text:
    First National Bank of Princeton v. Isaac Kurtz, Jr., and Isaac Kurtz, Sr.

      Attachment — Fraudulent Conveyance within Two Tears — Fraud in Fact —Construction—Executory Trust as Consideration for Conveyance — Possession as Notice■ — Instructions—Evidence—Practice.
    1. In an attachment proceeding in aid, the principal suit being on certain promissory notes executed by the defendants, the son as maker and the father as surety, it is held: That a conveyance by the father to a daughter and her husband was not fraudulent in fact; that the father did not know at the time that his son was financially embarrassed; that said conveyance was properly made to carry out the expressed wish of his deceased wife, and an understanding with the heirs in consideration of which they had conveyed the legal title to him, although said wish and understanding because resting in parol were not enforceable by legal process; that the consideration, which included the payment of certain sums to other heirs, was amply sufficient; that the trust, though void and ineffective under the Statute of Frauds, supports the transaction as an executed contract; that it is not an objection that the conveyance included the grantor's life estate, the sale of said estate being for its full value, and the proceeds being within the reach of creditors; that the facts do not constitute constructive fraud; that it is immaterial that the conveyance was to the daughter and her husband jointly; that her joinder in the former conveyance to the father does not affect her equitable title, the possession of herself and husband being notice of such title; that the making of one of the notes by the grantees payable to the wife of the junior defendant herein, was probably improper; and that the rulings of the trial court upon the instructions and the admissibility of evidence were substantially correct, except in one particular which worked no injury to the appellant.
    2. While fraud must generally be shown by circumstantial evidence, it is unsafe to infer it from slight and inconclusive circumstances.
    3. When the owner of land conveys it without consideration to be held in trnsi, and remains in possession, his possession is notice of his equitable title.
    4. It seems that the words “ fraudulently conveyed or assigned his effects or a part thereof," in Sec. 1 of the Attachment Act, include cases of actual fraud only.
    [Opinion filed January 10, 1887.]

      Appeal from the Circuit Court of Bureau County; the Hon. George W. -Stipp, Judge, presiding.
    Messrs. Eckels & Kyle and Henderson & Trimble, for appellant.
    The general rule is that a voluntary conveyance as against existing creditors, is fraudulent in law and void. The true rule, by which the fraudulency or fairness of a voluntary conveyance is to be ascertained, is founded on the pecuniary ability of the grantor to make the donation without the least hazard to his creditors, or in any material degree lessening their then prospects of. payment. And because every man must be just before he is generous, it is not essential that fraudulent intent should be shown; although in this case it has been most conclusively shown. Emerson v. Bernis, 69 Ill. 537; Nesbitt v. Digby, 13 Ill. 387; Phelps v. Curtis, 80 Ill. 109, 113; Jaffers v. Aneals, 91 Ill. 487, 492; Gould v. Steinburg, 84 Ill. 170.
    As against his creditors a debtor can not convey all his property to another, reserving his own future support, or an annuity, out of it as a part of the consideration for such conveyance. Such a conveyance is fraudulent in law as to creditors because the law does not allow any form of contract or mode of disposing of property whereby the vendor secures to himself, to the exclusion of his creditors, the use of the same, or the use of his interest therein, beyond the specified exemptions of the statute. Annis v. Bonar, 86 Ill. 128; Robinson v. Stewart, 10 N. Y. 195; Goodrich v. Down, 6 Hill, 438; Jackson v. Parker, 9 Cow. 846; Stevens v. Dillman, 86 Ill. 233; Jones v. King, 86 Ill. 225; Moore v. Wood, 100 Ill. 145; Lawson v. Funk, 108 Ill. 502, 507.
    Where a sale is made by a failing debtor, and it appears from the transaction that it was designed that the vendor should retain a secret use in the property, or have an annual income out of it, it must be condemned as fraudulent and void as to creditors. Power v. Alston, 93 Ill. 597; Bell v. Devore, 96 Ill. 217; Jones v. King, 86 Ill. 225; Lawson v. Funk, 108 Ill. 502, 507.

      Messrs. Kendall & Lovejoy, for appellees.
    It was not fraudulent for Isaac Kurtz, Sr., for the purpose of carrying out the wish of his deceased wife and the understanding upon which the legal title was conveyed to him, and before the levy of the attachment, to convey the interest of the children of Mrs. Lochman and her husband, with her consent, in consideration of Lochman paying §2,000 after the death of said Kurtz. Van Dorn v. Leeper, 95 Ill. 35; Seeders v. Allen, 98 Ill. 468; Phillips v. North, 77 Ill. 243; Tomlinson v. Matthews, 98 Ill. 178. It was not fraudulent for Isaac Kurtz, Sr., to sell and convey in good faith his li e estate to Mr. and Mrs. Lochman for a fair and reasonable price, payable annually, and the jury found that he did convey it in good faith and for a fair and reasonable price. Waddam v. Humphreys, 22 Ill. 661; Union Bank v. Toomer, 2 Hill, Ch. 27. Mrs Lochman after she signed the deed to her father remained in possession of the land, claiming it under the agreement of her father to convey to her' and after June, 1884, she and her husband were claiming under his agreement to convey his life estate. Their possession was notice of all their rights. Ford v. Marcall, 107 Ill. 136, 140; Tillotson v. Mitchell, 111 Ill. 518, 525; Coari v. Olsen, 91 Ill. 273, 280. It was the province of the jury to determine whether or not Isaac Kurtz, Sr., fraudulently conveyed the eighty acres to Mr. and Mrs. Lochman so as to hinder or delay his creditors; and their finding should be sustained by this court. Papineau v. Belgarde, 81 Ill. 61; Connelly v. People, 81 Ill. 379; C. & N. W. R. R. v. Ryan, 70 Ill. 211. To sustain an attachment a fraudulent intent must be shown to exist in making the conveyance. It is not enough to merely show that the effect of the conveyance was to hinder and delay creditors. Shove v. Farwell, 9 Ill. App. 256, 261.
   Baker, P. J.

The First National Bank of Princeton, appellant herein, brought suit on the 19th day of February, 1885, in the Bureau Circuit Court, against Isaac Kurtz, Jr., and Isaac Kurtz, Sr., upon two promissory notes, one for $800, and the other for $1,500, executed by Isaac Kurtz, Jr., as principal, and Isaac Kurtz Sr., as security, and the summons was served upon them on the 27th day of February, 1885. An affidavit was filed in the court, on this last mentioned date stating that the defendants and each of them had within two years next preceding the filing of the affidavit, fraudulently conveyed or assigned their effects or a part thereof so as to hinder and delay creditors; and thereupon an attachment writ in aid of the suit at law was issued and levied upon the W. ½ N. W. ¼ Sec. 3, T. 17 N., R. 8, E. of 4th Principal Meridian, in Bureau County, Illinois, as the property of said Isaac Kurtz, Sr., and served upon Thomas Loehman and Deborah W. Loehman as garnishees. Isaac Kurtz, Sr., interposed a plea traversing the facts stated in the affidavit upon which the attachment, as against him, issued; and a jury trial resulted in a verdict and judgment in favor of appellant and against both defendants for $2,480.80 and proper costs, in the principal suit, and in a verdict in favor of Isaac Kurtz, Sr., upon the issue formed in the attachment proceeding in aid, followed by a judgment that the attachment he quashed and that appellant pay the costs thereof.

Rachel Kurtz, wife of Isaac Kurtz, Sr., died in 1869, seized of the eighty acres of land attached in this case, and leaving as her heirs at law her children, Davis B. Kurtz, Edward T. Kurtz, Frances Me Meen, Deborah W. Kurtz, (now Loehman) and Isaac Kurtz, Jr. She had executed no deed to the land, and had signed no declaration of trust in writing with reference thereto; and she made no will.

She did, however, on divers occasions, both long before and shortly preceding her death, state that she wanted her daughter Deborah W. Kurtz to have the north forty acres, upon which the dwelling house was situated; and also wanted her to have the south forty acres upon her paying $1,000 to her other daughter, Frances McMeen, and $1,000 to Isaac Kurtz, Jr.; and wanted her husband to have a life estate in the land. Said Deborah W. was the youngest daughter and the offiy child unmarried and living at home with the parents; and the other children had received $1,000 each from the father, while she had received nothing. After the death of Rachel, his wife, Isaac Kurtz, Sr., who was ignorant the law east upon him a life estate in the premises, was anxious to procure from the heirs a conveyance of the land and proposed they should execute to him a quit-claim deed therefor; this, several of them at first declined doing, on the ground it was not in accordance with the declared intention of their mother with reference to the disposition of the land; but upon the promise of the father that he would make provision for Deborah W. and would give her the forty acres the buildings were on, and the other forty acres on her paying the §2,000, they all joined in a quit-claim deed to him bearing date April 6, 1870. The nominal consideration of one dollar was stated in this deed, and no consideration was paid or given therefor to any of the children, except as arises out of the circumstances and promise above mentioned.

After the decease of her mother, said Deborah W. continued to live upon the premises with her father until her marriage with Thomas Lochman, in August, 1870; after that she and her husband lived there with her father until the second marriage of Isaac Kurtz, Sr., in 1875, when said Kurtz and his second wife went to live in a house on a lot owned by him, at Walnut, in Bureau County, and Thomas and Deborah Loch-man remained on the farm, paying rent therefor.

In June, 1884, an arrangement was made between Isaac Kurtz, Sr., and Lochman and wife, whereby the former was to convey to them the land, and they were to execute three notes, one to Isaac Kurtz, Jr., for §1,000, payable at the death of Isaac Kurtz, Sr.; one for $1,000 to Frances McMeen, pay. able at the same time, and one of $300, payable annually to Isaac Kurtz, Sr., as long as he should live, for his life estate in the land.

