on four feet at that time? ” witness said, I think he put that foot to the ground a little, but I think he limped on it.” To this question, “ Will you please tell that jury if I did not pretend to you that the wrong leg was lame. Didn’t I for some time on that occasion?” the Colonel, with probably some excusable asperity' of manner, replied, I know nothing about what you pretended; I know I pointed to you which leg it was, and told yon it was. as plain as the nose on your face.”

With an air of skepticism on one side and of faith on the other, this colloquy is continued somewhat farther. The above, however, is all of it that is material to the ends of justice, and the foregoing is the substance of all the evidence as to the disability of the ass.

What became of him does not appear. Appellee says he gave him to George May, another colored man, and that the last he heard of the jack, he was down in Mercer county. He also speaks of a rumor of his decease; but as to whether he is now dead, or whether he is lucratively employed in Mercer county or elsewhere, we are entirely uninformed from the evidence.

It does most clearly appear, however, that diligent effort upon the part of the attorney of the appellant to obtain an interview with .him, has, in some unaccountable way, been rendered entirely unavailing.

Hpon careful examination of the evidence, there appears to be some mystery about the case. If the ass, like the one Balaam rode, could speak, he might probably have said that by means of the jolting of the car and the unusually long leverage of the hoof, a loose pastern joint had been somewhat strained, but that otherwise he was in his usual health and spirits. As the case, however, is to be tried again, we refrain from expressing any opinion upon the foregoing facts as to whether such was probably the case or not. It is also possible that the ass was so sorely smitten, that by means thereof he has really suffered more serious injury—perhaps a death, susceptible of proof on another trial.

The injury may have been somewhat microscopically presented on the part of appellee, and the jury, as is sometimes the case where there is an individual plaintiff and a corporation defendant, may have heen liberal in the amount of the damages. Still, if the law, as to the measure of damages and otherwise had been laid down correctly, perhaj)s the verdict and judgment ought to stand.

Are there any errors of the Court which require in this case, that there should be a reversal ?

Tiie first question in order would seem to he that in relation to the contract of shipment. If the live stock contract has been properly executed, and if we have heretofore stated its terms accurately as to the $100 limitation, and if such a limitation were proper, that would seem to be all that would be necessary to a reversal, unless ’there was actual negligence. The'contract was admitted in evidence without objection, and there seems to be no doubt about the damages for the injury or destruction of the ass being therein limited to $100. The court below left to the jury two questions of fact: First, did Dr. Tyler have authority from appellee to sign the contract? Second, did he exercise such authority, and understanding^ execute it?

Although appellee saw the railroad officers, and talked about the price for the conveyance of the ass from Burlington to Monmouth, the Doctor seems to have acted in making the contract as though he were the consignor, sending the ass to Monmouth to appellee as consignee. In fact the only delivery of the ass to appellee was the delivery to the carrier. Appellee, in his evidence, says: “I had not. paid Doc Tyler for him then, but paid him about a week after. I employed Doc Tyler. I did not employ him really, but Doc Tyler told the agent, in my presence, that he would deliver him to-morrow, when he would ship him, and he. told me to look here on the three o’clock train for him, at Monmouth. I did not deliver the jack to the railroad company; no written contract between me and the agent; jack not present when I talked to the agent; I did not, at any time, deliver the jack to any agent of the C. B. & Q. The jack was shipped the next day after I bought him.” The Doctor says he sold the ass, and was to deliver him on the train at Burlington, and that he put him on it.

FTo objection seems to have been taken to the lawful rights of the parties to thus limit the common law liability of the common carrier, and it would seem that it might have been so done by the contract signed by both the contracting parties. Field v. Ch. &. R. I. R. R. Co. 71 Ill. 458; Anchor Line v. Dates, 68 Ill. 369; I. C. R. R. Co. v. Frankenburg, 54 Ill. 88; Adam’s Express v. Haynes, 42 Ill. 89; Arnold v. I. C. R. R. Co. 83 Ill. 273; Erie Railway Co. v. Wilcox, 84 Ill. 239, except that public policy requires that it should not be allowed to stipulate against the consequence of actual negligence or willful default on the part of the carrier.

The form of action selected was ex delicto. Whether, however, the form be assumpsit or case, the contract of shipment should be correctly described in the declaration. Angelí on Carriers, Secs. 440 and 446. .Though the contract of shipment may have been made by the consignor, Dr. Tyler, the appellee could well sue on it in case for a neglect of duty by the carrier. Angelí on Carriers, section 497; Stafford v. Walter, 67 Ill. 83. If, therefore, there were a special contract of the character mentioned, it might be questioned whether, the evidence was not so variant from the declaration as not to support the alleged case.

The instructions in relation to the contract are in some instances erroneous. By the expression in plaintiff’s first instruction, “or by special contract limiting its liabilities,” the question whether there was a written contract, and if so, what was to be its construction, was left entirely to the jury. If there were duress, fraudulent representations, or any other reason why the contract executed by the consignor was invalid, or if the contract was made by Dr. Tyler merely as an agent for appellee, without any authority to consent to a limitation of the common law liability of the carrier, the court should have stated the facts, which would render the contract invalid, and not have left it to the jury to determine whether they would consider it a lawful and binding contract or not. In a case like this the jury might say that the Doctor did not write, therefore he could not read. The contract was a long printed thing. He had sold his ass, and thereafter had no particular interest in Hale; and we think he did not care what he did sign, and we will not hold appellee to it. The law, however, is that a man must ascertain what he is signing.

The sixth instruction is clearly wrong. It is to the effect that though Tyler were the agent of appellee, still, unless he assented, and knowingly intended to assent, to the restrictions contained in the contract, it would not relieve the deféhdant from its liability as a common carrier, and that it ivas a question for the jury to determine whether the terms of the receipt were understood by said Tyler.

This might do for a case where the consignor did not sign a contract, but merely took a receipt, containing conditions, as in the cases heretofore cited from the 42d, 54th, 68th, list 111. Where, however, a contract is executed by the shipper, and there is no reason why it should not be held valid, we think it is not a question to be submitted to the jury to determine whether the terms of the contract were understood by the signer, but that, under the law, it is a contract. There are qualifications of appellant’s instructions and others, presenting the same questions, not necessary to notice.

There were a great many objections on the part of appellant to the introduction of evidence, and some of them seem unreasonable.

We do not propose to spend time in writing about each one of them. They are mainly on the questions of the measure of the damages, and more particularly on the specially remunerative or second branch of that subject.

The rule laid down by the court in its instructions and other rulings, was substantially, 1st, direct injury to the Jackass;' 2d, such special damages in addition, as plaintiff was"entitled to have for the loss of the Jack on contracts for the year 1874, made previous to the shipping, if appellant had notice at the time of shipping that the animal was to be used for foal-getting purposes.

The objection to this rule of damages is, that there is nothing in the evidence on which to base it. The appellee himself testifies that there were no contracts made under the engagements of the mares; that he did not think he could have made any definite contracts till the jack got to Monmouth, and people had looked at him; that he had made no contracts, neither as to the amount that was to be paid, nor on what plan it was to be paid, insurance or otherwise, nor when it was to be paid; that none of the men he had talked with had ever proposed to pay for the service of the jack, by the season or by the single leap—nothing was said on the subject.

