text:
    Charles A. Helmle et al. v. Mary Queenan et al.
    1. Banks—Liability nor losses.—A bank was incorporated by special act in 1867 to do general banking business; an amendment was passed in 1869 containing this provision as to stockholders’liability: “The stockholders o£ said corporation shall be responsible in their individual property in an amount equal to the amount of stock held by them respectively, to make good all losses to depositors and others, and no assignment of their stock shall release them from any such liabilities until after the fact of such assignment, etc., shall be published, etc.” In 1877 the bank suspended payment. In 1879 it made a general assignment under the statute. A bill in equity was filed by certain depositors against the stockholders to charge them with amount due under the provision of the amendatory act above quoted. Held, that the decree of the court below charging the stockholders with the full amount due from the bank at the time of its suspension was erroneous. The court is of opinion that the liability is not primary.
    2. Jurisdiction.—But whatever may be the above liability, primary, penal or otherwise, as complainants’ rights are purely legal, arising upon a statute which does not designate the forum for their enforcement, the remedy is at law.
    8. Equity jurisdiction.—The right to sue at law does not necessarily exclude the jurisdiction of equity, provided there are proper grounds therefor. Where it was claimed that the jurisdiction of equity should be sustained in this case to avoid a multiplicity of suits; because the bill prays discovery, and the court acquiring jurisdiction for that purpose will retain it to grant relief; to secure a ratable distribution among creditors of equal equity, of a common but deficient fund. Held, that the first ground of jurisdiction has respect to the case of the party complainant rather than of the defendant; that the discovery asked does not give the jurisdiction claimed; that the third ground can not be sustained as no deficiency is alleged and no ratable distribution asked, and the proof shows that there is more than enough to satisfy the just claims of all.
    Appeal from the Circuit Court of Sangamon county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Palmees, Bobinson & Shutt, Messrs. Stuart, Edwards & Brown, Mr. H. M. Broadwell and Mr. J. A. Chesnut, for appellants;
    that the alleged liability of the stockholders under the statute is penal, cited Diversey v. Smith, 103 Ill. 378.
    As to jurisdiction: Mitford’s Pleadings, 6 Am. Ed. 63 ; Hanchett v. Waterbury, Chicago Legal News, Aug. 15, 1885; Freydendall v. Baldwin, 103 Ill. 325.
    Messrs. MoClernand & Keyes and Mr. L. F. Hamilton, for appellees;
    that the right to sue at law does not necessarily exclude the jurisdiction of a court of equity, provided there are equitable grounds therefor, cited Eames v. Doris, 102 Ill. 350; 1 Story’s Eq. Jurisprudence, § 71; Pool v. Docker, 92 Ill. 509; Bk. of Poughkeepsie v. Ibbotson, 24 Wend. 473; Van Hook v. Whitlock, 3 Paige, 409; Norris v. Johnson, 34 Md. 485; Perry v. Turner, 55 Mo. 418; Dozier v. Thornton, 19 Ga. 325.
    The liability is primary and absolute: Coleman v. White, 14 Wis. 762; Corning v. McCullough, 1 Comst. 47; Harger v. McCullough, 2 Denio, 123; Paine v. Stewart, 33 Conn. 516; Young v. Rosenbaum, 39 Cal. 646; Culver v. Third Nat. Bk., 64 Ill. 528; Corwith v. Culver, 69 Ill. 502; Fuller v. Ledden, 87 Ill. 310.
   Pleasants, J.

The Springfield Savings Bank was incorporated by a special act of the legislature, approved February 28, 1867, with a capital of $100,000, in shares of $100 each, which was soon disposed of and its organization effected and business commenced in the fall of the same year. By the charter it was authorized to receive on deposit or in trust, such sum or sums of money as might from time to time be offered therefor by tradesmen, merchants, clerks, laborers, servants and others, to be repaid to such depositors when required, at such times, with such interest and under such regulations as the board of directors should from time to time prescribe; to buy and sell exchange, bank notes, bullion and stocks; and by an amendment passed March 11, 1869, to execute all such trusts, fiduciary or otherwise, as should be committed to it by any court, tribunal or other legally constituted authority of the State of Illinois or of the United States or elsewhere; which amendment further provides that “ the stockholders of said corporation shall be responsible in their individual property in an amount equal to the amount of stock held by them respectively, to make good all losses to depositors and others, and no assignment of their stock shall release them from any such liabilities until after the fact of such assignment and the name of the person to whom made, and the amount of stock assigned shall have been advertised in some public newspaper published in the city of Springfield, in Sangamon county, for the period of three months.”

The business of the bank was carried on with apparent sue cess from the date of its organization until Dec. 17, 1877, a period of about ten years, when it suspended payment, closed its doors and never thereafter resumed operation. For a time after such suspension its officers attempted to liquidate its affairs, and did in fact collect from its assets and pay to its creditors a considerable sum of money. But on Ap’l 9, 1879, it made a general assignment to Virgil Hickox, under the statute.

On the 21st day of January, 1880, the complainants, Mary Queenan and Theodore Merger, filed a bill herein for themselves, and all other creditors of the bank who should come in and contribute to the expenses of the suit, to charge appellants and others, defendants below, as stockholders, for the amounts due them respectively, from the bank, under the provision of the amendatory act above quoted.

It made the bank also a party defendant, and afterward, by amendment, the assignee; and alleged, in addition to the facts above stated, that said Mary deposited money in said bank, at different times, from about Aug. 5, 1872, to about May 1, 1875, and said Theodore, from about Sept. 25, 1875, to Aug. 24, 1877; that before and at the time of such deposits, the defendants owned the stock of said bank, but complainants did not know how many shares thereof were held by each, and that neither of the complainants had proved their claims or received any part thereof under said assignment. It prayed a discovery as to how much of said stock each o f the defendants then held and when and how they acquired it; whether the same or any part of it had been assigned, and if so whether any notice thereof had been published, and when and for what time and in what newspaper; and that the sums due complainants should be ascertained by the court and the respective amounts of the stock held by each of the defendants, when each item of the indebtedness to the complainants respectively accrued be found, and the defendants (except the bank) required to pay them, and such other creditors as-should come in and contribute to the expenses of the suit, the amounts to be found due them respectively from said corporation. The amount alleged to have been lost by the insolvency of the bank to complainant Queenan was §4,000, and to complainant Merger, §1,000. A number of others c'aiming to be creditors of the bank by deposit intervened by petition, under an order of the court, and practically became parties complainant.

After demurrer to the bill for want of equity by divers of the defendants had been overruled, answers and replications thereto were filed and the cause referred to the master who reported the holders and transfers of the stock, the list of claimants and the amount of their claims, respectively, with interest from Dec. 17, 1877, the date of suspension, and other matters, including the following:

That after the assignment e'aims were proved in the county court to the amount of §84,916.22; that the assignee had paid thereon §61,194.04 and still had in his hands property of the insolvent estimated at §7,500, showing an excess of claims over assets of $16,222.18, and had reported to the county court tha* the claims against said insolvent not proven before him amount to $9,793.91. which added to the $16,222.18 would make a total deficit of assets of $28,019.12.

The decree finds the whole amount due to complainants and the intervening petitioners by that found due to each to be $8,886.91; and afterdiseliargingsomeof the defendants, for various reasons set forth, finds those next hereinafter named to be liab’e therefor on the shares of the stock with which they were chargeable on Dec. 17, 1877, pro rata in the sums set opposite their names, and the number of such shares respectively as follows:

Charles A. Helm'e, 50 shares, $555.37; Newton Bateman, 20 shares, $262.15 ; J. S. Bradford, 1 share, $13.11; T. S. Wood, 29 shares, $380.11; J. H. Palmer, 131 shares, $1,756.39; G. II. Souther, 29 shares, $793.31; A. Nolte, 20 shares, $262.15; B. P. Johnston, 5 shares, $65.51; T. Beiscli, 20 shares, $262.15 ; B. S. Lord, 100 shares, $1,310.71; Y. Hickox, 80 shares $1,018.59; T. J. Carter, 150 shares, $1,966.11; F. W. Tracy,’ 10 shares, $131.07; and directs that these sums be collected of said parties who are living by an order in chancery in the nature of an execution against them, collectively and severally, and of the estates of those deceased, in due course of administration.

Both complainants and defendants excepted to the decree and those of the defendants who perfected the appeal prayed by them have here assigned a large number of errors, the most of which, in the view we have taken, it will be unnecessary to notice; and only enough of the case presented in the large record is above stated to make that view clearly intelligible.

The theory of the decree is seen to be that the full amount of the valued claims existing against the Springfield Savings Bank and unpaid at the time of its suspension on December 17, 1877, are losses,” within the meaning of the amendment to its charter above quoted ; and that for these claims those who were stockholders of said bank, at the time they arose, respectively, or who, though they had ceased to be such by reason of the assignment of their stock, had not advertised the fact of such assignment as prescribed by such amendment) were individually primarily responsible to the claimants respectively, to the extent of the amount of stock so held by them.

Appellants contend that the term “loss, ” as used in the amending act,signifies only the difference between the amount of the claim and what shall, or by reasonable diligence of the claimant might have been realized on account of it from the proper assets or resources of the bank.

This construction involves these consequences: that the liability of stockholders to depositors is not primary ; that the amount for which they maybe liable at all, as such, can not be determined until the assets of the bank are exhausted; and that the burden will then rest upon the depositor to show that he has used due diligence to make his claim out of the assets, which is a question for a jury rather than for a chancellor; and if it be correct the decree in this case is wrong in principle and effect.