Thomas Lochman and his father-in-law at once went to Princeton for the purpose of getting a lawyer to prepare the deed and papers, but the attorney told Kurtz, Sr., who was then over eighty-five years of age, that he was getting old and it was best to keep his farm in his own name. Thereupon the deed was not made, but on their way home Kurtz told Lochman to go on with the “ improvements,” and that he would make the deed. After that said Lochman built a barn and put fencing on the land, at a cost of some $500, and August 4, 1884, insured the house, barn, etc., in his own-name, for $3,000, and also paid the taxes of 1884 on the land.

Afterward, Isaac Kurtz, Sr., executed a deed to Thomas Lochman and Deborah W. Lochman for this real estate, which bore date February 9, 1885, was acknowledged on the 11th, delivered on the 12th, and filed for record on the 13th of the same month of February.

Dpon delivery of the conveyance, a note for $1,000, payable at the death of Isaac Kurtz, Sr., was executed and delivered to Mrs. McMeen, a like note to Mary Kurtz, wife of Isaac Kurtz, Jr., and a joint contract of the grantees in the deed for the payment to Isaac Kurtz, Sr., of $150, semiannually, first payment to be made June 1st, after date, second payment January 1st, after date, and so to continue in payments of $150 each successive June and January, so long as he should Jive; the obligation to cease at his death.

Isaac Kurtz, Jr., was a member of the firm of Kurtz & Wilson, and on the 16th day of February, 1885, and for some time prior thereto, both he and the firm were hopelessly insolvent, and on the last mentioned date the firm made an assignment for the benefit of creditors. His father was security for him, not only upon the indebtedness involved in this suit, but upon notes to other parties for very considerable amounts. The testimony makes it probable that the father and son saw each other almost or quite every day; but the-father testified the son never told him anything with reference to his business, and that he did not know he was in failing circumstances when he made the deed; that it was his habit to loan him money when he asked for it, and to sign notes and papers when requested by him without looking at or asking about them, and that the son was indebted to him five or six hundred dollars.

There are numerous other facts and circumstances in proof, both upon the one side and the other, bearing more or less directly upon the merits of this controversy; but in the view we take of the case, it is deemed unnecessary now to specify them.

It is manifest that neither the declarations of Bachel Kurtz made while she was the owner of the land, nor the promises made by Isaac Kurtz, Sr., to the heirs at the time they executed the quit-claim deed to him and thereby vested him with title, could have the effect to create a trust for the benefit of Deborah W. Lochman that could be enforced in the courts, and for the simple reason that neither such declarations nor promises were witnessed by any writing signed by the party competent to declare such trust; and to otherwise hold would be in contravention of the provisions of the Statute of Frauds. This is not the question that arises upon this record, but it may be advisable hereafter to refer to some matters and deductions incident to the doctrine announced.

The principal claims made by appellant are:

First, That Isaac Kurtz, Sr., in making the deed dated February 9, 1885, to the Lochmans, was guilty of actual fraud;

Second, That the nature of the transaction was such as to make the execution of the deed a constructive fraud; and, •

Third, That a conveyance of property which is only constructively fraudulent, that is, fraudulent as mere inference of law and without regard to the actual motives or intention of the party making such conveyance, is sufficient to sustain an attachment under the sixth specification of section one of the Attachment Act.

The jury found against appellant on the attachment issue, and must necessarily have found that the elder Kurtz was not guilty of fraud in fact and had no corrupt motive or fraudulent intent when he made the deed. We think the decided weight of the evidence supports their verdict in this respect We are satisfied, after a careful examination of the testimony, that he did not know, at the time he executed the conveyance, that his sonowas financially embarrassed or about to fail; and that the motives that influenced him were a desire on his part to carry out the frequently expressed wishes of his deceased wife, redeem the promises he made to his children when they made the quit-claim deed to him, and perform the contract he had made with the Lochmans in the preceding June.

It will be noted that he was at the time in feeble health, and very old. While fraud can seldom be. proven by direct testimony and must generally be shown by circumstantial evidence, yet it is not safe to infer fraud from a few slight and wholly inconclusive circumstances. The fact of the relation of the several parties is a circumstance to he regarded, but if unconnected with other facts, it is of little importance. The nearness in point of time of the date of the execution of the deed, to the dates on which the inso-lventson made his several conveyances and the assignment, is also suspicious, but then the clear preponderance of the evidence is to the effect the father did not know these several instruments were either made or contemplated. It is true, one of the thousand-dollar notes was made payable to the wife of the son, instead of to the son himself, but then the evidence shows this was done by Boss without the knowledge or consent of the old man and in disregard of the instructions he had given; that the senior Kurtz, being sick and infirm, employed Boss to deliver the deed and write up the notes and get the signatures of the Lochmans thereto, and it will not do in this inquiry, in respect to the existence or non-existence of an actual fraudulent intent in the mind of said Kurtz, to say Boss was his agent in the matter and that the knowledge of Boss was his knowledge. Inadequate consideration is a badge of fraud; but we think the consideration for the conveyance of the property was amply sufficient, and especially so from the standpoint occupied by Kurtz, Sr., and that is the point of view from which this matter should be regarded. The trust reposed in him by the heii;s of his dead wife, and predicated upon his express promises to make the deed, was not enforceable through judicial proceedings, but nevertheless was binding upon his conscience; and from his standpoint, he was invested with the absolute title to the land, yet he was equitably and really the owner of only a life estate therein, and his daughter Deborah was the equitable and real owner of the reversion, but charged with the payment at his death of $2,000 to some of the other heirs of his deceased wife; and moreover there was in his mind the contract of June with the Lochmans and the $500 they had expended for improvements and repairs.

But, it is urged, the conveyance included his life estate, and that was undoubtedly his own property, and was subject to the payment of his debts. It may be answered that he sold it, and for its full value; the fair rental value of the farm is shown by the evidence to be §300 a year, and no witness places it higher than §1 an acre, which would be §320 a year, and then, by the terms of his contract he is paid semi-annually instead of annually. Already §600 has become due to him by the terms of his contract, and by the Northampton life tables the gross value of his life estate at the time the deed was made was only §679.80. The contract of Thomas and Deborah Lochman is a valid obligation, but it is not a promissory note or other negotiable instrument, and it is readily within the reach of creditors by process of garnishment, and, we may add, the Lochmans were, as a matter of fact, actually garnished in this cause and before any payment was made.

We do not understand that it is fraudulent in a debtor to sell his property for full value and place that value in such condition as that his creditors may readily avail themselves of it.

Was there constructive fraud, or in other words, was the transaction a fraud per se, as a conclusion of law and regardless-of motive ? We think it was not. The supposed trusts were not fraudulent and vicious in and of themselves. It was just and right that the estate of Rachel Kurtz should be applied to the use and benefit of those she desired should have it, and it was equitable that Isaac Kurtz, Sr., should redeem the pledge he made when he received the legal title from the heirs without paying any consideration therefor, and gave them an assurance the land should be conveyed to Deborah W., charged with the §2,000.

True, this trust was void and ineffective under the Statute of Frauds and not enforceable by legal process, but such was the case merely for the reason the character of proof required by the statute to establish it could not be produced. Though void as an executory trust, yet when the deed was afterward made and delivered, the transaction became effective as an executed contract. In equity and good conscience the claim of Mrs. Lochman was as meritorious as that of appellant; neither it nor any other creditor had a judgment or other lien upon the land, and in the absence of any actual fraud, no reason is perceived why she might not get the legal title in advance of creditors. Van Dorn v. Leeper, 95 Ill. 35; Seeders v. Allen, 98 Ill. 468. In Hovey v. Holcomb, 11 Ill. 660, it was held, if one honestly conveys property by an absolute deed to another, believing that it will be reconveyed or transferred as the first grantor may direct without intending to injure his creditors by conveyance, and where they would not be injured if the real purposes of the grantor should be carried out, as intended by him, such conveyance is not fraudulent as to creditors.

This case does not fall within the rule that was enforced in Moore v. Wood, 100 Ill. 451; Lawson v. Funk, 108 Ill. 502, and similar cases cited by appellant. In those cases there was an agreement on the part of the grantee to support or maintain the grantor, or the real estate, was to be held wholly or in part in secret trust for the grantor. In this case the only real, beneficial and equitable interest the grantor had in the land was his life estate, and this he sold for its. full value and retained that value within reach of his creditors; there was no trust retained in the premises conveyed, and the debtor had the beneficial enjoyment of no valuable right or property that could not be appropriated by those to whom he was indebted.

It is urged that as Deborah W. Lochman joined in the execution of the quit-claim deed which invested her father with title, and permitted him to treat the land as his own and incur debts on the faith of such ownership, the deed made by her father to her will be fraudulent and void as against such debts. It must be borne in mind that at and before the date of the quit-claim deed she lived upon the land and had title to an undivided interest therein; that after that date she continued to reside there and was as much in possession as she had been anterior thereto; and that after her father moved to Walnut she and her husband continued to occupy the premises, in the character of tenants of the father; and that continuously from the date of the quit-claim deed down to the time of the conveyance from her father, in February, 1885, she lived upon the land, claiming an interest therein. In Ford v. Marcall, 107 Ill. 136, it was held that where the owner of land conveys it without any consideration to he held in trust, and remains all the time in the actual possession of the premises, such possession is notice of the equitable title of the grantor to the judgment creditors of the grantees and that such creditors acquire no title by levy and sale on execution. See also, White v. White, 89 Ill. 460.

The doctrine of Tillotson v. Mitchell, 111 Ill. 518, Coari v. Olsen, 91 Ill. 273, and several earlier cases, is that actual occupancy, even though as the tenant of another, is notice to the world of the rights and equities of the occupant, whatever they may be, and is sufficient to put all others upon inquiry. Upon these authorities our conclusion is, there is no merit in this point.

We think it is wholly immaterial that the conveyance made by the effier Kurtz was to Deborah Loehmam and her husband jointly, instead of to Deborah alone, as was originally contemplated and agreed. The arrangement as finally consummated is shown to be satisfactory to Deborah and the other parties interested "and it can make no sort of difference to appellant whether the land was deeded to one or both of them.