If there had been a binding, legal contract, for the breach of which appellee might have been liable in damages, it would have been proper to make the carrier, with notice of it, liable for the injury to which appellee might have been subjected by such breach; but there was no such state of facts as would authorize such damages. The mare owners could use the jack or not, as they pleased. Consequently, if it were proper to add to his value what he could have earned in 1874, why not in subsequent years?

If the jury had not, under the direction of the court, given more than a fair compensation for the actual injury, we might have let the verdict and judgment stand; but the law will not allow for the full market value, and also for those remunerative properties which are a mere element of value.

We have examined the authorities cited as to the proper measure of damages, and we are satisfied that the rule in this case, upon the uncontroverted facts as to appellees arrangement with farmers for the use of the animal, should be the actual diminution of the market value by the injury, if caused by the negligence of the carrier, and one hundred dollars, or less, if there were a special contract limiting the liability, and no negligence, and perhaps if the ass did not injure himself by his own imprudence.

We perceive no evidence tending to prove a valid contract by which appellee, or any of the farmers of Warren, were bound, in relation to the services of the ass. They might, when they beheld him on his crescent-shaped hoofs, properly have made objections to his use. These non-foal-getting damages, which the jury has evidently added to the actual value, under the rule laid down, were improper.

For the reasons mentioned, the judgment must be reversed and the cause remanded

Reversed and remanded.


author: Sibley, P. J.

text:
    James Crownover, Garnishee, etc. v. Joseph J. Bamburg et al.
    1. Garnishment—Administrator not subject to, before order of distribution.—An administrator of an estate is not liable to process of garnishment for moneys in his hands as such, before any order of distribution has been made directing the manner of payment.
    2. General rule.—If the judgment debtor could not recover against the garnishee in a suit by him alone, the judgment creditors suing in his name for their use, must necessarily fail in a proceeling to subject the fund to the payment of their debt.
    3. Change of liability—Acceptance of order.—It appeared that prior to the garnishee proceedings, the garnishee had received a letter inclosing an order from the judgment debtor to pay the balance coming to him, to his brother, the writer of the letter, and the garnishee had replied that he would do so as soon as he could raise the money. This was a virtual acceptance of the order, and an entire appropriation of the fund beyond the reach of the judgment debtor. In so accepting the order, the garnishee ceased to ■be indebted to the judgment debtor, and was therefore not liable to be garnisheed on his 'account.
    Appeal from the Circuit Court of Bureau county; the Hon. -Josiah MoRoberts, Judge, presiding.
    Messrs. Henderson & Trimble, for appellant;
    contending that the writ of attachment was void because it showed no venue, cited Gill v. Hoblitt, 23 Ill. 473.
    And being void, the court had no jurisdiction of the garnishee: Pierce v. Carleton, et al. 12 Ill. 358.
    Money in the hands of the law cannot be reached by garnishee process: Curling v. Hyde, 10 Miss. 374; Millison v. Fisk, 43 Ill. 112; Triebel v. Colburn, 64 Ill. 376; Merwin v. City of Chicago, 45 Ill. 133; Reddick v. Smith, 3 Scam. 451; Lightner v. Steinagel, 33 Ill. 510; Bivins v. Harper, 59 Ill. 21; Pierce v. Carleton, 12 Ill. 358; Hunter v. Bilyean, 39 Ill. 368; Church v. Jewett, 1 Scam. 55; Gibbons v. Johnson, 3 Scam. 61.
    Only when the official’s liability becomes changed to a personal one is he subject to garnishment: Weaver v. Davis, 47 Ill. 235.

      Ho action could be maintained by the heir for the money until after an order of distribution: Neubrecht v. Santmeyer et al. 50 Ill. 74.
    The question is, whether the garnishee owes the defendant at the time of service of process: Warne et al. v. Kendall, 78 Ill. 598; Webster et al. v. Steele et al. 75 Ill. 544; Stahl v. Webster, 11 Ill. 511; Towner et al. v. George et al. 53 Ill. 168.
    An attaching creditor gets no greater right than the defendant had when the attachment was made: Samuel v. Agnew, 80 Ill. 553; Drake on Attachments, § 220.
    The indebtedness must be of a legal character: May v. Baker, 15 Ill. 89; Webster et al. v. Steele et al. 75 Ill. 544.
    A bona fide assignment defeats the garnishee suit: Born v. Staaden, 24 Ill. 322; C. & St. L. R. R. Co. v. Killenberg, 82 Ill. 295; Johnson et al. v. Pace, 78 Ill. 143; Carr v. Waugh, 28 Ill. 418; Holden v. McConnell, 12 Ill. 170; Mansfield v. Hoagland et al. 46 Ill. 359.
    Messrs. Eckels & Kyle and Messrs. Fabwell & Warren, for appellees;
    that objection by the garnishee to irregularity in the proceedings comes too late after answer, cited Morris v. Trustees of Schools, 15 Ill. 266; Wayman v. Crozier, 35 Ill. 156; Zeigler v. Cox et al. 63 Ill. 48; Pierce v. Carleton, 12 Ill. 358.
   Sibley, P. J.

On the 10th of September, 1877, Joseph Bamburg and Abram Oppenheim proceeded before a justice of the peace, by attachment, against the effects of John L. Dodge, and garnisheed James Crownover, administrator of the estate of Hiram Dodge, deceased. Oct. 1st, 1877, a judgment was rendered against John L. Dodge, by default, for $191.11. Crownover, Hov. 17th, 1877, answered in the case, denying that he had any money or property in his hands belonging to John L., but as administrator of the estate of Hiram Dodge he held funds of which John L. would have been entitled to a portion, with the other heirs, whenever the County Court ordered a distribution, if he had not before that time directed it to be paid to Jay Dodge, which order had been accepted by the garnishee. The justice gave judgment against him for $188, when he appealed to the Circuit Court, and. upon a trial there, which took place in March, 1878, it appeared that Crownover made, in the preceding November, a final report to the County Court, which was there approved, showing that there was in his hands as administrator of the estate of Hiram Dodge, at the time of the service of the garnishee process, the sum of $324.34, as the remaining share of John L. Dodge, of the estate of Hiram. •Although no order of distribution had ever been made,'Crown-over testified that he had received on the 18th or 19th of August, 1877, a letter from Jay Dodge, enclosing an order from John L., directing the payment of the balance coming to him from the estate of his brother Hiram, to Jay Dodge.

This order was executed in Iowa, July 2d, 1877, and was enclosed in a letter from Jay Dodge to Crownover, dated August 18th, 1877. After consulting with the.county judge as to the propriety of accepting the order, he on the 2oth of that month answered Jay’s letter, stating that he had no money belonging to the estate of- Hiram, but expected to sell his corn by the first of October; if not, he would, if he could, borrow the money and pay them all up.

Jay Dodge also swears that his brother, John L., was owing him a considerable sum, much more than the balance due from the administrator of the estate of Hiram Dodge to John L. (which is not disputed), and in settlement of his claim on July 2d, 1877, he procured from John L. the order on Crownover that was forwarded in the letter of the 18th of August. There is no proof impeaching this transaction of settlement between John L. and Jay Dodge, as fraudulent.

