text:
    Wabash, St. Louis & Pacific Ry. Co. v. Marion Goodwine.
    Practice.—A case under an agreed statement of facts under § 75 of chapter 110 of B. S., where the clerk certified only the certificate of counsel and “the final decision of the case.” Held, that the transcript is fatally defective, in that it does not contain any certificate of the decision of the court below upon the questions of law stated in the stipulation.
    Appeal from the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Mann, Calhoun & Fbaziee, for appellant.
    Mr. D. D. Evans, for appellee.
   Pleasants, J.

The first sentence in appellant’s brief is in these words: This case comes up upon an agreed state of facts under § 74 of chapter 110 of the Revised Statutes.”

The transcript contains only (1) the placita of October term, 1882 ; (2) the finding of the court upon the issues for the plaintiff, appellee ; assessment of his damages at §285.90, final judgment thereon, and allowance of appeal, all of October 31st, in the same term; (3) appeal bond filed November 28th, 1882; (4) stipulation by the attorneys, filed the same day ; (5) statement of the adjournment of the - court sme die, on December 21, and (6) certificate of the clerk that “ the foregoing is a true, perfect and complete copy of the judg" ment of the court, the agreement of parties and appeal bond in the case.”

The stipulation sets forth that plaintiff filed his decoration in due form, counting upon a failure of defendant to fence its road as required by chapter 114 of the R. S., and defendant filed the plea of the general issue thereto; and what purports to be the substance or result of the evidence on both sides; agrees that the court rendered judgment for the plaintiff for the amount above stated and costs, “ being twice the cost of said fence as proven,” that the defendant excepted, prayed an appeal and filed a proper bond in due time, and concludes as follows :

“It is further agreed that the only question of difference between the plaintiff and defendant are questions of law, which questions are as follows, viz.: 1. Is plaintiff entitled to recover, having built the fence off of the line between him and the defendant’s right of way as above set forth. 2. Is it lawful to award as damages double the amount of the cost of the fence.” • -.

At the November term, 1884, this court affirmed the judgment for the reason stated in an opinion filed, that an agreement as to the facts made up and filed by the attorneys after the trial, did not make an agreed case as contemplated by said § 74, of the Practice Act, and there being no bill of exceptions the court could not consider the questions of fact presented by the assignment of error.

A petition for rehearing was thereupon presented by appellant on the ground that the court had misapprehended the character of the stipulation and also the section of the Practice Act ander which the case was brought here, it being not § 74 but § 75, which provides that “ any ju-ilge of the circuit court may, if the parties litigant assent thereto,- certify any question or questions of law arising in any case tried and finally determined before him, to the appellant or Supreme Court, togeth»r with his decision thereon, or the parties in the case may agree as to the questions or points of law arising in the case, and the .same may be certified by the counsel or attorneys of the respective parties, who shall sign their names thereto, and upon such certificate being made, the same shall be filed in the court rendering the decision, and a copy of such certificate certified by the clerk of said court, with the decision thereon and final decision in the case, to the appellate or Supreme Court, and filed therein, and upon filing the same the like proceedings may be had in the appellate court or Supreme Court, as if a full and complete record had been transcribed and certified to said court.” The petition was granted but no judgment upon rehearing appears to have been entered.

Having now considered the case in the light of this petition we are of opinion that the transcript is fatally defective under the Toth section also, in that it contaras no certificate of the decision of the court below upon the questions of law stated in the stipulation. ,

The ffierk has certified only the certificate of counsel and “the final decision in the case.” In jfiain terms the statute prescribes (1) a certificate by the counsel or attorneys of the “questions or points of law arising,” a copy of which must bo certified by the clerk, who must also certify (2) “the decision thereon,” and (3) “the final decision.” We are not authorized under this section to accept the agreement or certificate of counsel as to the facts, and without them we can not know from this record what the decision was upon the points of law stated.

We can not assume that the damages assessed were twice the cost of the fence, or that it was built off of the line between plaintiff’s land and the defendant’s right of way. For aught that legally appears the evidence may have been conflicting and the court may have held with appellant on both the questions of law set forth in the stipulation, but found against it on the evidence. The judgment will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    Chicago & Alton R. R. Co. v. James D. Simms et al.
    1. Delay in transportation.—What is unreasonable delay of a common carrier to deliver depends on the character, extent and circumstances of the delay. The delay must be so unusual as to be more reasonably attributed to negligence of the carrier than to any of the causes of delay to which the transportation by reason of the mode, time, route or subject of the carriage, or other circumstances not implying negligence, is known to be exposed.
    2. Special contract.—Where the shipment is made under a special contract which expressly provides that no claim for loss by delay in transporta, tion shall be payable or recoverable, but shall be absolutely barred unless a written statement of it shall be made" out and sent by-the shipper to the general freight agent of the company withinflve days after such loss occurs, such agreement is valid and binding.
    Appeal from the Circuit Court of Morgan count}'; the Hon. Cyrus Eplee, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Brown & Kirby, for appellant.
    Mr. Wm. A. Crawley, for appellees.
   Pleasants, J.

On the 8th of January, 1883, appellees shipped 177 live hogs from Murrayville for East St. Louis, by the regular freight train of appellant, which left about 7 o’clock p. m. and generally reached its destination between 6 and 8 o’clock of the following morning, but did not on this occasion until three in the afternoon, when the market for that day was over. They thereupon brought this suit before a justice of the peace, to recover damages for the delay, and on appeal to the circuit court obtained a judgment on verdict for $48.54 and costs.

Appellee, J. D, Simms, testified that the lot was sold on the morning of the 10th, at $6.15 per cwt.; that the actual shrinkage was about fourteen pounds to the hog, being at least four more than had ever occurred in his experience of ten years in the business, when they arrived on time, and tint he was obliged to buy five bushels of corn at a dollar a bushel for one extra feed in consequence of the delay. Notwithstanding the form of the questions put we do not think with counsel that his statement as to the extra shrinkage was matter of opinion. It was matter of inference rather, but being certain in amount and inevitable in character from the data of facts mentioned, was hot objectionable for that reason. The loss— to the amount found by the verdict—was therefore exactly and fairly proved by the best evidence of which the case> from its nature, was susceptible.

Was appellant liable for it ? By the common law the carrier’s duty and implied obligation is to deliver without unreasonable delay, which is such as involves some want of ordinary care or diligence on his part. Story on Bailments, (9th Ed.) § 545 a; Hutchinson on Carriers, § 330; G. & C. U. R. R. Co. v. Rae, 18 Ill. 488; O. & M. R. R. Co. v. Dunbar, 20 Id. 628; G. W. Ry. Co., of Canada, v. Burns, 60 Id. 287; T. W. & W. R. R. Co. v. Lockart, 71 Id. 631; P. F. W. & C. R. R. Co. v. Hazen, 84 Id. 36; I. & St. L. R. R. Co. v. Juntgen, 10 Bradwell, 302-3; W. St. L. & P. Ry. Co. v. McCasland, 11 Id. 494. It is immaterial therefore whether this action be regarded as incase or assumpsit, the proof required to establish the right to recover being the same.

What is unreasonable delay will depend on its character,.extent and circumstances. The fact that it is unusual can not of itself be conclusive, and may not be even slight or any evidence that it is unreasonable. It is entitled to no weight unless it be so unusual as to be more reasonably attributable to negligence of the carrier than to any of the causes of delay to which the transportation, by reason of the mode, timé, route or subject of the carriage, or other circumstances not implying negligence is known to be exposed. Negligence is never presumed, and where the effect may be as well referred to a cause winch does not impute it as to one that does, the jury has no right to find it, as for example where an unusual but not great delay of a train immediately follows a heavy snow storm.