Making one of the notes for $1,000 payable to the wife of Isaac Kurtz, Jr., instead of to him, was probably improper. There may, possibly, have been a valid reason for the change, as a husband may prefer his wife to the exclusiop of other creditors; and if there was no valuable .consideration for the substitution that was made, the money may probably be reached by the creditors.

It is unnecessary to determine whether Kurtz, Sr., is chargeable with the knowledge and act of Ross in respect to this note matter, for be that as it may, making the note payable to Mrs. Kurtz was not an assignment or conveyance of the property of Isaac Kurtz either fraudulent or otherwise!

In Shove v. Farwell, 9 Ill. App. 256, it was held by the Appellate Court for this district,- that the fraudulent conveyance or assignment of property that will justify the issuance of a writ of attachment under section one of the Attachment Act, must be fraud in fact as contradistinguished from a legal or constructive fraud.

We are inclined to the opinion that the words fraudulently conveyed or assigned his effects, or a part thereof,” found in said section, are intended to include cases of actual fraud only.

If the rule is held otherwise it would work a great hardship in very many cases of constructive fraud that will readily suggest themselves, in which the debtor has acted honestly and in the utmost good faith; and it can hardly be presumed it was the legislative intention that he should be punished for his want of foresight, or perhaps the fault or wrong of a third party, by making his property and credits liable to attachment on mesne process for a period of two years.

If the views we have expressed in respect to the law and the merits of this controversy are sound, then it is manifest the rulings of the trial court upon the instructions were not erroneous and it is unnecessary that the objections urged in that regard should be considered in detail.

A number of points are made under the assignments of error for admitting improper evidence and excluding competent testimony. Most of the rulings of the court with reference to the admissibility of evidence, we think were right. It was improper, however, to permit Isaac Kurtz, Sr., to testify to conversations he had with his deceased wife, Rachel, during coverture; but as this evidence was merely cumulative and covered the same matters that were testified to by numerous other witnesses, and there was no conflict of evidence in regard thereto, it is evident the action of the court worked no injury.

"Upon a careful examination of the record we find no such manifest error therein as requires a reversal of the judgment of the Circuit Court, and that judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Baker, P. J.

license: Public Domain

text:
    City of Joliet v. Frederick Weston, Administrator.

      Municipal Corporations — Defective Sidetoalk — Action for Damages for Death of Child of Tender Tears — Gross Negligence — Damages—Verdict for §1,000, not Excessive — Instructions—Evidence.
    In an action by an administrator to recover damages from a municipal corporation, resulting from the death o£ his intestate, the infant son of the administrator, alleged to have been caused by a defective sidewalk, it is held: That the evidence clearly shows that the sidewalk was in a dangerous condition and that the city authorities were guilty of gross negligence with reference thereto; that there is nothing to show contributory negligence on the part of the father; that the verdict for the plaintiff for $1,000 was not excessive; that the law implies a pecuniary loss, the child being a minor but four months old; that a certain instruction was properly refused, its substance being contained in two others given; and that the letters of administration issued to appellee were conclusive of his right to prosecute the suit.
    [Opinion filed January 10, 1887.]
    Appeal.from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding.
    Mr. Fred. Bennitt, for appellant.
    A city is not bound to observe the highest degree of care; it is only responsible for the use of reasonable diligence in keeping its sidewalks in a reasonably safe condition, and as a basis of an action for negligence it must be shown that the city had notice of the defect, or that it might and ought by the exercise of reasonable diligence have known of it. Owen v. Chicago, 10 Ill. App. 465; Chicago v. Watson, 6 Ill. App. 344.
    In the case at bar the sidewalk had no apparent defect on the day before the accident, and the members of the coroner’s jury only succeeded in removing two or three of the planks by main strength on the day following. A municipal corporation is not liable for latent defects in a sidewalk of which it had no notice, actual or constructive. Wharton on Negligence, 796; Ogins v. Himsborough, 44 Vt. 220; Doughlon v. Clinton, 33 Ia. 399; Goodenough v. Oshkosh, 24 Wis. 549.
    Messrs. Plaitoebs & Shutts, for appellee.
    There is no error in refusing instructions embodying the same principles with others which are given. City of Chicago v. Hesing, 83 Ill. 204; Keeler v. Stuppe, 86 Ill. 309.
    The jury may estimate the pecuniary damages from the facts proven, in connection with their own knowledge and experience, in relation to matters of common observation. City of Chicago v. Hesing, 83 Ill. 204; City of Chicago v. Scholten, 75 Ill. 468; City of Chicago v. Major, 18 Ill. 349; R. R. I. & St. L. R. R. Co. v. Delaney, 82 Ill. 198.
   Baker, P. J.

This was an action on the case by the administrator against the City of Joliet to recover damages to the next of kin resulting from the death of his intestate, alleged to have been caused by the negligence of the city in not keeping a public sidewalk in repair. Robert E. Weston, the deceased, was the infant son of the administrator and was being carried in the arms of his father, who was walking along a sidewalk on Collins street, with a neighbor named Swanson, when a loose plank in the sidewalk tripped him up and he fell with the child to the sidewalk, and the neck of the child was broken and it died. The verdict and judgment in the Circuit Court were in favor of the administrator for §1,000 damages.

That the sidewalk in question was in a dangerous condition and the city authorities guilty of gross negligence with reference thereto, is clearly established by the evidence. It was four feet in width and consisted of plank of that length laid crosswise over two stringers about three feet apart, the plank extending about six inches over the stringers on each side of the walk.

It was constructed in 1865, some nineteen years prior to the death of the child; and the stringers consisted of timbers two inches by four inches in size, and had never been replaced or repaired since the walk was first built. The uncontradicted testimony of about a dozen witnesses is that these stringers, or some of them, were decayed and soft, would not hold nails? and could be picked to pieces; and the evidence shows they had been in a very bad condition for a year or more, and that numerous prior accidents had been occasioned on this walk by this defective condition of the stringers and the fact they would not hold nails. From these circumstances the city and its authorities must be held to be chargeable with notice of the defects in the stringers, and also with culpable negligence. The testimony introduced on the part of appellant rather aggravates than palliates its offense. ItQ would seem therefrom that a considerable degree of diligence was used in putting back in their places the planks that became loose, and in replacing with new planks those that were worn out and broken, but that invariably these cross planks, whether old or new, were nailed to the rotten stringers that did not and could not hold nails for any considerable length of time, thereby giving the sidewalk a deceptive appearance of security.

There is nothing in the evidence upon which to predicate the charge of contributory negligence on the part of the father. He had only lived in that neighborhood some two months, had passed over that portion of the sidewalk barely two or three times, and does not appear to have been informed of its condition. There is nothing in evidence tending to prove any misconduct or want of ordinary care on his part at the time of the accident.

We are unable-to say the damages assessed are excessive. Had the child lived the father would have been entitled to his services until he reached the.age of twenty-one years. As the child was killed while a minor, the law implies a pecuniary loss, and the statute provides for compensation in such case. In the nature of things, there can not be an exact determination of the amount of the pecuniary damage suffered; andas was held in C. & A. R. R. Co. v. Shannon, 43 Ill. 338, and in other cases, the matter must be left largely to the discretion of the jury. In City of Chicago v. Major, 18 Ill. 349, and City of Chicago v. Hesing, 83 Ill. 204, verdicts of §800 damages were held not to be excessive and were sustained, and each of those cases was for causing the death of a child of very tender years; and in C. & A. R. R. Co. v. Becker, 84 Ill. 483, a judgment for $2,000 for causing the death of a child seven or eight years old was held not to be so excessive as to call for a reversal.

The substance of the refused instruction with reference to which complaint is made, was fully contained in two other instructions that were given, and it was not error to refuse a third instruction stating the same principles of law.

The letters of administration issued to appellee afforded all the evidence necessary in order to show his right to institute and prosecute this suit; the introduction in evidence of the petition for letters of administration, the order of appointment, the order fixing the amount of administrator’s bond, the oath taken and bond filed, was wholly useless and inoperative, and even if they were improperly allowed to go to the jury they did not and could- not work harm to appellant.

We find no error in the record, and the judgment is affirmed.

Affirmed.


text:
    First National Bank et al. v. Chester C. Briggs.

      Homestead — Waiver in Mortgage — Foreclosure—Distribution of Surplus — Marshalling Assets.

    1. Upon a sale of land under a mortgage containing a waiver of homestead exemption the mortgagor is entitled to the exemption out of the surplus as against subsequent judgment creditors.
    2. It. seems that where a mortgage waiving homestead covers both homestead and other lands, a court of chancery will neither marshal assets at the instance of judgment creditors, nor at the instance of the mortgagor compel the mortgagee first to sell the lands in which there is no homestead right.
    [Opinion filed January 10, 1887.]

      Appeal from the Circuit Court of Winnebago County; the Hon. John Y. Eustace, Judge, presiding.
    Messrs. A. B. Coon & Son, for appellants.
    Messrs. William Lathrop and A. D. Early, for appellee.
   Baker, P. J.

On the 12th day of ¡November, 1883, Chester C. Briggs and his wife, in order to secure the payment of $5,000 and interest, executed a mortgage to Elizabeth A. Brown upon certain premises in the city of ¡Rockford, a portion of which premises they then occupied as a homestead, and continued to so occupy until after the entry of the decree and the time of the master’s sale hereafter mentioned. The homestead rights were duly waived and released in the mortgage. On the 6th day of August, 1884, the First ¡National Bank of Belvidere recovered a judgment in the Winnebago Circuit Court against Chester C. Briggs and one George S. Briggs, as surviving members of the firm of Briggs, Enoch and Company, for the sum of $9,828.33; and on the same day Yourt, Lawrence and Com }Dany recovered in the same court a like judgment for the sum of $3,188.34. Upon both of these judgments executions were issued within a year after their rendition, and at the time of the entry of the decree of foreclosure hereafter mentioned they were the first judgment liens against the lands of Chester C. Briggs, the appellee. After the execution of the mortgage and before the rendition of said judgments, appellee and his wife had sold and conveyed their equity of redemption in and to all of the mortgaged lands and lots, except that portion upon which they resided and claimed as a homestead.

