text:
    William C. Buchanan v. Josiah O. Low.
    Cobpobation—Liability of officebs.—The liability, of directors and officers of corporations, for indebtedness in excess of the capital stock, imposed by the general corporation law, is to the creditors as a whole, and not to any individual creditor for his debt, and such liability can only be enforced in chancery.
    Appeal from the Circuit Court of St. Clair county, the Hon. William H. Sntdeb, Judge, presiding.
    Mr. Charles W. Thomas, for appellant;
    that the general incorporation act does not affect corporations existing before its passage, cited Rev. Stat. Chap. 32, §§ 16, 49; Chap. 131, §§ 1, 6; Gross’ Stat. 1871, Chap. 25, § 110.
    The charter of a private corporation is a contract: Donworth v. Coolbaugh, 5 Clark, 300; Ireland v. Palestine, etc. Co. 19 Ohio St. 369.
    An action at law will not lie: McRae v. Locke, 114 Mass. 96; Horner v. Herring, 93 U. S. 228; Turpin v. Haines, 10 Chicago Legal News, 74
    Mr. Thomas G. Allen, for appellee;
    that an action at law would lie, cited Sangamon Co. v. City of Springfield, 63 Ill. 66; Chitty’s Pl. 106; Culver v. Third Nat. Bank, 64 Ill. 528; Dazier v. Thornton, 19 Ga. 325; Butler v. Walker, 80 Ill. 345; Pollard v. Bailey, 20 Wall. 525; Corning v. Hosner et al. 1 Comst. 58; Bullard v. Bell, 1 Mason, 243; Burr v. Wilcox, 22 N. Y. 557; Paine v. Stewart, 33 Conn. 516; Norris v. Johnson, 34 Md. 485; Bassett v. St. Albans, 47 Vt. 313.
    As to the constitutionality of the statute: Cooley’s Con. Lim. 375; O. &. M. R. R. Co. v. McClellan, 25 Ill. 140; G. & C. U. R. R. Co. v. Appleby, 28 Ill. 283; C. R. I. & P. R. R. Co. v. Reidy, 66 Ill. 43.
    Liability of others with defendant "should have been pleaded in abatement: Lurton v. Gilliam et al. 1 Scam. 577; 1 Chitty’s Pl. 46; Puschel v. Hoover et al. 16 Ill. 340; Ziele v. Ex’rs of Campbell, 2 John’s. Cas. 382; Rev. Stat. 93.
    The record admissions of a party are an estoppel, and he cannot introduce evidence to rebut them: 1 Greenl’f’s Ev. §§ 22, 186, 205; Stribling v. Prettyman, 57 Ill. 371; Hensoldt v. Town of Petersburg, 63 Ill. 141.
   Baker, J.

In this case we are of the opinion that the Circuit Court erred in overruling the appellant’s motion in arrest of judgment.

The judgment of the Circuit Court is reversed, and a judgment entered in this court in favor of appellant and against appellee for costs of suit.

Our reasons for reversing this judgment are the same as those set forth in an opinión filed at this term in the case of William C. Buchanan v. Bartow Iron Company. [Ante p. 191.]

Judgment reversed.

Tanner, P. J., dissenting.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    First National Bank of Olney v. Cope Brothers et al.
    Appeal—Decree rendered in vacation not einal.—This court has jurisdiction only in matters of appeal or writs of error from final judgments, orders or decrees. A decree filed in vacation, in the absence of any stipulation of the parties that such decree shall be final, is not such a final decree as may be appealed from.
    Appeal from the Circuit Court of Eichland county; the Hon. • John H. Halley, Judge, presiding.
    Messrs. Canby & Ekey, for appellant.
    Mr. J. M. Longenecker, for appellees.
   Baker, J.

Cope Brothers filed a bill to the Rovember term, 1877, of the Richland Circuit Court, for the purpose of enforcing a mechanic’s lien on a certain lot and premises described therein, and made William Ratcliff and the First Rational Bank of Olney parties defendant to said bill. Edward S. Wilson et al. also filed a bill against the same parties for a similar lien, and the two cases were, by order of the court, consolidated. Afterward K. D. Horrall, Prunty and J oily and Gf. Gad-dis & Co. were severally allowed to interplead, and they filed intervening petitions praying for liens for the respective amounts claimed by them to be due for material and labor on the same building and premises described in the two bills above mentioned. At the Rovember term of court the First Rational Bank of Olney answered the said several bills and petitions, and filed a cross-bill for a vendors’ lien on said lot, making said Ratcliff and all of the- several complainants and petitioners above mentioned defendants to said cross-bill. This cross-bill was answered and replications were filed.

At the said term of court the following order was made and entered of record in the consolidated cause, to wit:

“ On motion it is ordered that this cause be referred to A. Y. Miller, a special master, to take testimony and report to this court, and this cause to be submitted at Jasper Circuit Court, and decree entered as of this term.”

Testimony was taken in vacation before said special master, and his report thereof was filed in the clerk’s office on the 6th day of December, 1877.

Afterward, and in vacation, the court rendered a decree in the case, which was filed December 10, 1877, in the clerk’s office, and it does not appear from .recitals in the decree, or otherwise, that the First Rational Bank was present when said cause was submitted, or when said decree was announced or filed.

On the 19th day of December, 1877, arid also in vacation, a supplemental order was filed in the clerk’s office, reciting that the aforesaid decree had been rendered after term time, and entered as of the said term, and that neither the said First Rational Bank nor its attorney was present at the time of the rendition of the decree, and thereupon granting an appeal to said Bank upon its filing bond in the sum of $3,000, within thirty-days. The Bank'filed the required bond, and brings the record to this court.

In this state of the record it is only necessary to refer to one point in the case. This court has jurisdiction only in matters of appeal or writs of error from final judgments, orders or decrees. The decree filed in this case in vacation is not a final decree. The forty-seventh section of the thirty-seventh chapter of the Revised Statutes of 1874, page 332, provides that when a cause or matter is decided in vacation, the judgment, decree or order therein may be entered of record in vacation, but such judgment, decree or order may, for good cause shown, be set aside or modified or excepted to at the next term of the court, upon motion filed on or before the second day of the term, of which motion the opposite party or his attorney shall have reasonable notice, and that if not so set aside or modified it shall thereupon become final; and the section of the statute immediately following provides that if it is stipulated of record that a decree, judgment or order so entered of record in vacation shall be final, then such, judgment, decree or order shall have the same force and effect as if it had been entered at the term preceding the time it is entered, subject to the right of appeal or writ of error.

In the case under consideration there- was no such stipulation entered of record as is contemplated by this latter section of the statute, and it therefore follows that the decree filed in said cause in vacation is not a final decree; upon notice being given and motion filed in the Richland Circuit Court on or before the second ■ day of the next term, it may be set aside or modified.

As the decree in question is not final, no appeal lies from it to this court, and consequently the appeal herein must be dismissed at the cost of the appellant.

Appeal dismissed.


author: Allen, J.

text:
    Madison M. Knight v. Malinda Knight et al.
    1. Forcible entry and detainer—Possession.—The plaintiff being in lawful possession of the premises, either as tenant by sufferance or otherwise, the entry of defendants was unlawful if made against the will of the plaintiff, or by force, and the action of forcible entry and detainer will lie to oust them.
    2. Abandonment.—The removal, by plaintiff, of his goods from the rooms, is not of itself an abandonment of possession, and dedaring his purpose to fit them up for rent, and talking about renting them is a sufficient indication of his intention to retain control over them, to contradict the theory of abandonment.
    3. Legal title not in issue.—The question, in whom is the legal title to the premises, is one which the court cannot try in this suit.
    Error to the Circuit Court of Wayne county; the Hon. Tazewell B. Tanner, Judge, presiding.
    Mr. James McCartney, for plaintiff in error;
    that the plaintiff, being in possession the defendants could not enter without being liable for forcible entry and detainer, cited Reeder v. Purdy, 41 Ill. 280;. Smith v. Hoag, 45 Ill. 250; Farwell v. Warren, 51 Ill. 467; Allen v. Tobias et al. 77 Ill. 169; Cook v. Rider, 16 Pick. 186; The People v. Field, 52 Barb. 198; 1 Hawkins’ Pleas, 501, § 26; Haley v. Palmer, 9 Dana, 321; Davidson v. Phillips, 9 Yerg. 93.
    Possession of the house was possession of all the rooms: Huftalin v. Misner, 70 Ill. 55; Broomfield v. Reynolds, 4 Bibb. 388; Chiles et al. v. Stephens, 3 A. K. Marsh. 117.
    Bemoving the furniture and locking up the house for repairs, is not an abandonment: 4 Comyn’s Dig. 353; Kercheval v. Ambler, 4 Dana, 166; Hoffstetter v. Blattner, 8 Mo. 276; Minturn v. Burr, 16 Cal. 107; Evill v. Conwell, 2 Blackf. 133; Jarvis v. Hamilton, 19 Wis. 187; Ainsworth v. Barry, 35 Wis. 136; 6 U. S. Dig. 325.
    If possession was taken by force, plaintiff may recover whether defendant had a right to enter or not: Rev. Stat. 1874, 535, § 1.
    Messrs. Robinson, Boggs & Johns, for defendants in error;
    that this action will not lie if the premises were vacant at the time of defendant’s entry, cited Rev. Stat. 1874, Chap. 57, § 2; Reeder v. Purdy, 41 Ill. 280; Dean v. Comstock, 32 Ill. 173.
    Ownership of the fee draws to it the legal possession unless there he actual adverse possession: Halligan v. C. & R. I. R. R. Co. 15 Ill. 558.
    The plaintiff must have actual possession of the rooms in question: McCartney v. McMullen, 38 Ill. 237.
   Allen, J.