Oppenhiem stated that John L. Dodge was indebted to appellees, and that they got a postal card from him in August, 1877, mailed at Iowa, asking them to call on Crownover, and he would pay them. They did so, and Crownover refused, saying that he had an order from John L. to pay Jay Dodge, but had not then accepted it. Bamburg states that he was present when the postal card was presented to Crownover, and he declined to pay because the card was not a sufficient order, and that on the morning the attachment suit was set for trial, Crownover said he had an order from John L. to pay Jay Dodge, but that he had not yet accepted it. This last statement was denied by Crownover, who said that he told them he had written a letter to Jay Dodge, and presumed he had accepted the order. Upon this testimony the Circuit Court affirmed the judgment of the justice of the peace, from which an appeal was taken, and we are asked to reverse that judgment, for the reason the garnishee was not liable to the proceeding. This error is sufficient to determine the case without considering the others assigned.

If John L. Dodge could not have recovered against Crown-over in a suit by him alone, then it follows as a matter of course, that the appellees in his name for their use, which was the proper form of the action, must necessarily fail in this proceeding. Richardson et al. v. Lester, 83 Ill. 55. Upon what ground John L. Dodge could have recovered against Crownover (leaving out the question of his right to sue the administrator at all until an order of distribution had been made), is not very readily seen. For John L. Dodge had previously given his brother an order on Crownover to pay him whatever remained in his hands, as administrator of the estate of Hiram, and, although Crownover had not formally accepted it, still he had recognized the change. made by the transfer, and promised Jay to pay him whatever was due John L. as heir to the estate of Hiram, by the 1st of October, if he could sell his corn or borrow the money.

This was a virtual acceptance of the order, and an entire appropriation of the funds beyond the reach of John L., or his control. In accepting the order of John L. Dodge, Crownover ceased to be his debtor, and was, therefore, not liable to be garnisheed on his account. Ray v. Faulkner, 73 Ill. 469. It is true, that the acceptance of the order was not a technical one. But can it be doubted that Jay Dodge understood from Crown-over’s letter that he would pay him the amount coming to John L. from Hiram’s estate, and that Crownover meant himself to be so understood when he wrote the letter? This is what he testified to, and we see no reason to doubt its truth. Moreover, we are of opinion that upon public policy, an administrator is not liable to the process of garnishment for moneys, in his hands, as such, before any order of distribution has been made, directing the manner of payment.

It was so held in the case of Curling v. Hyde, 10 Mo. 374, quoting as authority, Brooks v. Cook, 8 Mass. 246, and several other cases; and the doctrine of that case was approved in Millison v. Fisk, 43 Ill. 112. The judgment of the Circuit Court is, therefore, reversed, and the garnishee discharged.

Judgment reversed.


author: Pillsbury, J.

text:
    Edwin G. Allen v. John H. Conlon.
    1. Mandamus—Requisites of petition.—In a petition for a mandamus, the relator must show'a clear right to have the very act done, the performance of which is sought, and by the person sought to be coerced.
    2. Taxing illegal fees—Duty of the justice.—Only legal costs are taxable, and before a justice can be compelled to tax costs, it must appear that the fees are proper under the statute. Although the justice may have rendered judgment for illegal costs, he can refuse to issue execution therefor, and if execution has issued, and he should afterwards discover that the costs were illegal, it would be his duty to recall the execution.
    3. To compel a justice to issue execution.—It was sought to compel a justice of the peace to issue an execution for costs claimed to be due the relator, as shown by the returns on the process. Some of the returns include illegal costs, and therefore, the relator was asking more than he was entitled to receive under the law.
    Appeal from the Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding.
    Mr. C. L. Sheldon, for appellant;
    argued that the judgment of the justice imposes a fine jointly upon the defendants, and therefore is void, and cited 1 Bishop on Criminal Law, § 733; Caldwell v. Commonwealth, 7 Dana, 229; State v. Grey, 10 Mo. 440; Waltzer v. State, 3 Wis. 785; Card v. Commonwealth, 14 B. Mon. 386; Commonwealth v. Ray, 1 Va. 262; Moody v. The People, 20 Ill. 319; 1 Wharton on Criminal Law, § 435.
    Petition for mandamus must show a clear right to have the thing sought by it done: People ex rel. v. Glann et al. 70 Ill. 232; People v. Forquer, Breese, 104; People v. Hatch, 33 Ill. 9; People v. Mayor, 51 Ill. 18; Canal Trustees v. The People, 12 Ill. 248.
    Messrs. Dinsmoob & Stages, for appellee;
    that appellant cannot, on a general demurrer to this petition, attack the judgment of the justice in the original cause, cited Rust v. Frothingham, Breese, 331; Bogardus v. Trial, 1 Scam. 63; Swiggart et al. v. Harber et al. 4 Scam. 364; Horton v. Critchfield, 18 Ill. 133; Bellingall v. Duncan et al. 3 Gilm. 477; Wimberley v. Hurst, 33 Ill. 166; Conover v. Musgrave, 68 Ill. 58.
    The judgment against both defendants for costs, was proper: Calico v. The State, 4 Pike, 430; Commonwealth v. Sprinkle, 4 Leigh, 650.
    If erroneous, the judgment is cured by the statute of amendments and jeofails: Rev. Stat. 1877, 130, § 6; Decker v. Trelling et al. 24 Wis. 614.
   Pillsbury, J.

Petition for mandamus filed by appellee against the appellant in Circuit Court of Whiteside county, alleging, in substance, that the appellant, as justice of the peace for said county, issued his warrant upon complaint of one Eliza Drew, against Michael Shehan and Mary Shehan for assault and battery. That the petitioner, as constable, received and served said warrant by arresting the parties. That in said cause several subpoenas were issued by said justice and served by him. That' a fine of three dollars was imposed upon defendants, and costs-of suit, amounting to $86.80 were taxed to defendants, of which sum $61.85 were costs of petitioner, and that the justice refused to issue execution to collect the costs due him.

The appellee makes all the papers issued by the justice as-well as his record, a part of the petition, and asks that the-justice be compelled to issue execution to collect his costs.

A demurrer .was interposed to the petition by the defendant below, which was overruled, and he refusing further to plead a peremptory writ of mandamus, was ordered to issue according to the prayer of the petition, from which order the defendant appealed to this court, assigning for error, the overruling of his demurrer and the ordering of said writ.

The only way of ascertaining the fees of appellee, as shown by the petition, is by an examination of his returns upon the various precepts served by him, as the costs appear to be taxed in gross by the justice at $86.80. There were issued at various times some nine subpoenas, upon each of which, appears the return of appellee as constable, and the statement of the amount of fees due him for serving the same. We give a specimen return as to fees. On the one issued March 18th, 1876, he returns, served with fees as follows:

“Mileage, 12.70; service, 2.75,” and in no case does he state the number of miles traveled, but names a gross amount.

In the same subpoena, the returns of which we have given, there were eight witnesses to be served, but we find he served those whose names are not in the writ, and charges for the eleven served, making an overcharge of 75 cents for service, even if the 2.75 mentioned in the return is to be treated as two dollars and seventy-five cents.

“ The statute provides that constables shall receieve for mileage when serving a warrant, summons, subpoena, or other process, the sum of five cents per mile each way, for actual distance traveled by him in making such service;” and we are of the opinion that a justice is not obliged to tax fees for mileage, unless the number of miles actually traveled by the officer appears in his return. Only legal costs are taxable, and before the justice can be compelled to tax costs, it must appear that the fees are proper under the statute. Although the justice may have rendered judgment for illegal costs, we apprehend he can 'well refuse to issue execution for the collection thereof. Even if he had issued such execution, and should afterwards discover that the costs were illegal, .it would be his duty to recall the execution. Chase v. De Wolf, 69 Ill. 47.