Elizabeth A. Brown, the mortgagee, filed her bill in the Winnebago Circuit Court, to the October term, 1885, for the purpose of foreclosing the mortgage, and appellee and his wife, the First ¡National Bank of Belvidere, Yourt, Lawrence and Company, and a number of other persons who were sub•sequent judgment creditors were made defendants. Appellee and wife answered the bill, claiming their homestead right, and also filed a cross-bill setting up their homestead right in the premises and claiming the same in any surplus of the proceeds of sale over and above the mortgage indebtedness. A decree of foreclosure was entered for the amount of the mortgage indebtedness and costs and an order made for the sale of the homestead premises in satisfaction of the decree, and the Master in Chancery was directed that if the premises should sell for more than sufficient to pay the decree, costs and expenses, to Tiring the surplus into court to abide the further order of the court.

On the 31st day of December, 1885, the master sold the homestead premises for §10,000, paid off the decree, interest and costs of sale, and reported to the court a surplus of §4,034 remaining in his hands. At the January term, 1886, the cause was again heard upon the cross-bill and other pleadings, report of sale and proofs; and the court decreed that the master should pay §1,000 of the surplus to appellee in lieu of and as and for his homestead estate, and that the residue thereof, amounting to §3,034, should be paid to the First National Bank of Belvidere and Yount, Lawrence and Company in the proportion their respective judgments bear to said residue. From this decree the Bank and Yourt, Lawrence and Company appealed to this court.

Was appellee, under the facts of the case, entitled to §1,000 out of the surplus of §4,034 as and for and in lieu of his homestead exemption in the mortgaged premises as against appellants? This is the sole question presented by the record and assignment of errors. The question is not a new one in this court. In the case of The People v. Stitt, 7 Ill. App. 394, it was held that when land is purchased subject to a pre-existing incumbrance, the homestead right of the purchaser is contingent upon the payment of the incumbrance, but that the homestead right attaches as to all the world except those claiming under the incumbrance, and that if the land be sold to satisfy such incumbrance and the sum realized is more than enough to pay the debt, then the homestead right to the extent of §1,000 will attach to the excess in preference to all other claims. The principle there decided is the same as that involved in this case.

Where land is sold and the sale has the effect of transferring title free from all liens, then the surplus proceeds of the sale must be dealt with and treated as land; and the parties who had estates, interests or liens in the land which were subordinate to the sale are entitled to be paid out of this surplus the equivalent of their respective interests, estates and liens, in the order of their priority. Freeman on Executions, Sec. 447; Clarkson v. Skidmore et al., 46 N. Y. 297; Hart v. Wingart, 83 Ill. 282. In Jones on Mortgages, Sec. 1693, it is said that when land is sold under a mortgage, containing a waiver of homestead exemption, the mortgagor is entitled to the exemption out of the surplus as against subsequent judgment creditors. In McTaggart v. Smith, 14 Bush. 414, it is decided that when the right to a homestead is waived or relinquished by a mortgage, it does not insure to the benefit of all the creditors of the debtor, but to such only as the mortgage was intended to secure; and that if the homestead property is sold the proceeds should be applied first to the payment of the mortgage debt, and the balance to the extent of the value of the homestead interest, delivered to the debtor, and that the right of the debtor thereto could not be questioned by any other creditor. See, also, Colby v. Crocker, 17 Kan. 527; Kid v. Johnston, 29 Penn. St. 362; and Quinn’s Appeal, 86 Pa. St. 447.

In Brown v. Cozard, 68 Ill. 178, the court was asked to marshal assets for the benefit of a judgment creditor, but refused the relief sought. In the opinion of the court it was said: “The mortgagor would have just cause of complaint that his homestead had been taken from him in a mode, and for a creditor not contemplated by the statute, and whereto he had never given his assent. This would be a violation of the intent of the statute, that the homestead right should not be injuriously affected for debt, without the express assent, in writing, of the debtor. The purpose of the statute is a benign one — to secure to the debtor and his family a home, sacred from sale for debt, save by the freely given assent of himself and his wife in writing. We think a court of equity should act in the exqrcise of the power which is invoked in the present instance, so far as may be, in such a way as to advance and not to thwart the policy of the statute.”

It is the rule in this State that where a mortgage waiving homestead covers both homestead and other lands, a court of chancery will not either marshal assets at the instance of a judgment creditor, or, at the instance of the mortgagor and in the absence of a contract therefor, compel the mortgagee to first sell the lands in which there is no homestead right; the reason for the first branch of the ruléis, that such marshalling would be an injustice and injury to the common debtor; and the reasons for the other branch of the rule are, first, that the rule in equity for the marshalling of assets has no application as between debtor and creditor, and secondly, that the mortgagee has a right by the terms of his contract, to elect which tract of land he will sell first. Rogers v. Meyers, 68 Ill. 92; Brown v. Cozard, 92 Ill. 178; Plain v. Roth, 107 Ill. 588.

In the case at bar the decree of the court' was for the sale only of the premises to which the homestead right attached, but those premises were of such value that they sold for §10,000, which was enough to discharge the mortgage indebtedness, pay appellee his §1,000 homestead exemption, and still leave §3,034 for appellants, as judgment creditors. The latter insist, however, the homestead exemption was waived in the mortgage, and claim, in substance, that when the premises were sold under the mortgage it must be regarded the homestead right or estate was first sold, and the value thereof applied as a credit on the mortgage debt, and then the residue of the interest in the premises sold, realizing a sufficient amount to satisfy the balance due on the mortgage and leaving §4,034 to he paid on their judgment liens. Though not stated in this form, this is the logic of the claim made. It is to all intents and purposes a marshalling of assets, for their benefit as creditors; and, as was said in Brown v. Cozard, supra, “ the relief sought would be in contravention of the spirit and policy of the homestead act, and to the injury of the common debtor. The fact that in the case last mentioned there were two tracts of land, one only of which constituted the homestead, while here there is but one parcel and that is the homestead, is an unimportant circumstance, as the doctrine of marshalling assets may be applied in a case where there are several different interests and estates in the same lot of land, as well as where there are two or more parcels.

The conclusion reached works no hardship or injustice to appellants. If before the foreclosure sale they have sold the premises upon their judgments, they would have heen obliged to pay appellee 81,000 in satisfaction of his homestead right. If the mortgage debt had been settled before sale, the liens of appellants would have been subordinated to the homestead estate of appellee, and it would seem the fact the debt was settled by means of a sale, should make no difference in this respect, as thereby they receive in money the value of the interest to which their liens attached.

The decree of the Circuit -Court is affirmed.

Affirmed.


text:
    Thomas O’Donnell, for use, etc., v. The Chicago & Alton Railway Company.

      Garnishment — Appeals from County Court to this Court — Jurisdiction of County Judges — Statutes—Limitations—Justice's Judgments.

    1. County Judges do not have, and did not in 1877 have, any jurisdiction to act as Justices of the Peace; the proviso contained in Sec. 7 of the County Court Act of 1874 as amended May 21, 1877, being inoperative and void in the absence of any provision of law conferring such jurisdiction.
    2. An appeal lies from the County Court directly to this court from a judgment in a garnishment proceeding, such proceeding being a common law case within the meaning of the statute.
    3. A Justice's judgment is “ an evidence of the indebtedness in writing” within the meaning of Sec. 16 of the Statute of Limitations, and the time within which an action may he brought thereon is ten years.

      Woodworth v. Paine, Breese, 374, distinguished.
    [Opinion filed January 11, 1887.]

      Appeal from the Circuit Court of Will County; the Hon. C. B. Gubnsby, Judge, presiding.
    Messrs. Haley & O’Donnell, for appellant.
    Messrs. J. E. Blandees and C. A. Hill, for appellee.
   Baker, P. J.

On the 30th day of June, 1879, Thomas Delaney and Peter Mackin, partners under the firm name of Delaney & Mackin, recovered a judgment before a Justice of the Peace of Will County against Thomas O’Donnell for $58.86 and costs; and on the 14th of August, 1879, an execution was issued on said judgment, and said execution afterward returned by the Constable no property found.” After such return and before the commencement of this garnishment proceeding Peter Mackin, one of the judgment creditors, died. On the 21st day of December, 1885, Delaney, the surviving partner, filed an affidavit with the Justice of the Peace and sued out a garnishee summons upon the judgment, which summons was served upon the Chicago & Alton Railroad Company, as garnishee of said Thomas O’Donnell. From the judgment rendered by the Justice in the matter of this garnishment an appeal was taken to the County Court of Will County.

It appears from the record that at the trial in the County Court it was shown that at the time the garnishee summons was issued and served the railroad company had in its hands $150 in money that belonged and was due to O’Donnell, but the courtf ound that the judgment in favor of Delaney&Mackin and against O’Donnell, upon which the garnishee proceeding was based,was at the time of the commencement of such proceeding before the justice barred by the Statute of Limitations, and therefore entered a judgment dismissing the' garnishment and against Delaney for costs. Delaney took this appeal to this court from the judgment of the County Court thus rendered.

Hpon the submission of the cause in this court, the Chicago & Alton Railroad Company and Thomas O’Donnell entered their motion to dismiss the appeal for want of jurisdiction in this court to hear and determine the same; and two grounds are relied upon to sustain the motion.

In the first place it is claimed that the County Judge in trying this cause was sitting and acting in the capacity of a Justice of the Peace, and that section seven of the County Court Act of 1874, as amended May 21, 1887, (Laws of 1887, page 77) provides that “ appeals from the County Judge when sitting as Justice of the Peace, shall be taken to the Circuit Court as now.”