This was an action of forcible entry and detainer brought by plaintiff against defendant, before a justice of the peace, to. recover certain rooms of a house on lot ¡No. 21, in Fair-field, 111. A trial was had before the justice of the peace, and an appeal to the Circuit Court. At the March term of that court, a jury was waived, and the evidence in the cause was heard by the court. Judgment for defendants for costs, and plaintiff brings the cause to this court on writ of error.

The evidence tends to show that the title to the lot, on which the house stands, was in the wife of plaintiff, and that plaintiff and wife occupied the house (except one year when it was rented). That at the expiration of that year they again took possession and retained, it until death of plaintiff’s wife, which occurred in the year 1871. That plaintiff continued in possession of the rooms in controversy (the remainder of the house being rented and in possession of a tenant of plaintiff) until Saturday, the 1st day of July, 1876, when plaintiff, for the purpose of having the rooms fitted up for rent, took out his household goods, locked the door, and put the key in his pocket, gave the tenant occupying the remainder of the house directions to look after the rooms or see to them.

That on the following Monday morning, between daylight and sun-up, defendants came to the house, forced up one of the windows, gained an entrance through the window and took the locks off the doors, and have since kept possession of the rooms.

That wife of plaintiff left no issue by her marriage with plaintiff. That by a former marriage she had one son, who died, leaving defendant, Malinda Knight, his widow, and defendant, Mary A. Gash, and her sister Lucretia, his daughters.

That plaintiff claims no title in the premises, in fee, but that his deceased wife, before her death, requested him to settle up her estate, collect outstanding debts, pay what she owed, and then sell the house and lot, and divide the proceeds between himself and her two grand-daughters equally; and that in pursuance of her directions he proceeded to collect and pay out, but that owing to his inability to collect outstanding debts, he has not been able to settle up her i estate, and that, in pursuance of her request, he had retained possession and control of the property in question.

The question: In whom is the legal title to this property? is' one with which, in this suit, we have nothing to do, as we cannot try the question of title.

If the plaintiff was in the lawful possession, of these rooms, either as a tenant by sufferance, or otherwise, the entry of defendants was unlawful, if against his will, or by force, and this action will lie to oust them. Reeder v. Purdy, 41 Ill. 280; Smith v. Hoag, 45 Ill. 250; Allen v. Tobias et al. 77 Ill. 169.

Defendants claim that plaintiff had abandoned possession of the rooms, and that they had aright to enter on them as vacant and unoccupied.

The mere fact that plaintiff had removed his goods from the rooms was not, of itself, an abandonment of possession; though ordinarily this fact might be so regarded where there was no other circumstances or indicia of his purpose to retain possession; but what aré the facts as they appear in this case?

He locked the door, closed the windows, retained possession of the key, gave his tenant of the other portion of the house directions about exercising oversight over them, declaring his purpose to fit them up for rent, and had been talking with one man about renting them. All these things go to explain his motive in taking his goods from the rooms, and all contradict the theory that he had abandoned possession of and control over them. We believe this was not such an abandonment of possession as gave defendants the right to enter,and ■ we are supported in this view by Comyn’s Digest, Vol. 4, p. 353; Hoffstetter v. Blatter, 8 Mo. 276; Jarvis v. Hamilton, 19 Wis. 187; Ainsworth v. Barnes, 35 Wis.

And for these reasons this cause is reversed and remanded.

¡Reversed and remanded.

Tanner, P. J., did not sit in this cause, having tried the cause in the Circuit Court.


text:
    The County of Richland et al. v. The People ex rel.
    1. Subscription to railroad—Election called by wrong authority.—Where the act authorizing a municipal corporation to make subscriptions in aid of a railroad provides that the election shall be called by the County Court, an election called by a wrong authority, as by the Board of Supervisors, is void and confers no authority to make such subscription. The so-called vote is an idle form, and persons opposed to the subscription are under no obligation to vote against it, because they have a right to regard the entire proceeding as a nullity.
    2. Adoption of township organization—Does not change power. —The fact that upon the adoption of township organization the law requires that acts formerly to be done by the County Court shall be performed by the Board of Supervisors, cannot affect this case, because the enabling act in this case was passed subsequent to the adoption of township organization, and it will be presumed that the Legislature had knowledge of that fact, and intended to confer the power to act upon the County Court instead of upon the Board of Supervisors.
    8. Curative act—Cannot legalize a void election.—The election being void, a subsequent act of the Legislature legalizing the former vote is of no effect. It is the settled doctrine of this State that under the Constitution of 1848, the Legislature had no power to enact a law rendering a void election and subscription for corporate purposes valid.
    4. Effect of curative act—Revocation of power.—At the most the curative act merely granted power to the county to subscribe, but left it optional with the corporate authorities to subscribe or not, as the corporate will sh uld dictate. After the curative act, the Board of Supervisors made no further orders in regard to the subscription until after the present Constitution went into effect. There was, then, no binding contract of subscription, and the subscription already made not being under existing laws by a vote of the people, it was then too late. The power itself was revoked by the Constitution.
    Error to the Circuit Court of Lawrence county; the Hon. James C. Aller, Judge, presiding.
    Hr. E. Wilsor, Hr. J. H. Lorgerecker and Hr. H. Hillard, for plaintiffs in error;
    that statutes granting special powers are to be strictly pursued, cited Harding v. R. R. I. & St. L. R. R. Co. 65 Ill. 90; Schuyler Co. v. The People, 25 Ill. 181; Clarke, v. Hancock Co. 27 Ill. 305; Marshall Co. v. Cook, 38 Ill. 44; Chestnutwood et al. v. Hood et al. 68 Ill. 139.
    , The election was called by the wrong authority and is void: Schuyler Co. v. The People, 25 Ill. 181; Marshall Co. v Cook, 38 Ill. 44; Force et al. v. Batavia, 61 Ill. 99; Clarke v. Hancock Co. 27 Ill. 305; Harding v. R. R. I. & St. L. R. R. Co. 65 Ill. 90; People v. Town of Santa Anna, 67 Ill. 57; People v. Logan Co. 63 Ill. 374.
    The court is bound to take judicial notice that at the time the act was passed the county was under township organization: County of Rock Island v. Steele, 31 Ill. 543; Schuyler Co. v. The People, 25 Ill. 181.
    The election was to be held in the same manner as elections for state and county officers, hence registration was indispensable: People ex rel. v. Town of Santa Anna, 67 Ill. 57; People ex rel. v. Town of Laenna, 67 Ill. 65.
    ¡Notices for the election must be signed by the proper officer: Force et al. v. Batavia, 61 Ill. 99; Harding v. R. R. I. & St. L. R. R. Co. 65 Ill. 90; Marshall v. Silliman, 61 Ill. 218.
    If the first election was a proper exercise of authority, then the power was exhausted, and the subsequent vote wholly unauthorized: Ill. Midland R. R. Co. v. Supervisors, etc. 9 Chicago Legal News, 364.
    The legislature cannot by a subsequent enactment legalize the void election: Marshall v. Silliman, 61 Ill. 218; Wiley v. Silliman, 62 Ill. 170; Town, etc. v. Treas. Iroquois Co. 9 Chicago Legal News, 353; Town of Elmwood v. Marcy, 2 Otto, 289.
    Hor can the county authorities ratify such proceedings, or the taxpayers be estopped: Ryan v. Lynch, 68 Ill. 160; People ex rel. v. Town of Santa Anna, 67 Ill. 57.
    Mr. Fbedeeick Hulmán, for defendant in error;
    That on the change to township organization the board of supervisors were authorized to call the election, cited Prettyman v. Supervisors Tazewell Co. 19 Ill. 406; Marshall Co. v. Cook, 38 Ill. 44.
    An amendment to a statute will be construed as if it had been originally copied into the statute: Holbrook v. Nichol, 36 Ill. 161.
    Mere irregularities in conducting the election will not relieve the county from liability: Hancock Co. v. Clarke, 27 Ill. 305.
    The action of the county was legalized by a subsequent act of the legislature: Cowgill v. Long, 15 Ill. 202; Ryan v. Lynch, 68 Ill. 160; Burr v. Carbondale, 76 Ill. 455.
    Eegistration was unnecessary: People v. P. L. & D. R. R. Co. 63 Ill. 375.
   Baker, J.

In this case is involved the question of the liability of the county of Biehland for an alleged subscription of $150,000 to the capital stock of the G-rayville & Mattoon Bail-road Company; that it is claimed was authorized by a vote of the people of the county at an election held on the 7th day of April, 1868, and made by an order of the Board of Supervisors of the county, on the 11th day of December, 1868.

It is evident that such subscription cannot be sustained under the general act of Hovember 6th, 1849, as under said act subscriptions could not exceed the sum of $100,000: Laws 2nd Sess. 1849, 28.

We. must look, therefore, for power to make said subscription either to the act approved March 1, 1867, amendatory of the act incorporating said railroad company, or to the provisions of the curative act of April 9,1869, P. L. 1867, Yol. 2,736; P. L. 1869, Yol. 2, 360. .

The second section of the act of March 1,1867, is' as follows:

“ Section 2. Cities, towns and counties shall he authorized to subscribe for stock in the said company, in like manner and with like effect as is provided in and by the act entitled An act to provide a general system of railroad corporations, approved November 5, 1849,’ and the several acts amendatory thereof. Provided, that the County Court of any county may, having first submitted the question of subscription to the vote of the people of the county, subscribe for stock in said company, payable in lands, or town or city lots, to be taken upon such terms and conditions, and be conveyed in such manner as the said court and the said company may agree upon, and that the said subscription shall not exceed two hundred thousand dollars; and the said subscription may be made partly payable in lands, and partly payable in money, as the said court and the said company may agree.” '

The body of this section, so far as the county is concerned, did nothing more than to expressly authorize it to do that which it was already fully authorized to do under the general law of 1849. If the section had stopped right there and had contained no further provision or proviso, the Board of Supervisors alone would have been authorized to call the election and the amount voted could not have exceeded $100,000. As the section stands with the proviso, the board of supervisors, and probably they alone, had authority, in so far as any power predicated upon the body of the section is involved, to call an election and subscribe. Prettyman v. Supervisors of Tazewell County, 19 Ill. 406; Supervisors of Marshall Co. v. Cook, 33 Ill. 44. Under the body of this section the powers of the Board of Supervisors were no way changed from what they were under the law of 1849, and they had no more authority to call an election for a subscription of $150,000 under the body of this section than they had under the general law.