We can well see from this position that the justice did probably ascertain that the relator was not entitled to all the fees claimed, and hence refused to issue execution.

This petition seeks to compel the justice to collect all the costs claimed to be due the relator as shown by the returns. We have seen that some of the returns include illegal costs, therefore the relator is asking more than he is entitled to receive under the law. The relator must show a clear legal right to have the very act done, the performance of which is sought, and by the person sought to be coerced. The petition is not sufficient to show that the defendant is under a legal obligation to do the act sought to be enforced.

The demurrer should have been sustained. The judgment of the court below will be reversed and the cause remanded.

Judgment reversed.


text:
    George Mattingly v. Amelia H. Wulke.
    1. Conveyance in ebaud of obeditoks.—The word “indebtedness,” when speaking of conveyances in fraud of creditors, is not construed to mean a fixed sum due, but any liability that may have been incurred, either by contract express or implied, that renders a party a debtor within the meaning of the law.
    2. Conveyance to avoid eutube debts.—The doctrine which avoids a voluntary conveyance, extends to and includes those cases where a party strips himself of all his property, in contemplation of incurring a future liability.
    3. Question oe ebaud — Giving a bill oe sale.—The giving of a written bill of sale on the transfer of personal property, may or may not be an indication of fraud, depending entirely upon the circumstances of the case, and the decision of this question should be left entirely with the jury. Hence an instruction to the jury that “the giving of. a bill of sale is not an indication of fraud, but on the contrary is commendable in all cases where the items of property are numerous and valuable,” is erroneous, because it usurps the province of the jury by determining a question of fact.
    Appeal from the Circuit Court of Carroll county; the Hon. William Bbown, Judge, presiding.

      Messrs. Aemoue & Shaw, for appellant;
    argued that voluntary settlements or gifts from father to child are void as against existing creditors, and cited 2 Kent’s Com. 441; Schouler’s Dom. Rel. 287; Van Wyck v. Seward, 6 Paige, 62; Gill v. Woods, 81 Ill. 64; Slattery v. Stewart, 45 Ill. 293; Moritz v. Hoffman, 35 Ill. 553; Virgin v. Gaither, 42 Ill. 39.
    In a gift of personal property, if possession is allowed to remain with the giver until an execution against him is levied upon the property, it becomes liable to pay his debts: Ketchum v. Watson, 24 Ill. 591; The People v. Johnson, 14 Ill. 342; Cranz v. Kroger, 22 Ill. 74.
    Fraud vitiates such transactions as to creditors and third persons: Harmon v. Harmon, 63 Ill. 512; Ward v. Enders, 29 Ill. 519.
    In replevin, the plea of property in a third person, which goes to destroy the interest of the plaintiff, defeats the action if it establish a better right in the defendant: Van Namee v. Bradley et al., 69 Ill. 299; Anderson v. Talcott, 1 Gilm. 365; 10 Chicago Legal News, Feb. 9, 1878.
    Where the verdict is against the law, or weight of evidence, a new trial will be granted: Higgins v. Lee, 16 Ill. 495; Schwab v. Gingerick, 13 Ill. 697; Clement v. Bushway et al. 25 Ill. 200; Ray v. Bullock, 46 Ill. 64; Ill. Cent. R. R. Co. v. Chambers, 71 Ill. 519.
    Mr. C. B. Smith, for appellee.
   Sibley, P. J.

This was an action of replevin originally commenced before a justice of the peace in Carroll county by the appellee against the appellant for a span of horses which the latter had taken upon an execution in favor of the “ Victor Scales Company,” and against Frederick Wulke.

The cause wras taken to the Circuit Court of that county, where, upon a trial, the issues were found for the plaintiff, and the defendant appealed to this Court, and now insists that the finding of the jury wras against the law and the evidence.

Frederick Wulke, being the owner of a large amount of land and personal property, in December, 1875, transferred it all to liis daughter, the appellee, except what he had previously conveyed to a son. The hill of sale made out for the personal property expresses a consideration of five thousand dollars paid, and the deed for the land conveyed of fifteen thousand dollars, although no consideration was in fact paid, or expected to be paid.

The only question in the case is, whether the transfer was made by the father to the daughter to hinder or delay the creditors of the former in the collection of their debts, and therefore fraudulent in law. On the trial the appellee testified that she was living with her father at the time of this transfer, and continued to live with him on the place the same as before the sale was made to her. She also says that the property was all hers, and that she carried on and controlled the farm after the transfer, through the assistance of her brothers and the rest of the family working for her, without any agreement as to the. price they, or any of them, were to be paid for their services. She says that her father at this time was in poor health, and wanted his family to have his property. But she never had much talk with him about the transfer of it to herself. That he was not in debt when he made this conveyance, although the scales, for which a note was afterward given by him and a judgment recovered upon that note whereon the execution issued that was levied on the horses in dispute, were upon the place before the papers of transfer were made out to her.

The reason she assigns for her father giving his note to the agent of the Victor Scales Company for the pair of scales that liad been left on the place by the company previous to the transfer of the property by the father to her, was because he did not know any better.

If there could he any possible doubt about the object of this transaction, it is made perfectly clear by the repeated admissions of Hiss Wulke that the property was conveyed to her by her father to keep the swindlers from getting it.”

To believe that this largfe amount of property was transferred by the father to a young daughter, and when there was, as she says, a prospect of her getting married, turned over to the mother, without some object other than mere filial affection, requires too great a draft upon human credulity. Who these “ swindlers” were that this father and daughter were trying to protect themselves against is not made known by the evidence.

The agent of the Victor Scales Company may have" been one of them, as the company seems to have been the only party that had any claim against Frederick Wulke at the time of this transfer. If such was indeed the case, the method adopted to avoid the danger was one which the law cannpt sanction. Hot-withstanding the appellee states that her father was not indebted to any one at the time he transferred all his property to her, it still appears from her testimony that the Victor Scales Company had sold to, or left with her father upon trial, a pair of scales previous to this conveyance of his property, although he did not give his note for the scales until some time afterward.

She doubtless considered that no debt accrued till the note was given, and the same idea appears to have been acted upon during the trial, and conveyed to the jury in the first instruction for the plaintiff.

The word indebtedness used in the statute is not to be construed to mean a fixed sum due, but any liability that may have been incurred, either by contract express or implied, or in tort, renders a party a debtor within the meaning of the law. Bump on Fraudulent Conveyances, 485; Bay et al. v. Cook, 31 Ill. 336; Seward v. Jackson, 8 Cow. 406; Vanwoych v. Steward, 18 Wend.; Swartz v. Brown, 27 Penn.; McLaughlin v. Bank of Potomac, 7 Howe, 220; Manhattan Co. v. Osgood, 15 John, 162; Crane v. Stickler, 15 Vt. 252.

The jury should have been instructed as to what constituted an indebtedness, and not left to draw the conclusion assumed by appellee, that Wulke was not indebted to the Victor Scales Company until after he had promised to pay or given his note in settlement of the claim. A liability on his part was incurred the moment he received the scales of the company, whether purchased, or, as Miss Wulke says, taken on trial.

He then became responsible to the owner as bailee of the proiaerty, if nothing more, and being thus liable, it became as much a debt within the meaning of the statute as if there had been a positive sale and a promissory note given for the price agreed upon. 1

The doctrine which avoids a voluntary conveyance is carried still farther, and includes those cases where a party strips himself of all his property in contemplation of incurring a future liability.