"We are of opinion this position is not tenable. We are unable to find either in the Constitution of the State, or in any statute now in force or that was in force when this amendment was enacted in 1877, any provision of law giving to County Judges the right or power to sit as Justices of the Peace or exercise jurisdiction as such. The fourteenth section of the County Court Act of 1849 (Laws of 1849, page 62), provided that the County Judge “ shall have the same civil and criminal jurisdiction as the Justices of the Peace in this State,” but by the 99th specification of section one of the Repealing Act of March 31, 1874, this County Court Act of February 12, 1849, was expressly repealed. See R. S. 1874, 131, pp. 1012 and 1016. Our conclusion is that County Judges do not now have, and did not in 1877 have any jurisdiction to act as Justices of the Peace; that the proviso contained in section seven as amended May 21, 1877, was probably enacted by inadvertence, and at all events is inoperative and void in the absence of any provision of law giving to County Judges the right to exercise jurisdiction as Justices of the Peace. Other amendments that were made by this act of May 21, 1877, to said section seven, conferred upon County Courts concurrent jurisdiction with the Circuit Courts in all cases of appeals from Justices of the Peace and police magistrates, but this jurisdic-. tion was given to the County Courts as County Courts and courts of record and was to be exercised by them as such, and was in no sense a jurisdiction conferred upon the County Judges to be exercised by them in the capacity of Justices of the Peace.

The further claim is made, upon the motion to dismiss, that this is neither a common law nor an attachment case, but a proceeding begun and prosecuted under the provisions of the Garnishment Act and based solely upon a judgment previously rendered and for the sole purpose of obtaining satisfaction of that judgment, and that therefore the appeal should have been taken to the Circuit Court and not to this court. Section 123, of the County Court Act, as it now stands, reads as follows: “ Appeals and writs of error may be taken and prosecuted from the final orders, judgments and decrees of the County Court to the Supreme Court or Appellate Court, in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes and special assessments, and in all common law and attachment cases, and cases of forcible detainer and forcible entry and detainer. Such appeals and writs of error shall, when not otherwise provided, be taken and prosecuted in the sanm manner as appeals from and writs of error to Circuit Courts.”

Sec. 122 of the act makes provision for appeals from the final orders,- judgments and decrees of the County Courts in all matters, except such as are provided for in Sec. 123, to the Circuit Court, and for trials de novo in the latter court.

In our opinion the case was properly appealed to this court, and the motion to dismiss should not prevail. Our reasons for so holding may be briefly stated. The appeal from the judgment of the Justice of the Peace in this garnishment proceeding was to either .the County or the Circuit Court, as the party appealing might elect. In cases where, as here, the appeal is taken to the County Court, the claim urged by the proponents of the motion would lead to results anomalous and unreasonable; such as a statutory right to three different trials in as many different tribunals before the case is submitted to the court of errors, and the right of appeal to and trial de novo in an Appellate Court of concurrent jurisdiction. The statute should not receive a construction that terminates , in such absurd conclusions unless it can not be avoided without doing violence to their language. If the acts of the General Assembly can reasonably be construed otherwise, then such results should not be considered as within the legislative intention. It is plain the case at bar does not fall within the provisions of Sec. 123, allowing an appeal from the County to the Appellate Court, unless it be upon the ground it is either a common law or an attachment case. Waiving the question whether a garnishment proceeding based upon a prior final judgment against a debtor and a return of nulla bona can properly be regarded as an attachment case, we think it should be held to be a common law case within the intent and meaning of Sec. 123. If the garnishment proceeding is considered as a suit or case in and of itself, which the statute authorizes the judgment creditor to prosecute for hjs own use and benefit against the debtor of his judgment debtor, then it is an action of debt or assumpsit, both of which we all know are common law cases. In Webster v. Steele, 75 Ill. 544, May v. Baker, 15 Ill. 89, Wilcus v. Kling, 87 Ill. 107, and numerous other cases, it was held by the Supreme Court that garnishment being a legal proceeding given by statute, it only entitles a party to recover such indebtedness as can be recovered by an action of debt or indebitatus assiompsit in the name of the attachment or judgment debtor against the garnishee. If, on the other hand, the garnishment is regarded, as but an adjunct of the original case, then it is in the nature of process to obtain satisfaction of a judgment and is in effect an execution, and a part of the proceedings of the case originally commenced, and this even though it is docketed as a separate suit; and it is manifest that the original suit, in which the judgment against O’Donnell for §58.86 and-costs were recovered, was an ordinary common law case. See, Bear v. Hays, 36 Ill. 280; M. C. R. R. Co. v. Keohane, 31 Ill. 144; Moore v. Hamilton, 2 Gilm. 429; Beecher v. James, 2 Scam. 462; Roberts v. Dunn, 71 Ill. 16; Chanute v. Martin, 25 Ill. 63.

It was error in the County Court to rule that the five years limitation, fixed by See. 15 of the Limitation Act of 1872, barred the judgment against O’Donnell before the Justice of the Peace. Section 16 of the Limitation Law governs in respect to judgments recovered before Justices of the Peace. Such a judgment is “an evidence of indebtedness in writing,” and the limitation in regard thereto is ten years. This was expressly held by us in an opinion filed at this term in the case of Aarvig v. Kellogg. It was there decided that Bemis v. Stanley, 93 Ill. 230, did not govern in the matter of a judgment before a Justice of the Peace in this State, as a judgment of that character was not there involved, and said Sec. 16 of the Limitation Act was not mentioned or considered.

Woodworth v. Paine, Breese, 376, cited by appellee, is not in point; there the language of the 'statute was “ instrument of writing,” while the language of the section of the statute now under consideration is “ evidence of indebtedness in writing.” A judgpient would be included by the latter language, but not by the words that were used in the statute passed upon in Woodworth v. Paine. We may also say that the plain implication from what was said by the c mrt in Hay v. Hayes, 56 Ill. 312, is that an execution may issue on the judgment of a Justice of the Peace at any time within seven years after the rendition of such judgment, provided only an execution had been issued thereon within a year from the date of such judgment.

For the error mentioned, the judgment of the County Court is reversed, and the cause remanded to that court for further proceedings in conformity with the views herein expressed.

Jdeversed cmd remanded.


author: Lacey, J. Welch, J.

text:
    The First National Bank of Monmouth v. William H. Brooks.

      National Banks — Certificate of Deposit tvith Conditions — Ultra Vires— Embezzlement by Cashier — Liability of Bank — Instructions—Estoppel— Diss nting Opinion.

    1. In an action against a national bank on a certificate of deposit issued by the cashier, by the terms of which the amount deposited was to be paid on a note of the depositor or loaned for his use, it is held: That it was within the power of the cashier to receive the money subject to the order to pay it on the note if the payee would receive it; that the conditional undertaking to loan the money, if ultra vires, dirt not make the other parts of the transaction void or relieve the bank from liability to the depositor; and that the debt, being that of the bank, was not discharged by the cashier’s embezzlement of a much larger sum of the bank’s funds.
    2. A corporation can not avail itself of the defense of ultra vires when a contract has been in good faith fully performed by the other party, and the corporation has had the full benefit thereof.
    [Opinion filed January 15, 1887.]
    In error to the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.
    Statement by Lacey, J. This was an action in assumpsit, by defendant in error against plaintiff in error, based on the fo1lowing certificate of deposit, viz: “Deposited with First
    National Bank, by William H, Brooks.”
    “ Monmouth, III., June 2,1883.
    “Dolls. Cents.
    “ Currency.................. ......... |800.
    “ To be indorsed on his note held by John Brown, or loaned for his use in case Brown won’t receive said money.
    “B. T. O. Hubbard, 1 Ce.’”
    The character used was always for that of cashier. The c6 Ce.” is an abbreviation of the word cashier, as Hubbard swears. Defendant in error passed the money over the counter of the bank to the cashier while it was in good credit and transacting its ordinary business. The money was never paid to Brown or loaned or repaid to Brooks. It was put in the general funds of the bank, not in the private box of Hubbard. It was not put on the books of the bank but an account of it was kept by the cashier by what is called a “ deduct tag,” placed in the cash drawer for accommodation. The money remained in the general funds of the bank and was not drawn out by the cashier or any one else as the cashier testified. He also says when the amount represented by “ deduct tags,” which were kept for the accommodation of the public, was paid, it was erased from the tag, and when partly paid credits were made on the tag. At night it was the habit of the cashier to figure the amount of items on the tags and deduct it from the cash, and then the balance would represent the money-belonging to the hank. The tag remained there all the time the cashier was there as he swears, in the little tin box, in the day time on the counter, and in safe at night. The bank was closed April 7,1884. The bank examiner, W. 0. Oakley, took possession of the assets of the bank, and on May 2, 1884, turned over the assets to the receiver, Guy Stapp, who refused to allow the claim of the defendant in error; on May 7, 1884, this suit was therefore brought.
    The cashier, Hubbard, was a defaulter to the bank for a large amount, much more than the amount of this deposit; and was afterwards, as is said, prosecuted and convicted of the crime of embezzlement and sent to the penitentiary.
    The defense was that the money was received by Hubbard in his private capacity and not as cashier of the bank, and that he made use of the money himself and that the bank is not responsible. The jury found for the defendant in error and the court overruled the motion for a new trial and entered judgment on the verdict. To reverse this judgment this writ of error is brought.
    Messrs. Gbieb & Dbydbit and Kjbkpatbiok & Alexabdeb^ for plaintiff in error.
    That in making the arrangement with Hubbard, as shown by the instrument executed and delivered to him, plaintiff was.employing Hubbard as his agent for purposes not within the scope of his duties as cashier, admits of no question. The only basis, under the circumstances, upon which Brooks was entitled to recover, was that the money may haVe been received by and mixed with the funds of the bank. And the only evidence to sustain this view is that of Hubbard, whose interest evidently is to reduce the number of crimes he committed to as small a compass as possible. The only persons who witnessed the transaction were Brooks and Hubbard. ’ If the money went into the bank it does seem that it would have appeared somewhere. We show conclusively by the directors whose duty it was and who did, from time to time and repeatedly, count the funds and compare them with the books, that no one of them ever heard of the Brooks money or found any such overplus in the cash. This is alike true of the bookkeeper and the other clerks of the bank. The excuse is that it was on a (e deduct tag ” kept in a drawer. But this deduct tag was frequently referred to, and balances corrected through it, but nothing is ever heard of the Brooks money.
    The agreement to pay or loan the money was not within the scope of the authority of a cashier. In that transaction, as shown on the face of it, Brooks was dealing with Hubbard as an individual, making him his agent for a special purpose, with which he as cashier had nothing to do. U. S. v. Bank of Columbus, 21 How. 356.
    When there is a conflict of evidence, or when the evidence leaves it doubtful which way the jury should find, the instructions should not only be accurate hut clear and perspicuous. Volk v. Roche, 70 Ill. 297; T., W. & W. Ry. Co. v. Moore, 77 Ill. 217; I. C. R. R. Co. v. Hammer, 72 Ill. 347; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; Village of Warren v. Wright, 3 Ill. App. 602; Ruff v. Jarrett, 94 Ill. 475.
    Messrs. Stewart & Stewart, for defendant in error.
    Hubbard, cashier, was the general agent and executive officer of the hank. Ryan v. Dunlap, 17 Ill. 40, 46.
    The money of Brooks being placed in the general funds of the bank and remaining there, the bank is liable therefor. Marine Bank v. Rushmore, 28 Ill. 463, 472; Cushman v. Ill. Starch Co., 79 Ill. 281; Brahm v. Adkins, 77 Ill. 263; Keers v. Calkins, 1 Met. (Ky.) 415.
   Lacey, J.