Upon the question thus made no clear precedent has been found. Indeed it is not found that the term “ loss ” or “ losses ” has ever been used in similar statutes of other States, or in more than one instance in Illinois; and - in that with a connection and reference which preclude this question. In the charter of the State Savings Institution granted February 21, 1861, among other provisions authorizing a general business, it was declared, “ that each stockholder of the corporation hereby created shall, as to the trust funds and saving funds deposited therewith, be individually liable to the amount of his share or shares of the capital stock, for all losses or deficiencies that may occur while he was such stockholder,” etc. Here the liability was absolute for all losses or deficiencies of a particular fund, and not for losses of depositors interested in it. Such loss or deficiency was also like the liability, absolute of itself. The fact of its occurrence without regard to the cause, manner or effect of it, or to the solvency or insolvency of the institution or to the loss or danger of loss to the depositor, made a complete case against the stockholder. Of course if the institution made it good from its own proper resources, that discharged the liability for that loss or deficiency, but the parties interested in the fund were not bound to take any step to compel it so to do, in order to charge the stockholder. All that the statute required to fix his liability was a loss or deficiency of that fund. And there was a loss or deficiency, whenever the money on hand belonging to it was less than the amount deposited and remaining unpaid, of just that difference ; which could be exactly ascertained at any time. That clearly is not this case nor similar to it, and we do not see that the opinion of the court in Eames v. Doris, 102 Ill. 350, touches the question here involved.

In the absence of express judicial construction resort must be had to the rules by which such construction is guided and determined. The first and most obvious, if not the most certain and helpful is, that words in a statute as in any other instrument, writing or speech, are to be understood according to their ordinary and usually accepted meaning unless some special reason appears to forbid it. Deere v. Chapman, 25 Ill. 610; Stuart v. Hamilton, 66 Id. 253 ; City of Beardstown v. City of Virginia, 76 Id. 31.

There is scarcely a word in more common use in business intercourse than the word loss ” or “ losses ” . as applied to debt. Honied institutions, partnerships and individuals are constantly failing, suspending payment, closing their doors and not resuming. Yet we apprehend it is never understood from such failure and suspension alone, that just chums, unpaid at the time of suspension are “losses” to the creditor. It is very rarely that they turn out to be so in fact. Losses in such cases are distinguished from claims, in the common understanding, as only a percentage of the amount of those claims, and whenever the legislature here or elsewhere has undertaken to dec1 are the individual liability of stockholders for the full amount of the liability of the corporation, it has used the terms “ debt ” or “ indebtedness ” and never the term “ losses ” unless it be so used in this instance. If the latter term is more restricted in its obvious and common meaning than the former the court sliou’d hold those seeking to enforce the provision the more strictly to such sense, because the statute is in derogation of the common law. Deere v. Chapman, supra ; Bromley v. Goodwin, 95 Ill. 118.

It is said that insolvency and suspension of payment by a debtor of itself imports loss to the creditor. If so, it imports what is not always true. Payment in full is sometimes made even in such cases. But it surely can not be said to import a total loss. There are always some assets, and almost always some portion of the claim is realized. If not, it is the fault of the creditor. The most then it can be fairly said to import is a. probable loss of some portion. In this case the bill alleges assets and shows no reason why complainants might not have reached them in the hands of the corporation or of its assignee. It appears they were sufficient to pay a very considerable proportion of the claims. The question then remained how much was the loss for which complainants were entitled to indemnity from the defendants and the burden was upon them to show it. If they were bound to show diligence or that it would have been unavailing, it is hardly an answer to say that since the assets of the bank have been or will be absorbed by the claims of other creditors, and defendants are liable only for what remains unsatisfied, the negligence of complainants could do them no injury.

The decree charging them with the full amount, due from the bank at the time of its suspension can therefore be sustained only upon the ground assumed by complainants and held by the court, that as stockholders they were individually liable for these claims, primarily and absolutely.

We incline to the opinion that this holding was wrong. Appreciating the difficulty of formulating a rule by which to determine with certainty the character of their liability, and even of understanding son'ie that have been proposed, we gather from the very interesting arguments of counsel and the cases cited that it is primary only when made to be for the debt simply as such. It then arises upon the contract, which the statute at least impliedly authorizes the corporation to mike for them and is coincident in t'me of inception and extent with that of the corporation. ISTo further fact is required to be proved in order to establish it than would be required to establish that of the corporation, save only his relation to it as a stockholder. It may be limited to a particular class of indebtedness, as to that contracted before the capital is all paid in, or to trust deposits, and this may require additional proof as against the stockholder, but it relates only to the identity of the indebtedness as of the c'ass intended, and not to the character of his liability. Being so identified the statute, to make him liable for it pecuniarily, must make him liable for'it simply as a debt.

If it be for what may bo less than the indebtedness against the corporation or because of some fact or condition besides such indebtedness (other than those above indicated) as that the debt was contracted by the corporation before it was authorized by law (Diversey v. Smith, 103 Ill. 378) ; or that it has disregarded some duty or prohibition imposed by statute (Gulliver v. Roelle, 100 Ill. 154; Weidenger v. Spruance, 101 Id. 285) ; or by the common law in force, oris upon some condition expressed or implied to be performed by the creditor or the like, it is not primary. In these cases it does not arise except in posse upon the contract made by the corporation. It may not be coincident as to the time of its inception or in its extent, with that of the corporation in any but those in which it would be clearly penal, as where the contract is made without authority or in violation of the statute. Diversey v. Smith, supra.

In this case, being declared to be for losses”, only which might be and in fact were less than the debts, which could not be ascertained until long after their creation, and which might involve a condition precedent to be performed by the creditor, such as the exercise of ¿diligence to collect from assets of the corporation, we think it is not primary.

Whether it is penal seems more doubtful. A penal statute strictly is one that imposes a penalty for some violation of its own provisions. By the charter, as we have seen, the general business and object of this bank was declared to be among other things to receive money on deposit or in trust, from tradesmen and others “ to be returned to such depositors when required,” etc., and it is suggested that this clause was inserted to enable the legislature to provide a penalty for its breach. But if this had been the purpose, it seems probable that the same legislature by the same act would have provided the penalty, yet the individual liability provision was not made until two years afterward. We rather think it was not intended by this clause to prescribe a duty but simply to describe the nature of the business authorized as that of a bank of deposit. Nor can. it be assumed that the liability was imposed upon the ground of laches to be imputed to the bank for every loss to the depositor. We apprehend that the stockholders would have been none the less liab'e for a loss by reason-of the inability of the bank to pay in consequence of destruction, of its property by inevitable accident vis major or the act of G.od. They are to indemnify creditors against loss by failure of the bank, through whatever cause, without their fault.

But the clear ground on which we feel compelled to reverse this decree is that whatever may be the character of this liability, primary, penal or other—complainants’ rights are purely legal, arising upon a statute which does not designate the forum for their enforcement and therefore the remedy is at law. Culver v. Third National Bank, 64 Ill. 528 ; Corwith v. Culver, 69 Id. 502 ; McCarthy v. Lavasche, 89 Id. 277 ; Wincock v. Turpin, 96 Id. 135.

It is true that the right to sue at law does not necessarily exclude the jurisdiction of equity provided there are proper grounds therefor. Eames v. Doris, 102 Ill. 350.

' The case just cited in some of its features resembles this and is relied on by appellees. But there the jurisdiction was sustained upon the well recognized ground of securing a ratable distribution, among creditors of equal equity, of a common but deficient fund. The whole strength of that case lies in its point of difference from this; not in the fact that it was a common fund, and in other respects of like character with this, but in the single fact that it was deficient, inadequate to meet the claims against it in full, so that he who should obtain the first judgment at law might get more than his equitable proportion, to the injury of the others. Here no deficiency- is alleged, no ratable distribution is asked. The proof shows there is much more than enough to satisfy the j nst claims of all.

And this fact is an answer also to another suggestion, that by the proceeding in equity a multiplicity of suits will be avoided. That ground of the jurisdiction has respect to the case of the party complainant rather than of the defendant. It is that he can not fully obtain his rights by one suit at law but may by one in equity without wrong to his adversary; and does not authorize the consolidation of several and legal causes of action of different creditors against a common debtor. Such a proceeding might not avert or mitigate the evils of multiplicity to either party and might work great delay, embarrassment and injustice to the several complainants. No necessity is here perceived that either of them should bring more than one suit at law to obtain all his rights in the premises. But it is said the bill prays discovery, and that the court acquiring jurisdiction for that purpose will retain it to grant relief.

We do not regard the bill as one of this character. The relief asked is not of such a nature as a court of equity may properly grant in the ordinary exercise of its authority. It is simply to give judgment and execution for a legal debt, which is the more appropriate function of a court of law, besides that in this case the intervention of the jury may be necessary to ascertain the amount due. What is sought is matter of evidence merely proper as in aid of a suit at law, or of relief in equity if the party is on other grounds rightly in a court of equity, and such as is called for in almost every bill. But it is not such as requires to obtain it an appeal to the conscience of the defendant, based upon alleged misconduct in suppressing it, as we understand to be necessary in order to give jurisdiction for relief upon the ground of discovery merely. It is not alleged that the matter is exclusively within the knowledge of the defendants, and manifestly it is not so in fact. The officers of the bank, the assignee, the several stockholders,-— some of them, in all probability, knew as to each besides himself, liow many shares he held at any given time. Hor is it charged that the books have been fraudulently withhold or concealed or are inaccessible by legal means. Presumably they are, and from the date of the assignment have been under the control of the assignee. And as to the transfers and notice thereof by publication in some Springfield newspaper, without which they would have been unavailing as a defense, clearly that is publicly known and easily provable without aid from the defendants.