We do not understand the proviso to this second section, to confer any additional power or authority whatever upon the Board of Supervisors. A proviso is something engrafted upon a preceding enactment, and .is legitimately used for the purpose of taking special cases out of the general enactments, and providing specially for them. Potter’s Dwarris, 118. Most usually a proviso has the effect of limiting, and not of enlarging the body of the act; but this maybe otherwise. Suppose the legislature had provided in express terms that the Supervisors of their own motion, and without any vote of the people, might subscribe not exceeding $100,000 to the capital stock of a railroad company, and at the same time had attached a proviso to the act providing that in case the proposition to subscribe was first submitted to a vote of the people, then, in the event such subscription was authorized by such vote, the subscription might be for some larger sum. In such a case the evident effect of the proviso would be to enlarge, at least so far as amount is concerned, the body of the act.

So, by the proviso in this section, we understand the body of the act to be enlarged, and the legislature to intend that the County Court, as distinguished from the Board of Supervisors, may submit to the vote of the people a proposition to subscribe for stock in' said company a sum that might be larger than $100,000, but not exceeding $200,000, said subscription to be payable in lands or town or city lots, or partly in lands and partly in money, upon such terms and conditions as the County Court and said company might agree. As to whether the power to call elections and make subscriptions vested in the Board of Supervisors under the act of ■ 1849, and recognized in the body of said second section of the act of 1867, and the power vested in the County Court by the proviso to said second section are cumulative, and might have been concurrently exercised, we are not called upon to determine;

The only power granted to call an election for a subscription in excess of $100,000, is vested by the terms of this proviso in the County Court. At the time that this act was passed the county of Richland was under township organization, and this Court is bound to take judicial notice of that fact. County of Rock Island v. The State Bank, 31 Ill. 343. And it m ust be presumed, also, that the legislature kne'w that fact, and shaped the act of 1867 accordingly. Supervisors of Schuyler Co. v. The People, 25 Ill. 181.

It is provided in this second section that “ the County Court ” having first submitted the question to a vote of the people, might subscribe for stock in said company upon certain terms, “ as the said court and the said company ” might agree upon, and that said subscription might be made partly payable in lands and partly in money,” as the said court and the said company might agree. It is provided in section three of the same act that “ any County Court subscribing for stock in said company shall be authorized to issue bonds in payment for the same, in the name of the county;” and it is provided in section four, that the county clerk shall from year to year extend a tax “sufficient to pay the interest accruing upon the bonds so issued by the County Court.” It is a well settled rule of construction that statutes extending the powers of corporations, or increasing the burdens of taxation, must be strictly construed. Smith’s Com. 818; Chestnutwood v. Hood, 68 Ill. 132.

We think it clear that this case falls within the rule announced in Supervisors of Schuyler Co. v. The People, supra. In that case all the acts required by the two laws then in question were required to be done by the County Court, and they were in fact done by the Board of Supervisors. In this case all the acts required to be done by the proviso to section two, and by the subsequent section, are required to be done by the County Court, and in so far as they have been done at all, have been done by the Board of Supervisors. Tn that case as in this, the legislative enactments were subsequent to the adoption of township organization. In that case it was presumed that the legislature knew that the county had adopted township organization, and that it intended to confer the power upon the County Court instead of the Board of Supervisors. In this case, the same presumptions must prevail.

It is true that, under the law of 1849, the County Court was required to call the election and make the subscription; also that in Prettyman v. Supervisors of Tazewell Co., supra, it was expressly held that the effect of the adoption of township organization by any county, upon this very law of 1849, was to transfer to the Board of Supervisors the duty and power of submitting to the people the question of subscribing for stock in a railroad company; and also that it was decided in the Supervisors of Marshall Co. v. Cook, supra, that an election held under the provisions of the law of 1849, called by the County Court after the county had adopted township organization, was without authority of law, and that a subscription of stock based on such election was absolutely void. But these decisions are based altogether upon the law of 1849, and proceed upon the ground that the fifth clause of the fourth section of article sixteen of the township organization law of 1851, which requires the Board of Supervisors to perform all other unspecified duties not inconsistent with the act, which were required or enjoined upon the county courts by any law of the State, operated as an amendment, pro tanto, to the law of 1849. Gr. 1. 1851, 51. An amendment to a statute will be construed to operate precisely as though it had been originally copied into the statute, so far as regards any action had after the amendment is in force. See Holbrook v. Nichol, 36 Ill. 167. The act now under consideration, and the acts before the court in the Schuyler county case, are alike private acts, and in no proper sense to be regarded as amendments to the general law of 1849. It is suggested that the Prettyman case was decided at the April term, 1858, and the Marshall county case at the April term, 1865, of the Supreme Court, and it is urged that therefore the decisions in said cases enter into the construction of this private act of 1867. Said cases have nothing at all to do with the construction of the proviso now in question, because the principle therein announced has no application here, the premises being essentially different. Chief Justice Catón said, in Schuyler Co. v. The People, “ there has been no subsequent law giving the least color to say that the power has been transferred from the County Court, where it was expressly vested, to the Board of Supervisors.” In the two cases referred to by defendant in error, this element of a subsequent law to transfer the power was present, and was the controlling and efficacious element, while in this case, that element is altogether wanting. It might, with much propriety, be said in answer to the argument of defendant in error in that behalf, that the decision of the court in the Schuyler Co. case, made in 1860, enters into the construction of this act of 1867, and indicates clearly that it was the legislative intent that the County Court and not the Board of Supervisors, should be clothed with the powers thát are now the subject of examination.

This power to submit the question of a subscription in excess of §100,000, and subscribe the same, was vested in express terms in the County Court, and, as we • have seen, the Board of Supervisors had no authority whatever to call an election for a subscription of §150,000. Then the election at issue was called by a wrong authority, and the whole proceeding is void. Clark v. Supervisors of Hancock Co. 27 Ill. 305; Supervisors of Schuyler Co. v. The People, supra; Marshall Co. v. Cook, supra; Force v. Town of Batavia, 61 Ill. 99; Harding v. R. R. I. & St. L. R. R. Co. 65 Ill. 218. The so-called vote was an idle form, and persons opposed to the subscription were under no necessity or obligation to vote against it, because they had a right to regard the entire proceeding as a nullity.

The next point that demands our attention is as to the effect of the third section of the act approved April 9, 1869, upon this alleged subscription. P. L. 1869, Vol. 3, 360. That section is as follows: “ All elections held for the purpose of voting said stock, and the manner in which said stock was voted, are hereby legalized in all respects, and said stock to be subscribed in the manner the same was voted.”

Under the Constitution of 1848, it was entirely competent for the legislature to bestow directly upon the county, and without requiring that there should first be a vote of the people, the power to subscribe for stock in railroad companies. President and Trustees of Town of Keithsburgh v. Frick, 34 Ill. 405. But in such ease the mere granting the power to subscribe would not be a subscription, and the proper corporate authorities would have the election to avail themselves of the power granted, or not, just as they saw fit; and there would be nothing binding upon the county until such corporate authorities had actually made a subscription under the power. It is the settled doctrine in this State, that under the Constitution of 1848, the legislature had no power to pass a law rendering a void election and subscription for corporate or local purposes valid, and thereby compel such corporation to incur a debt against its own wishes for such purposes. See Marshall v. Silliman, 61 Ill. 218, and cases cited therein; Wiley v. Silliman, 62 Ill. 170; Township of Elmwood v. Marcy, 92 U. S. 289; C. & St. L. R. R. Co. v. City of Sparta, 77 Ill. 505.

If we are correct in our conclusion, that the election held on the 7th day of April, 1868, upon the proposition to vote a subscription of $50,000 to the capital stock of the Grayville & Mattoon Bailroad Company, was a nullity, for the reason that said election was called by a body that had no power to call such election, then it follows that the subsequent subscription order, made on the 11th day of December, 1868, by the Board of Supervisors, so far as it was based upon this election, was also a nullity. Such subscription order, in so far as it assumed to subscribe $150,000 to the capital stock of the relator, was made without any legislative authority whatever, either direct or indirect, and was absolutely void.

In April, 1869, the curative act above referred to became a law. If there has been any power or authority in the supervisors to subscribe the $150,000 in controversy, it must be by virtue of the above quoted third section of this act. If said section was self executing, and if its effect was to render valid and binding against the county, without the subsequently expressed assent of the corporate authorities thereof, this void election and void subscription, then said section was a violation of the Constitution. The election and the subscription were both accomplished facts and both nullities, and the legislature could not, without the corporate consent, breathe into them the breath of legality and life, and make them a valid corporate debt. But we do not so interpret this act of 1869. At most, it merely granted power to the county to subscribe, if it even did that, but left it optional with the corporate authorities to subscribe or not, just as the corporate will should dictate.

After the date of this curative act, the board of supervisors made no further orders in regard to this alleged subscription until the 12th day of December, 1871. We have deemed it unnecessary to examine as to the character of the orders made at that date and afterwards. It was then too late for the board to make the county a subscriber to the capital stock of relator for this sum of $150,000 by any order that it might assume to make and enter upon its records.