The certificate of deposit, whatever interpretation may be placed on it, is in wilting, and we are not obliged to resort to uncertain parol testimony to determine its terms. It purports on its face to be an ordinary contract for the general deposit of money with two requests thereunder written: 1st. An order to pay the amount of the money therein named to John Brown on defendant in error’s note held by him, if he would z’eceive it. 2d. In the contingency that Brown would not receive it the plaintiff in error was ordered to loan it out for defendant in error’s use. This certificate was undez'signed by B. T. O. Hubbard, cashier of the bank. By signing the certificate of deposit and accepting the money, the plaintiff in error in substance undez-took to cany out the two orders or requests.

They might have been withdrawn by defendant in error at any time before Brown notified the plaintiff in error of the acceptance of the trust money held by it, and before the money was loaned.

But the plaintiff in error claims that this undertaking of the cashier in the name of the bank was ultra vvres, both as to it and his duties as cashier. That inasmuch as he exceeded his authority to act for the bank and the latter’s power under the charter, the entire ti'ansaetion should be regarded as though Hubbard had taken the money into his own hands on his individual account and had agreed with the .defendant in erz’or to caz'ry out the z-equests of the wznting without reference to plaintiff in error. Unless this contention of plaintiff in error can be legally sanctioned the theory of the defense entirely fails.

. Let us inquire, then, whether the cashier has so far exceeded his powers and those of the bank as to render the accepting of the defendant in ez’ror’s money on behalf of the plaintiff in ezTor entirely void as a contzuct with the bank.

The 5th section of the Hational Banking Law of June 3, 1864, under which the plaintiff in error was organized, gives power to the board of directors to appoint,, among other officers, a cashier, and define his duties. The 7th section author-. izes all banks organized under the act, by its board of direct-oi-S' or duly authorized officers or agents, to exercise, “subject to law, all such incidental powers as shall be necessary to canyon the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt, by receiving deposits, by buying and selling exchange, coin and bullion, by loaning money on personal security, and by obtaining, issuing and circulating notes according to the provisions of this title.” The cashier is the executive officer of the bank and transacts most of its business. His acts, to be binding upon the bank, must be done within the ordinary course of his duties, and when so done it is prima facie evidence that they fall within the scope of his duty. Ho proof of an authorization of the board of directors is required. Fletcher v. Bank U. S., 8 Wheat. 338. Some of his duties are to keep all the funds of the bank, its notes, bills and other choses in action, to draw checks, to withdraw the funds of the bank where they have been deposited, receive deposits and issue certificates of deposit, and such certificates only require the signature of the cashier. Barnes v. Ontario Bank, Smith, (N. Y.) 1520 When money is deposited in a bank generally, it is the property of the bank, and can not be paid out without the order of the depositor. Carroll v. Cone, 40 Barb. 220.

The cashier had the power to receive for the bank the defendant in error’s money on general deposit and the terms of the certificate show that he did so receive it.

• The identical money was not to be kept separate, only the same amount was ordered to be paid out to John Brown, or loaned in case John Brown would not receive it. The money was paid over to the cashier at the counter of the bank by defendant in error, and was received for the bank as the certificate shows. This much of,the transaction was not outside of the ordinary duties of the cashier or ultra vires as to the bank, and it was certainly for its benefit to receive the deposit, nor was it ultra vi/res to accept the money to be paid to John Brown in case Brown wanted it. For both the receiving and the paying out of the money were within the ordinary duties of the cashier, and it could make no difference whether the defendant in error gave the order to pay it out at the time the deposit was made or afterward. If there was anything the bank was not able to do it was to loan the money on defendant in error’s account. If the bank was unwilling to proceed to loan the money in case such remote contingency arose, it had only to notify the defendant in error and pay the money back to him or on his order. Ho liability could attach to the bank on account of the failure to loan the money under the contract. That portion of the undertaking would alone be void. Authority supporting this view is found in the case of the Bank of the U. S. v. Dunn, 6 Pet. 51.

Dunn was about to become the indorser of a promissory note, whereupon the president and cashier of the bank represented to him that he would never be called upon to pay it; that the bank had a deposit of collateral stock of another bank, left by the principal maker of the note as security, and that his signature was a mere matter of form. On the faith of such representations he signed the note. This defense was excluded by the court below, and on appeal to the .Supreme Court of the United States that court held it was properly excluded and affirmed the judgment • against Dunn on his indorsement. The court in passing on the point said “that the most decisive objection was that the agreement was made with persons who had no power to bind the bank. It is not the duty of the cashier and president to make such contracts, nor have they the power to bind the bank except in their ordinary duties.

“All discounts are made under the authority of the d'rectors, and it is for them to fix any conditions that-may be proper in loaning money. * * * The assurances relied upon, if made, were not made by persons authorized to make them. The bank is not bound by them, nor would it be bound if the assurances had been made in so specific and direct a manner as to create a personal responsibility on the part of the cashier and president.”

It will be observed in the above case that the court held that portion of the contract good that came within the power of the president and cashier to make, to-wit, the taking of an unconditional indorsement from Dunn. That portion done without power which was in favor of Dunn was rejected.

So here, the plaintiff in error’s cashier was fully authorized to take deposits for the bank, but in attaching a stipulation to it that he was not authorized to make, such condition would be void, but the contract to repay in such cases implied from the fact of deposit would be good as to his principal. The defendant in error, as appears from the certificate, was willing to trust the plaintiff in error with his money but not the cashier individually.

The case of the United States v. The City Bank of Columbus, Ohio, 21 How. 356, is not in point or parallel to the case at bar. There the cashier of the bank sent a letter to Thos. Corwin, the treasurer of the United States, stating that the bearer, Col. Win. Minor, a director of the bank, was authorized on behalf of the bank to contract with the government for the transfer of money from the east to the south and west. The letter being presented by Minor to Corwin, the latter contracted with him in behalf of the bank to receive $100,000 and transfer it from Hew York to Hew Orleans free, and gave Minor a draft on the United States treasury in Hew York City for that sum. Minor gave his receipt for it, drew the money and never showed up with it. The United States sued the bank. The court below instructed the jury in favor of the bank and on appeal the Supreme Court sustained the instruction, and it was held that, as the cashier had no authority from the board of directors, he could not appoint Minor to enter into such a compact or go to Washington and receive the money to transfer it to Hew Orleans.

But suppose Corwin had paid this money over the counter of the bank to the cashier and taken a certificate of deposit with an agreement that the bank should transfer it to Hew Orleans free of cost, would not the bank have been liable for the amount in case the cashier had absconded with the money? The cashier can not delegate his authority to any other person to receive money on deposit for the bank, much less send a messenger out of the State to receive it without authority from the directors.

The case of Bushnell v. The C. C. Ntl. Bank, 10 Hun, 378, seems to be quite in point. Bushnell and one Shaw entered into a contract for the sale and delivery of 10.000 barrels of crude petroleum, September 24, 1874, at a stipulated price, to be delivered to Shaw at buyer’s option any time from that date to December 31, 1874. The cashier indorsed the following agreement on the contract: “September 26, 1874, T. A. Shaw has this day deposited in the Chautauqua County Hational Bank of Jamestown, New York, $2,500, which is to be held by us as security for the faithful fulfilment of the within contract.” Signed by the cashier.

This contract was then delivered to Bushnell. Shaw losing on the deal to the amount of the deposit, and the bank refusing to pay according to agreement, Bushnell brought suit, and failing in the court below, an appeal was taken to the fourth judicial department of the general term of the Supreme Court, which reversed the judgment of the court below.

The defendant set up uli/ra vires as against the plaintiff. The court by Judge Smith, held that the “ bank impliedly promised that in case Shaw failed to perform, the bank would pay to the plaintiff in damages thereby incurred, $2,500.” “ The bank had power to receive the deposit. As an incident to that power, it had authority to assent to any terms or conditions respecting the use or disposal of the money deposited which the depositor saw fit to impose, provided they were not illegal or prohibited by defendant’s charter. If Shaw had chosen to deposit it payable absolutely to plaintiff or his order, the receipt of it by the bank and the issuing of a certificate in accordance with thqse terms would have been strictly within its legitimate and ordinary business.” The court held “that it could make no difference that the deposit was payable to the plaintiff upon the happening of a future contingent event and that the amount to be paid was contingent and uncertain; * * * but was not to exceed the amount of the deposit.” “It is said there was a trust created. In the same sense there is a trust in case of every bank deposit by one person to the use of another.”