The third instruction given for the plaintiff is still more objectionable, as it usurps the province of the jury by determining a question of fact.

3. “ The court instructs the jury that the giving of a written bill of sale on the transfer of personal property is not an indication of fraud; on the contrary, it is commendable in all cases where the items of property are numerous and valuable.” Will any one doubt that the giving of a written bill of sale on the transfer of personal property may or may not be an indication of fraud? It most unquestionably would depend entirely upon the circumstances of the case.

How often it happens that when a fraud is contemplated the parties to it seek to fortify their acts behind the strongest kind of written instruments, witnessed in the most careful and complete manner. Anything that is out of the usual way of transacting business is looked upon with suspicion. Then, should the jury be told that it is the usual course for a father, when he desires to make a present to his daughter for an honest purpose, to proceed to an attorney, have the bill of sale carefully prepared, expressing a consideration of five thousand dollars, when nothing is really or expected to be paid, signed, sealed and filed for record.

But the court was not quite satisfied with saying to the jury that all this would be no indication of fraud, and added that the practice was in certain cases a commendable one. From this instruction the jury might have been led to believe that the conrt intended to say that the sale in question being a written one, therefore no indication of fraud attached to it; but on the contrary the transaction of the parties should be treated as commendable.

Whether it was so in reality or not, was a question for the jury to consider; and we think it was error to even intimate to the jury that a sale of property having the appearance of the one in this case was entitled to any commendation.

The judgment will be reversed and the cause remanded for another trial.

al,Judgment reversed.


author: Sibley, J.

text:
    Robert B. Chisholm, Jr. v. The Chicago & Northwestern Railway Co.
    Limitation after Judgment.—The record she wing that by the pleadings an'issue to the jury was formed upon the question whether the present action was not barred by the statute limiting the time in which to commence actions after reversal, and there being sufficient evidence upon that point to support the verdict, it will not be disturbed.
    Appeal from the Circuit Court of Kane County; the Hon. H. H. Cody, Judge, Presiding.
    Mr. Fbakk Obosby, for appellant;
    cited Beer et al. v. Phillips, Breese, 44; Snyder v. Gaither et al. 3 Scam. 91; McFadden v. Fortier, 20 Ill. 509; Camp et ux. v. Small, 44 Ill. 37; Edbrooke v. Cooper, 79 Ill. 582.
    Mr. B. C. Cook, for appellee;
    cited C. & A. R. R. Co. v. Clampit, 63 Ill. 95; Pratt v. Tucker, 67 Ill. 346; Thomas v. McLaughlin, 66 Ill. 407; Mattingly v. Crowell, 42 Ill. 32; Champaign v. Patterson, 50 Ill. 61; Thompson v. Alexander, 11 Ill. 54; Conway v. Cable et al. 37 Ill. 82; Dickson v. C. B. & Q. R. R. Co. 77 Ill. 331; Cooley on Con. Lim. 357; Sedgwick on Stat. and Const. Law, 695; Gardner v. Stevens, 1 Heiskill, 280; Gopel v. Wheeler, 2 Gall. 105; Baugher v. Nelson, 9 Gill. 299; Johnson v. Weedman, 4 Scam. 495; Plumleigh v. Dawson, 1 Gilm. 544; Comstock v. Brosseau 65 Ill. 39.
   Sibley, J.

This cause is again before us for re-hearing, there having been a decision rendered at the last June term, reversing the judgment of the court below. Hpon a more careful inspection of the record, we find that the abstract furnished, as suggested by counsel in their petition for re-hearing, did not contain a complete statement of the condition of the proceedings in the case, nor was there any positive indication that any issue had been taken upon the first rejoinder filed by the defendant to the replication to its second plea, and the question principally argued by counsel was, whether the Statute of Limitations after judgment, contained in sec. 24, p. 676, Revised Laws of 1874, commenced to run from the first judgment rendered by the Supreme Court in September, 1874, reversing that of the Superior Court of Cook county, in the case, or whether it began to run until after the cause was ultimately ended in June, 1876; hut this question was not by the pleadings considered at issue.

The first rejoinder by the defendant to the plaintiff’s replication to the defendants’ second plea, avers that the judgment rendered in this cause reversing the decision of the Circuit Court referred to in the replication, was pronounced by the Supreme Court in September, 1874, more than one year prior to the commencement of this suit.

The plaintiff took issue on this rejoinder. Whether it was a proper answer to the replication cannot now be a subject of inquiry. For if it was insufficient it might have been demurred to, or by way of sur-rejoinder the fact could have been set up, if true (but there is no evidence in the record of its truth), that a petition for rehearing was allowed, and the cause not finally disposed of by the Supreme Court until June, 1876.

The question then recurs: were the facts stated in the rejoinder true, or was there evidence introduced on the trial sufficient to authorize the jury to find the issue upon the rejoinder, for the defendant. If so, the verdict ought not to he disturbed, since the defendant succeeded upon one of the issues joined and that not an immaterial one. Of the proof to sustain the verdict there can be no doubt.

For the transcript from the records of the Supreme Court, introduced on the trial by the defendant, was abundant evidence that the judgment of the Circuit Court of Cook County was reversed in September, 1874, and that was all thé proof required to maintain the issue upon the rejoinder. When reversing the judgment below, under the decision of the Supreme Court, in 79 111. 584, our attention was not directed to the fact that an issue had been formed and tried by the jury upon the rejoinder to the plaintiff’s replication. The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    Gideon Ives, Impl’d, etc. v. William McHard, et al.
    1. Promissory note—Subsequent signing by another as surety.— Where a promissory note, long after its execution, is signed by another person, either on the face or on the back, as security, the person so signing is separately hable as a guarantor and notas a joint maker, unless such signing was originally intended, and merely delayed.
    2, Subsequent agreement to be jointly liable.—A subsequent agreement of such signer, by letter to the holders of the note, that he would become as one of the principals in the note, would not make the signing by him an execution of the note nunc pro tunc, where in the meantime the payee of the note had died, there being no evidence that the maker of the note consented to sack arrangement, or that any of the parties treated the transaction as a taking up of the old note and a delivering of it as a new contract. The undertaking of the signer was collateral, creating a separate and not joint liability.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Bassett & Wharton, for appellant;
    argued that a person signing a note, after its delivery, is not a maker, but a guarantor, and cited Tenney v. Prince, 4 Pick. 385; Mecorney v. Stanley, 8 Cush. 85; Stone v. Russell, 8 Gray, 589; Way v. Butterworth, 108 Mass. 510; Miller v. Gasten, 2 Hill, 189; McCaughey v. Smith, 27 N. Y. 39; Rey v. Simpson, 22 How. 341; Good v. Martin, 5 Otto, 90; Garrett v. Butler, 2 Strob. 193; Crooks v. Filley, 50 Cal. 254; Jones v. Ritter, 32 Tex. 722; Crattan v. Simpson, 8 A. & E. 136; Chitty on Bills, 215.