The present Constitution went in force on the 8th day of August, 1870, and it provided in express terms that no county, city, town, township, or other municipality, should ever become subscriber to the capital stock of any railroad or private corporation, or make donation to or loan its credit in aid of such corporation, except in cases where such subscriptions had been authorized, under existing laws, by a vote of the people of such municipalities prior to the adoption pf said Constitution. At the date this constitutional provision went in force there was no binding contract of subscription, aiid the subscription of the $150,000 was not authorized, as we have seen,

“ under existing laws by a vote of the people.” Jackson Co. v. Brush, 77 Ill. 59; Middleport v. Ætna Life Ins. Co. 82 Ill. 562. It follows, therefore, as a necessary result, that the corporate authorities of the county having failed to exercise the power conferred upon them by the curative act of 1869, until after the Constitution of 1870 went in force, the power itself was revoked by that Constitution.

We are of the opinion that the Circuit Court erred in finding for the relator and awarding the peremptory writ of mandamus, and in rendering judgment against plaintiffs in error for costs. The judgment is reversed and the cause remanded.

Beversed and remanded.

Allen, J., took no part in the decision of this case.


author: Tanner, P. J.

text:
    City of East St. Louis v. James Giblin, Adm’r.
    1. City—Liability fob acts of sebyants—Whetheb sebvant ob contbactob.—If a person is employed by a city, in the character or relation of servant, to remove obstructions from the streets—as cutting down a tree— and by reason of the negligent, careless manner in which the work is done, an injury results, the city would be liable for all damages occasioned thereby: but where the evidence shows that the mayor let the cutting of the tree to one C. for a stipulated sum; that C. employed men to assist him, who were under his control; held, that C. was an independent contractor, and the city was not liable; and the question whether the relation of master and servant ex-sted between the city and him should not have been submitted to the jury.
    2. Mayor—Duty to protect citizens.—It is not the duty of the mayor of a city, by virtue of his office, to see that the lives and property of the citizens are properly protected. The powers and duties of mayor are wholly of an executive nature, and must be conferred or enjoined upon him by legislative enactment or municipal ordinance. The act creating the municipality of this city does not impose upon him such duty, nor does the record contain any ordinance that enjoins it upon him.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Mr. It. A. Halbert and Mr. J. M. Fbeels, for appellant;
    that before the city would have had authority to order the tree cut, it must, by ordinance, have declared it to be a nuisance, cited City of Chicago v. Laflin, 49 Ill. 172.
    Declaring it a nuisance would not make it so if in fact it was not: Ewbanks v. Ashley, 36 Ill. 177; Yates v. Milwaukee, 10 Wall. 497; Dillon on Mun. Cor. § 308.
    The property of a citizen cannot be taken without a trial and judgment of a court of competent jurisdiction: Bullock v. Goemble, 45 Ill. 218; Willes v. Legris, 45 Ill. 289.
    A municipal corporation is not liable for the unauthorized acts of its officers in administering an ordinance: Trustees v. Schroeder, 58 Ill. 353; Wood on Master and Servant, § 466; McDonald v. English, 85 Ill. 233.
    Proof that a judgment had been recovered against the city for services in cutting the tree, should not have been admitted. It was irrelevant and prejudicial: Gilbert v. Bone, 79 Ill. 341.
    If the tree was cut under a contract, the city would not be liable for the negligence of the contractor: Hale v. Johnson, 80 Ill. 185; 51 Pa. st. 475; 3 Gray, 349; 4 Allen, 138; 38 Barb. 653; 46 Pa. St. 213.
    There was no evidence supporting plaintiff’s instructions, and they should not have been given: Nichols v. Bradsby, 78 Ill. 44; Ryan v. Donnelly, 71 Ill. 100; Reinback v. Crabtree, 77 Ill. 182; Drohn v. Brewer, 77 Ill. 280; T. W. & W. R’y Co. v. Ingraham, 77 Ill. 309.

    All reference to negligence of the deceased is excluded from the instructions: St. L. & S. E. R’y Co. v. Britz, 72 Ill. 256.
    Hr. James H. Dill, Hr. Wm. C. Kheffner and Hr. Thomas Quick, for appellee;
    that the city had adopted the acts of the person cutting the tree, and is liable for the consequences, cited Dillon on Hun. Cor. § 770.
    Though the work was done by a contractor, it was under the direction of the city, and it is liable: Nevins v. Peoria, 41 Ill. 502; Chicago v. Dermody, 61 Ill. 431.
   Tanner, P. J.

This was an action of trespass on the case brought under the provisions of Chapter 70 Bev. Stat. 1874, to recover damages for the killing of Ellen Giblin. The cause was submitted to a jury and a verdict returned in favor of the appellee for fifteen hundred dollars. A new trial was asked, but denied, and judgment rendered for the amount of the verdict and costs. The cause is brought to this court by appeal and various errors assigned as cause for reversal of the judgment.

First. That all instructions given for appellee were erroneous.

The jury were instructed that “if they believe, from the evidence, it was the duty of the city authorities to provide for the safety and security of its citizens, and to keep the streets and alleys in a condition for persons to travel thereon, and to prevent obstructions getting on said streets and alleys, and that the city employed Carroll as its servant, to cut down the tree in question in pursuance of that duty, because there was danger of the same falling and obstructing the adjacent alley, or injuring persons residing near it, and that the city, by the same agent or servant, negligently so cut and felled said tree as to cause the injury so complained of, when by the exercise of due and proper skill and care the accident might have been avoided, then the jury must find for the plaintiff.”

If Carroll had been in the employment of the city in the relation and capacity of a servant, and was careless or negligent in the performance of the work, the city woxdd clearly be compelled to respond to all damages arising from the act. But does the evidence show this state of case? We think it does not. The record is neither silent nor contradictory upon this point. The appellee states that he heard a conversation between Carroll and the mayor, in which the mayor said: “Carroll,T have got another job for you; I want to get that big cottonwood tree down there between Third and Fourth and St. Louis avenue, cut down.” Carroll said it was worth ten dollars to cut it and the mayor said he thought it was worth that much. Carroll states that he was employed by the mayor to cut the tree for the sum of ten dollars; that he employed men to assist; that they were under his control and paid by him. This is all of the testimony in relation to the employment of Carroll to do the work, and it does not even tend to show that the relation of master and servant existed between the appellant and Carroll. But it very clearly shows that Carroll was an independent contractor; that he performed the work for a stipulated price, and employed his own assistants; that they were under his own control and by him paid for their service. We are therefore of opinion that the court erred in giving to the jury the consideration of the question as to whether the relation of master and servant existed between appellant and Carroll. Further, the record shows that no negligence characterized the conduct of the mayor in the selection of the person to do the work. Carroll states that he had cut down as many as a hundred trees before this for the city, and his general competency to do such work is not questioned by the appellee. Shearman and Bed-field, in their treatise on negligence, lay down the doctrine upon this point in these words: One who contracts to do a specific piece of work, furnishing his own assistants and executing the work either entirely in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details, is clearly a contractor and not a servant.” And this is the doctrine of our own court. Scammon v. The City of Chicago, 25 Ill. 424; Hale v. Johnson, 80 Id. 185.

The cases cited by the appellee do not to the least extent shake this doctrine, but they only hold that wherever the employer retains or exercises any cipntrolling or supervising power over the employee in the performance of the work, the rule is different. This undoubtedly is the rule, but the evidence in the case at bar does not admit of its application.

If it be conceded that Burke, in his testimony, uttered the truth in stating that the mayor was present at the falling of the tree, still it does not appear that he gave any directions or even spoke to Carroll in reference to the manner of doing the work. This isolated fact cannot be made the groundwork for any instruction to the jury from which even an inference can be drawn to establish the relation of master and servant between the city and Carroll.

Again, we think the instruction open to just criticism in authorizing the jury to determine a question of law.

In the second instruction, the jury were told that it was the duty of the mayor of .East St. Louis, as the chief executive officer of the city, to see to the protection of the life and property of the citizens of said city; and that if in the exercise of that duty, under the law and within the scope of his official authority, he thought it necessary to cut down the tree in question, he had the right in behalf of the city to employ Carroll to cut the tree, and his acts in so doing, provided they were done by virtue of his lawful authority, would bind the city; therefore, if the jury believe from the evidence that under such circumstances Mayor Hake did employ Carroll to cut the tree, and that the cutting of it was necessary to protect the life and property of said citizens, then his acts in this behalf would bind the city.”

The first proposition embodied in this instruction makes it the duty of the mayor, by virtue of liis office, to see that the lives and property of the citizens of the city are properly protected. We do not think this, as a proposition of law, can be maintained upon principle and authority. The act of the General Assembly by which the municipality of this city was created does not impose such duty, nor does the record contain any ordinance that enjoins upon him such duty. The powers and duties of the mayor are wholly of an executive nature, and must he conferred or enjoined upon him by legislative enactment or municipal ordinance. Dillon, in his work on Municipal Corporations, Chap. 9, § 147, says; The mayor is the head officer or executive magistrate of the corporation, but it is important to bear in mind that all his powers and duties depend entirely upon the provisions of the charter or constituent act of the corporation, and valid by-laws passed in pursuance thereof. It is usually made his duty, however, to see that municipal ordinances are executed.”

The instruction then tells the jury “ that if in the exercise of this duty under the law and within the scope of his official authority, the mayor thought it necessary to cut down the tree, * * * then he had the right to employ Carroll to cut the tree, and the city would be bound by his act.” It is not clear to us as to what is meant by this part of the instruction.

If it is to be construed as telling the jury .that when the mayor proceeded to discharge such duty according to municipal ordinance, it was error, because no ordinance was given in evidence which enjoined upon the mayor such duty. Again, the jury are told that if the mayor employed Carroll to cut the tree, and that the cutting of it was necessary to protect the life or property of the citizens, then the act of the mayor in this respect would bind the city.