The instructions in the case at bar given for the defendant in error, complained of, commence with the hypothesis that “if the jury believe, from a preponderance of the evidence, that defendant in error deposited in the First National Bank the sum of $800 * * * and if this was mingled with the money of the bank * * * then defendant in error could recover in this suit even if the cashier had taken out a much larger sum of money.”

If the money, as the instructions suppose, was' deposited with the hank and not with the cashier as an individual, the defendant in error has a legal right to recover whether the money was afterward mingled or not. If the first fact of the deposit was true in the manner supposed it would be wholly immaterial whether the last one of mingling was or not. As the certificate shows the money was contracted to be and was put into the bcmk by the cashier, who had full authority to receive general deposits, the right of the defendant in error to recover was complete without the further act of mingling such funds with those of the bank. If the plaintiff in error received the money of the defendant in error on general deposit through its cashier, and also by its cashier mingled it with the general funds of the bank, from that moment the latter became the debtor of the former, which might by the terms of the certificate of deposit be discharged by paying the money to John Brown, or by loaning it out for the use of defendant in error. If the bank saw proper it might also discharge such debt by loaning it as required by the terms of the certificate, though it could not be compelled by law to do so, but if Brown would not receive the money and the plaintiff in error would not loan it, the liability to repay the same amount of money to defendant in error or on his order or direction became fixed, and the debt could not be discharged by reason of the embezzling of the funds of the bank by its cashier to a greater amount than the deposit. If the deposit had been made with the cashier as an individual and not as the legally authorized officer of the bank such a defense would be possible, but not otherwise. This was not the nature of the transaction. The defendant in error as well as the cashier understood that the transaction was with the bank, and as a strong circumstance showing such intent the money at the time was mingled with the bank’s funds. The undertaking by the bank to loan the money for the use of the defendant in error was not illegal as being against public policy, or immoral, nor was there any express prohibition in its charter against such acts. Even if the plaintiff in error had exceeded its powers by its agreement to loan the money, the act to be done was not immoral or against public policy nor was it even prohibited by its charter and therefore if it had proceeded to the execution of the contract so far as to receive the money in question on deposit to await the opportunity to make the loan or pay it to John Brown, it would be estopped from setting up the plea of ultra mures to defeat recovery for the money so deposited. The very able Judge Allen, of New York, lays down the following rule on the subject:

“When the acts of corporations are spoken "of as ultra mires, it is not intended that they are unlawful or even such as the corporation can not perforin, but merely those which are not within the powers conferred upon the corporation by act of its creation, and are in violation of the trust-reposed in the managing board by the shareholders, that the affairs shall be managed and the funds applied solely for carrying out the objects for which the corporation was created. * * * The plea of ultra mires should not as a general rule prevail, whether interposed for or against a corporation, when it would not advance justice, but on the contrary would accomplish a legal wrong.” Whitney Armes Company v. Barlow et al., 63 N. Y. 62. In the above case it is laid down as a further rule and as being wel] settled that a corporation can not avail itself of the defense of ultra mires, when' a contract has been, in good faith, fully performed by the other party, and the 'corporation has had the full benefit of the performance and of the contract.” “ If an action can not be brought directly upon the agreement, either equity will grant relief or an action in some other form will prevail.” These rules presuppose that corporations may enter into contracts through their officers and perform them, and the party with whom they contract may perform them, and yet such contracts be without the powers granted, and if the corporation or either party receive a benefit, it or he must make compensation after the contract is performed. But while the contract is executory, it may be repudiated by either party. In the meantime if either party has received a benefit he must make compensation on the principles of natural equity.

Applying these rules to the facts of this case, we find that the instructions presuppose that the cashier received the money in question on behalf of the bank from defendant in error as a general deposit and mingled it with the money of the bank, and that it became a part of the funds of the bank indistinguishable from any other funds. If the agreement to loan the money was ultra vires either party to the contract might repudiate that part of it before the money was paid out or loaned under the agreement. If paid out or loaned the bank could recover the usual compensation for its services notwithstanding the acts performed might have been beyond its powers; on the other hand defendant in error may recover from the bank the money received by it. The obligation based alone on the grounds of estoppel arose as soon as the money was received on deposit.and much more -when mingled with the funds of the bank. It became a debt due from the bank which the law would not allow it to deny and a cause of action arose after demand and refusal to pay. The cashier by authority of the directors .had possession of all the bank’s funds, not the money in question alone, but all; and he fraudulently appropriated a large amount of its cash capntal to his own use, and much more than the amount of this deposit. Why should defendant in error be charged with the defalcation any more than any other depositor? Because he authorized appellant to pay John Brown? That could not be, for it was a part of the cashier’s legitimate duties to draw money out of the bank to pay depositors, or the debts of the bank at the order of depositors, regardless of whether the order was made at the time of deposit or afterward; and if in performing this duty the cashier stole the money, the loss should fall on the bank and not the depositor. He was the servant of the bank. After this money was received by the cashier on deposit and much more after it mingled with the' funds of the bank, defendant in error’s claim against it was a chose in action, and not the subject of larceny; therefore the theft by the cashier must be borne by the bank. If it be contended that the bank had no notice that the money so mingled with the funds of the bank was not the money of the cashier and that by reason thereof it has an equitable right to set off the amount of money wrongfully abstracted by the cashier against the deposit of defendant in error, it is answered that the want of notice can not be set up against his equitalfe claim as an estoppel for the reason that it has been put in no worse condition on account of want of notice. The money was not paid out to the cashier supposing the bank owed him. As a matter of fact the bank did not owe him but owed defendant in error and the want of notice if there was such want, which is not admitted, had no effect to -cause the larceny. The plaintiff in error is in no worse condition on the account of the want of notice. The bank, howe\rer, is held to notice where the cashier receives the money by virtue ,of his authority as cashier, as here.

What is said here is said in reference to the form of the instructions complained of and to show that they are not erroneous. As there was no serious contradiction as to the proof it is not necessary to discuss it further than to say it justifies the verdict. The judgment in the opinion of a majority of the court should be affirmed and it is accordingly done.

Judgment affirmed.

Dissenting opinion by

Welch, J.

I do not concur in the reasoning or the conclusion reached by my brethren in this case. The 8th section of the act of Congress under which national banks are organized, makes them banking corporations with “ all such incidental' powers as shall be necessary to carry on the business of banking by discounting and negotiating promissory notes, drafts, bills of exchange, or other evidence of debt; by receiving deposits; by buying and selling exchange, coin and bullion; by loaning money on personal security; and by obtaining, issuing and circulating notes according to the provisions of the act.” The powers of national banks, being enumerated in the act of Congress by which they are created, the expressio unius est exelusio alteriusxi applied in the interpretation of this act would prohibit national banks from entering into such a contract as that claimed to have been entered into in this case.

The deposits referred to in the act are deposits of money received by banks in the usual course of business and have none of the qualities of a bailment. The money deposited becomes the money of the banks and the relation of debtor and creditor is created between the depositor and the bank.” Whitney v. First National Bank of Brattleboro, 50 Vt. 398; same rule announced in Wiley v. First National Bank of Brattleboro, 47 Vt. 546; First National Bank v. Ocean National Bank, 60 N. Y. 278; Wickler v. First National Bank, 42 Ind. 581.

Angel! & Ames on Corporations, 256, says: “ In deciding whether a corporation can make a particular contract, we are to consider in the first place whether its charter or some statute binding upon it forbids or permits it to make such a contract; and if they are silent upon the subject, in the second place, whether the power to make such a contract may not be implied on the part of the corporation as directly or incidentally necessary to enable it to fulfil the purposes of its existence, or whether the contract is entirely foreign to that purpose.”

The contract, if any, between the plaintiff in error and the defendant in error, is based upon this paper :

u Deposited with the First National Bank by Wm. H. Brooks.

Monmouth, Ill., June 2, 1883.

Currency — $800. To be indorsed on his note held by John Brown, or loaned for his use in case Brown won’t receive said money.

B. T. O. Hubbard, Ce.”

Judge Wayne, in United States v. City Bank of Columbus, 21 How. (U. S.) 356, says °. “ The court defines the cashier of the bank to be an executive officer, by whom its debts are received and paid, and its securities taken and transferred, and that his acts, to be binding upon a bank, must be done within the ordinary course of his duties. His ordinary duties are to keep all the funds of the bank, its notes, bills and other choses in action, to be used from time to time for the ordinary and extraordinary exigencies of the bank. He usually receives directly, or through the subordinate officers of the bank, all the money and notes of the bank; delivers up all discounted notes and other securities when they have been paid; draws checks to withdraw the funds of the bank when they have been deposited, as the executive officer of the bank, transacts most of its business.” After this summary of the duties and powers of the cashier, the same Judge says, “ that he may not make any eontraot involving the payment of money not loa/ned i/n the usual or eustO'inary way, or purchase or sell property, or create an agency of any bind for the bank unless expressly authorized by those to whom it has been confided to manage the business of the bank, both ordinary and extraordinary.” The same rule as to the limits of the authority of bank officers, to bind the corporation to acts and contracts within the ordinary sphere of their duties and the scope of the ordinary business, is announced in the following cases: Minor v. Mechanics Bank of Alexandria, 1 Pet. 46-70 ; Flickner v. Bank of United States, 8 Wheat. 338; Fulton Bank v. New York and Sharon Canal Co., 4 Paige, 127. Under the rule announced in the authorities, supra, had Hubbard, as the cashier of the bank, authority to receive for the bank money on the terms stated in said paper, and to bind the bank therefor ? as said in Whitney v. First National Bank of Brattleboro, 50 Vt., supra: “The deposits referred to in the act are deposits of money received by banks in the usual course of business, and have none of the qualities of a bailment. The money deposited becomes the money of the bank, and the relation of debtor and creditor is created between the depositor and the bank ; ” same rule announced in Commercial Bank of Albany v. Hughes, 17 Wend. 94; Maine Bank v. Fulton Bank, 2 Wall. 252. This is the character of deposit which by the National Bank Act, supra, the plaintiff in error was authorized to receive, and in receiving such a deposit the cashier would be acting within the scope of his authority and the bank by his act .would become a debtor to the depositor. Does the paper-signed by Hubbard, supra, show the reception by him of such a deposit for the bank? In my opinion the alleged contract is entirely foreign to the purpose of the plaintiff in error corporation, and is ultra vires and imposed no duty or obligation upon the bank. Bullard v. Banks, 18 Wall. 385; Hood v. Armory, 2 Cr. 107. The defendant in error in depositing his money with Hubbard was under the law required to know whether he had authority as cashier of plaintiff in error to receive it on the terms fixed by him, and, as I think I have shown, that no such authority existed. The money must have been left with Hubbard as his agent, and not deposited with the plaintiff in error. This view is sustained by Hubbard, who says: “ Brooks came to me and gave me the money and requested me to pay it to Deacon Brown, and in case Deacon Brown would not receive it to loan it out for him. It was a personal request to me.” Brooks and Hubbard both seemed to realize that Hubbard had no authority to receive it for the bank on such terms. It was a “ personal request ” to Hubbard to make the application of the money. If Hubbard, as the cashier of plaintiff in error, was not acting in the limit of his duty as such cashier when he received the money from Brooks, then he received the money as the agent of Brooks. Man. Co. v. Lydig, 4 I. R. 377; Satislee v. Grant, 1 Wend. 272; Thatcher v. Bank of N. Y., 5 Sandford, 121 ; Lloyd v. Bank, 3 Harris (Pa.) 175 ; Lithbridge v. Phillips, 2 Stark. 544. Even if it should be conceded, which I do not, that the plaintiff in error could receive money on the terms stated in the paper signed by Hubbard, sufra, that would make it a gratuitous undertaking, and as such it would only be responsible for gross negligence. Wharton on Negligence, Sec. 47.); Edson v. Weston, 7 Con. 278 ; Beardsly v. Richardson, 11 Wend. 25: Sandusky v. McFarland, 3 Dana, 204.