The distance from Murrayville to East St. Louis is about seventy-five miles, and the delay beyond the usual time in this case was six or seven hours. By the established course of transpoi tation, as was well known to appellees, the train by which they shipped was to wait at Boodhouse for the regular stock train from Kansas City to take it thence to East St. Louis, which usually arrived about 11 o’clock p. m., but on that night was six hours later.

This circumstance alone and unexplained, unless by the testimony of James D. Simms, who says, “it was a fearful cold night, as cold as I ever saw it,” makes the entire case, as to negligence, against appellant.

How it is well known that freight trains, especially those that carry live stock, though usually expected within certain limits of dime, are quite irregular and often far behind, without a fault of anybody. It is due to the character of the business and to many circumstances which can not be anticipated controlled or provided against. Among these are conditions of the weather. Extreme cold, operating in various ways, may reasonably account for and excuse it. The fact that a live stock train from the western borders of Missouri is six hours behind its usual time at Boodhouse, in Greene county, Illinois, can hardly be accounted strong evidence of a want of ordinary care and diligence on the part of the appellant, or of its agents or employes, and considered in connection with the hindrances naturally interposed by extreme cold, is certainly very slight. Correspondingly slight evidence may therefore balance and overcome it. The chief train-dispatcher was asked on the part of appellant what caused the delay, and answered, “the cold weather,” and this is all the explanation furnished by the testimony. It is true he did not say j ust how the weather caused it, nor was he asked. Counsel did not choose to cross-examine him or call a witness on the subject. The statement was received without objection. It was clear, direct and positive, not improbable in itself nor any way impeached," and negatived the essential charge of negligence. Why was it not conclusive? W. U. Telegraph Co. v. Hope, 11 Bradwell, 289.

But, furthermore, the common law liability of the carrier may be limited in some respects by agreement. I. C. R. R. Co. v. Morrison, 19 Ill. 141; Same v. Frankenberg, 54 Id. 96-7; T. W. & W. R. R. Co. v. Lockart, 71 Id. 630 ; Arnold v. I. C. R. R. Co. 83 Id. 280; Erie Ry. Co. v. Wilcox, 84 Id. 239.

The shipment here was under a special contract, which expressly provided that no such claim for loss as this should be payable or recoverable, but should be absolutely barred unless a written statement of it should be made out and sent by the shippers to the general freight agent, of the company within live days after such loss occurred. This court, upon the authority of many cases cited, held a like agreement valid and binding in W. St. L. & P. Ry. Co. v. Black, 11 Bradwell, 465. Appellees consented to make this condition precedent and utterly failed to prove its performance. The only claim made was made by J. D. Sinims, and he says that he does not remember whether he mailed it or delivered it in person; that he does not know who is the general freight agent of the company j that he is under the impression he delivered it to the station agent at Murrayville, and should say he was not the general freight agent. It does not appear that the station agent or any other person sent or promised, or was requested to send it to the general freight agent. In short there is no proof whatever that it was sent to him, or that the company ever waived it. With the merit of this defense we have noth, ing to do, nor had the jury or the court below.

It is sufficient that it was legal and valid. The court should have set aside the verdict on defendant’s motion, as being without evidence to support it and against the evidence.

To the error in refusing so to do the j udgment will be reversed and the cause remanded.

Bcverscd and remanded.


author: Conger, J.

text:
    Matthew S. Scott v. William Maxwell.
    Finding of referee.—The report and finding of a referee under the statute in reference to the facts is regarded in the same light as the verdict of a jury and should not be set aside or disturbed except upon such grounds as would justify the setting aside of a verdict and granting a new trial.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Stevenson & Ewing and Mr. Wm. Dupe Hatne, for appellant.
    Messrs. Blades & Heville, for appellee.
   Conger, J.

This was a suit in assumpsit brought by appellee against appellant, claiming a balance due him on a correct statement of account between them of $3,000*.

Appellant claimed the balance due him to be $5,000. To determine' the question involved an examination of long and complicated accounts, extending over a period of ten years, amounting to over $400,000 was necessary.

The matters in dispute were an alleged partnership in a nursery and in a grader, and the services of Maxwell in taking charge of and conducting a number of farms for Scott for a number of years.

The cause was referred to a referee under the statute and he took the testimony, reported the same to the court with his conclusions thereon, and found a balance due from the appellant to the appellee of $594.56. Exceptions were filed, and upon the hearing the court sustained them in part and rendered judgment upon the report for $400 and allowed to the rSferee $1,500 as compensation for his services.

The report and findings of the referee, in reference to the facts, is regarded in the same light as the verdict of a jury, and should not be set aside or disturbed, except upon such grounds as would justify the setting aside of a verdict and granting a new trial. Keller v. Sutrick, 22 Cal. 471; Gunte v. Sanchez, 1 Cal. 45, 32; Walton v. Minturn, 1 Cal. 362; Edwards on Referees, 131.

The evidence is very conflicting, and upon many points barren and unsatisfactory. After examining it carefully we can not say that the findings of the referee are against the weight of the evidence.

When it is considered that an examination of accounts extending over many years, and involving §400,000, with many items necessarily explained by the testimony, involving an investigation of account books, receipts and papers, which the referee had before him, but from which the record can only give us extracts, it is apparent that great weight should be given to the conclusions reached by a competent and intelligent referee who has been engaged in such investigation for a period of nearly four years.

An exception is also taken to the allowance by the court of §1,500, to the referee. The testimony of ¡Mr. Prince, the referee, is: That the time spent in taking evidence extended over four years. A great deal of time was spent in examining the items of the account between the parties. When I commenced, expected it to be closed up immediately and kept no account of the time I was engaged; am confident it would exceed a year. I spent over a month in examining the evidence, passing upon the separate items, and figuring it up.”

Under the circumstances of this case, we think the allowance to the referee was not unreasonable.

The judgment of the circuit court will therefore be affirmed.

Affirmed.


text:
    Elbanis C. Myers v. Abraham Fry, Impl’d, etc.
    1. Surety—Limited liability.—F. was co-suret.y with others upon a note of M.’s which was not paid, at maturity. M. and the other sureties signed a renewal note and two of them brought the renewal note to F. for Ills signature. F. declined to sign as surety for M.. but said that as E., one of the sureties,was good, he would sign it as surety for E., and signed the note, E. not being present. E. paid the note and sued F. for contribution. Held, that if F. limited his liability to that of surety for E.,the action could not be maintained.
    2. Evidence—Parol.—In such case parol evidence is admissible to show such limitation of liability.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. MoHulta & Weldor, fo'r appellant.
    Messrs. Steversor & Ewirg, for appellee.
   Pleasants, J.

In 1873 the parties signed a note for $500, for a debt of Olden Myers, who was then supposed to be financially good but soon became embarrassed; and in the next year another, in renewal, which appellant paid on execution, July 22, 1880, amounting, with interest and costs, to $850.95. He brought this suit against the others, for contribution, but appellee only was served with process.

On the trial defendant testified that when the last note was brought to him by Olden Myers and Joseph Myers, who with appellant had already signed it, he refused for the reason given that Olden was then insolvent but upon their urging its importance and reminding him that he knew appellant was good if Olden was not, said he would sign it as surety for Elhanis hut not for Olden, and signed it. He was contradicted, but the jury appear to have believed him; for under instruction that the fact so stated, if proved, would be a good defense, they found for him, and he had judgment for his costs.

Appellant argues that the note being in renewal of one on which he and appellee were confessedly co-sureties, the presumption would be that this relation was renewed; and further, that appellee could not make him a principal without his consent, citing Whitehorne v. Hanson, 42 N. H. (5 Chandler) 9, where it was said of sureties, that “by signing they assume the liabilities of sureties only, and no third person, by his own act merely, without their consent, can increase or change to their disadvantage the obligation they have assumed. They can be made liable as principals on a note they have signed as sureties by their own act alone.