We have examined the record carefully and have been unable to find any testimony showing or tending to show that the lives or property of the citizens were in any wise directly or remotely jeopardized by the tree in question. The justification for the act of the mayor and the supposed consequent liability of the appellant, should not be sought outside of the evidence given to the jury.

Other errors are assigned, but as the cause must be reversed and remanded for the errors already noticed, and those remaining relate mainly to matters of evidence, we think further examination unnecessary.

¡Reversed and remanded.


text:
    The Illinois Central Railroad Company v. Samuel Brookshire.
    1. Evidence—Irrelevancy.—The declaration containing.no allegation or charge against the appellant, of negligence by reason of running the engine at a high rate of speed, it was error to admit evidence tending to show the speed with which the engine was running at the time of the alleged injury.
    2. Contributory negligence.—Where the plaintiff's own act contributed to the injury, he cannot recover unless his negligence was slight, and that of the defendant gross in comparison. So, where it appears that the plaintiff was injured by a truck being struck by a passing engine, and it also appears that but for the plaintiff’s act in pushing the truck around it would not have been hit by the engine, this was such negligence on his part as will preclude his right to recover, unless it were gross negligence on the part of the railroad company in allowing the truck to remain in that position.
    3. Railroads—Removal of obstructions.—The railroad company had provided a safe and convenient way of approach to the depot, and if the plaintiff could not with safety to himself proceed in the direction he had chosen it was his duty to have retraced his steps, and approached by the way provided by the company. The truck standing in a place appropriated by the company for its own use, and not intended for the use of the public, it was not an obstruction that it was bound to remove.
    4i Negligence—A question for the jury—Rule as to.—What constitutes ordinary diligence and what is negligence are inquiries tobe answered by a jury, but courts are bound to see that these facts when found by the jury rest upon evidence.
    Appeal from the Circuit Court of Union county; the Hon. Monroe C. Crawford, Judge, presiding.
    Messrs. Green & Gilbert, for appellant.
    Messrs. Linegar & Langsden, for appellee.
   Tanner, P. J.

This is an appeal from a judgment obtained by Samuel L. Brookshire in an action on the case against the I. 0. B. B. Co., for its alleged negligence in allowing a baggage truck to stand upon the sidewalk, with one end projecting over the railway track during the passing of locomotive, whereby he received personal injury.

The' jury returned a verdict for seven thousand dollars; a motion for a new trial was overruled and judgment rendered for the amount of the verdict with cost.

To reverse this judgment the railroad company appeals, and assigns for error:

1st. The refusal of the court to carry the demurrer to the first plea.back to the declaration.

In this we think there was no error. The declaration avers that the defendant “ carelessly and negligently allowed the truck to project over the track,” and this is all that seems to be required by approved precedents.

Hence, we are of opinion that the phraseology of the charging part of the declaration required of the appellee the same strictness of proof that would have been required had he alleged that the company knowingly permitted the truck to so stand.

Again, it is urged that improper testimony was admitted to go to the jury over the objection of the appellant. This error is well taken. Several witnesses were examined with reference to the speed with which the locomotive passed the platform or sidewalk, and some stated that its speed was very fast, This testimony was irrelevant, and doubtless had an influence upon the jury. The declaration charges no carelessness or negligence in operating the locomotive or train of cars at the time of the injury, and there being no allegation of negligence in this respect, the appellant had no notice that such testimony would be offered, therefore the testimony should have been rejected. I. C. R. R. Co. v. McKee, 43 Ill. 119. It is insisted, also, that the court erred in not granting a new trial. This brings us to an examination of the testimony. It appears that the passenger depot building at Anna, where the appellee received his injury, is located twenty feet east of the main track, and the space between the track and building is filled by a platform, which extends near one hundred feet south along the track; about one hundred feet further on, in the same direction, stands a water-tank, used to supply locomotives with water; its distance from the track is less than seven feet; a fence extends from the platform to the tank, running with and twelve feet from the track; below the platform and extending near to the tank were two parallel planks, put down for the purpose of moving the truck (which belongs to and was used by the express company), from the platform to the place where it was kept when not in use—which was at the side of the fence, and close to the tank. Below, and close to the tank, from 1853 to 1863, the railroad company had a woodshed, and the space between it and the track was covered by a platform, used for the purpose of stacking wood to be used on its locomotives. About 1863 the use of wood was abandoned and the woodshed and platform were removed, and a cinder walk put down along the track and extending to a considerable distance south, for the convenience of the employes in operating the road. The proprietor of the hotel known as the “ Winstead House,” situated across the street, and east of the track, for the convenience of the patrons of the house, and transporting baggage, constructed a plank walk leading across the street and terminating at the tank. A suitable, convenient and safe way or approach leading eastward to and from the north end of the depot to the “European Hotel” was constructed and maintained by the company from 1853 to the time the appellee was injured. The citizens of Anna, however, used the way leading to the depot by the tank rather more than the one leading eastward, and without any objection being made by the company. The tank was located with reference to the wants and convenience of the company, more than twenty years prior, and the space between it and the railroad track was constantly wet, more or less, by leakage and by waste, at the time of supplying the locomotives, which occurred about eight times per day. The proper use of the tank rendered it impossible to fence or obstruct the way leading by it. The appellee was seventeen years old, a solicitor of patronage for the “Winstead House,” visited seven trains per day, and always by the way of the tank. At the time of the injury he was running rapidly to meet an incoming train; he was cognizant of the existence and usual locality of the truck, and frequently used it himself in the transportation of baggage. The passing locomotive of appellant struck the truck and forced it and the appellee upon and through the side of the tank, breaking one leg and one arm, and rendering amputation of the latter limb necessary.

Of the foregoing facts there is no dispute. But as to the circumstances which led directly to the infliction of the injury, there is some discrepancy in the statements of the witnesses.

The appellee testifies: I was going from the Winstead House to the train at the time of the accident, in a trot; "when I got to the corner of the tank I got caught with the truck; that the engine shoved through the wall of the tank; I did not see the truck until it struck me; the truck belonged to the express company; it was a long one with four wheels—two in the center and one at each end-—but did not balance on center wheels; we used the truck to carry baggage to the hotel; I don’t know that I used it alone, but I have helped to take it over quite a number of times.

John Lard testifies: 1 saw plaintiff going to the train; I heard a crash; went over; saw plaintiff lapped around a pair of trucks; they had caught him about the upper end of his leg and bent him over.

James Firestone says: Immediately preceding the accident I passed' the trucks; they were between the track and tank, and stood diagonally; met the boy half-way between tank and Winstead House; I saw nobody about freight house except Mr. Bush; I walked on the track to go around one end of the truck; one end was kinder leaning towards the tank; one end was turned over towards the track a little; one end was leaning over towards the tank and one end was bearing towards the track; it looked like the handles were pretty close to the ties; the ties project more than fourteen inches beyond the iron rail; 1 can’t fix any distance; it might have been six inches from the end of the ties, but can’t say; the boy was going to the train in a trot, as he usually did.

Alfred Firestone states that about four or five minutes before the train arrived, he saw the truck on the platform. It was pretty near between him and the tank; it was somewhere along there; it was kind of between him and the tank; it was more up- towards the upper end—the north end. The evidence of appellee and James Firestone is all that in anywise tends to support the charge as to the projection of truck. These witnesses are completely overwhelmed. John D. Windman states that he had several conversations with appellee as to the accident, and he states that the truck was in a narrow passage near the tank, and he tried to push it out of the road. He thought he could do it before the train would strike it; but by moving it, he was caught by the train. John Allen states that on'the morning following the accident, he went to appellee and asked him how it occurred, and appellee said he was running to the caboose after passengers; and when he passed the south end of the tank the truck was there, and he took hold of it to move it out of the way, and it caught in the engine and run him through the tank.

A. M. Stone testifies: I saw the boy the next morning after he got hurt, and he told me he was running to the caboose for passengers, and went around the tank, and thought there was not room enough to get by the truck, and he caught hold of it to turn it a little, and turned it too far, and the tender step caught it. The witness further stated that he was the engineer driving the locomotive that collided with the truck; that he saw the truck as the train was approaching, and looked at it to determine whether it was close enough to the track to be in the way of his engine, and he was satisfied it was not.

George Galvin states he saw the boy have hold of the truck, and was backing some four or five steps with it, and all of a sudden it went through the tank; he must have been two or three feet north of the tank when my eye fell on him backing the truck.

A. D. Bush states that, right after the accident I went and examined the tank; the marks on it were made by the handles scraping against it.

James Collins testifies: As the train was coming in I saw Samuel Brookshire come "running around the corner of the tank; I was twenty-five or thirty feet north of the tank; the truck was standing straight with the track—I mean parallel with it; it was some distance from the track, outside of the end of the ties; saw Brookshire run up to the truck, and his hand touched the right handle of the truck, when it swung around and the step of the tender struck it and that knocked him down, and as he got half way up, some part of the box-car struck it and knocked him through the tank; can’t say whether he took hold of it or just pushed it; I simply saw-him put his hand on the truck, then it swung around and came in collision with the step of the tender.

William King: I noticed the truck as the train was coming in; it stood about two feet from the track and parallel with it, •and a little north of the tank; my judgment is that the train would not have struck it; I could see it perfectly plain.

William Kratzinger: I examined the tank soon after Brook-shire was hurt; it struck first on the northwest corner of the tank; it broke off the two next batten, and then broke into the house.

James Brookshire, father of the appellee, in rebuttal, states: I was in the room when Allen and Stone came there, the morning after the accident; if Samuel said anything to them about having taken hold of the truck to push it, I did not hear it; I was sitting on one side of the bed and they were on the other; if that conversation had taken place, I think I would have heard it.

Samuel Brookshire recalled: I heard the expression of Stone and Allen; I did not make iise of any such expression; I do not know of having any conversation with Hr. Windman; I may have told him I took hold of the truck to save myself.