I hold that no liability on the part of plaintiff in error was incurred on the paper given by Hubbard to the defendant in error. Has anything transpired since to create a liability on the part of plaintiff in error to the defendant, in error? Hubbard states: “ I did not pay it to Deacon Brown, I did not loan it for Brooks, 1 put it in the general funds of the bank. It was kept with some other items on a little memorandum paper I kept in the drawer, called a £ deduct tag,’ in the cash drawer for accommodation. It was so I could pay it to Deacon Brown when he called for it.” There was no entry made upon the bank books of this money, if there had been it should have been placed to the credit of Hubbard, it having been left with him to pay to Brown or loan for Brooks. If it had been placed to the credit of Brooks it would have required the check of Brooks to have used it. What was written on the “ deduct tag ” in reference to this money we do not know. It is certain there was nothing written upon it which would have prevented Hubbard from at any time withdrawing the money. It was not placed to his credit on the boobs so that his check would have been necessary to withdraw it. It was not placed to the credit of Brooks so that his check would have been necessary to withdraw it. The evidence of the directors of the plaintiff in error shows that they did from time to time and repeatedly count the funds and compare them with the books; that no one of them ever heard of the Brooks money or found any such overplus in the cash; that on some occasions balances were corrected through “ deduct tags,” but nothing is known of the Brooks money. Hubbard states the “deduct tag” was left there; no one else connected with the bank remembers to have seen it or knows what became of it. The only-basis on which Brooks was entitled to recover was that the money was received from Hubbard and mixed with the funds of the bank and was never withdrawn from the bank by him or by his authority.

Various errors are assigned as to the giving, refusing and modifying of instructions.

The instructions given for the defendant in error authorized the jury to find for the defendant in error, although the jury might believe that Hubbard took from the funds of the bank a much larger amount of money than claimed in this case. In my view the evidence conclusively shows that Hub: bard had not only withdrawn the money left by Brooks with him, if it was ever mixed with the funds of the bank, but also had withdrawn all of the money of the bank. Yet under the instructions for defendant in error the jury were authorized to find for defendant in error. This notwithstanding Hubbard says “ I so placed it that I could withdraw it.” He must have exercised that right to withdraw it, for he left no money in the bank when he left it. In the view I take of this case, the instructions given for the defendant in error should not have been given, and the instructions given for plaintiff in error should have been given without modification.


author: Welch, J.

text:
    City of Joliet v. Michael Meaghan.

      Municipal Corporations — Defective Sidewallc- — Action for Personal Injury — Liability of Defendant, Denied.

    1. A municipal corporation is not an insurer against accidents to individuals upon its sidewalks, but is only bound to exercise reasonable diligence in keeping them in a reasonably safe condition.
    2. In an action against a municipal corporation to recover damages for an injury resulting from a defective sidewalk, this court reverses a judgment for the plaintiff on the ground that the verdict is contrary to the law and evidence.
    [Opinion filed January 15, 1887.]
    Appeal from the Circuit Court of "Will County; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Olin & Phelps, for appellant.
    Mr. C. "W. Brown, for appellee.
   Welch, J.

This was an action brought by the appellee to recover damages from the appellant for injuries claimed to have been caused by the negligence of the appellant.

The declaration contains three counts. The first “ avers that on June 23, A. D. 1882, the defendant had control of Ottawa Street, in said city of Joliet, but wrongfully and negligently suffered the sidewalk there to be and remain in bad and unsafe condition, and divers of the planks thereof to be and remain broken and unfastened, by means whereof the plaintiff, who was then and there passing along and upon said sidewalk, then and there necessarily and unavoidably tripped and stumbled upon and against one of said broken and unfastened planks of said sidewalk, and was thereby thrown and fell, injuring his right knee.” Second count avers that defendant was incorporated, and under its charter had the right to build and keep in repair sidewalks along its streets; that prior to said 23d day of June, 1882, under its charter it took possession and control of the sidewalk on the east side of said Ottawa Street; and on June 23, 1882, a plank, a part of said sidewalk, was so loosely lying as to make it dangerous for persons to pass along and upon such sidewalk and that defendant well knowing the premises, while it had the care and control of such street and while the sidewalk was out of repair, then and there carelessly and wrongfully suffered and permitted the sidewalk to be and to continue, and the same was out of repair, and on June 23d plaintiff was passing along such sidewalk with ordinary care, and was then and there necessarily and unavoidably thrown down by the raising of the loose plank aforesaid, and fell, greatly bruising and wounding his right knee, etc.”

Third count avers that said sidewalk was out of repair, several of the boards thereof being loose, and not properly fastened to the stringers of the same; that defendant knowing the same and having control of said street, carelessly permitted the sidewalk to be and continue, and the same was out of repair, by means whereof the plaintiff, who was passing along and over the said sidewalk exercising ordinary care, was caught and tripped by the raising of one end of a loose and improperly fastened board, the other end of the same board having been stepped on by another person passing along the sidewalk with ordinary care, and thereby the plaintiff was thrown upon the ground and bis right knee injured, etc.” Plea of not guilty. Trial, verdict for plaintiff for the sum of $400. Motion for new trial; motion overruled and judgment on verdict for the sum of $400 and costs. From which this appeal is taken. Various errors are assigned.

In the view we take of this case we do not deem it necessary to notice but the tenth and eleventh assignments of error. The tenth states that the verdict is contrary to the evidence. The eleventh states that the verdict is contrary to the law. We shall treat these assignments as being one — that the verdict is contrary to the law and the evidence.

A municipal corporation is not an insurer against accidents to individuals upon its streets or sidewalks, nor is it liable for any defect therein, though such defect may be the cause of the injury complained of. It is only bound to exercise reasonable diligence in keeping its streets and sidewalks in a reasonably safe condition.” The gravamen of the charge in each of said counts is that the sidewalk on which the appellee fell and was injured was out of repair, several of the boards being loose and not properly fastened to the stringers of the same; that appellant, knowing the same and having control of the same, carelessly permitted the sidewalk to be and continue out of repair, by means whereof the appellee, whilst passing over the said sidewalk exercising ordinary care, was caught and tripped by the raising of one end of a loose and improperly fastened board, etc. Under the law, before the appellant could be held liable appellee was required to prove, by a preponderance of the evidence, that the sidewalk was in the condition as stated by him in some one of the counts of his declaration, and that the appellant had knowledge of such condition, actual or constructive, and suffered and permitted the same to continue and remain out of repair. We have carefully examined the evidence in this record, and we have been unable to find any evidence tending to show actual notice to the appellant; nor were such facts shown from which notice could be inferred; nor that the officers of the appellant, by the exercise of ordinary diligence, could have known that the sidewalk was in the condition as claimed. The evidence as to loose planks having been seen by Moore and appellee on a previous occasion, was as follows: Moore states that the planks he saw loose he threw out, but that they were replaced t-he same day and fastened. Appellee states that on the occasion that he saw the loose board, that it was replaced the same day. The point where the appellee fell was not at the point in the walk where the planks had been thrown out by them-Mr. High, who built the walk, and before whose gate appellee fell, states that the walk was well and substantially built; that it was in a reasonably good condition; that he examined the walk frequently, and whenever he saw a loose board he spiked it down; that the walk was in front of his house and he passed over it frequently, and that it had been in a reasonably safe condition all the time. The condition of the walk as described by Cunningham is of a character too indefinite and uncertain as to time to furnish any information as to its condition when appellee received his injury.

Egan’s evidence is in regard to the condition of the sidewalk in the summer of 1883, over a year after the injury to appellee; specific objection having been made to his evidence on this ground, the objection should have been sustained. The only times fixed with any definiteness of any loose planks in said sidewalk is by Moore, appellee and Mr. High. Moore and appellee each say the planks were replaced on the same day; they saw them loose and thrown out, and Mr. High states that he always replaced and spiked the planks when they were out or loose; that he watched the condition of the walk, and that it was good. The planks that are shown to have been loose and thrown out could not have been more promptly replaced than they were, as shown by Moore, appellee and Mr. High. In the view we take of the evidence in this case, and under the law, no recovery can be sustained in favor of the appellee.

Judgment reversed.