But this defense does not seek to change appellant’s obligation or make him liable as princi pal. The question it presents has no reference to his obligation but to his asserted claim, that is, appellee’s liability to him. It would seem, therefore, that the familiar principle of the case cited is against him, since he is seeking to change .the obligation assumed by appellee, and without his consent, if the latter assumed, as he claims, only that of surety for him. He freely chose his own position on the note as co-surety with Joseph for Olden Myers, and that is the full extent of his liability; but he could not dictate or coerce that of appellee, who signed it afterward with equal independence, and needed no consent of the others to any limitation of his own liability only that he saw tit to impose. It could work no injury to them. If he did limit it as between themselves- to that of surety for appellant, this action can not be maintained. And such limitation may be shown by parol. All this seems to be settled conclusively for us by the closely parallel case of Robertson v. Deatherage, 82 Ill. 511.

The presumption as to the difference of relations in the last note from what they were in the first, if any, may of course be rebutted in like manner. Seeing no error in the record the judgment will be affirmed.

Judgment affirmed.


text:
    William N. Lewis et al. v. The People, etc.
    1. Recognizance—Second tjndeb prior order.—Where a defendant in a criminal proceeding is held over for trial to the next term of court and under that order enters into recognizance with sureties to appear, and on failure to appear such recognizance is declared forfeited and is paid and satisfied by the sureties, the order of court is not exhausted, and on the defendant coming into the sheriff’s possession subsequently, a second recognizance taken by the sheriff under the same order and in the same amount of bail will be valid.
    2. Practice.—The objection that a sci.fa. issued against principal and sureties shows no return as to the principal, is made too late in this court; it should have been made in the trial court below.
    Appeal from the Circuit Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Eden & Clark, for appellants.
    Mr. Sampson, for appellee.
   Pleasants, J.

This was a soi. fa. on a forfeited recognizance in which appellants were the sureties, againstwliom, without their principal, on a hearing by the court, judgment was rendered.

At the April term, 1881, an indictment was returned a true bill against Jefferson Lewis and an order thereupon made by the court fixing the amount of bail at $300. On the 19th of J line, 1882, the defendant, being then in custody of the sheriff", signed the recognizance here in question, with appellants as his sureties, conditioned for his appearance on the first day of the next (November) term, etc., in the usual form, which was duly approved, certified and returned. At said November term it was adjudged forfeited and the soi. fa. in this case ordered and issued against principal and sureties, but served on the sureties only, no return being made as to the principal.

The sureties appeared and filed, among others, two pleas in substance the same, averring that at the term at which the indictment was found and order fixing the amount of bail made, the defendant .appeared in open court and there entered into a recognizance pursuant to said order, with appellants, excepting Gr. N. Lewis, as sureties, that at the November term, 1881, said recognizance was forfeited and a sei. fa. issued; that at the next (April) term the amount of said recognizance was paid, and the defendant and his sureties discharged from further liability thereon, and that afterward and without further order respecting bail,' the recognizance in this case, which was in the amount so fixed, was taken by said sheriff.

Issues were made upon these pleas, after a demurrer thereto had been overruled, but another judge presided at the hearng who seems to have disregarded them, although the facts are conceded to be as therein averred.

The legal effect of these facts is the principal question in the case. It is contended for appellants that the order of April term, 1881, was satisfied by the recognizance then entered into and thereupon became functus; that a recognizance can not be lawfully taken out of court without, an order of court, except in the case of a defendant surrendered by his bail, and in that case only because it is specially authorized by the stattutc (§ 309 of the Criminal Code), and therefore that the recognizance in question was taken without authority and is void.

We think this is a misapprehension of the character and effect of both the order and the statute. The order does not require bail. No court has power to require it. The right to bo bailed, being constitutional, is independent of' courts and officers (Art. II, § 7), but the accused can not be required to exercise it. Nor does it confer authority upon the officer to take it. No court has power to confer it. This comes from the legislature. R. S. Ch. 38, §§ 295, 300, 417, 420.

The scope of the order, and of the power of the court in this behalf, is limited to “'fixing the amount” to be required if the accused shall propose to give bail: § 414. This power is vested in the court alone, and hence its order made in the exercise of this power can he changed or abrogated by the court alone and by means only of a like order, expressly or by necessary implication to that effect. Being general in its object and terms, its operation is not confined to or exhausted by any particular recognizance. Until so changed or abrogated it must remain in full force and apply to every taking of bail, by whomsoever taken, ¡upon the same charge. It can not indeed be taken in any case without such order; yet not for want of authority to take it, but only of necessary direction as to the amount to be required. When taken, in the amount so required, whether by the court or its officer, it is under the general authority of the statute.

If it be asked, what then is the force of Sec. 309 of the Criminal Code, which declares thattl when any person charged with a criminal offense is surrendered by his sureties he may be again admitted to bail in the same manner as if committed for not finding sureties to recognize for him,” the answer is that it authorizes the taking of bail, not by an officer otherwise unauthorized, but in a case in which it would be otherwise unauthorized. The undertaking of the sureties by the recognizance is for the appearance of the principal at court, from time to time specified, until final order or sentence in the case, and not alternative—that he shall so appear or be surrendered to the officer. Without this statute they could not of right exonerate themselves by such surrender before the final order or sentence. The sheriff would not be bound to receive him and relieve them. But the legislature having seen fit to give them this right and prescribe the means and manner of its exercise, closes the provision by this Sec. 309, naturally, but as we think unnecessarily, declaring the right of the prisoner thus surrendered to be again admitted to bail. It is apprehended that without this declaration his right would be no less clear under the constitution, as would also be the general statutory authority of the sheriff to admit him. This section does not purport to confer any special or additional authority upon the sheriff. If the mind turns to him in that connection as authorized to take the bail, it is because, being the lawful custodian of the surrendered prisoner, he would most naturally be the officer to take it, and not because the statute otherwise indicates him. It is also to be observed that it does not supersede the order of court fixing the amount of bail, since it provides no way to ascertain or fix it and the sheriff can not fix it.

Thus it assumes that the amount is fixed and consequently that the operation of the order fixing it did not cease when the old recognizance was taken. We hold then that no new order was necessary in this case, and that the recognizance taken by the sheriff was valid to all intents and purposes.

It follows that the demurrer to the two pleas referred to should have been sustained, and that the court on the hearing of the cause properly disregarded the issues made up on them, such issues being immaterial.

Counsel further object that the judgment was rendered without service of the sai. fa. upon the principal or a return of nihil as to him. We think the objection comes too late. If it had been made before judgment the irregularity could have been obviated in a moment by amendment of the return. Peacock v. The People, 83 Ill. 331. By pleading to the merits appellants waived it. Gilmore v. Nowland, 26 Ill. 203-4.

Seeing no error in the record the judgment will be affirmed.