The foregoing is substantially all of the testimony upon the disputed points, and from it we do not hesitate to hold that it does not warrant the verdict and judgment against the appellant.

The way leading to the depot by the tank was not prepared for the use of the public, but solely for the convenience of the servants of appellant in the operation and management of the road. The tank could not be conveniently located at a greater distance from the railroad track. It furnished water to every train passing upon the road. The space between it and the road was kept constantly wet by leakage and waste-water. From these causes it could not be rendered adequate to the wants of the public in its intercourse with the appellant. From the time the depot was constructed to the time of the injury of the appellee, the appellant maintained a good, convenient and safe approach to its depot, in an easterly direction, for the accommodation of the traveling community; and although the citizens of the south part of the city used this way in going to and from the depot without protest, the appellant’s right to its enjoyment was not thereby lost or abridged. The use of the truck on this route was incidental to the business of the company, and this was known to the appellee.

The appellant in nowise invited the public to the use of this route to its depot, and we think was in nowise required to keep it clear of obstructions. If the truck impeded the appellee in his going to the depot, he should have retraced his steps and proceeded by the approach prepared and maintained for the purpose by the appellant—which was only about thirty yards further—but he elected to attempt a removal of the truck, and by so doing directly contributed to bring upon himself the injury. So long as no motive power Was applied to the truck, no injury of the character complained of could have happened; and if the company was under no obligations to remove the obstruction, appellee could not remove it and complain of injury thereby incurred.

The truck stood upon the walk north of the tank, and parallel, or nearly so, with the line of the railroad track, and was brought in contact with the locomotive or tender by motive power, carelessly applied by the appellee. Ho negligence is charged to the appellant in the management of the locomotive by its servants. How, if it were negligence in allowing the truck to stand upon the sidewalk, or side-way, was it gross, or ordinary negligence?

We do not see how the injury which the appellee received could be reasonably foreseen or anticipated by the appellant in the standing of the truck upon the side-way between the tank and platform. Ho person was in peril from passing trains so long as it remained stationary, and no reasonable inference could be drawn as to the occurrence of an injury in the manner of that disclosed in this record, and hence we think the appellant cannot be said to have been gnilty of gross negligence.

To enable the appellee to recover, his negligence should be slight when .compared with that of the appellant, and his gross. Schmidt v. Chicago and Northwestern R’y Co. 83 Ill. 405; I. C. R. R. Co. v. Hetherington, Ib. 511; I. C. R. R. Co. v. Hammer, 72 Ill. 348.

This rule of law in reference to comparative negligence, when applied to the evidence found in this record, impels us to interfere in behalf of the appellant, and when we do so, we are not unmindful that what constitutes ordinary diligence and what is negligence, are inquiries to be answered by a jury; but courts are bound to see that these facts, when found by a jury, rest upon evidence. Indeed, were it otherwise, our corporations, public and private, at times would be left to a hard fate. If courts, in their adjudications, could be guided by sympathy, the appellee would rest securely upon his judgment, but the stern mandates of justice render it otherwise.

There are various other errors assigned, but we think for the purposes of another trial they need not be considered. For the several errors indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Judgment reversed.


text:
    James Rector, Adm'r, v. David Reavill.
    1. Administration of estates—Widow’s award — A demand against estate.—Where a, widow elects to take the amount of the appraised value of her award in money, she has a demand against the estate, and it is not less so when it becomes necessary, to resort to the sale of real estate for its discharge.
    2. May be paid out of real estate proceeds.—When the personal estate is insufficient to pay the widow’s award in full, the balance may be paid out of the proceeds of the sale of real estate, to the exclusion of claims of creditors of the seventh class.
    Ebbob to the Circuit Court of Crawford county.
    Messrs. Callahan, Jones & Maxwell, for plaintiff in error;

      that the award should he paid in full to the exclusion of general creditors, cited Rev. Stat. 1877,112, §74; Rev. Stat. Chap. 3, §70.
    Messrs. Parker & Olwin, for defendant in error;
    that the widow may take the whole of the personal property, but as to the balance of her award, is on a footing with other creditors, cited Gross’ Stat. 1869, 806; § 52; Cruce, Adm’r, v. Cruce et al. 21 Ill. 46; Miller v. Miller, 82 Ill. 463.
   Tanner, P. J.

Robert A. Beattie died intestate at Crawford county, in March, 1876, leaving a widow and child. Letters of administration were granted to the plaintiff in error. The appraisement bill filed by him in the County Court fixes the value of the personal property left by the intestate at §391.90, and the widow’s award at $642. The widow selected a part of the property at its appraised value, amounting to $128, and elected to take the balance of the award in money. The remainder of the personal property was sold, and brought $350. The intestate died seized of real estate, and the same was sold by the plaintiff in error under an order of the County Court, but the proceeds of the sale fell far short of liquidating the demands against the estate. The plaintiff in error filed a report of his proceedings as administrator, showing that he had paid in full the widow’s award.

The defendant in error, who was a creditor of the seventh class, objected to the confirmation of the report, upon the ground that where the widow’s award is not discharged from the personal estate, she cannot be preferred in the distribution of the proceeds arising from the sale of the real estate. The County Court sustained the objection, and ordered that the plaintiff in error be charged with $164 erroneously paid to the widow on her award. From this order and judgment an appeal was taken to the Circuit Court, where the judgment of the County Court was affirmed. The plaintiff in error brings the case to this court, and assigns for error: the judgment of the Circuit Court affirming the order and judgment of the County Court.

This case presents but a single- question, which must be determined from the statutes in force at the time, in reference to the settlement of the estates of deceased persons.

The Supreme Court, in Cruce, adm’r, v. Cruce et al. 21 Ill. 46, held that where the personal estate was insufficient to discharge the widow’s award, and a resort was had to the sale of real estate to liquidate the outstanding indebtedness, the widow was placed upon the footing of other creditors, and her demand controlled by the statutory classifications—that she became, under the statute, a fourth-class creditor, and in case the estate should be insolvent, she had to share in the distribution of the proceeds of the sale of real estate pro rata.

However sound or unsound this construction of the statute may have been, it was not in accord with public opinion at that time, and the General Assembly, at the first session thereafter, hastened to relieve widows in the future, in such cases, from the effect of this construction of the statute by the passage of an act entitled “An aet to amend chapter 109 of Revised Statutes, entitled Wills, in force March, 1869, which declared that the widow of a deceased person shall be entitled to receive what is known as the widow’s award, whether her husband die testate or intestate, and the same shall be considered and classed as number one preferred.” This act remained in force until 1872, when the laws in relation to the settlement of estates underwent a thorough revision, and the widow’s award was subordinated to the payment of funeral expenses only. The seventy-fourth section of an act in regard to the administration of estates, in force July 1st, 1872, provides that “the widow residing in this State, of a deceased husband, whose estate is administered on in this State, whether her husband died testate or intestate, shall, in all cases, in exclusion of debts, claims, charges, legacies and bequests, except funeral expenses, be allowed as her sole and exclusive property forever,” the follow ing certain articles of personal property: and after specifying the several items, proceeds: “which shall be known as the widow’s award, or the widow may, if she elect, take and receive in lieu of the foregoing, the same personal property or money in place thereof as is or may be exempt from execution or attachment against the head of a family residing with the same. Section 75 provides that “ the appraisers shall make out and certify to the County Court an estimate of the value of each of the several items of propertj'- allowed to. the widow, and it shall he lawful for the widow to elect whether she will take the specified articles set apart to her, or take the amount thereof out of other personal property at the appraised value thereof, or whether she will take the amount thereof in money, or she may take a part in property and a part in money, as she may prefer.”

“ When there is not property of the estate of the kinds mentioned in the preceding section, the appraisers may award the widow a gross sum in lieu thereof, except for family pictures, jewels and ornaments.”

The 109th section of the act provides: “ When real estate is sold, the moneys arising from such sale shall be received by the executor or administrator applying for the order to sell, and shall be assets in his hands for the payment of the debts, and shall be applied in the same manner as assets arising from the sale of personal property.” The seventieth section provides that “ all demands against the estate of any testator or intestate shall be divided into classes in manner following, to wit:

“First—Funeral expenses.”

“ Second—The widow’s award, if there is a widow,” and proceeding with the enumeration until the demands are divided into seven classes. Section seventy-one provides that “all claims against estates, when allowed by the County Court, shall be classed and paid by the executor or administrator in the manner provided in this act, commencing with the first class; and when the estate is insufficient to pay the whole of the demands, the demands in any one class shall be paid pro rata, whether the same be due by judgment, writing, obligatory or otherwise, except as otherwise provided.” The foregoing provisions of the statute of 1872 are not materially different from the laws that were in force for the settlement of the estates of deceased persons at the time, of the decision in the case of Cruce, adm’r, v. Cruce et al., except as to the classification of demands in their order of payment. The statutes in force at each period cast upon the widow, to the exclusion of the claims ©f creditors, certain articles of personal property, with the privilege of taking in lieu thereof other property at its appraised value in whole or in part, or their value in money. But the statute in force at the time of the aforementioned decision made no specific provision for discharging the widow’s award where it was not done from the personal estate. Hence, the court held that she would have to take her place among the general creditors provided for in the 4th class, and in case of the insolvency of the estate, she could only share joro rata in the distribution of the proceeds arising from the sale of real estate. In the case at bar, the plaintiff in error proceeded under a statute that arranged the demands against estates in their order of payment into seven classes, and fixed the widow’s award for the second class. We think tliere'can be no question but that when the widow elects to take the amount of the appraised value of her award in money, that she has a demand against the estate, and it is not less so when it becomes necessary to resort to the sale of real estate for its discharge.