      The declaration is against both defendants as makers, and the proof is that Ives signed after the death of the payee, and for a consideration different from the original one: 1 Greenleaf on Ev. § 66; Stone v. White et al. 8 Gray, 593; Hemmenway v. Hicks, 4 Pick. 499; Klein v. Currier, 14 Ill. 237; I. B. & W. R. R. v. Rhodes, 76 Ill. 285; Ill. Cent. R. R. Co. v. Middlesworth, 43 Ill. 64; Snell v. Deland et al. 43 Ill. 323; Seibert et al. v. Bach et al. 36 Ill. 195; Cast v. Roff, 26 Ill. 452.
    The agreement to charge only simple interest, alleged' to support a consideration for appellant’s signature, was without consideration, for appellant was under no liability to pay more than simple interest: McLean v. McBean, 74 Ill. 134; Leonard v. Villars, 23 Ill. 380; Barker v. International Bank, 80 Ill. 96; Hastings v. Wiswell, 8 Mass. 455; Henay v. Flagg, 13 Met. 66; Ferry v. Ferry, 2 Cush. 97; Mulholland v. Bartlett, 74 Ill. 58; Stuber v. Schack, 83 Ill. 191; Paton et al. v. Stewart, 78 Ill. 481; 2 Parsons on Con. 462.
    Messrs. Pepper & Wilson, for appellees;
    that the intention of the parties should govern as to the character in which appellant signed the note, cited Story on Prom. Notes; Tenney v. Prince, 4 Pick. 385.
    The addition of appellant’s signature became, in effect, the making of a new contract: McCaughey v. Smith et al. 47 N. Y. 39; Chappel v. Spence, 23 Barb. 584; Clark v. Blackstock, 1 Holt, N. P. R. 474; Ray v. Simpson, 22 How. 341; Good v. Martin, 5 Otto, 90.
   Leland, J.

This was an action of assumpsit on a note,, brought by appellees as adm’r of William McHard, deceased, against Gideon Ives, the appellant, and one Elmore G. Denison, jointly. There was service of summons on both defendants, and both pleaded the general issue. On a trial by the court without a jury, there was a finding and judgment against both for $5,401 and costs. There was one of those stipulations which, we regret' to say, áre becoming too common, that any defense might be made under the general issue, that could he made under any special pleas well ■ pleaded, and which would include a sworn plea denying the joint liability.

There seem to he some insuperable difficulties in the way of a joint suit and a joint judgment in the case. If Ives alone had been sued, and judgment had been rendered against him alone, and the declaration had stated the conclusions of fact in evidence, it may be that there would not have been error, which would have required a reversal. The facts are simply these:

On the 27th of June, 1873, Denison made his note, whereby he promised to pay to the order of Wm. McHard six thousand dollars one year after date, with interest at' ten per cent. There were payments indorsed. The payee died during the fall of 1873, and the note came into the hands of appellees as administrators.

After the death of the payee, Ives signed the note, placing his name under that of Denison, with the word security at the end of his name. There was evidence tending to show that there was a consideration for his so doing. There was no evidence tending to show that it was contemplated when the note was made, that Ives was to execute it as joint maker.

In a letter from Ives to one of the administrators, dated July 8,1874, is found this expression.: “ For the same reasons that I signed the note, I now hereby agree to become as one ■of the principals in the note of E. J. Denison to Wm. M. McHard, to which my name is signed as security, and remain so until you are otherwise satisfied.”

The special count of the declaration, which is strictly in accordance with good precedents, is in the ordinary form for a case when the the note was cotemporaneously signed by the makers.

The common counts are precisely as they should have been in a case where plaintiffs sue in their individual, not representative, capacity as administrators, except at the end of the common counts, it is stated that defendants, though requested, have not paid said William McHard, in his lifetime, or to the plaintiffs, either of said sums, etc.

Upon looking into the authorities, it seems to be well settled that where a note is, long after its execution, signed by some one, either on the face or on the back, as security, the person so signing, if there were a consideration, is separately liable as a guarantor, and not as a joint maker unless such signing was originally intended, and that it was merely delayed.

The authorities cited in appellant’s brief fully sustain this position. Tenney v. Prince, 4 Pick. 385; Mecorny v. Stanley, 8 Cush. 85; Stone v. White, 8 Gray, 589; Way v. Butterworth, 108 Mass. 510; Miller v. Gaston, 2 Hill, 189; McCaughey v. Smith, 27 N. Y. 39; Rey v. Simpson, 22 How. 341; Good v. Martin, 5th Otto, 90; Schneider v. Schiffman, 20 Mo. 571; Irish v. Cutter, 31 Me. 536; Garrett v. Butler, 2 Strobhart (S. C.) 193; Jones v. Ritter, 32 Texas, 722.

Some judges think that such a signing is an alteration which destroys the note as to the other makers, if done without their consent. In our judgment, however, this is not the law.

The statement in the letter of June 8, 1874, would not, we think, in this case make the signing by Ives an execution of the note nunc jyro time. Even if such a thing were possible in a case where the payee had not died, so that it might be treated as a taking up and re-delivery of the note as a new note, in its changed condition, by consent of Denison, Ives and the payee, the evidence that payee was dead, and the want of evidence that Denison consented to such an arrangement as that, or that any of the parties treated the transaction as a taking up the old note, and a delivery of it as a new contract, would prevent the adoption of such an idea. It could not be delivered as a new note to a deceased payee named in it. Bor could it be a new note to the administrators, because they were not named in it as payees. It was, therefore, when Ives signed it, a collateral promise by him as a quasi guarantor, creating, if there were a consideration, a liability to be sued separately, and to have judgment rendered against him separately; but there was not a joint liability of Ives and Denison, as co-makers of the note. We therefore conclude that the judgment must be reversed and the cause remanded.

Beversed and remanded.


author: Murphy, P. J.

text:
    Murray Nelson et al. v. The Chicago, Burlington & Quincy R. R. Co.