For these reasons, -which appear to be fully approved by the authorities, we are of opinion that the discovery here asked did not give the jurisdiction claimed. 1 Story’s Eq. Jur. §§ 72-74 (Twelfth Edition). Hone other than these above noticed are urged for it in the argument of counsel, and we perceive none. The decree will therefore be reversed and the cause remanded.


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    William V. Esmond et al. v. The People, etc.
    1. State’s attorney—Agreement to set aside forfeiture.—A State’s attorney who is not in condition to go to trial nor to demand a forfeiture of the recognizance may lawfully agree, in consideration of consent to the forfeiture, that it shall be set aside on the appearance of the defendant at the next term of court.
    2. Practice—Right to have forfeiture set aside.—In case of such agreement being made, and the condition performed, the right to have the default and judgment of forfeiture set aside is absolute by virtue thereof, and not at all dependent upon any favor of the court.
    Appeal from the Circuit Court of Logan county.
    Opinion filed December 4, 1885.
    Mr. E. Lynch and Messrs. Beach & Hodnett, for appellants.

      Mr. Bobeet Humpheet, for appellees.
   Pleasants, J.

In May, 1884, appellant Esmond, being arrested and brought before a justice of the peace of Logan county on complaint for obtaining money on false pretenses-, gave bond in $500, with his co-appellant as surety, for his appearance at the September term to answer, etc., and after arranging with Mr. Beach, his attorney, for notice when he should be wanted, returned to his home in Chicago. The State’s attorney was supposed to be a necessary witness in the ease and for that reason Mr. Wallace was employed to prosecute it, and was recognized by the court accordingly. Upon the return of the indictment very early in the term, at his own instance and because he could not be prepared for the trial, it was agreed between him and Mr. Beach that- the cause should stand continued and the defendant excused from appearing until the next term. Ho order to that effect was actually entered, but Mr. Beach was not aware of the omission and nothing further was done in the case till near the close of the term when Mr. Wallace suggested to him that he would like to take a forfeiture of the bond, and upon his objecting on the ground of the agreement for. continuance, further agreed that if allowed to be then taken it should be set aside by agreement, on the appearance of defendant at the January term following.

Belying upon this understanding Mr. Beach consented, the default of defendant and his surety was taken, judgment of forfeiture entered and a scire facias entered returnable to the next term. Afterward, in vacation, to avoid any chance of his failing to appear, the surety surrendered his principal, who was then held in custody by the sheriff of Logan county, until other security was given.

At the January term, 1885, the defendant appeared, and having paid the costs of the recognizance, moved the court to set aside the default "and judgment of forfeiture pursuant to said agreement, which motion was supported by the affidavits of the defendant, and of Mr. Beach and Mr. Wallace respectively, setting forth the facts as above stated. But in the meantime Mr. Wallace had been notified that his services would be no longer required in the case, and the State’s attorney, though he nol. pros’d the indictment, resisted the motion, which was denied.

Thereupon a rule was entered requiring appellants to plead to the sci. fa. mstanter, and for non-compliance therewith final judgment was entered against them for $500 and costs and for execution thereon, according to the force, form and effect of the bond. To these several rulings, orders and judgments exception was duly taken. Appellants also moved the court, for reasons assigned and filed, to set aside said judgment, and for a rehearing of the case, which was denied, and thereupon this appeal was prayed.

We fail to find in the record or in the elaborate argument of the State’s attorney a sufficient reason for his repudiation of the agreement or for the court’s refusal to enforce it.

It is said that Esmond refused to appear at the September term, and that this was such laches as forbade the setting aside of the forfeiture under the statute. R. S. 1874, Ch. 38, § 310.

To maintain this assertion it is first assumed or inferred, in the face of the evidence and from the fact of surrender alone, that his surety and attorney suspected he would refuse, and then argued, from this suspicion as evidence against'him, that he did. We do not so reason. The explanation of his nonappearance is simple, natural, complete and satisfactory, leaving no room for suspicion of evasion or negligence on his part. And if it was otherwise, the people, who by their attorney procured the agreement to continue the case without first defaulting him, could not thereafter take advantage of it.

But it is said that all their rights under this agreement were avoided by their consent to the forfeiture.

Doubtless all were so avoided that were incompatible with the judgment. Nothing, however, was claimed under that agreement. Appellants asked only the right acquired by the ■later one, under which alone the judgment was or could have been entered. When that was made the other became unimportant except that, being binding until so superseded, it made their consent to the forfeiture indispensable, and thus enabled them to dictate the terms on which it would be given, and upon its acceptance these terms, so far as they were lawful, would be obligatory.

It is said that where an agreement is partly in writing and partly in parol, and these conflict, that which is in writing will prevail; that a party to a judgment can not contradict its findings by evidence alimids; that a condition that defeats the grant to which it is annexed is of no effect, and from each of these premises, the conclusion is sought to be drawn that the judgment of forfeiture in this case, though merely preliminary and entered by consent of its own force, when entered avoided the terms on which it was agreed to be entered. But. the agreement here was wholly in parol. The judgment formed no part of it, but was taken in pursuance of it.

Nor was there any attempt to contradict the recitals or findings of the judgment. They were, that appellants had given bond for the appearance of Esmond and that he had not appeared according to its terms. These were and are admitted facts. There was no need to contradict them. For though sufficient to authorize the judgment, they could not estop him from afterward showing that the non-appearance was not due to his own laches, else no such judgment could ever be set aside as contemplated by the statute.

Manifestly its only object was to strengthen the security for his appearance or production at the January term, or, in case of default, to hasten the time for a judgment that would be final and effectual, and when he so appeared this object was fully accomplished.

Finally, the broad ground is taken, that Mr. Wallace was without power to agree to this condition, or bind the court thereby.

That he had all the power of a State’s attorney is not denied; and that a State’s attorney who is not in condition to go to trial nor to demand a forfeiture of the recognizance, may lawfully agree, in consideration of consent to the forfeiture, that it shall bo set aside on the appearance of the defendant at the next term, is a proposition that we deem unnecessary to argue.

If such an agreement was made and the condition performed, then the right to have the default and judgment of forfeiture set aside was absolute by virtue thereof, and not at all dependent upon any favor of the court.

In this case there is no question about the fact, the terms or the meaning of the agreement, which was sought and procured by the attorney for the people, and on the wdiole was in their favor. It was made in prudence on the one side and a spirit of accommodation on the other. Appellees have had the full benefit of it. The stipulation in favor of appellants should, therefore, have also have been performed or enforced.

We think its enforcement was properly sought by way of the motion; and for error in .denying it, the judgment herein is reversed and the cause remanded.

Eeversed and remanded.


author: Wilson, J.

text:
    Chicago, Burlington & Quincy, R. R. Co. v. Nellie Smith, Adm’x, etc.
    1. Doty of employer in providing safe machinery.—An employer is required to exercise reasonable and ordinary care in providing suitable and safe machinery for persons in his service, but the machinery is not required to be the best or most improved kind, or to he absolutely safe.
    2. Same.—An action to recover damages for the death of a switchman caused as alleged by the negligence of the railroad company in not putting the rails further apart, and in not blocking the switch. Held, that as the evidence shows the construction to have been that ordinarily used and to have been reasonably safe, no recovery can be had.
    3. Where defects known to servant.—Where defects in machinery or other appliances are as well known to the servant as to the master, the servant must be regarded as voluntarily incurring the risks resulting from its use unless the master, by urging upon the servant or coercing him into danger, or in some other way, directly contributes to the injury.
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed January 6, 1886.
    This was an action on the case brought by Nellie Smith, as administratrix of the estate of George A. Smith, deceased, against the Chicago, Burlington & Quincy Railroad Company. The declaration alleges that on July 15,1881, the deceased was in the employ of the defendant as yard switchman; that the duties of his employment required him to assist in the switching, coupling and uncoupling of cars, etc.; that the defendant did not use proper care in constructing its road, but on the contrary the rails of certain side tracks, connected by a switch to the main track, were imperfectly and badly constructed in this, that the rails of said side track were in too close proximity to each other, and were without blocks or other protection so as to prevent accidents to employes who might have occasion to pass over and about said rails, of which the defendant had notice, etc.; that on July 15, 1881, it was necessary for deceased, in the prosecution of his employment, to uncouple certain freight cars which were moving along the said main track, and while, with due care, he was attempting to uncouple said freight cars one of his feet was caught between two of the rails of said side track, and he was unable to extricate himself and was thereby killed; that he left surviving him the piaint•iff, his wife, and Maud Smith, his daughter.
    The defendant pleaded the general issue. There was a jury trial resulting in a-verdict for the plaintiff for $5,000, on which there was judgment, and the plaintiff appealed to this court. The facts sufficiently appear in the opinion of the court.
    Messrs. Dexter, Herrick & Allen, for appellant.
    Messrs. Monroe & Leddy and Mr. S. K. Dow, for appellee.
   Wilson, J.

It is manifest from reading the evidence that the plaintiff was not entitled to recover unless the defendant was guilty of negligence in laying the rails of its side track too near to each other, or in omitting to place blocks or other protection between the rails to prevent accidents to its employes. This is the only negligence alleged and there is no proof of any other.

The degeased had been in the employ of the defendant for a year as a freight bralccman, and about two months prior to the accident went to work as yard switchman in defendant’s freight yard at Western avenue, Chicago. The yard consisted of numerous tracks diverging from one main track. Trains of loaded cars were run into the yard, and the business of the gang of nien to which deceased belonged, consisted in separating the cars in these trains, and from them making up other trains. This involved the handling of several hundred cars daily. One of the switchmen would uncouple the cars at the point in the train where they wished to divide it, while another would set the switch so as to throw the train on to the desired track.