Judgment affirmed.


text:
    St. Louis, Alton & Terre Haute R. R. Co. v. John S. Balsley.
    1. Railroads—Liable for negligence of lessees, etc.—By the laws of this State railroad corporations are liable for injuries by the wrongful acts of any lessee, contractor or other person, done in the exercise, by its permission, of any of its franchises; but this liability is limited to “ wrongs done by them while in the performance of acts which they would have had no right to perform except under the charter of the company ” sought to be made liable.
    . 2. Same.—Such liability for the acts of others is enforced upon the sole ground that as to such acts they are to be regarded with reference to the public as the servants or agents of such company although as between themselves and the company they may be lessees or contractors.
    8. Franchises—Transfer.—Franchises are rights and privileges acquired only by special grant from the public, through the legislature; the grantee can not, by its own act or agreement merely, assign these rights and privileges without recourse as to the liability.
    4. Same.—But the public, through the legislature, may release this liability or consent to its transfer by the grantee without recourse.
    5. Corporate power conferred by act of March, 18, 1869.—The act of the legislature of March 18, 1869, conferred upon the Indianapolis & St. Louis Railroad Co. as large a power as was possessed by its lessor, and the usual powers of other corporations. The grant of the power, ipso facto, abolished the relation of master and servant or principal and agent, previously existing between appellant and its lessee, yet without impairing any obligation of the latter to its lessor, under the lease.
    6. Railroads—Negligence.—Under the facts in this case, since the negligence which caused the injury was that of the I. & St. L. R. R. Co. and occurred in the performance o£ an act performed in its own right and not under the charter, nor as the servant or agent of appellant, there is no ground on which the action can be maintained against appellant.
    Appeal from the Circuit Court of Montgomery county; the Hon. "W. E. Welch, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. John T. Dye, for appellant;
    cited P. & R. I. R. R. Co. v. Lane, 83 Ill. 448; Thomas v. R. R. Co., 101 U. S. 83 ; York & M. L. R. R. Co. v. Winans, 17 How. 30.
    Mr. George M. Stevens, for appellee;
    cited Lesher v. Wabash Nav. Co., 14 Ill. 85; Hinde v. Wabash Nav. Co., 15 Ill. 72; C., St. P. & F. D. L. R. R. Co. v. McCarthy, 20 Ill. 385; O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; I. C. R. R. Co. v. Finnigan, 21 Ill. 646; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 106; I. C. R. R. Co. v. Kanouse, 39 Ill. 272; T. P. & W. R. R. Co. v. Rumbold, 40 Ill. 143; P. & R. I. R. R. Co. v. Lane, 83 Ill. 448; R. R. Co. v. Barrows, 5 Wall. 104; Nelson v. Vermont. Cent. Railroad Co., 26 Vt. 717; Y. & M. L. R. R. Co. v. Winans, 17 How. 39; Ry. Co. v. Brown, 17 Wall. 451; Langley v. B. & M. R. R. Co., 10 Gray, 103; Macon & A. R. R. Co. v. Mayes, 49 Ga. 355; Abbott v. J. G. & H. R. R. Co., 80 N. Y. 27; Winch v. B. & L. R. R. Co., 13 Eng. L. & E. 506; Fontaine v. S. P. R. R. Co., 54 Cal. 645; Stearns v. A. & St. L. R. R. Co., 46 Me. 118 and 119; Bean v. A. & St. L. R. R. Co., 63 Me. 294.
   Pleasants, J.

On the 6th day of August, 1881, appellee lost fifty-five tons of hay, worth $12 or $14 per ton, by fire, communicated from a 'freight engine on appellant’s road through dry grass and weeds left on its right of way, and brought this suit for the damages. The cause was heard by the court without a jury, and judgment rendered in bis favor for $600 and the costs.

The only question in the case is, whether appellant is liable upon the facts, which are undisputed.

In September, 1867, appellant made a lease of its road for ninety-nine years to the Indianapolis & St. Louis Bailroad Company, a corporation organized under the laws of Indiana, giving it for that time, upon the terms and conditions therein set forth, “the exclusive right to use upon said road, any and all locomotives, passenger and freight cars and all other rolling stock and equipments” then belonging to it, and the lessee agreed to indemnify the lessor “ against all claims for loss or -destruction, by whatever cause, of any property whatsoever while under its control.” Under this lease the Indianapolis & St. Louis Bailroad Company took possession of the road, and operated it continuously and exclusively until after the time of the injury complained of.

By an act of the legislature of this State, of March 18,1869, it was provided and declared as follows:

“ Sec. 11. That the lease * * under which the railroad extending from Terre Haute, in the State of Indiana, to East St. Louis, in the State of Mino is, is now operated, he and stand confirmed according to the terms of said lease; Provided, however, that nothing in this act shall he construed to release the said lessors from any debt, cause of action or contract now existing against them.

Sec. 2. The said lessees, their associates, successors and assigns shall he a railroad corporation in this State under the said style of the Indianapolis & St. Louis Bailroad Company, and shall possess the same or as large powers as are possessed by said lessor corporation, and such other powers as are usual to other corporations.”

Does the act release appellant from liability for the negligence of its lessee here complained of under Sec. 63, Ch. 114 R. S. 1883?

There is no doubt that by the laws of this State railroad corporations are liable for injuries by the wrongful acts of any lessee, contractor or other person done in the exorcise by its permission, of any of its franchises. O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; P. & R. I. R. R. Co. v. Lane, 83 Id. 448, and cases there cited.

But this liability for the act of others is limited to wrong done by them while in the performance of acts which they would have no right to perform except under the charter of the company ” sought to be made liable, and is enforced upon the sole ground that as to such acts they are to be regarded with reference to the public as the servants or agents of such company, although as between themselves and the company they may be lessees or contractors. Franchises are rights and privileges acquired only by special grant from the public through the legislature which impose upon the grantee, as the consideration therefor, a duty to the public to see that they are properly used. It can not by its own act or agreement merely assign these lights and privileges without recourse as to the liability, and it can not use them except through agents or servants. Hence, whoever actually and in person uses them must he, as to the public, the servants or agents of the grantee. All this is clearly decided and declared in West v. St. L., V. & T. H. R. R. Co., 63 Ill. 545.

But the public, through the legislature, may release this liability or consent to its transfer by the grantee without recourse. Thomas v. Rail Road Co., 101 U. S. 83. The J. M. Line R. R. Co. v. Winans, 17 How. 30.

The negligence here complained of was not in fact, that of appellant but of the I. & St. L. R. R. Co., and occurred in the performance of an act which it could have had no right to perform except in the exercise of a franchise expressly granted by the legislature of Illinois. But was it performed in the exercise of a franchise granted to appellant and by its permission, and therefore as its agent or servant? Or could its performance have been lawfully prevented by appellant? If these questions must be answered in the negative we know of no ground or principle on which appellant can be held responsible for it.

The road and the locomotive engine, by the use of which the injury to the appellee was done, were undoubtedly the property of appellant, and the possession thereof at the time by the I. & St. L. R. R. Co. was by its permission under its lease. But the injury was not caused by any defect in this property existing at the time it was leased, nor was it leased for any use that was in itself immoral, illegal or dangerous. It was caused by the negligence of lessee in the lawful use of property in itself and in its condition, when leased, fit and proper for such use. In such a case, in the absence of other grounds, .the lessor is never liable for an injury so done. So the case is reduced to the simple question above stated, whether the use of the tangible property by the I. & St. L. R. R. Co., which caused the injury, was or was not under and by virtue of the charter of appellant. We think it was not.

We agree with counsel for appellee that a legislative grant of franchise is to be strictly construed in favor of the public, and that the act of March 18, 1869, above quoted, did not change the charter of appellant nor in any way release it from the duties and liabilities imposed by its charter and the laws of this State. Its legal relations and liabilities remain precisely as they were, but the facts are changed. It remains as it was, liable for the acts of others which were performed and could rightfully be performed only under its charter, but the question recurs, was the act under consideration so performed. We agree also that the act did not transfer to the lessee the franchises of the lessor. It created a new corporation and conferred upon it franchises which thereby became its own and independent of the lease from appellant. It did not affect the relations of the new company to appellant as tenant of the tangible property. This was appellant’s, not derived from the legislature, though acquired by its authority. The legislature therefore did not attempt to transfer it and had no power to transfer it without appellant’s consent. But it had power without such consent to authorize the lessee to use it consistently with the terms of the lease, as a common carrier with the usual franchise of a railroad company ; and no admissible strictness of construction can raise a doubt that it did authorize it by the second section of the act referred to. That act differed materially from the one involved in Bean v. A. & St. L. R. R. Co., 60 Maine 297, cited by counsel which consented to the lease, but conferred no franchise. Here was granted as large a power as could have been exercised under the lease, and which —being derived from a higher source, possessed by the lessee in its own right and not revocable for any cause by the lessor— was of a higher character and as such superseded it. The grant of this power, ipso facto, abolished the relation of master and servant or principal and agent previously existing as to the public between appellant and its lessee, and yet without impairing any obligation of the latter to its lessor under the lease.