      1. Consign,ok and consignee—Change of consignee.—The rule that while property is in transit a consignor may change the consignee, or other'wise direct a disposition of the property according to his will, does not apply •to-cases where such property is consigned to one who has advanced money with which to purchase the property .consigned, in pursuance of an original agreement to so consign it. In such a case the delivery to the carrier amounts to a delivery to the consignee, and from the time of such delivery the right-of the consignee becomes vested.
    2. Consignment to factob to sell mat be changed, when.—Where .property is consigned to a factor for the purpose of sale, the consignor may at any time before actual delivery to the factor, change its destination, and 'direct its delivery to another; but where the factor makes advances or incurs liability on the strength of such consignment, he is entitled to reimburse him.self for such advances out of the proceeds! of such sale, and the consignor has no right by any subsequent order to suspend or control such sale, except 'as, respects any surplus not necessary for the reimbursement of such 'advances. ■
    3. Bights of third parties hating notice of consignee’s claim.— In this" case- the 'consignment to appellants was changed to a consignment to the cashier of a hank at Streator, with the knowledge hy the officers of the hank of appellant’s claim. This being so, the bank is in no better attitude to dispute the right of appellants than the consignors themselves have.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Williams & Thompson, Mr. E. A. Stobbs, and Mr. Geobge A. Talley, for appellants;
    as to what is necessary to constitute a public warehouse and the title conferred by warehouse receipts, cited Broadwell v. Howard, 77 Ill. 305; Cool v. Phillips, 66 Ill. 216.
    Appellants had a special property in the grain, which the law will protect as sacredly as an absolute title: First Nat. Bank v. Shaw et al. 61 N. Y. 291; Brown et al. v. McGraw, 14 Pet. 495.
    After goods have been delivered to a carrier and rights have accrued, change cannot be made so as to defeat the prior title: The Idaho, 3 Otto, 575; Valle v. Cerre, 36 Mo. 586; Halliday v. Hamilton, 11 Wall. 561; Webster v. Granger, 78 Ill. 230; Grove v. Brien, 8 How. 438; Grosvenor v. Phillips, 2 Hill, 147; Stafford v. Webb, 1 Hill & Denio, 213; Clark v. Mauran, 3 Paige, 376; Gibson v. Stevens, 8 How. 397; First Nat. Bank v. Shaw, 61 N. Y. 302.
    The carrier must deliver to the true owner, although against the consent of the bailor: Western Trans. Co. v. Barber, 56 N. Y. 552; Am. Ex. Co. v. Greenhalgh, 80 Ill. 68.
    A warehouse receipt or bill of lading confers no title unless the party issuing the same has title: Burton v. Curyea, 40 Ill. 320.
    Generally, as supporting appellant’s view of the case: Stevens v. Railroad Co. 8 Gray, 265; Schumaker v. Eby, 24 Pa. St. 521; Kimberly v. Patchin, 19 N. Y. 331; M. & T. Bank v. F. & M. Nat. Bank, 60 N. Y 40; In re Comstock, 3 Sawyer, 320.
    Mr. Feank J. Crawfobd, for appellee;
    that under the issues made, it was incumbent upon the plaintiffs to establish every fact essential to their title, cited Anderson et al. v. Talcott, Gilm. 365.
    A consignor of goods has the right to change their destination while in the possession of the carrier, and the carrier is bound to obey his directions: Lewis v. G. & C. U. R. R. Co. 40 Ill. 287; M. S. & N. Ind. R. R. Co. v. Day, 20 Ill. 376; Ackley et al. v. Kellogg et al. 8 Cow. 223; Van Santvoord v. St. John, 6 Hill, 158; Scorthon v. South Staffordshire R’y Co. 18 Eng. L. & Eq. 554; Abbott on Shipping, 528; Angell on Carriers, § 281.
    Delivery of a bill of lading is a symbolical delivery of the goods: Peters et al. v. Elliott et al. Ill. 321; M. C. R. R. Co. v. Phillips et al. 60 Ill. 190; Bank of Rochester v. Jones, 4 N. Y. 497; Haille v. Smith, 1 Bos. & Pul. 563; Dows et al. v. Green, 24 N. Y. 638; Rawles et al. v. Deshler, 42 N. Y. 572; First Nat. Bank v. Kelly, 57 N. Y. 34; Nat. Bank of Green Bay v. Dearborn, 115 Mass. 219; Nat. Bank of Cairo v. Crocker, 111 Mass. 163.
    The bank is not chargeable with notice of appellant’s claims to the grain: Moore et al. v. Hunter et al. 1 Gilm. 317.
    Where one of two innocent parties must suffer, he who has contributed thereto must bear the loss: Gavagan v. Bryant et al. 83 Ill. 376; Garvin v. Wiswell, 83 Ill. 215.
    The indebtedness to appellants was merely a general balance, for which they acquired no lien upon the property, and the change in the consignment was authorized bylaw: Strahorn et al. v. Union Stock Yards Co. 43 Ill. 424.
    If the interest of appellants in the grain was by way of a lien for indebtedness; it would be invalid under the chattel mortgage laws, as to the bank or other third parties: Frank v. Miner, 50 Ill. 444; Lemen et al. v. Robinson, 59 Ill. 115.

       The opinion in this ease was rendered at the April Term, 1878; but at the time the first volume of Reports went to press was pending on a motion for re-hearing, which has since been denied. The decision in the case following this was also rendered at the April Term, 1878.

   Murphy, P. J.

This was an action of replevin in the Superior Court of Cook county, brought by appellants against appellee to recover four car loads oí grain, then in the possession of the appellees at Chicago, the same having been shipped from Streator, Illinois.

It appears that appellants are commission merchants in Chicago, doing a general buying, shipping and commission business at that point, and that Richardson & Son were country operators in the same line, at Streator, LaSalle county, Illinois, who owned and operated a warehouse at that point for the storage of grain; that in 1874, Richardson & Son made an arrangement with appellants by which appellants were to furnish money to Richardson & Son, with which to purchase grain of different kinds at Streator, which was to be shipped to appellants, to be sold by them thus to reimburse themselves the amount advanced. In pursuance of such arrangement, Richardson & Son purchased large quantities of grain, and shipped the same to appellants at Chicago for sale, frequently drawing drafts upon appellants with bills of lading attached, which were paid. It also appears that at certain times the condition of the market at Chicago was such that it was conceived to be the interest of all parties to retain, for a time, grain so purchased in the warehouse of said Richardsons at Streator, and that at such times drafts were drawn upon appellants by said Richardsons, accompanied by warehouse receipts, issued by themselves upon grain so purchased and stored in their warehouse as security for such advances. This course of deal continued down to about the 20th or 21st day of October, 1875, at which time Richardson & Son appear to have been indebted to' appellants in a large sum of money, viz., about eight thousand dollars; that at that time appellants were in possession of a large number of warehouse receipts, representing grain in the' warehouse of said Richardsons at Streator; that they had requested said Richardsons to forward said grain; that Richardsons had promised to do so, and still failed to ship the same,, as they, at different times, had agreed" to do; that appellants became dissatisfied with the delay, considering it xxnusxxal in the ordinary course of business. That on or about the 20th of October, 1875, appellants sent their agent, one Philander Picketing, to Streator, with these warehouse receipts, to have the grain, called for by them, shipped at once to appellants. It appears that Pickering, xxpon reaching Streator, called upon Richardsons, presented said warehouse receipts, figured up the amount they called for, which, he says, he thinks would have taken all the grain then in the warehouse That by the apparent acquiescence and approval of the Richardsons, he delivered. up the warehouse receipts, and proceeded to cause said grain to be shipped to Chicago. Such ears were loaded on the track of the appellee as could be then obtained, it not being practicable to obtain at that time cars enough to transport all of said • grain. It appears that Pickering remained there, telegraphed to Chicago for more cars; four more cars were received and loaded from said warehouse, and consigned to Murray Nelson and Company, Chicago, no bill of lading being delivered to Pickering. ■ It appears that Pickering, the agent of appellants, having got. these four cars loaded on the track, consigned to appellants, turned his attention to other business, perhaps leaving Streator-.. It', appears that on Saturday, the 23d, the First National Bank at Streator caused to be entered up judgments upon judgment notes held by it against the Richardsons, in the Circuit Court-of LaSalle county, at Ottawa, and. executions to issue thereon.. That on Monday morning, William S. Jackson, vice president of the bank, went to Ottawa and caused the sheriff of LaSalle county to go to Streator, for the purpose of levying said execution upon the said warehouse and its contents. It appears that on that morning the Richardsons drew a draft on appellants for $500, on account of the four cars of grain so shipped, 'being the same four in controversy in this suit. That they attached to said draft a bill of lading issued by appellee, of said cars by which they were consigned to appellants; that they presented that draft to the bank and had the same discounted. It appears that on the train from Ottawa to Streator,the sheriff, Jackson and one of the Richardsons were together; that during the ride between Ottawa and Streator, Richardson; informed Jackson that they had that morning drawn such draft and had the same discounted at. the bank, attaching thereto the bill of lading issued as above stated; that upon reaching Streator, Jackson and the sheriff left the train hastily, and went to the freight office of the appellee, and with the assent and approval of the Richardsons, caused the bill of lading to be changed by taking up the one first issued; consigning the said grain to Murray Nelson & Company, and obtained another, consigning the same to James Gr. Wilson, cashier of the hank, and thereupon the sheriff levied his execution upon said warehouse and its contents, including all the unshipped grain then left, by virtue of his execution in favor of said bank and against said Richardsons. It appears that upon the cars arriving at Chicago, appellants demanded the grain, and upon refusal of appellee to deliver the same, appellants replevied it, and upon a trial of that cause in the court below, a jury was waived, and the case was submitted to the court for trial, and upon hearing, judgment was rendered against appellants, from which they, appeal to this court.