At the time of the accident deceased had stepped in between two cars, near the switch, to uncouple them, the train being at the time slowly in motion, and as he was moving along with the train, trying to remove the coupling pin, his foot was caught between the rails, and being "unable to extricate it, he was run over and killed. It is claimed by appellee that it was the duty of the railway company to have had the rai's placed farther apart, or to have them blocked, and thereby have made them less dangerous, and thus, presumably have prevented the accident.

It is not disputed tliat the tracks and switches were constructed in substantially the same manner as those of other well-built and well-operated roads, nor is it claimed that the train, at the time of the accident, was negligently or improperly managed; but the contention is that the tracks might have been made safer by a different mode of construction or by new or improved appliances.

The rule is now too well settled to admit of discussion that while an employer is required to exercise reasonable and ordinary care and diligence in providing suitable and safe machinery for persons in his service, the machinery is not required to be the best or most improved kind, or to be absolutely safe. It is sufficient if according to the ordinary experience and observation of prudent men it is reasonably safe. Hegligence will not be imputed merely because there may possibly be improved and better kinds of machinery. Camp. Point M’f’g Co. v. Ballou, 71 Ill. 417 ; N. Chi. Rolling Mills Co. v. Monka, 4 Bradwell, 664; C. & N. W. R. Co. v. Scheuring, 4 Id. 533; Simmons v. Chi. & Tomah R. R. Co., 110 Ill. 347; L. S. & M. S. Ry. Co. v. McCormick, 74 Ind. 440; Chi. M. & St. P. R. R. Co. v. Standard, 16 Bradwell, 148 ; Port Wayne R. R. Co. v. Gildersleeve, 33 Mich. 133.

In L. S. & M. S. Ry. Co. v. McCormick, supra, the precise question involved in the present case, namely, wdiether a failure to block switches constitutes negligence, the Supreme Court of Indiana used the following language : hTeither companies nor individuals are bound as between themselves and their servants to discard and throw away their implements and machinery upon the discovery of every new invention which may be thought or claimed to be better than those they have in use; but if they take ordinary care and exercise ordinary prudence to keep their implements and machinery in sound repair, so that harm does not result to the servant for want of such sound condition of their implements or machinery used, then such individuals or companies will not be responsible to servants for any injury which may occur to them in the use of such implements or machinery.”

In Port W. R. R. Co. v. Gildersleeve, supra, the plaintiff was injured while attempting to couple a car, the coupling of which was lower than those in common use. Cooley, C. J., said : “ We do not perceive any ground upon which the plaintiff’s case can be safely planted which comes short of this; that the employer is under obligation to his servants, under all circumstances, to make use of the safest known appliances and instruments, and is responsible for any failure to discard what is not such, and to supply its place with something safer. Any doctrine so far reaching as this would manifestly be destructive of the general rule, and would almost make the employer the guarantor of his servant’s safety in his employ.”

In Smith v. St. L., K. C. & N. Ry. Co., 69 Mo. 32, the court said: “ Is the fact that there is another kind of rail, of which a general rail might be constructed which would be safer for employes, and would equally answer its purpose^ sufficient to render the company liable to an employe for an injury received by him in consequence of the failure of the company to use the other kind of rail? If railroad companies are required to take up their rails whenever a better rail is manufactured, because it would afford greater security to their employes, and to discard their machines whenever more perfect machinery is invented, or be liable to any employe who may be injured in using the old machinery, it would impose upon them pecuniary burdens which would compel them to suspend the operation of their road.” The books are full of similar cases on this subject, and they all speak a common language.

The burden of proof was on the plaintiff to show that the defendant was guilty of negligence in not putting the rails further apart or in not blocking the switch. As to the former the evidence is uncontradicted that the distance between the rails, or what is called to throw off the switch, is the same on defendant’s road as that commonly in use on other roads, namely five to five and a half inches. The plaintiff offered evidence tending to show that the space between the rails might be increased without interfering with the operation of the trains running over the switch. Conceding this as a fact to have been found by the jury in favor of the plaintiff, the proposition of the plaintiff comes to this, that it being shown that a mode of construction could be adopted which would make the switch safer to those walking over it, the mere failure to adopt such mode of construction would be negligence. Such, as we have seen, is not the law.

As to the blocking the most that can fairly be claimed for the plaintiff, under the evidence, is that the device of blocking is still an experiment and of doubtful practicability. At the date of the accident it had been tried only to a very limited extent, and whether it would ultimately be found useful and answer the purpose designed was not fully determined. It had not been adopted by most of the principal roads by reason of certain alleged practical difficulties; and one of the plaintiffs’ witnesses testified that, like safety switches or patent couplings, its utility was not yet determined. If, however, it ¡>e conceded that its adoption was practicable and that its use would have added to the safety of persons walking over the tracks, it dues not follow that the defendant was guilty of negligence in failing to adopt it, for the reasons already indicated.

But there is another aspect of the case, in view of which the plaintiff would seem to be not entitled to recover. The plaintiff’s intestate had been at work as switchman in the yard in question for a period of two months and upward, immediately preceding the accident. He had also previous thereto been for a year a brakeman on defendant’s freight trains. He was presumably a man of intelligence, and he had been in the yard long enough to have become cognizant of the danger in coupling and uncoupling cars at the place where the accident happened. He was as -well aware of the danger as was the defendant. Indeed the defendant’s knowledge is only the knowledge of its servants and employes. If with this knowledge deceased chose to continue in the defendant’s service, he must be held to have assumed the risks incident thereto. The law is well settled that where the defects in the machinery or other appliances are as well known to the servant as to the master, the servant must be regarded as voluntarily incurring the risks resulting from its use, unless the master by urging upon the servant or coercing him into danger, or in some other way, directly contributes to the injury. Pennsylvania Co. v. Lynch, 90 Ill. 333 ; Clark v. C., B. & Q. R. R. Co., 92 Ill. 43 ; I. B. & W. R. R. Co. v. Flanigan, 77 Ill. 365 ; Naylor v. C. & N. W. Ry. Co., 53 Wis. 661; Foster v. C. & A. Ry. Co., 84 Ill. 164; Simmons v. The Chicago & Tomah R. R. Co., 110 Ill. 340. So far as appears the condition of the tracks and switch, at the time the deceased was killed, was the same in all respects that it had been during the entire time of his service. Having thus had an opportunity to become acquainted with the risks of the situation, and accepted them, his representatives can not complain for his subsequent injury.

We are constrained to hold that under the case as shown in the record the plaintiff was not entitled to recover. The judgment of the court below is accordingly reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    The People ex rel., etc., v. Chicago West Division Railway Co.
    1. Mandamus—Contract between common council and railway company.—-Upon a petition by the property owners the common council passed an ordinance authorizing the West Division Railway Company “ to extend its line on Ogden avenue to the western limits of the city, said tracks to be laid and in actual operation from Western avenue to the western line of Douglas Park on or before June 1, 1881, and from the western line of Douglas Park to Lawndale, as soon as the same can be constructed, operated and kept in repair without actual loss.” The railway company filed with the city clerk its written acceptance of said ordinance, and constructed the line to Douglas Park. Subsequently, upon'another petition, the common council passed a second ordinance requiring the line from Douglas Park to Lawndale to be completed within sixty days after notification, etc. A petition for a mandamus was brought to compel the comp my to construct such line. The company answered and denied that the extension to Lawndale ever could have been or could then be constructed, operated and kept in repair without actual loss. , Held, that .a demurrer to such answer was properly overruled, and the writ was properly dismissed.
    2. Same.—By the passage of the first ordinance and its acceptance by the railway company, a contract was created which in respect to its terms and conditions is to be construed by the same.legal rules as are applicable to contracts between private persons, and the common council could not change such contract nor decide the disputed question as to whether the extension could be constructed and operated without loss.
    Appeal from the Superior Court of Cook county; the Hon-Joseph E. Gary, Judge, presiding.
    Opinion filed January 6, 1886.
    This was a petition for mandamus to compel the Chicago West Division Bail way Company to extend its Ogden avenue horse car line from Douglas Bark to the city limits, at Lawndale. The material facts are substantially as follows:
    July 1, 1880, a majority, by frontage, of the owners of property on Ogden avenue, between Western avenue and the city limits, petitioned the common council to grant permission to said railway company to lay its tracks on Ogden avenue to the city limits; also to pass such ordinance or issue such order as the council might be legally authorized to do, to compel said railway company to lay its tracks and run its cars upon said extended line without unnecessary delay.
    February 7,1881, the common council passed an ordinance, the first section of which authorized the railway company to extend its line on Ogden avenue to the western limit of the city.
    Section two provided as follows :
    (1) “ Said tracks shall be laid and in actual operation from Western avenue to the western line of Douglas Park on or before the first day of June, 1881.”
    (2) “ From the western line of Douglas Park to Lawndale as soon as the same can be constructed, operated and kept in repair without actual loss.”
    The railway company, February 23, 1881, filed with the city clerk its written' acceptance of said ordinance.
    Subsequently, and in July, 1884, appellant Bliss and one other person, on their own behalf and on behalf of the citizens residing in the vicinity of Lawndale, presented a’petition to the common council praying for the appointment by the council of a committee to inquire into and report whether the public necessity existed for the extension of said horse railway to Lawndale, and whether the construction of the same was then the duty of said railway company, and whether the said extension could be constructed, operated and repaired without actual loss; which petition was referred to the judiciary committee of the council for inquiry and report. The committee reported that the extension of the line from Douglas Park to Lawndale could be constructed, operated and kept in repair without loss, and recommended the passage of an ordinance commanding the railway company to make such extension within sixty days.
    August 4, 1884, the council adopted the report of the committee and passed the ordinance as recommended, requiring the line to be completed within sixty days after notification of the passage of the ordinance.
    The petition for a mandamus alleges the service of a copy of the ordinance upon the company, its refusal to comply therewith, and prays for the issuance of a writ of mandamus to compel it so to do.
    The defendant company answered, admitting the passage of the ordinance, its acceptance of the same, and says it extended its line to the western boundary of Douglas Park as thereby required. Denies that it became its duty to submit to any other terms or conditions than those contained in the ordinance ; denies that the extension of its line from Douglas Park to Lawndale ever could have been, or could then be constructed, operated and kept in repair without actual loss. Says it has no knowledge of the alleged presentation of a petition to the common council relative to the construction of said line from Douglas Park to Lawndale and its reference to a committee; denies that the action of said committee or the order of the council requiring said line to be constructed was binding1 upon the railway company, etc.
    The plaintiff demurred to the answer, assigning various causes which the court overruled, and the plaintiff abiding by its demurrer the writ was dismissed. The plaintiff appealed to this court.
    Messrs. O. 0. & 0. L. Bonnet and Mr. L. M. Paine, for appellants;
    that the passage of the order of the council commanding said extension is a proper exercise of the police power, cited C. & A. Ry. Co. v. People, 105 Ill. 660; Dunne v. People, 94 Ill. 141; Munn v. Ill., 94 U. S. 132; Hawthorn v. People, 109 Ill. 311.
    Mr. 0. Beckwith and Mr. H. S. Monroe, for appellee;
    that the question as to whether the extension could be constructed and operated without loss could not be decided by the council, cited Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray (Mass.), 339; State v. Noyes, 47 Me. 204; Washington Bridge Co. v. State, 18 Conn. 53.
   Wilson, J.