Since then the negligence which caused the injury was that of the I. & St. L. R. R. Co. and occurred in the performance of an act performed in its own right and not under the charter nor as the servant or agent of appellant; there is no ground upon which the action can be maintained against it, and the judgment is therefore reversed.

Judgment reversed.


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    City of Bushnell v. Melville F. Metz.
    Damages—Injury on sidewalk.—Damages for $800 for an injury to hand caused by a fall on a defective sidewalk. Held, that while a lesser sum would have accorded better with the court’s view of the testimony, the court can not say that of the jury was clearly wrong.
    Appeal from the Circuit Court of McDonough county; the Hon. S. P. Shops, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Wheat & Imes, and Mr. T. J. Spabks, for appellant.
    Mr. E. E. Chesney and Messrs. Tunnicliee & Bacon, for appellee.
   Pleasants, J.

In the sidewalk running east and west at the northeast corner of Main and Hurst streets, along the south side of a store building fronting west on Main, was an opening of about four by eight feet, for a basement or cellar. stairway, starting at or very near the corner of the building and descending to the east. This was in the heart of the city of Bushnell, the postoffice being oh the second lot east. Around the opening mentioned was a stone coping some six inches high, forming at the west end the upper step of the stairway, on which along the south side and east or back end was set a railing, nearly three feet in height, of upright iron rods sharpened to a point at the top and projecting an inch above the horizontal bar through which they passed. The city provided no light to reach this opening nor did any from any private source fall directly upon it. The street crossing from the west, much used, was six feet wide, raised a little and spreading as it approached the sidewalk, and its center line extended east would have run not over a foot south of the stairway.

From this statement it would seem that in the night time such an opening, so unguarded on the front and flanked by such a picket railing would be a source of danger to persons going east from the street crossing or turning the corner of the building from the north, unless they were quite familiar with the situation or used extraordinary care.

Appellee was a commercial traveler fen* a St. Louis house. Though he had visited the city of Bushnell several times at intervals of several months he was not particularly acquainted with its ways, and swore he had no recollection whatever of this particular feature. About seven o’clock in the evening of December 20,1881, which was misting, foggy and uncommonly dark, in going on east from the crossing referred to he stumbled against the coping at the entrance to the stairway, fell forward and downward three or four steps and impaled his hand upon one of the points of the side railing.

For the injury thus received he brought this suit and recovered judgment on a verdict for $800 damages and costs. The usual motion for a new trial was overruled.

Many witnesses were examined on both sides in relation to the opening and its surroundings, and to the effect of light from windows in the neighborhood, but appellee alone testified to the circumstances of the accident and the care he used before and at the time. His testimony, if believed, plainly showed a liability on the part of the city for the damages he sustained. Nobody else was in a position to contradict him directly, nor do we find in the record proof of any collateral fact requiring the jury to discredit him. It could not be plausibly contended that a finding for the plaintiff, upon all the evidence introduced, if it had been submitted under proper instructions and nothing had been improperly excluded, ought to be disturbed.

But it is claimed that the amount of damages assessed was excessive and that the court erred in twelve particulars specified—-three in sustaining objection to questions put by counsel? one in an expression used to show the reason for a ruling, two in giving, two in refusing and four in modifying instructions asked.

We think neither of the points thus made is of sufficient novelty, difficulty or general interest to justify its discussion.

Two of the questions overruled' called for mere opinion and the third for matter that was wholly irrelevant.

The instruction, No. 4, that due proof of the material allegations in any one of the four counts in the declaration would entitle the plaintiff to recover, was unobjectionable in itself, and the allegations thus referred to were sufficiently indicated in others. No. 5 simply and correctly stated what was meant by “ordinary care” on the part of the plaintiff.

Of the two refused, one was a repetition of another that was given (No. 8) without its modification, and the other, proper in itself, was substantially given in several.

The modifications were in every instance an improvement of the original form.

We perceive no error in any of these rulings nor any serious impropriety in the remarks of the judge to which exception was taken.

Some hesitation has been felt on account of the damages assessed. A lesser sum would have better accorded with our view of the testimony but wo can not say that of the jury was clearly wrong. o

Judgment affirmed.


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    John Lafollett v. Jeremiah McCarthy.
    1. Slander.—In a case of slander the words charged were “ Yon had better go to Tom McWade and pay him back the $20 you got from Km by false pretenses.” Held, that the words imply malice.
    2. Instructions—Pleadings and proofs.—Where defendant did not show any circumstances tending to rebut the implication of malice but merely testified that the words used were different from those laid in the declaration, and this upon the pleadings and proof was the only issue for the jury to try, the defendant can not complain that the instructions did not submit the question of malice.
    Appeal from the Circuit Court of Champaign county; the Hon. Cyrus Epler, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr Francis M. Wright and Mr. L. A. Smyres, for appellant.
    Mr. J. L. Bay, for appellee.
   Pleasants, J.

Case for slander, plea not guilty, verdict and judgment for plaintiff for $55, and appeal by defendant, whose complaint is that the instructions did not submit to the jury the question of malice under the rule in Zuckerman v. Sonnenschein, 62 Ill. 115.

The words charged are: “You had better go to Tom McWade and pay him back the twenty dollars you got from him by false pretenses,” and there was evidence clearly tending to prove them. Unexplained they impute a crime, not indeed by strict definition, which is unnecessary, but by general description identifying it to the common understanding, as by, a name, which is sufficient and therefore implies malice. What distinguishes the case from the one above cited is the failure on the part of the defendant here to show any circumstances tending to rebut this implication. He merely testified that the words used were different from those laid in the declaration. Thus, upon the pleadings and proofs the. only-issue for the jury to try was upon the speaking of the words so laid, and upon this issue they were fairly instructed.

Judgment affirmed.


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    John S. Dickerson v. Comm’rs of Highways, etc.
    Road law—Injunction.—Where a petition was presented to highway commissioners, predecessors of appellees, for a new road, and they decided to grant the prayer of the petition, and complainant’s damages were assessed at $76, the other owners releasing their claims, and the verdict was entered upon the justice’s docket and no appeal was taken, but the commissioners, learning that the parties relied on declined to pay the damages, refused to proceed further except to file all the papers in the town clerk’s office; and subsequently a second petition was presented to appellees for a road, identical with the other, and they decided to grant the prayer of the petition, and presented their certificate that they were about to establish the road therein described, to a justice of the peace who issued a summons to complainant to appear before him to prove damages, etc; complainant thereupon filed a bill to perpetually enjoin appellees from taking other or further steps to open or lay out the road. Held, that this is no case for an interposition of a court of chancery.
    Appeal from the Oireuit Court of Sangamon county ; the Hon. Wm. L. Gross, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Pattor & Hamtltor, for appellant.
    Messrs. Palmers, Bobirsor & Shutt, for appellees.
   Pleasants, J.

. Appellant filed the bill herein on May 12, 1884, to perpetually enjoin appellees from taking other or further steps to open or lay out a public road three quarters of a mile in length as therein described, which would pass over his land in tire town of Bochester. A preliminary injunction was granted thereon, but upon final hearing was dissolved and the bill dismissed.