The question presented for our determination upon these facts is, to whom, as matter of law, the grain in these four cars rightfully belonged upon the arrival in this city, shipped under the circumstances as above stated.' Its proper deter7 mination is of importance far beyond the amount involved in this case.

The habits of the people, and course of business of this, as well as of other great commercial centres, make it of the utmost importance to safe and successful commercial transactions, that the rights of consignor and consignee should be definitely and clearly understood. These rights, like all others,"recognized, by law, must rest upon the principles of justice and fairness. As it will be seen in this case, appellants, by arrangement with said Richardsons, had from the year 1874 been constantly advancing money upon the faith and credit that said Richard-sons would keep and perform their obligations with them by shipping to them such grain as their money was used to purchase, thus enabling them to reimburse themselves and make the transaction as safe as it was hoped to be profitable to them; that the grain in the warehouse at Streator was paid for by the money of appellants, and although, whilst in said warehouse, and in the possession of said Richardsons, it was under their control, when at the instance of appellants’ agent the grain was shipped to them, they being equitable owners thereof, and was delivered to the common carrier on its track, consigned to said equitable owner, it is difficult to see on what principle of reason or justice a law could rest which would permit the consignor after that time, to again assume possession thereof, and appropropriate it to his own use.

It is urged by appellee that a consignor may, at any time whilst goods are in transit, change the consignee or otherwise direct a disposition of the property, according to his own will. .ISTumerous authorities have been referred to in support of this doctrine. With those authorities we fully concur. When the consignment is to a factor without interest in the property, the rule undoubtedly is, that in the commercial transactions of the country a consignor may control, at any time, the destination of his property or goods, and that it is reasonable and right that he should do -so; but when goods are consigned as in this case, to a consignee who has advanced money wi th which said goods have been purchased, and in pursuance of an original agreement to so consign them, the question becomes a very different one, and in its very nature cannot be controlled or governed by rules that would be entirely applicable and proper between parties who are differently situated.

If appellants had made no advances to the Bichardsons and were simple factors at Chicago for the sale of said grain, then it is clearly the law that as consignors they might at any time before actual delivery to the factor, change the destination of said grain and direct its delivery to whomsoever they might choose. But in this case the warehouse receipts, calling for this grain, were in possession of the appellants, and. upon an accounting between them and the Bichardsons, it was agreed that the grain should all be delivered upon these receipts, and the receipts delivered up to the Bichardsons in pursuance of such figuring and a part of the grain shipped out, and the balance being shipped out as rapidly as cars could be obtained for such purpose, and after these cars were loaded upon the track, Bichardsons, at the instance of the vice-president of the bank, and in the presence of the sheriff who held executions against the Bichardsons, caused the original bill of lading issued consigning said grain to appellants to be taken up and destroyed and a new one to issue, by which the grain was consigned to one of the officers of the bank, a creditor of Bicliardson & Son, thus usurping a possession once fairly surrendered, thus attempting to appropriate to their own'use the value of this grain, notwithstanding it was well known to the Richard-sons at the time that Murray Nelson and Company had advanced the money which had paid for the same.

The bank, by its vice-president being present and participating in this very act, is in no better attitude to dispute the right of appellants than are the Richardsons. Indeed, the facts seem to bear upon their face the suggestion of collusion between the bank officers and the Richardsons, by which $500.00 of the money of appellants should go to pay $500.00 of the indebtedness of Richardson & Son to the bank. This we think the law will not sustain or justify. We think that when a consignment is once made to a consignee who has advanced money, as in this ease, a delivery to a common carrier amounts to a delivery to the consignee, and that from the time of such deliveiw, the right of the consignee becomes vested, and it is no longer the province of a consignor, as in an ordinary case of consignment, to change, or by any act of his, affect the destination of the property consigned. In the case of William and James Brown and Company against Thomas Mc-Graw, 14 Peters, 479, the court, in discussing this question, says: “On the other hand where the consignment is made generally, without any specific orders as to the time or mode of sale, and the factor makes advances or increases liability on the footing of such consignment, the legal presumption, is that the factor is intended to be clothed with the ordinary rights of factors, to sell, in the exercise of sound discretion, at such time and in such manner as the usage of trade and his general duty require, and to re-imburse himself for his liabilities out of the proceeds of the sale, and the consignor has no right by any subsequent orders, given after advances have been made or liabilities incurred by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment, not necessary for the re-imbursement of such advances or liabilities. Of course this right of the factor to Sell or re-imburse himself for his advances and liabilities applies with stronger force to cases where the consignor is insolvent, and where, therefore, the consignment constitutes the only fund for indemnity.” In this case, Richardson & Sons, consignors, were in failing circumstances; the officers were then seizing their property.

A shipment of goods by the owner, under an agreement by which the consignee has advanced money thereon, gives the consignee a title to the goods, and when delivered to a common' carrier in pursuance of such arrangement, the title of a consignee, thus acquired, cannot be divested or impaired by any act of the consignor. John H. Stevens and another v. Boston & Worcester Railroad Company, 8 Gray, 265; Schumacher v Eby, 24 Pennsylvania State Reports, 521; Halliday v. Hammilton, 11 Wallace, 560.

In the case of Jacob Cool et al. v. Phillips & Carmichael, 66 Ill. 217, our own Supreme Court say: “ Where a person engaged in the grain business for himself and others, purchased and held a lot of corn for parties who advanced him the money fox that purpose, it was held that the corn’ was the property of the parties advancing the money; and that the agent had no interest in it subject to execution.” Broadwell v. Howard, et al. 77 Ill. 305.

As we have shown, appellants made advances to the Richardsons, in pursuance of an arrangement to that effect between them, to a large amount of money in excess of any and all grain they had received. We think that when the grain in-question was loaded upon the track of appellee at Streator, consigned to appellants, in pursuance of the original agreement upon which the advances had been made, the right of appellants to have the grain come forward and be received by them, became fixed as between the Richardsons and appellants ; that the bank can claim no higher rights 'or equities than those enjoyed by Richardsons; for if they were not in possession of a full knowledge of all the circumstances and facts involved in the deal between Richardsons and appellants, they were certainly in possession of such knowledge as would have put them upon inquiry; and as prudent and- reasonable business men, they were bound to inquire and find out; so in the light of these views, and the authorities above referred to, we think it clear that Murray Kelson and Co. were entitled to the grain involved, and that the finding of the court helow should have heen for the plaintiffs. The learned judge who presided at the trial below, took a different view of the case, and found the issues ■joined for the defendant, which we think was error, for which error the judgment of the court below is reversed, and the cause remanded.

Judgment reversed.