The defendant company was authorized by its charter to construct a double or single track railway in and along such streets in the west division of the city of Chicago as the common council might authorize it to do, in such manner and upon- such terms and conditions as the council and the railway company might agree upon. By the passage of the ordinance authorizing the railway company to extend its Ogden avenue line from Western avenue to Douglas Park, and thence to Lawndale, and its acceptance by the company, a contract was created, which in respect to its terms and conditions, is to be construed by the same legal rules as are applicable to contracts between private persons. State v. Noyes, 47 Me. 189; Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray, 339; Dartmouth College v. Woodward, 4 Wheaton, 518; Fletcher v. Peck, 6 Cranch, 89; King v. Dedham Bank, 15 Mass. 454.

By the contract the railway company undertook to extend its line from Western avenue to Douglas Park, unconditionally by the first day of June, 1881, and from Douglas Park to Lawndale “ as soon as the same could be constructed, operated and kept in repair without actual loss.” This latter clause is plain and unambiguous in its terms and it must be presumed was intended by the parties to be as binding as any other provision of the contract. It could not be changed by the common council by adding new provisions or altering those already agreed upon,without the consent of the railway company. As was said in State v. Noyes, 47 Me. supra, where the legislature had granted a charter to a railway company conferring certain privileges and imposing certain conditions to which the legislature, by a subsequent act, attempted to add others: The act of the legislature thus became a contract between the government acting in its sovereign capacity, with the company, founded on the mutual considerations moving from one party to the other. * * The act of incorporation was only a contract between the legislature and the company, but it was a private contract. And this contract is to be construed by the tribunal established for such purposes generally, on the same principles which are to be applied to contracts between private individuals.”

The railway company in its answer admitted the making of the contract, but denied that the- road from Douglas Park to Lawndale could be constructed and operated without loss; and the demurrer admitted that this was true.

We have then a case in which it is sought to enforce by mandamus the performance of an executory contract, when it is admitted that the. condition upon which the right to have it enforced depends has not happened. The bare statement of the proposition is all that is needed to expose its unsoundness. But if the condition had happened, and the contract to extend the line to Lawndale had become absolute, it does not necessarily follow that mandamus would be an appropriate remedy for a breach of the contract, the use of that writ being limited ordinarily to the enforcement of obligations imposed by law. High on Mandamus, Sec. 321; People ex rel. v. Dulaney, 96 Ill. 503 ; Wood on Mandamus, p. 18; State v. Zanesville Turnpike Co., 16 Ohio St. 303.

But waiving any question as to the kind of remedy selected we will consider briefly the principal ground upon which the petitioners base their right to have the contract enforced. By the terms of the original ordinance the railway company was not required to-extend its road to Lawndale until it could be constructed and operated without loss. The ordinance does not declare who shall decide as to when that contingency has happened. It is contended by the petitioners that this may be done by the common council, and the council having decided that the road can be extended and operated without loss, its decision is conclusive on the defendant company.

It would hardly seem to require argument or authority to show that neither party to a contract can decide disputed questions of law or fact so as to bind the other party without his consent. Such controversies can only be decided by the appropriate judicial tribunals of the country. The common council is not invested with judicial functions ; and if it were, it would hardly undertake to abrogate or change the provisions of contracts solemnly entered into between itself and private citizens or business corporations.

In Commonwealth v. Proprietors of Hew Bedford Bridge, 2 Gray, 339, the éharter of the company granted by the legislature contained a provision that the bridge should be erected “with two suitable draws” to be at least thirty feet wide. By a subsequent act the legislature required the company to construct a new draw to be not less than sixty feet wide ; and the question was whether the legislature had the power to decide whether the-draws were suitable ornot.and whether it could change the terms of the charter as originally granted. It was held by the Supreme Court of Massachusetts in an elaborate opinion, that the charter, when accepted by the bridge company, became a contract between the legislature and the company, and that neither could interpret its terms authoritatively so as to control and bind the rights of the other. The court said “By becoming a party to a contract with its citizens the government divests itself of its sovereignty with respect to the terms and conditions of the compactand its construction and interpretation, and stands in the same position as a private individual.” It was further held that the respective rights and duties of the parties to the contract must be determined solely by its original provisions, no power to change or amend the charter having been reserved by the legislature, and that the amendatory act imposing additional burdens on the company, not contemplated by' its charter, was without binding force. See also State v. Noyes, 47 Me. supra, and cases there cited. Washington Bridge Co. v. State, 18 Conn. 53.

These and numerous other analogous cases which might be cited are decisive of the present case. The second ordinance requiring the extension of the line to Lawndale was without force.

The common council reserved in the ordinance no right to alter it without the consent of the railway company, and no consent was ever given. The contract was created by the first ordinance and acceptance of it by the company. All that the contract unconditionally required of the company has been performed.

It is not perceived that the principle of ultra vires, urged by appellant’s counsel, is applicable to the facts of the present case. The questions presented in the cases cited by the counsel in support of his position grew out of a very different state of facts, and are not analogous to the case in hand. But if it were assumed that so much of section two as provided that the tracks shall be laid and in operation from Douglas Park to Lawndale as soon as the same can be constructed, operated and kept in repair without loss, is void, by reason of the absence of any condition to that effect in the petition of the abutting property holders, as is urged by appellants, the conclusion sought to be drawn therefrom is singularly illogical and unjust.

The court is asked to enforce so much of the contract as is for the benefit of the petitioners, and to disregard so much of it as is beneficial to the defendants, thus attempting to use ultra vires as both a shield and a sword. The railway company was not required by its charter to build the road, and if permission is given by the common council to use a street in which to build a road, upon terms and conditions which the company are unwilling to accept, there is no power that can compel it to accept. The rights, duties and obligation of the respective parties rest in contract, and it would be indeed extraordinary if, having mutually agreed upon the terms and conditions of a contract, one party should be allowed to say to the other, you shall perform the conditions of a contract on your part but I will not perform mine, for I had no power to agree to them. Buell a position is wholly inadmissible.

For the reasons indicated, and others appearing in the record, we are of opinion that the court below properly dismissed the petition, and the judgment is therefore affirmed.

Judgment affirmed.


text:
    Samuel S. Chisholm, etc., v. Beaver Lake Lumber Co.
    1. Telegraphic messages as evidence.—-Where telegraphic messages are sought to be used as evidence only originals can be resorted to, except where their production is excused so as to admit secondary evidence of their contents.

      2. What is this orioinal.—Whether the message delivered by the sender or that delivered by the company to the person to whom it is addressed is the original, depends upon the circumstances.
    3. Evidence.—In all cases it must be shown that the person sought to he charged with the consequences of a telegraphic message, either sent or caused the message to be sent.
    Appeal from the Superior Court of Cook county; the Hon. Bolles S. Williamson, Judge, presiding.
    Opinion filed January 6, 1886.
    This was assumpsit by appellee against appellant and others to recover the price of certain lumber alleged by appellee to have been sold by it to appellants, and shipped by their direction to one Pratt, at Aberdeen, Dakota. In support of its cause of action appellee offered in evidence at the trial the deposition of one Olson, which the court against the objection and exception of the defendants admitted in evidence, except certain portions previously stricken out on a motion to suppress. Attached to the part of the deposition admitted in evidence, and read as a portion thereof, were two telegraphic messages, purporting to have been sent by the defendants to the Beaver Lake Lumber Co., as follows:
    “Minneapolis, June 26, 3 883.
    To B. L. L. Co.—Is duplicate of Groobston order ready for shipment? Answer by wire at once.
    Chisholm Beos. &.Gunn.”
    The second message was as follows:

      “Minneapolis, Minn., 26.
    To Beaver Lake Lumber Co.—Ship lumber to S. S. Pratt, Aberdeen, Dakota, and give us car number at once.
    Chisholm Beos. & Gunn.”
    The telegrams were not the originals left with the office from which they were sent, but were .copies taken by the operators in the office to which they were transmitted. Appellant testified that he did not send them or either of them and knew nothing about them, and he offered to testify that there was no record of the telegrams on the books of Chisholm Brothers & Gunn, which offer was refused.