The facts are undisputed. On the 27th day of September, 1883, a petition was presented to the commissioners, predecessors of appellees, for a road identical with the one in question for a quarter of a mile, and including one half of it for the residue of its length. With the understanding that the dam, ages to land owners by reason of the laying out of said road would be paid by the petitioners, or some of them, they decided to grant the prayer of said petition. Complainant’s damages were assessed by a jury at $76, the other owners releasing their claims, and the verdict was entered upon the justice’s docket. All of these proceedings were in full and strict compliance with the statute and no appeal was taken, but the commissioners, learning that the parties relied on declined to pay these damages, declined to proceed further on their part, except to file all the papers in the town clerk’s office. Ho survey or plat was made, nor meeting held to finally determine upon laying out the road, „nor order in writing made either declaring it a public highway or revoking the proceedings had upon the petition.

On April 4, 1884, petition was presented to appellees, ag commissioners for the road here sought to be enjoined. On the 26th of the same month they decided to grant the prayer of this petition and afterward presented their certificate that they were about to establish the road therein described, to a justice of the peace, who issued a summons to appellant to appear before him on the 17th day of May, to prove to a jury such damages as he would sustain by the laying out of said road, and thereupon appellant filed this bill. By the road law of 1883 it is provided as follows: Section 47. “Within ten. days after the total amount of damages shall have been ascertained, either by release or agreement of the parties, or by assessment before a justice of the peace and a jury, in the manner hereinbefore provided, the commissioners shall hold a meeting to finally determine upon the laying out * * * of such road, of which meeting said commissioners shall give public notice by causing not less than three notices thereof to be posted in public places within the town, at least five days prior thereto.”

Section 48. “ In cases where the damages are not wholly released or agreed upon, and the commissioners, in case no appeal has been taken, and the supervisors hearing the appeal in case an appeal is taken, shall be of the opinion that the damages assessed by the jury are manifestly too high, and that the payment of the same would be an unreasonable burden upon the taxpayers of the town, the commissioners, or the supervisors who heard the appeal, as the case may be, may revoke all proceedings upon the petition by a written order to that effect, and such revocation shall have the effect to annul all such proceedings and assessments, releases,, and agreements in respect to damages growing out of the proceedings upon the- petition. Provided, upon the final determination of the commissioners of highways, or the supervisors, upon appeal being determined, and a copy of all such piroceedings being filed in the town clerk’s office, no other proceedings shall be had by the commissioners of highways, nor any petition entertained in regard to the same road or petition for two years, from the date of filing such copies of proceedings. And after two trials, as aforesaid, if the decision be the same, no other petition shall he entertained for the same until the expiration of three years from the tiling of the last proceedings.”

Section 49. “In case the commissioners shall not revoke such prior proceedings, they shall make an order to he signed by them, declaring such road so * * "x" laid out a public highway, and which order shall contain, or have annexed thereto, a definite description of the line of such road, together with the plat thereof. The commissioners shall, within five days from the date of such order, cause the same, together with the report of the surveyor, the petition * * "x" to he deposited and filed in- the office of the town clerk, who shall note upon such order the date of such filing. It shall be the duty of such clerk, after the time for appeal to supervisors has expired, and in the case of appeal, after the same shall have been determined, in case the prayer of the petition is granted, to record such order, together with the plat of the surveyor, in a proper hook to be kept for that purpose.”

Section 59. “Any person or persons interested in the decision of the commissioners, in determining to or in refusing to lay out * * "x" any road, or in the verdict of any jury in assessing damages * * "x" may appeal from such decision to three supervisors of the county * * within ten days after such decision has been filed in the office of the town clerk, by filing a written petition with some justice of the peace of the county, asking for an appeal, and stating on what ground such appeal is taken.”

There is no doubt that when the verdict for the amount of appellant’s damages was entered upon the justice’s docket and the claims of all the other land owners were released, the proceedings under the first petition had regularly reached the stage at which the commissioners might have held the meeting prescribed by said section 47, and taken the action indicated in section 48 or in section 49, as in their judgment seemed host; and appellant’s contention is, that those proceedings constituted a bar, under the provision in § 48, to any action in pursuance of the second petition. He insists that they could not be abandoned at that stage without his consent; that the commissioners having thus obtained jurisdiction of the subject-matter, and his person, were bound by the statute to go on to a final determination, by formally “ declaring the road a public highway,” or “ revoking all proceedings upon the petition;” that their failure to take such formal final action could not divest them of jurisdiction upon that petition; that such failure was in legal effect a revocation, though informal; that section 48, limiting the time and prescribing the mode of revocation, is directory merely, and was enacted for the benefit of the land owner, who therefore may waive or take advantage of the informality as he may see fit, but that the commissioners can not plead their own neglect of duty in bar of relief to which complainant would have been entitled if they had performed it. He insists that any other construction of the statute]would enable them to harass and oppress the land owner by proceeding again immediately upon the assessment of his damages, on a new petition to take his land, from time to time, until he should yield to their terms.

If the soundness of this view of the statute be conceded, do the facts make a case for equitable cognizance? What feature of it brings it within the jurisdiction of chancery?

Appellees aré public officers whose functions with reference to the establishment of public highways are in part quasi judicial. Their general power and jurisdiction in this case are conceded. They were proceeding regularly under the statute. It is not charged that they have willfully or knowingly neglected any duty devolved by law upon them, or that they threaten or intend to do so. The fact that their predecessors abandoned or attempted to abandon the proceeding upon a former petition after the assessment of appellant’s damages and declined to take final formal action because the understanding as to the payment of the damages upon which they finally decided to grant the prayer of that.petition was not carried out, or for any other reason, or with whatever intent, would afford no presumption that appellees if unrestrained would have pursued a like course in the case of the second petition in which there was no such understanding. It is not averred or shown that appellees had any knowledge of such action by their predecessor.- For aught that appears or is averred they would have pursued in all respects and particulars the course prescribed by the statute, and so have, taken appellant’s land only for public use upon just compensation, which negatives the possibility of irreparable injury. Nor would it have afforded any reasonable pretext for a multiplicity of suits.

The case against appellees is simply that they were proceeding and intending to proceed in the exercise of a power confessedly theirs, unless its exercise was legally suspended for a limited period by what their predecessors had done upon the first petition, and which appellant claims was so suspended. If so, of course he was not bound to submit to their action, however liberal his allowance for damages, and should have some remedy. But he had notice of the time and place fixed upon by appellees for hearing reasons for and against the laying out of the proposed road, and then also knew the facts by virtue of which he claims their power to entertain the petition was suspended.

What then prevented him from presenting these facts to the commissioners, taking an appeal and getting the proof into the record for review if necessary, upon a certiorcmá? And why may not this yet be done at the meeting to be held after the assessment of damages, pursuant to section 47 ?

We are inclined to think there was and is a remedy at law as adequate and ample as can be afforded by injunction or any other means within the powers of a court of equity. None such was available in the case of Green v. Green, 34 Ill. 320, to which we are referred. There the road had been laid out, perhaps without objection or any reason for objecting, but it had not been opened nor attempted to be opened until just before the expiration of the five years and when it was impossible to complete it intime to save the road. In that condition of things the opening of the portion on complainant’s land as threatened would have been useless to the public and wantonly injurious to him, and yet being purely a ministerial act and done in pursuance of an order that was proper when made, could not be reviewed on appeal, by certiorari or other proceeding at law. The case of Winkler v. Winkler, 40 Ill. 179, seems more pertinent. The intervention of equity was there held improper, not, as counsel suggest, because “ the hill stated no ground ” for it, nor any reason why the commissioners should not act upon the petition,” but because, as the court said, u if they allow the petition contrary to law the remedy is ample at law, by appeal, so that the court was entirely justifiable, on the hearing, in dismissing the bill.”

Affirming this decree for the same reason, it is unnecessary to consider the other questions argued by counsel, but we are not to be understood as conceding the soundness of appellant’s view of section 47 of the Road Law.

Decree affirjned.