The only theory upon which we can reach the conclusion that the widow stands on the same footing, under the statutes in force July 1st, 1872, that she did at the time of the rulings of the court in Cruce, adm’r, v. Cruce et al., is to assume that where the widow’s award is not satisfied out of the specific property, or other property taken in lieu thereof, or by money derived from the personal assets, that her demand then loses the character of the widow’s award, as contemplated by such statute, and is, therefore, not embraced in the specific classification of demands against an estate, made for her in the 70th section of said act. An analysis of this theory, however, readily shows that in case there are no personal assets, the proceeds of the sale of real estate, though amply sufficient, independent of funeral expenses, to pay the entire demand of the widow, may be wholly absorbed by the demands of other classified creditors, or mostly so in a jpro rata distribution among those -of the seventh class, to which the defendant in error insists the law confines the widow in the case before us. We think this view is not in harmony with the spirit of liberality manifested by our legislation for many years past in reference to this and kindred subjects.

We therefore hold that the plaintiff in error, after exhausting the personal estate in paying the balance due the widow out of the proceeds of the sale of real estate, to the exclusion of the demand of the defendant in error, acted in obedience to the command of the law.

And for the error in the Circuit Court in holding otherwise, its judgment is reversed and the cause remanded.

Eeversed and remanded.


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    The People of the State of Illinois v. Biggers McFarland.
    Writ or error.—A writ of error will not lie except to a final order of court. There must be a final disposition of the ease as to all the parties. A cause of action cannot be reviewed as to one party at one time, and as to another party at another time.
    Ebbob to the Circuit Court of Hardin county; the Hon. Jonit Dougherty, Judge, presiding.
    Hr. L. F. Plater, for plaintiff in error;
    that to discharge the surety a surrender of the principal must be made before default, cited Eev. Stat. 1874, 397, §§ 304, 397.
    Prior to the statute of 1874, sureties might surrender principal before judgment upon scire facias: Weese v. The People, 19 Ill. 643; Gross’ Stat. 1869, 206, § 196; Rev. Stat. 1845, 187, § 196.
    This has been changed by the present law: Wray v. The People, 70 Ill. 664.
    Judgment being entered by default on the recognizance, the liability of the surety is fixed: Stevens v. Hay, 61 Ill. 399.
    The common law gave courts no power to relieve against a forfeiture of recognizance: Weese v. The People, 19 Ill. 643; Pate v. The People, 15 Ill. 223; 1 Chitty’s Crim. Law, 92.

      Mr. W. S. Mobbis, for defendant in error;
    as to the object of the recognizance, cited Underwood’s Stat. 1878, 464, §297.
    Sureties are released by conviction and imprisonment of the principal: Gingrich v. The People, 34 Ill. 448.
    A cause cannot be reviewed as to one party at one time, and as to another party at another time: Thompson v. Follansbee, 55 Ill. 427.
   Tanner, P. J.

This was a proceeding by scire facias upon a forfeited recognizance. On the 1st day of November, A. D. 1876, the defendant in error entered into a recognizance with one Alexander Wilson for the appearance of the latter to answer to a criminal charge. The recognizance was, on the 22d day of October, A. D. 1877, forfeited, and a scire facias ordered by the court, and duly issued and returned to April term of Hardin Circuit Court, A. D. 1878, served upon defendant in error, and returned not found as to the principal, who filed plea, by leave of court, setting up the surrender of Wilson in open court on the 10th day of April, A. D. 1878. Plaintiff in error demurred to said plea, but admitted that Wilson was in court, but not properly surrendered, nor the plea a proper defense to the action at that late hour. Court below decided to the contrary. Pending the demurrer to the plea, the defendant in error confessed the action as to costs, and the court of its own motion gave judgment against defendant in error (the surety) for costs only, awarded execution therefor, and discharged him from the liability of the penalty of the recognizance. The court then continued the cause as to Wilson, the principal. To reverse said judgment the cause and record is brought to this court.

Many errors are assigned upon the record, but we are precluded from considering any of them for the reason that the cause is still pending in the Circuit Court as to Alexander Wilson, one of the cognizors.

The plaintiff in error insists that this point is not well made by the defendant in error, and in support of this view cites Passfield v. The People, 3 Gilm. 406; Sans v. The People, 3 Gilm. 327; Mussulman v. The People, 15 Ill. 51.

We have carefully considered these authorities, and find that they do not sustain the plaintiff in error. They are to the effect that one of several cognizors cannot complain that the case is not disposed as to all. The recognizance being joint and several, judgment may be rendered against one or more of the sureties without all being in court. In the case before ns, the principal and surety were both in court, and judgment was rendered against the surety for costs, and the cause continued as to the principal. Upon this state of the record the plaintiff in error brings the case to this court on writ of error.

This course, we think, is not sustained either by principle or authority.

A writ of error will not lie except to a final order of court, so if a bill is dismissed as to one or more of the parties, the complainant cannot prosecute a writ of error until there has been a final disposition of the case as to all other parties. A cause of action cannot be reviewed as to one party at one time, and as to another party at another time.” Thompson v. Follansbee et al. 55 Ill. 427; Freeman on Judgments, § 28, and authorities there cited. There are some exceptions to this rule, but the case at bar does not fall within them.

It appearing that this case is still pending in the Circuit Court as to one of the defendants, the writ of error is therefore dismissed.

Writ dismissed.


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    First National Bank of Olney v. William Beaird.
    Negotiable instrument—Bona fide purchaser—A creditor who receives from his debtor the bill or note of a third party, either in payment or as collateral security for his debt, is entitled to the same protection as a bona fide holder for value, and he takes it free from all equities which might have been pleaded between the original parties.
    Appeal from the Circuit Court of Richland county; the Hon. John H. Halley, Judge, presiding.

      Messrs. Canby & Ekey,- for appellant;
    that the legal title to the notes was never in Beaird, and could not he transferred by a separate instrument, cited Ryan v. May, 14 Ill. 49; Fortier v. Darst 31 Ill. 212.
    ¡Hone but the legal owner can maintain trover for a chose in action: Webster v. Heylman, 11 Mo. 428.
    Mr. B. B. Smith and Mr. F. D. Pkeston, for appellee;
    that the contract of bailment may give rise to a claim for a tort or wrong, cited 1 Hilliard on Torts, 26; Grant v. King, 14 Vt. 367; Lovejoy v. Jones, 10 Foster, 164; Whittock v. Heard, 13 Ala. 776.
    Trover will lie for a note in the hands of a third person: Ford v. Cruikshanks, 3 Johns. 432; Bissell v. Drake, 18 Johns. 66.
   Allen, J.

This was an action of trover brought by appellee against appellant for the recovery of the value of certain promissory notes claimed by appellee, which he charged appellant with converting to its own use. A jury was waived and the evidence heard by the judge, and a judgment for appellee for $2060 and costs. From, that judgment an appeal was taken to this court. The evidence shows that in a settlement between appellee and one Henry Marshall, made about May, 1877, Marshall indorsed these notes over to appellant in part payment of a debt or claim appellee held on him. There were four notes signed by S. Cahill, dated January 19,1877, aggregating $660, and five notes by J. ÜST. Connour, amounting, in the aggregate, to $785, and five notes given by J. H. Connour for $100 each, all payable to Henry Marshall, all bearing eight per cent, interest, and all given for lands sold by Henry Marshall to the payees. The notes ran from one to five years from date. To some of the lands deeds were executed by Marshall and handed over with the notes to appellee, to be delivered when notes were paid. In March 5, 1878, notice was served on appellant by appellee that appellee claimed certain of the notes above described, and some others described in the notice, and in the plaintiff’s declaration. On the trial appellee testified that he and Marshall had a land trade, and that Marshall had given him the notes described in the declaration in consideration of one-half of a farm in Richland county, and a tract of land in Florida; that no title passed at the time, but that afterward he deeded the Florida tract to appellant under the direction of Marshall; that after land trade he and Marshall got Cahill to change notes and make them payable to himself instead of Marshall; that Marshall was cashier of appellant at the time; he, appellee, never had the notes in his possession; left them with Marshall to collect and pay over to appellee. Motes were not assigned to appellee. S. Cahill testifies that at Marshall’s request he changed his original notes for the land and made them payable to appellee, and that about a year ago Windsor brought notes to him and had him take up his notes payable to appellee, and execute others payable to Marshall again; that he never had anything to do with the bank (appellant); dealt with Marshall individually. J. M. Connour bought land of Marshall; made notes payable to Marshall; Marshall afterward wanted to change them and make them payable to Beaird; he, witness, refused to do so; afterward found his note in hands of appellant; appellant gave him deed for land that Marshall made him. Mever had any other dealing with the bank.

J. M. Connour testifies: Bought land of Henry Marshall, gave him my notes last year; paid these notes to Henry Spring and he gave me deed.

S. B. Winsor testified: Last spring Marshall got meto go to Cahill and give him deed and take a mortgage on land, and take new notes payable to Marshall; Marshall said the notes belonged to him then, and he wanted to turn them over to the bank.

Henry Spring testified that he was a director in bank; Marshall delivered the Cahill and Connour notes to him for the bank; notes were indorsed to bank when delivered; were delivered in May, 1877; indorsement was in Marshall’s handwriting; was familiar with it; knew nothing of trade between Marshall and Beaird; Marshall kept some private papers in the bank—perhaps some in safe; notes were turned over by Marshall to bank directors in discharge of his liability to. bank. on. settlement.

Wm. Hewell testified: Have been a director and vice-president of the bank for several years; knew nothing of the trades between Marshall and Beaird; the bank liad nothing to do with them; could not have unless the matter had been brought before the directors; the notes in question were never entered on books of bank for collection; the notes were turned over to bank by Marshall in part discharge of his liability to bank after the bank trouble. Marshall had been,cashier of bank, but had been discharged last spring.