      The other facts sufficiently appear in the opinion of the court.
    There was a verdict and judgment for the plaintiff for $359.23, from which the defendant, its motion for a new trial being overruled, appealed to this court.
    Mr. Jesse Oox, Jr., for appellant.
    Messrs. Frank J. Smith & F. A. Helmer, for appellee.
   Wilson, J.

We are of opinion that without the telegraphic

messages attached to the deposition, the plaintiff’s evidence would have been insufficient to support the verdict; it therefore becomes necessary to determine whether the telegrams were competent evidence. They did not purport to be, nor is it claimed that they were, originals—that is, they were not the instruments made and signed by the defendants and left with the company for transmission. They wore copies taken from the company’s wires by its operator at the office to which they were sent.

In Matteson v. Noyes, 25 Ill. 591, the trial court admitted in evidence what purported to be a telegram,- there being no evidence to account for the absence of the original, or that the paper offered was a copy. It was simply the dispatch received from the telegraph office at the end of the line. The Supreme Court held that it was inadmissible, saying, It is an inflexible rule that resort must be had to the best evidence within the power of the party to produce, and if it is in writing the original must be produced, unless it be shown that it is destroyed, lost, or not within the power of the party to , produce it. If the dispatch is sought to be used in evidence the original must be produced, and its execution proved precisely as any other instrument before the copy can be received.”

It seems to be agreed, in all the cases, that only originals can be resorted to as evidence, except where their production is excused so as to admit secondary evidence of their contents; but what is to be considered the original, w'hether that delivered to the company by the sender, or that delivered by the company to the person to whom it is addressed, depends upon the circumstances. In Durkee v. Vt. Cen. R. R. Co., 29 Vt. 127, it is held that where the person to whom the message is sent tabes the risk of its transmission, or is the employer of the telegraph, the original is the message delivered to the company. But where the person sending the message takes the initiative, so that the telegraph is to he regarded as his agent, the original is the message actually delivered at the end of the line. Redfield, C. J., said, “In regard to the particular end of the line where inquiry is to be made for the original, it depends upon which party is responsible for the transmission across the line, or in other words, whose agent the telegraph is. The first communication in a transaction, if it is all negotiated across the wires, will be effective in the form in which it reaches its destination. In such case inquiry should first be made for the very dispatch delivered.”

In Gray on Communication by Telegraph, Sec. 135, the rule on this subject is laid down thus: “Whether the message delivered to the telegraph company or the one delivered by it, is the original, depends, in a certain set of cases, upon whether the person who employs a telegraph company is responsible upon an altered message.” The rule as stated by Redfield seems to be in accordance with the current of the authorities. But under the state of the proof in the present case it is unnecessary to determine whether the telegrams attached to the deposition of Olson are to be regarded as the originals or otherwise, there being a question back of this which we think decisive of the present appeal. It is indispensable, in every case and under all circumstances, to show that the person sought to be charged with the consequences of a telegraphic message, either sent or caused the message to be sent. This proposition is but a truism requiring neither argument nor authority for its support. The person who is alleged to have sent a message must at le-’.st be shown to have authorized the telegraph company to make some communication. Gray, Communication by Telegraph, Sec. 135 et seq., and cases cited in notes; Williams v. Brickell, 37 Miss. 682; C. & I. R. R. Co. v. Russell, Adm’r, 91 Ill. 298. If the rule were otherwise the door would be opened to the perpetration of the grossest frauds. It is matter of common knowledge that telegraphic messages are habitually sent without any inquiry by the operator as to the authorization of the sender. The operator sends as a matter of course and without question, all messages handed to him for transmission. Ho one would contend that a person could be bound by a telegram which he did not authorize, and of which he had no knowledge.

We fail to find in the record any sufficient evidence that the messages in question were sent by the defendants or by their authority. The messages themselves are inadmissible to prove it, appellant denies it, and the burden of proof was upon appellee to show it.

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

Reversed and remanded.


author: Bailey, P. J.

text:
    Emeline C. Ferry et al. v. Richard B. Moore.
    1. Agency—Election.—Whether there is an election not to charge the principal is a question of fact which is not determined by charging the agent after knowledge of the principal. Merely commencing a suit against the agent does not operate as an election which discharges the principal.
    2. Chancery practice.—If, at the hearing, the plea is not found to be true, it will he overruled as false and the complainant will be entitled to a decree as on a bill taken as confessed.
    Appeal from-the Circuit Court of Cook county; the Hon. Mubbay F. Tuley, Judge, presiding.
    Opinion filed January 6, 1886.
    This was a petition for a mechanic’s lien, brought by Richard B. Moore against Aaron D. Ferry, Emelin e 0. Ferry, Joseph E. Otis and the trustees of the Presbyterian Theological Seminary of the Horthwest. The petition alleges, in substance, that on the 26th day of August, 1882, the petitioner entered into a written contract with Aaron D. Ferry to furnish the materials and labor and erect a frame building on Fullerton avenue, according to certain plans and specifications; said building to be completed by October, 1882, for which the petitioner was to be paid the sum of §3,123.30, of which eighty-five per cent, was to be paid from time to time as needed during the- progress of the work, and the residue upon its completion ; that immediately after the execution of said contract^ the petitioner commenced the erection of a building on a certain lot fronting on Fullerton avenue, that being the lot on which the building mentioned in the contract was to be erected; that the title of record to said lot, at the time of making said contract, was in said Emeline 0. Ferry, the wife of said Aaron D. Ferry, and that- said Emeline 0. Ferry claimed to be the owner thereof in her own right; that the petitioner furnished all the labor and materials and erected said building on said lot, and completed it on or about December 25, 1882.
    The petition further alleges that at the instance and request of Aaron D. Ferry, the petitioner made certain changes and additions in the construction of said building, not contemplated by the written contract, amounting in value to §418.95 ; that no time of payment for said extras was agreed upon, but that, impliedly, they were to be paid for upon the completion of the building; that the delay in the completion of the building was wholly caused by said changes and extra work; that at the completion of the building, Aaron D. Ferry and Emeline 0. Ferry accepted the same as completed according to the contract, and went into the occupancy of the same; that said contract was made and said materials furnished and said building erected with the full knowledge, approbation and consent of Emeline 0. Ferry, and that she prepared the plans for the building, and was present when its construction began, and from day to day thereafter, during the progress of the work-until its completion; that said Aaron D. Ferry was also- pros, ent from time to time, giving directions in relation to the work in the presence of his wife; that before and during the progress of the work said Emeline C. Ferry was well aware that the title to said premises stood in her name, and she neither notified the petitioner nor in any way intimated to him that she claimed to be the owner thereof; that when said contract was made, and during the whole progress of the work, both Aaron D. Ferry and his wife, by their acts and representations, led the petitioner to believe that said Aaron D. Ferry was the owner of said premises and the improvements thereon, and the petitioner, from such acts and representations, believed such to be the case, and in good faith acted on such, belief, and never learned that the title was not in him until after the building was completed; that Aaron D. Ferry, at the date of said contract, was insolvent and had no property not exempt from execution sufficient to pay the petitioner’s claim, but that he told the petitioner, at the time of making said contract, that he was the owner of said premises.
    The petition further alleges that in making said contract, and in ordering said additions and changes in said work, and in making payments for said labor and materials, said Aaron D. Ferry acted for and in behalf of said Emeline 0. Ferry, and as her agent, with her full knowledge, approbation and consent, and that he continued to act as her agent withrespeet to the payments to be made to the petitioner therefor, until the commencement of this suit; that said written contract, though made by Aaron D. Ferry in his own name, was really the contract of said Emeline 0. Ferry.
    The petition admits that the petitioner had been paid upon said contract, the sum of §2,874.06, and that the defendants are entitled -to a deduction on account of certain changes in the construction-of the building, by which the cost was diminished of §135, leaving due on the contract a balance of §141.24, which, with the amount due for extras, loaves the sum of §560.19 still owing him for said labor and materials.
    The petition insists that, by reason of the facts above stated, said Emeline C. Ferry should be estopped from denying that said Aaron D. Ferry was acting for her as her agent in the matter aforesaid, and that the petitioner is entitled to a lien on said premises for said sum of §560,19 and interest.