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    John M. Bunn et al. v. Thomas Gardiner.
    1. Judgment by confession in vacation.—The entering of judgment in vacation by confession is a statutory proceeding in derogation of the common law by a merely ministerial officer and the clerk is authorized to act only in cases affirmatively appearing to be within the statute.
    2. Same—Proof of execution of power.—In case of confession of judgment by an attorney in vacation it is essential not only that proof of ' the execution of the power of attorney be made but that it be made by affidavit. Without proof of its execution no jurisdiction is obtained of the person of the defendant and the judgment is absolutely void and may be impeached collaterally by any person sought to be affected by it. An execution on such judgment is void.
    Appeal from the Circuit Court of DeWitt county; the Hon. George W. Herdman, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. Joseph M. Grout and Mr. James A. Creighton, for appellants;
    that no affidavit or proof being tiled of the execution of the power of attorney, the clerk had no power to enter the judgment, and there was a want of jurisdiction, cited Durham v. Brown, 24 Ill. 94; Roundy v. Hunt, 24 Ill. 601; Tucker v. Gill, 61 Ill. 240; Bush v. Hanson, 70 Ill. 480; Russell v. Lillya, 90 Ill. 327; Rising v. Brainard, 36 Ill. 79; Iglehart v. Chicago Marine & F. Ins. Co., 35 Ill. 516; Follansbee v. Scottish-Am. Mtg. Co., 5 Bradwell, 17; Anderson v. Field, 6 Bradwell, 313; Baldwin v. Freydendall, 10 Bradwell, Ill.
    Messrs. Moose & Warner, for appellee.
   Pleasants, J.

This was replevin in the cepit and deiinet, brought by appellants for a stock of goods of the value of §2,500, which they claimed under a chattel mortgage and order for delivery from J. R. Turner & Son, of August 22, 1884.

The cause was heard by the court without a jury upon issues joined on several pleas, of which the 6th and 7tli presented the defense relied on.

The 6th averred that defendant took the goods in controversy as sheriff under a writ oifi.fa. directed to him from the Circuit Court of DeWitt county in favor of Mack, Stadler & Co. against said mortgagors, for §2,366.09, which came to his hands August 21, 1884, that said goods were the property of said J. R. Turner & Son, and subject to said execution, and that plaintiffs acquired their rights from them after said levy.

The 7th set up a writ oifi. fa. from the County Court of Peoria county for §368.91, in favor of M. Pettingill & Co., which came to his hands Aug. 4, 1884, with other averments as in the 6th.

To these pleas respectively, besides a general traverse on which issue was joined, plaintiffs replied specially as follows:

To the 6th, that the writ therein described was void in that the pretended judgment on which it issued was not rendered by the court in term time but was entered up by the clerk thereof in vacation by confession under a pretended power of attorney with which no affidavit of its execution was filed; and to the 7th, that the judgment was void as against the firm of J. R. Turner & Son ; that it Avas entered by the clerk in vacation upon confession under a power of attorney Avhich was insufficient to authorize it, and that afterward, on Sept. 8, 1884, said court annulled said judgment and quashed said execution as to J. R. Turner.

A general demurrer to each of these replications was sustained, the issues of fact found for the defendant, and that the right of property was in him; a motion for a new trial overruled, and judgment rendered thereon in his favor for costs and for a return of the goods and a writ of return awarded, from which judgment the plaintiff appealed.

Upon the errors here assigned appellants complain of the ruling of the court in sustaining said demurrers and each of them; in admitting the writ of execution without proof of judgments to support them, and in excluding the evidence offered to show that with the power of attorney mentioned in the replication to' the 6th plea no affidavit of its execution was filed, and that the one mentioned in the replication to the 7th was in fact executed by F. E. Turner alone in the name of the firm, without proof of authority from J. E. Turner.

We think the replication to the 7th plea was defective in not averring any fact from which the court could see that the writ therein referred to was void. The subsequent order, by which it was quashed as to J. E. Turner, left it in force as against the other partner, and so a sufficient warrant for levying upon the property of the firm. The same reason justified the exclusion of evidence that F. E. Turner alone executed the power of attorney.

Uor are we prepared to hold that appellee was bound to show a judgment in order to give effect to the execution as an instrument of evidence or a warrant of authority. At the time of the levy the property in the goods was confessedly in J. R. Turner & Son, the execution defendants; and as against appellants, who then had no interest in them except as general creditors, it seems the writ alone was prima facie sufficient. Jackson v. Hobson, 4 Scam. 416; Outhouse v. Allen, 72 Ill. 531.

It was competent for them, however, to aver and prove that although regular on its face and apparently a sufficient justification, it was, by reason of some fact appearing almmde, really void ; bub no such fact was averred or proved, nor was any evidence offered which tended to prove it as to the writ set up in the 7th plea, except what was admitted by the court and found insufficient to avoid it. This related to his leaving the goods so long a time in possession of Turner & Son, and per-' mitting them to continue making sale of portions of them. As already stated appellants acquired no interest in them until after he did take possession, and so could not be prejudiced by the previous indulgence shown. They knew when they took their mortgage that he was then in possession, for the order for delivery received at the same time was upon him, and therefore can not complain that he did not take it sooner.

But we are of opinion the court erred in sustaining the demurrer to the special replication to the 6th plea. If the facts were as therein averred the writ relied on in that plea was a nullity and could not justify appellee in his detention of the goods after the demand made therefor by appellants.

The entering of judgment in vacation is a statutory proceeding in derogation of the common law by a merely ministerial officer. He is authorized to act only in cases affirmatively appearing to be within the statute. Tucker v. Gill, 61 Ill. 241. These are confined to confession by the party himself “or attorney duly authorized.” Practice Act, Sec. 65. Here it purported to be made by an attorney in fact. Chase v. Dana, 44 Ill. 262; Tucker v. Gill, supra, p. 240. But it does not appear, there is not the slightest evidence, that he was “duly authorized.” The authority of such an agent is never presumed, but must always bo proved. The instrument he presented could not prove it. It could not prove itself. Its execution must be shown by evidence dehors itself, and in such form that it may be certainly identified and the question of its competency and sufficiency determined whenever occasion may arise, by a judicial tribunal. Hence, it must not rest alone in the memory of the clerk or others, but in the record and papers filed,-and it must be complete when the judgment is entered, because the fact in its nature is, and by the statute is impliedly declared to be jurisdictional.

Hpon these considerations no less than upon the terms of the-particular acts under which some of the cases arose, we understand that to the validity of such a judgment it is essential not only that proof of the execution of the power of attorney be made, but that it be made by affidavit. Durham v. Brown, 24 Ill. 93; Roundy v. Hunt, Ibid. 600; Iglehart v. Chicago M. & F. Ins. Co., 35 Id. 515; Stemblock v. Good (App. Ct. 2d Dist.; opinion filed Aug. 7, 1886). In Ball v. Miller, 38 Ill. 111, the court say, “We do not see what other proof could be made in vacation.” In some cases an additional fact should be shown, and that affidavit is the form of evidence to be received; see Hinds v. Hopkins, 28 Ill. 344; Rising v. Brainard; 36 Id. 80.

Without proof of its execution no jurisdiction is obtained of the person of the defendant. So expressly held or clearly implied in the cases above cited and also in the following : Iglehart v. Church, 35 Ill. 255: Hall v. Jones, 32 Id. 38; Tucker v. Gill, 61 Id. 238; Frear v. Commercial Nat'l Bk., 73 Id. 473 ; Anderson v. Field, 6 Bradwell, 313.

Without such jurisdiction the judgment is absolutely void and may be impeached collaterally by any person sought to be affected by it. Waterman v. Jones, 28 Ill. 54; Goudy v. Hall, 30 Id. 109; White v. Jones, 38 Id. 162; Miller v. Handy, 40 Id. 448; Campbell v. M’Cahan, 41 Id. 45 ; Huls v. Buntin, 47 Id. 396 ; Haywood v. Collins, 60 Id. 328; Tucker v. Gill, 61 Id. 240; Bannon v. The People, 1 Bradwell, 496; Baldwin v. Freydendall, 10 Id. Ill.