It is apparent from the testimony of appellee that these, notes were never transferred by Marshall to him; that they were left in the control of Marshall. They were negotiable paper, and when they passed into the hands of innocent purchasers for a valuable consideration, the assignees would be protected from any claim appellees might have to them, or to the value of them, as against the holder. There is nothing in all this evidence to take this case out of the well-established rule that protects a Iona fide assignee of commercial paper. Appellee, in his argument, insists that appellant ought not to be regarded as a '•'■bona fide ” holder for value, because the notes were received by appellant for a debt or defalcation of Marshall as cashier of the bank, but an examination of authorities will dissipate this idea. Daniel on negotiable Instruments, page 145, expresses the doctrine very happily when he says: “The best considered, as well as the most numerous, authorities regard the creditor who receives the bill or note of a third party from his debtor, either in payment of or as collateral security for his debt, as entitled to the full protection of a bona fide holder for value, free from all equities which might have been pleaded between the original parties;” and the same doctrine again on page 586, § Y80.

This doctrine we regard as conclusive of this case, as it is presented by this record. Ho notice of any claim upon these notes by appellee is brought home to appellant before, at the time of transfer of the notes to it, or for ten months afterward. The evidence does not tend to show that Marshall held these notes as cashier of appellee. They were not upon the books of appellee for collection. Indeed, it would be much out of the usual course of business for a bank to receive and keep for collection at their risk notes of this character, a majority of which had several years to run before they matured. And while it may be a hardship on appellee to lose the notes, yet he, like all others, must he subjected to the well-settled rule of law, “ that when one of two innocent parties must suffer loss, the loss must fall upon the one first in fault.”

He lost his notes by leaving them with Marshall without indorsement or any writing or entry by which their ownership could be determined. He left it in Marshall’s power to deceive others as to his ownership. The bank accepted them in satisfaction of a debt due it, and is protected just as others are protected who receive commercial paper. There are some other questions raised in the argument of counsel, but we shall not stop to consider them. We believe under the evidence in this ease the verdict should have been for the defendant.

Reversed and remanded.


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    Christian Knebelcamp v. John Smith et al.
    1. Default-—Defendant may introduce proof in reduction of Damages.—Though a default has been taken against a defendant, he has the right to appear and introduce evidence tending to reduce the amount claimed by the plaintiff.
    2. Promissory Note-Payment made before assignment—Instruction.—In a suit upon a promissory note, the defendant offered to show payments made to the payee before assignment. Upon this point the court instructed the jury: “That unless the defendant has shown in this case that he made any payments to the plaintiffs in this suit, the jury will find for the plaintiffs the amount proven to be due upon the note.’’ Held, that one of the questions before the jury being whether any payments had been made to the payees, of which the assignees had notice, the instruction was erroneous, as foreclosing a legitimate inquiry by the jury.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.

      Mr. William Wineelman, for appellant;
    that the loss of the note was not sufficiently proved, cited Rogers v. Miller et al. 4 Scam. 333; 1 Greenleaf’s Ev. 600, § 558; Mariner v. Saunders, 5 Gilm. 113; McCart v. Wakefield, 72 Ill. 101; Meek v. Spencer, 8 Ind. 116.
    Upon the right of the defendant to contest the assessment of damages on default: Brigg et al. v. Snigham et al. 45 Ind. 15; C. & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; David v. Bradley, 79 Ill. 316; Cook v. Skelton, 20 Ill. 107; Saylor v. Daniels, 37 Ill. 331.
    Messrs. G. & G. A.Koeknek, for appellees;,
    that it is doubtful whether, on default,'the damages may be assessed by a jury, cited Stat. 1868, 509, §§ 20, 21.
   Allen, J.

This suit was brought by appellees against appellant in the St. Clair Circuit Court, to the January term, 1877, on a promissory note executed by appellant to Wm. Wehmeyer and Frederick L. Breitenburger and indorsed to appellees. The note bore date June 26, 1874, and was for the sum of $1,500 and bore interest at the rate of eight per cent, per annum.

The declaration avers the loss of the note by appellees after it had become due. At the said January term, 1874, a default was taken against appellant, and leave was given to plaintiff to amend his declaration. Appellant states in his brief that an amendment was made to the declaration after default against appellant, and a plea of the general issue was filed by appellant. If an amendment was made, then appellant would have a right to plead, but the record fails to show that an amendment was made after default, and in the absence of any proof on this point the court must presume that no amendment was made.

Upon the default a writ of inquiry was awarded and the cause continued.

At the September term following a jury was sworn to assess the damages of appellant, and upon hearing the evidence awarded appellee the sum of $1,897.25. Appellant appeared before the jury and offered evidence tending to show payments made on the note before it was transferred to appellees. Appeltees proved execution of the note, the amount, its transfer to appellees, and its subsequent loss. Appellant was sworn as a witness, and was asked by counsel for appellant whether any payments were made by him on the note while the payees were the legal holder of the note, and if so, how much, and whether such payments if made were indorsed upon the note.”

To an answer to this question a general objection was made, which was sustained by the court and the witness was not permitted to answer.

Theodore Breitenburger, a payee of the note, was introduced as a witness for appellant, and was asked to state if any payments were indorsed upon the note before it was transferred to appellees. This was also objected to by appellees, and the witness was not permitted to answer. The appellant, though a default had been taken against him, had a right to appear and introduce evidence tending to show that payments had been made upon the note before its transfer by payees to appellees, and to show that such payments were indorsed on the note before-its transfer to appellees.

It is manifest from these questions, as well as other portions of the record, that one of the defenses against a recovery for the full amount of the note and interest was that some portion of the note had been paid to one or both payees of the note, before its transfer to appellees, which was indorsed upon the note, and that evidence tending to prove such payments was sought to be introduced by appellant.

In order to make such payments available to appellant, he must show that appellees had notice of them.

To prove that they were so indorsed was necessary, inasmuch as the note was lost, and in our judgment it was error to exclude this evidence from the jury.

Appellees insist that this error will not avail appellant, inasmuch as they withdrew the objection afterward, and permitted Breitenburger to testify as to payments made him, but the evidence of appellant on this point might have been important as corroborative of Breitenburger, or as to some independent fact or circumstance tending to show payment and indorsement.

But, in addition to the exclusion of testimony of appellant upon this question, the court instructed the jury that unless the defendant has shown in this case that he made any payments to the plaintiffs in this suit, the jury will find for the plaintiffs the amount proven to be due on the note in question, if they believe that the amount was proven; ” one of the questions before the jury being whether any payments had been made on the note to Breitenburger, one of the payees, or to the payees jointly, of which appellees had notice. The jury might, and probably did understand from this instruction that they could not consider any such payment or the evidence tending to prove such payment in abatement of appellees’ damages, although appellees might have had notice thereof.

We hold that it was error to give this instruction; that it foreclosed a legitimate inquiry of the jury in determining the amount appellees were entitled to recover.

Several other errors are assigned by appellant, but inasmuch as the judgment of the Circuit Court must be reversed for the reasons above, we do not care to comment upon the other questions raised.

Judgment reversed and cause remanded.

[Reversed and remanded.


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    Luke F. Wilson et al. v. John Isom.
    Pleading—Declaration on bond.—The condition of the bond was to pay such damages as should be awarded against the First National Bank for wrongfully suing out attachment, etc., and the declaration failing to aver that any damages had been awarded against the bank, it was defective, and the demurrer should have been sustained.
    Appeal from the Circuit Court of Clay county; the Hon. John C. Halley, Judge, presiding.
    Hr. Bueus Cope, for appellants;
    contending'that suit may be maintained on an attachment bond without a previous judgment against the plaintiff in the attachment, cited Churchill v. Abraham, 22 Ill. 455.
    Previous award of damages should' be averred in a suit on the bond: Smith v. Eakin, 2 Sneed, 456; Payne v. Able, 7 Bush, 344.
    Mr. Wm. B. Cooper and Mr. Beit. Hague, for appellee;
    cited Rev. Stat. 1874, 153, §2; Churchill v. Abraham, 22 Ill. 455.
   Allen, J.

This was a suit commenced by appellee against appellants, Luke F. Wilson, Tremont Frazer and Rufus Cope.

Declaration on attachment bond set out a bond signed by appellants alone, conditioned that, whereas said LukeF. Wilson had, on the day aforesaid, prayed an attachment out of said court at the suit of the First Rational Bank, Flora, Illinois, against the estate of said Isom for--if the said Rational Bank should prosecute its said suit with effect; or in, case of failure therein, should pay said Isom such damages as should be awarded against said First Rational Bank, in any suit or suits which might thereafter be brought for wrongfully suing out said attachment bond to be void; the issuing of the writ, etc., etc. By way of breach, declaration sets out that Isom was compelled to pay out attorney’s fees, and was hindered and delayed in his business.

At the October term, 1877, a demurrer was filed to the declaration, which was overruled by the court. The appellants excepted, and the court, at the following term, assessed the damages against appellants, and gave plaintiff a judgment for $165 and costs. Appellants except and pray appeal, etc.

The only question we have to consider is as to the sufficiency of the declaration. The condition of the bond bound appellants “ to pay to appellee such damages as should be awarded against the First Rational Bank in any suit or suits which might thereafter be brought for wrongfully suing out said attachment.”

The declaration fails to aver that any damages had been awarded against the First national Bank, and inasmuch as the undertaking was to pay only such damages as might be awarded against the bank, the declaration should have contained such averments as were necessary to fix the liability of appellants.

If the bank was one of the obligors, and was a defendant in this suit, then appellants could be held for such award of damages as might be made against the bank in this suit, and this is the extent to which the authority cited by appellee goes. Churchill v. Abraham, 22 Ill. 455; Smith v. Eaken, 2 Sneed, 456. We believe the demurrer to the declaration should have been sustained, and for this reason the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.