      It is further alleged that said Aaron D. Ferry, Joseph E. Otis and the trustees of the Presbyterian Theological Seminary of the Horthwest have or claim to have some interest in the said premises as purchasers, mortgagees or otherwise, the precise nature whereof is unknown to the petitioner, but that such interests, if any such there are, have accrued since and are subject to the petitioners’ lien.
    Aaron D. Ferry died during the pendency of the suit without having answered, and Joseph E. Otis was defaulted for want of an answer. Defendants, Emeline 0. Ferry, and the trustees of the.Presbyterian Theological Seminary of the Fforth. west, appeared and filed a plea to the entire petition, in which they alleged, that said written contract and said contract for extras were made by the petitioner with Aaron D. Ferry in his own name and on his own behalf, and that exclusive credit was given to him by the petitioner for said labor and materials; that the labor and materials furnished by the petitioner for said building were charged by the petitioner to said Aaron D-Ferry, and that the amounts paid were paid by said Aaron D. Ferry with his own money and in his own behalf ; that at the time of the exception of said written contract and for a long time prior thereto, and until the death of said Aaron D. Ferry, said Aaron D. Ferry was engaged in business and was solvent, and possessed of ample means to pay all his just debts; that after the furnishing of said extras, and after the petitioner had abandoned said building claiming to have completed it and after having been fully informed as to the ownership of the land upon which said building was erected, and after being .fully informed that said Aaron D. Ferry was acting for and on behalf of his wife, and as her agent in making the written contract and the contract for extras, and in said payments of money, and with-full knowledge and information of the relations between- said Aaron D. Ferry and Emeline C. Ferry, and of the petitioner’s rights and remedies in the premises, and prior to the commencement of this suit, and after repeated demands by the petitioner upon Aaron D. Ferry for the pay. ment of said money, and without claiming or demanding the same of said Emeline 0. Ferry, the petitioner exercised his right of election in the premises and elected to hold said Aaron D. Ferry on said written contract and said contract for extras, and brought suit to recover the amount due him thereon in the Superior Court of Cook county against said Aaron D. Ferry, and caused summons to be issued in said suit against said Ferry, and that afterward said Ferry departed this life, by means whereof said suit was abated ; and that said defendants therefore pleaded said facts by way of estoppel as to the whole of said petition.
    Said plea being adjudged to be sufficient, the petitioner filed a general replication, and the cause being referred to the master to take proofs and to report the same and his conclusions thereon, evidence was adduced before the master, who reported that the material allegations of the petition were supported by the proofs, and that the material allegations of the defendants’ plea were not proven. The cause being afterward heard before the court on the pleadings, the master’s report and the exceptions thereto, said report was appioved and said plea overruled as false, and a decree was thereupon entered declaring and establishing a lien in favor of the petitioner upon said lot and building for said sum of $560.19 and costs, and the lot and building were ordered to be sold for the satisfaction thereof. From this decree the defendants have appealed to this court.
    Hr. Gr. Frank White, for appellant.
    Hessrs. Abbott, Oliver & Showalter, for appellee.
   Bailey, P. J.

It is urged that the decree is erroneous because of the failure of the petitioner to make the heirs of Aaron D. Ferry parties defendant. We see no ground, however, for holding that they were necessary parties. The title to the property affected by the decree was in Ferry’s wife, and, so far as appears, there was no interest or estate in him beyond his inchoate right of dower. That right was extinguished by his death and passed no interest to his heirs.

JSTor were he or his heirs necessary parties because of Ferry being one of the parties to the contract under which the Jien was sought to be enforced. True the contract was made in his name, but the bill alleges and the decree found that, in making the contract, Ferry was acting as his wife’s agent, and that it was in fact her contract and not his. Such being the case, neither Ferry nor his heirs had any right to appear and contest the amount due on the contract. The whole matter, go far as they were concerned, was res inter alios.

It is insisted in the next place that the Presbyterian Theological Seminary held an incumbrance on the lot which was prior to the petitioner’s lien, and that the decree should therefore have detfared a first lien on the lot in its favor, and made provision accordingly for a distribution of the proceeds of the sale of the premises. On this point it is sufficient to say, that the record is barren of evidence tending to establish the existence of the incumbrance. The Theological Seminary was- made a party defendant under the allegation that it had or claimed some interest in the premises as purchaser, mortgagee or otherwise, and that such interest, if any existed, was subsequent to- the petitioner’s lien. It thus became incumbent upon the. Theological Seminary to set up its incumbrance by answer and establish it by proof, if indeed it had one, and in the absence of such showing, it must be presumed that it had no interest in the premises which could be affected by the decree.

The only substantial controversy in the case arises upon the issue of fact tendered by the plea. That the title to the lot was in Mrs. Ferry, and that in making the contract for the erection of the building and in all transactions connected therewith, her husband was really acting for her and as her agent is alleged in the petition and substantially admitted by the plea. The allegation of. the petition that the relation of the princi pal and agent between Mrs. Ferry and her husband was unknown to the petitioner until after the building was complete, and that Mrs. Ferry during all that time occupied the relation of an undisclosed principal, is not denied by the plea, but would seem to be tacitly admitted. The issue tendered is,- whether afterward, when the principal had been disclosed and the petitioner was fully informed of his rights and remedies as against her, he elected not to charge her as his debtor.

The acts of the petitioner alleged in the plea and sought tor he established by the evidence, and by which it is claimed that such election was manifested, were making repeated demands for the balance claimed to be due him of Mr. Ferry and bringing suit against him therefor.

It is said by Mr. Wharton in his" Treatise on the Law of Agency, that in order to relieve the principal, there must be something equivalent to an election not to charge the principal, and whether there is such an election is a question of fact, Avhich is not determined by charging the agent-after knoAvledge of the principal. And the learned author seems inclined to the opinion that merely commencing a suit against the agent docs not operate as an election Avhich discharges the principal. There must be acts indicating an intent, with full knowledge of all the facts, to give sole credit to the agent, and to abandon all claim against the principal. Whart. on Agency Sec. 472.

The evidence bearing upon this issue Avas conflicting, unsatisfactory and inconclusive, and we think the master properly held that the alleged election was not proven. The plea being thus overruled as false, a decree for the petitioner necessarily followed. The rule is, that if at the hearing the plea is not found to be true, it Avill be overruled as false, and the-complainant will be entitled to a decree as on a bill taken as confessed. 1 Barb. Chan. Prac. 125.

As there is no error in the record, the decree will be affirmed.

Decree affirmed.


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    Mathias Heiderich v. Mary Heiderich.
    Chancery practice.—In a suit in chancery where the witnesses were all examined in open court and the parties were entitled, if they so desired, to have the issues tried by a jury, and the court sustained a motion to strike out all the complainant’s evidence and entered a decree dismissing the bill. Held that the same rule applies as In a case at law, and as the evidence tended to support the allegations of the bill, such ruling was erroneous.
    Appeal from the Superior Court of Cook county; the Hon. George B. Gardner, Judge, presiding.
    Opinion filed January 6, 1886.
    Mr. Simon P. Dotjthart, for appellant.
    Mr. Arnold Tripp, for appellee.
   Bailey, P. J.

This was a suit in chancery for a divorce, brought by Mathias Heiderich against Mary Heiderich, the bill charging the defendant with adultery, extreme and repeated cruelty and an attempt to take the life of the complainant by poison. The defendant answered, denying each of the several offenses charged in the bill, and charging the complainant with adultery; to which answer a general replication was filed. Afterward the cause came on to be heard before the court without a jury upon the pleadings and the witnesses examined in open court. The complainant thereupon produced and examined a large number of witnesses in support of the allegations of his bill, a,nd at the close of his evidence the defendant, without offering any evidence on her own behalf, moved •to strike out all the evidence introduced by the complainant, which motion the court sustained, and entered a decree dismissing the bill at the complainant’s costs for want of equity.

We have examined the complainant’s evidence with care and are of the opinion that it tends at least to prove each of the several offenses charged in the bill. As to the charge of extreme and repeated cruelty the proof seems to be very strong and convincing. But in view of the manner in which the decree was arrived at we think it unnecessary for us to consider its weight or conclusiveness.

It is well settled in suits at law that a motion to strike out all the plaintiff’s evidence is in the nature of a demurrer to. the evidence, and like such demurrer admits not only all the facts proved but also every conclusion which the jury might fairly and reasonably have drawn therefrom. Phillips v. Dickerson, 85 Ill. 10; Font et al. v. T. P. & W. Ry. Co., 59 Id. 349 ; Poleman v. Johnson, 84 Id. 269; Lawrence v. Mut. Life Ins. Co. of N. Y., 5 Bradwell, 280; Pratt v. Stone, 10 Id. 633.

We "see no reason why the same rule should not apply to a suit in chancery, especially like this, where the witnesses are all examined in open court, and where the parties are enabled, if they so desire, to have the issues tried by a jury. The court below, by striking out the evidence, held, in effect, that it did not tend to support the allegations of the bill. Such ruling, in our opinion, was erroneous, and for that reason the decree will be reversed and the cause remanded.

Decree reversed.


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    International Bank v. Erastus H. Ferris.
    Ratification.—Where certain money was wrongfully paid out. by a bank toB, and A, to whom the money belonged, sued the bank for it, and B had paid out for A or on his order divers sums of money. Held, that the application by the jury in reduction of A’s demand óf the moneys paid out by B on A’s account did not amount to an affirmance or ratification of the unauthorized act of B in drawing A’s money from the bank.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed January 6, 1886.

      Messrs. Kraus, Mater & Brackett, for appellant;
    as to adoption of agent’s act, cited Ewell’s Evans on Agency, 65 ; Henderson v. Cummings, 44 Ill. 325; Kreeder v. Trustees, 31I a. 547; Savelaud v. Green, 40 Wis. 431; Menkins v. Watson, 27 Mo. 163; Southern Express Co. v. Palmer, 48 Ga. 85.
    Messrs. Flower, Bemy & Gregory, for appellee.
   Bailey, P. J.