It follows that the execution was void also. White v. Jones, 38 Ill. 160 ; Tucker v. Gill, 61 Id. 241.

Evidence tending to prove it void was admissible under the general traverse of the 6th plea. For that purpose appellants offered the record of the judgment order and the papers filed, together with a written motion in the case, afterward made by the plaintiffs therein and the affidavit in support of it, to amend the record so as to make it show that the clerk heard oral evidence of the execution of the power, and upon that evidence and the papers filed entered the judgment order. This was competent evidence. White v. Jones, 38 Ill. 162; Chase v. Dana, 44 Id. 262; Osgood v. Blackmore, 59 Id. 263 ; Bannon v. The People, 1 Bradwell, 504 et seq. It was therefore error to exclude it.

Thus it appears that the goods in controversy were not subject to the execution set up in the 6th plea. The finding to the contrary was wrong, and the judgment, so far as it was based thereon, erroneous. Appellants claiming under a mortgage from the execution defendants, and seeking to avail themselves of the insecurity clause therein, were the general owners within the meaning of the rule declared in Lamping v. Payne, 83 Ill. 466 ; as against the sheriff, Simmons v. Jenkins, 76 Ill. 479 ; and in that case the judgment for defendant should be in the alternative, that plaintiffs pay the amount due upon the valid execution in his hands against the goods or return them to the defendant, and not absolute for a return, as it was in this case. Peck v. Hubbard, 4 Bradwell, 570.

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

Reversed and remanded.


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    Truman W. Montague v. O. B. Ficklin.
    Sale by bailee—Estoppel.—Almost every bailee or agent in possession is, by his possession, enabled to hold himself forth to the world as owner, but unless the real owner so holds him forth or consents that he may so hold himself, it will not avail the innocent, purchaser from such bailee or agent as against the real owner.
    Appeal from the Circuit Court of Coles county ; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. James F. Hughes and Mr. Charles Bennett, for appellant.
    Messrs. Craig & Craig, for appellee.
   Pleasants, J.

The declaration in this case contained five counts, of which four were for conspiracy by appellant and Arthur Hutton and Winston Hutton, the other defendants, to cheat appellee out of certain broomcorn, and fraudulently appropriating the same to their own use; and one 'was in trover for its conversion. A trial upon the plea of not guilty resulted in a verdict for the plaintiff for $800 damages. Motions were made by appellant separately for a new trial and in arrest, which were overruled, and upon the entry of judgment he appealed. The other defendants also prayed an appeal but did not perfect it.

The evidence, which embraced a wide scope with reference to the counts for conspiracy and was quite voluminous, disclosed the following case:

In March, 1876, appellee became security for the defendants Hutton, on a note to the Second JSTational Bank of Charleston, for $2,000. Hpon their failure to pay, the bank insisted on his securing the debt in some other way. He had given them a bond for a deed of eighty acres of land, and been paid, but had not made the deed. It was arranged between them and him that they should surrender this bond and quitclaim to him, and that he should then give a mortgage to the bank and a new bond to them to convey, upon their ¡aaying the debt.

This arrangement was carried out, and appellee also gave the bank other collaterals to the full amount. The Huttons paid only $350, all on account of interest, up to the spring of 1882, when it was further arranged between appellee and Arthur Hutton, acting also for his brother Winston, that they should raise a crop of broomcorn on a tract of 120 acres belonging to appellee, - the proceeds of which, after paying the expenses, excepting their labor, should be applied on their bank debt. Appellee furnished the seed and money to defray the expenses, excepting their labor in planting, cultivating, harvesting, shedding, threshing and baling the crop, which amounted to sixty bales or about nine tons.

Appellant claims that in the latter part of December, he bought it of them at $89 per ton with $100 bonus and credited the amount on an indebtedness they owed him; that, it was hauled by them to a storehouse in Mattoon, rented by him, and afterward shipped and sold for his benefit, and that he had no notice of any interest therein, or claims thereto, of appellee, until after it was thus disposed of.

It appears that appellee was deceived by the Huttons, or by Arthur, as to where it was stored, and knew nothing of its disposition until it had been shipped away and sold on the market. No one besides the parties was present when the arrangement was made between appellee and Arthur about raising the corn. Arthur was also present at the trial but declined to testify. Appellee did not undertake to state the language used on that occasion, but testified that there was no leasing or renting of the land. He claimed that by the arrangement as made the legal title to the crop was to be in him, although in trust to apply the proceeds as above stated, and this was not contradicted.

There was evidence also tending to prove that Arthur recognized his right as claimed. He denied that he authorized the Huttons or either of them to sell it, before they did sell it, but this was disputed upon the evidence.

Appellant claimed, as matter of inference or presumption, that they were either tenants Of appellee, accountable to him for only a proportion of the crop, as rent, and therefore that until it should be distinguished from the mass, a sale by them o£ the whole to a purchaser for value without notice of his lien would convey a good title, or were joint owners with him of the entire crop, and that being also in exclusive possession— with his consent—such a purchaser from them would be protected. And upon these hypotheses respectively the court so instructed the jury, but they appear to have found the facts against, him, and their finding was clearly supported by the evidence.

He contended further, that if appellee placed them in possession of the land and allowed them to raise and harvest the corn and store it in a shed on their own premises, and by means of such possession they were enabled to hold themselves forth to the world as its owner, and by reason thereof they sold it to appellant and he purchased in good faith without notice of appellee’s interest or claim, lie thereby acquired a good title to it and was not liable in this action. An instruction asked to that effect was refused, and this is the chief cause of compla.nt here.

In the argument for this position he relies on the authority of Koch v. Willi, 63 Ill. 144. In that case Koch employed Friday as his agent to buy corn in the country for shipment to St. Louis and furnished him money for that purpose. Friday bought in his own name, among others, of Willi, without disclosing his agency. Some he shipped to St. Louis and some he sent to his principal. The corn in controversy remained in his possession, and Willi, who had not been paid, purchased it of him in good faith, in satisfaction of his debt. Koch then brought the .suit in trover and the court held that he could not recover. Why should he ? He never had title to or possession of the corn except as against Friday. It was not sold to him. It was bought by and sold to Friday for money in his hands, which, though Koch’s as between them, was Friday’s as to his innocent vendors, for the case of money is an exception to the rule that the real owner can not be divested without his consent. Fawcett et al. v. Osborn et al., 32 Ill. 424. Having intrusted his money to Friday, who used it as his own and bought and held in his own name, Koch was stopped to deny, as against innocent purchasers from him, that he was the owner and as such had the right to sell. If he had intrusted the corn itself instead of the money to his agent, the case would have presented a different question.

Here the broomcorn was raised on appellee’s land. He claimed to be the owner, and that the Huttons raised and harvested and shedded it for him. The refused instruction in question so supposes, and the possession and control by them as therein stated is not inconsistent with the fact. If he was the real owner and they his servants, bailees or agents, without other authority than was imported by such possession and control, they could not divest him by their sale to appellant, however innocent he may have been. Almost every bailee or agent in possession is by his possession enabled to hold himself forth to the world as owner, but unless the real owner so holds himself forth or consents that he may so hold himself, it will not avail the innocent purchaser from him as against such owner. This question was considered in the case of Hutchinson v. Oswald—decided at this term—and we here repeat only the citation of authorities there relied on. Fawcett et al. v. Osborn et al., supra; Burton v. Curyea, 40 Ill. 329; Klein v. Seibold, 89 Id. 540.

Perceiving no material error in this record the judgment of the circuit court will be affirmed.

Judgment affirmed.