This was an action of assumosit, brought by Erastus H. Ferris against the International Bank to recover certain moneys collected and received for the use of the plaintiff. It appears that on or about the 2fith day of December, 1883, the plaintiff received from the Marine Insurance Company, of Buffalo, two drafts, payable to the plaintiff’s order, one for §511.33, and the other for §1,980, the same being in payment of a loss upon the plaintiff’s vessel under a policy of marine insurance. On that day the plaintiff went to the defendant’s bank, accompanied by one Bruce, the local agent of the insurance company, for the purpose of having the drafts collected. Bruce had previously made certain advances for the plaintiff, equal to the amount of the smaller of the two drafts, and in payment of such advances, the plaintiff, after indorsing both of the drafts in blank, turned over to Bruce the smaller one, and the same was received by the bank and at once placed to Bruce’s credit. About that draft there is no controversy.

The dispute arises uj>on the manner in which the larger draft was deposited in the bank for collection, and the directions and instructions given by the plaintiff in relation thereto. The plaintiff testified that he told the cashier that he wanted the money collected and held until he called for it; that he wanted to put it into another vessel as soon as he found one. The evidence of the defendant, on the other hand, tended to show that it was agreed between the plaintiff, Bruc'e and the cashier, that the larger draft should be collected by the bank and held subject to the order or directions of either the plaintiff or Bruce.

A few days afterward, Bruce, in the absence of the plaintiff, requested the bank to place the avails of the draft to his individual credit, which was done, and the money was subsequently paid out on Bruce’s checks. Several months afterward the plaintiff called at the bank for his money and was informed that it had been paid out on Bruce’s order, the bank claiming a right, under the arrangement made at the time the draft was left for collection, to make that disposition of the money.

It appears, however, that Bruce had in the meantime paid out for the plaintiff, or on his order, divers sums of money, amounting to about §940. The jury, at the trial, found the issues for the plaintiff, but charged against the plaintiff the moneys which Bruce had paid on his order, and rendered a verdict in his favor for the residue, viz., §1,040.60. For this sum and costs the plaintiff had judgment.

It is urged that the verdict is contrary to the preponderance of the evidence. As to the question of fact upon which the main controversy arose, there was a direct and irreconcilable conflict in the evidence. The evidence of the defendant’s cashier was directly disputed by that of the plaintiff, and we find no corroboration of the cashier’s testimony sufficiently clear and convincing to justify ns in holding thatthe jury have misconceived the evidence, or have been actuated by passion or prejudice. The question was for the jury, and they having resolved the conflict in favor of the plaintiff, we see no reason for disturbing their finding.

Complaint is made of the action of the court upon the motion of the defendant’s counsel to require Bruce to produce upon the tidal certain books and papers in compliance with the command of a subpoena duces tecum. The subpoena required the witness,in general terms, to produce all books, papers,etc., in his possession, showing his accounts with the plaintiff. Without deciding whether the subpoena ivas sufficiently explicit, it need only be said, that, so far as appears, the witness did produce all books and papers in his possession or control relating to said accounts, and after the same were produced, the defendant’s counsel took no further steps in the matter, but rested apparently content with the documents thus obtained.

Counsel contend, as a matter of law, that the application by the jury, in reduction of the plaintiff’s demand, of the moneys paid out by Bruce, on the plaintiff’s account, amounted to an affirmance or ratification of the unauthorized act of Bruce in drawing the plaintiffs money from the bank, upon the principle that the unauthorized , act of an agent can not be ratified in part and repudiated as to the residue. We think the principle here involved has no application. As the accounts, of the parties stood the bank was owing the plaintiff the full amount of the draft. Bruce having obtained possession of the money wrongfully, was indebted to the bank for the same amount. But as the plaintiff was owing Bruce a portion of that sum, it was proper for'him to consent to an adjustment of the accounts between the three parties, or, perhaps, for the jury to make such adjustment without his consent, and their doing so in no way invalidated the .residue of the plaintiff’s demand not thus extinguished. Passing these mutual credits was no ratification of the wrongful act by which Bruce obtained the money of the bank.

The counsel for the defendant have criticized several of the instructions given to the jury at the instance of the plaintiff, as well as the refusal of the court to give certain instructions asked on behalf of the defendant. We are of the opinion that all the instructions given were substantially correct, and that no material error was committed in refusing instructions asked but not given. The jury were properly instructed as to the law. There being no error in the record, the judgment will be affirmed.

Judgment affirmed.


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    John Pynchon, use, etc., v. Albert M. Day.
    Evidence—Inspection op books.—If it be assumed that the statute in relation to the production of books and writings authorizes the court to compel the production of books or writings prior to the trial, for the mere purpose of allowing them to be inspected by the parties, it is a matter left to the sound discretion of the court, and such power should never be exercised so as needlessly to expose the'private affairs of those in whose custody the books' or writings may be. It is proper to seal up that part of the writings relating to private affairs not connected with the matter in issue.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed January 6, 1886.
    Mr. T. J. Sutherland, for appellant.
    Messrs. Paddock & Alois, and Mr. FredericUllmann, for appellees.
   Bailey, P. J.

This was a suit in assumpsit, brought by John P. Pynchon against Albert M. Day and another, to recover of the defendants certain moneys deposited with them by the plaintiff as margins or security in the purchase and sale of stocks and bonds by the defendants, as the agents or brokers of the plaintiff. The trial having resulted in a verdict and judgment for the defendants, the plaintiff brings the record to this court by appeal.

The assignment of error principally relied upon is one which calls in question certain rulings of the court in relation to the production by the defendants of certain books and papers in their possession, for the inspection -of the plaintiff and his attorneys. During the pendency of the suit and before it was reached for trial, the plaintiff, for the purpose of enabling himself to prepare for trial, made several successive motions, supported by affidavit, for rules on ihe defendant to produce before the court, for examination and inspection by the plaintiff and his attorneys, all the boohs of account, vouchers and memoran la kept by them during their dealings for and with the plaintiff, showing all their dealings in stocks and bonds during that period. The court refused to require them to submit to the plaintiff’s inspection their accounts with other persons in no way connected with their dealings with the plaintiff, but permitted an inspection of their accounts with him, in such form as to be, in our judgment, sufficient for all the purposes of preparing the case for trial.

On the first motion, it appeared that all the accounts relating to transactions between the plaintiff and defendants were embraced in a journal and ledger in the power and possession of the defendants, and it was ordered that those books should be produced in court and placed in the possession of the clerk of the court; and it also appearing that all the ledger entries, pertinent and proper, to be examined by the plaintiff, were to be found on five certain pages of the ledger, it was ordered that the examination and inspection by the plaintiff of the ledger be restricted to those pages, and that the defendants be at liberty to seal up the remaining pages of the book. It also appearing that the journal entries of the transactions between the parties were so intermingled upon each page with entries of transactions between the defendants and outside parties, that an inspection thereof would necessarily expose those transactions, it was ordered that the defendants be permitted to present, for the use of the plaintiff; in lieu of an inspection of the original entries, a verbatim copy of all the journal entries of all matters and transactions between the plaintiff and the defendants, showing the pages where entered, such copy to be verified by the affidavit of the defendants or one of them, and, if the plaintiff desired it, by a certificate of the clerk of the court or one of his deputies, made upon actual examination and ■comparison with the original entries. A subsequent motion to permit the plaintiff and ln's attorneys to inspect the defendant’s accounts with their agents in New York of purchases and sales of stocks during the same period was denied, but the former order was so modified as to permit the defendants, under the direction of the clerk of the court, to seal or cover the names of the parties other than the plaintiff, and no wise connected with him, appearing in said accounts, and to allow the plaintiff and his attorneys to have full liberty to inspect said entire account, except the names so sealed or covered, and to take copies thereof.

We are unable to see that any essential injustice has been done the plaintiff by these various orders. It should be remembered that, apparently, none of the plaintiff’s motions were made for the purpose of compelling the production of boobs or writings to be used as evidence on the trial, and the record shows that when the trial came on, no effort whatever was made to use said books as evidence, or to require their production for that purpose. The purpose of the motions then manifestly was, to procure an inspection of the defendant’s books for the plaintiff’s own private information, with a view of using what he might thus be able to discover in shaping his theory of the case or otherwise preparing for trial.

The statute in relation to the production of books and writings is as follows: The several courts shall have a power in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power, which contain evidence pertinent to the issue.” If it be assumed that this statute authorizes the court to compel the production of books or writings prior to the trial, for the mere purpose of allowing them to be inspected by the parties, it seems clear that it is a matter left to the sound discretion of the court, and such power should never be exercised so as needlessly to expose the private affairs of those in whose custody the books or writings may be. Connected with matters which are material to the issue, may be other matters not material, and it is a very proper exercise of discretion, where they are capable of being separated, to refuse an inspection of those parts of the writings which are not evidence, especially where such inspection will tend unnecessarily to expose business or other private ■ affairs with which the party seeking to make the inspection has no concern.

The plaintiff was allowed to inspect all portions of the defendant’s ledger and journal which contained evidence pertinent to the issue. The defendant’s accounts with other parties were wholly immaterial, and could not have been properly received in evidence at the trial for any purpose. Hor do we see any objection to the mode adopted by the count to separate the defendant’s accounts with the plaintiff from then-accounts with other parties. It was easy for any one at all familiar with book-keeping to distinguish, by mere inspection, one class of accounts from the other, and we see no reason why the clerk of the court or one of his deputies was not competent to separate them,, and supervise the action of the defendants in sealing or covering up those entries having no relation to the plaintiff’s business. Had the books been produced and offered in evidence. on the trial, the case would have been different. Then it would undoubtedly have been incumbent upon the court, in the exercise of its judicial functions, to pass upon the competency of the evidence.

Some other points are raised by counsel for the appellant, but none of them seem to be well taken. We find no substantial error in the record, and the judgment will therefore be affirmed.

Judgment affirmed.