text:
    Henry W. King & Company v. Sandie Brown.

      Sales—Fraudulent Representations in Purchase of Goods—Sttbsequent Sale by Purchaser to Father—Rescission—Replevin—Evidence—Instructions.

    1. To warrant the rescission of a sale the vendor must show actual fraud, consisting in a positive intention of the vendee, at the time of the purchase, not to pay, or in false representations as to his ability to pay.
    2. Known insolvency is not sufficient proof of an intention not to pay for goods purchased.
    3. In an action of replevin to recover goods sold to the son of the defendant prior to the transfer, by the son to the father, of the stock of goods in payment of a large indebtedness, it is held: That the evidence sustains the verdict for the defendant; that it does not appear that the defendant had knowledge of any fraudulent or false representations made to the plaintiff's by his son; that knowledge that his son was in embarrassed circumstances would not put him on inquiry as to whether he had committed fraud; and that there is no substantial error in giving and refusing instructions.
    [Opinion filed January 14, 1887.]

      In connection with this case see the related case of Brown v. Bierman, ante, p 574.
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Bradley & Bradley and W. D. Carpenter, for. appellants.
    Messrs. Allen, Brown & Brown, for appellee.
   Pleasants, P. J.

In the winter of 1881-2, Charles B. Brown, who had previously resided at St. Louis with his father, the appellee, came to Springfield and engaged as clerk in the old established clothing and tailoring house of his cousin William S. Hunter. After a few months of such service he bought a half interest in the business for $10,000, of which his father advanced for him the sum of $9,000, taking his note therefor, payable one day after date with interest at eight per cent. About a year thereafter Hunter sold his remaining interest to P. P. O’Donnell, and in February, 1884, Brown bought out O’Donnell for $6,188, being sixty-eight per cent-of the invoice price. He paid down $1,000, and for the residue gave his two notes indorsed by his father and uncle.

Appellee was then and for many years had been in business with Jaccard & Company, a large jewelry house in St. Louis. He was here a few times while his son was carrying on this business, and the latter visited the family at St. Louis monthly or oftener, arriving late on Saturday evening and returning early Monday morning. From the little conversation between them on that subject upon these occasions, from Charles’ expressed desire to change his location, and from his own general observation when here, appellee got the impression that the situation was not altogether satisfactory, but he had no particular or definite knowledge of it, nor made any special inquiry respecting it. Only the first year’s interest on his note for $9,000 had been paid. He knew, in a general way, that Charles was owing some debts to other parties for goods, and in the latter part of the summer or fall of 1884, became apprehensive that he would not be able to ‘‘"pull through.” About the first of November he learned from O’Donnell that the note to him for $3,188 was wholly unpaid, though past due, and was pressed for payment. The other, for $2,000, was in bank and about to become due. Thereupon he consulted counsel, came to Springfield, and after further legal advice taken here, bought the entire concern in satisfaction of his own claim and the indebtedness to O’Donnell, which he then assumed and afterward paid. His claim, thus increased, amounted to about $17,000. The goods invoiced at about $21,000, but the uncontradicted testimony is that they were not worth more than 50 cents on the dollar, and less was realized on them by appellee. The notes and accounts, together amounting to something like $3,000, were worthless. Charles had paid for his spring purchases. Those made for the fall were received in August and September, on four months’ time, and aggregated from $2,500 to $3,000. Among them was a bill of clothing of $866, bought of appellants, on representations by him respecting his financial condition which they claim were false and fraudulent.

On the 4th of November, the bill of sale to his father was executed and the stock delivered. It was put in charge of Mr. Culver, who had been a salesman under Charles, but he employed new help and proceeded to dispose of it according to directions of appellee.

Appellants then brought this suit in replevin for the goods so bought of them. The verdict was for the defendant, finding the property to be in him, and awarding 1 cent damages. A motion fora new trial was overruled, and judgment entered on the verdict, from which the plaintiffs took this appeal.

The foregoing facts, with the representations by means of which Charles It. Brown obtained the goods in controversy, show the whole case made for plaintiffs. It presented two questions of fact: first, were these representations fraudulent on the part of Charles; and second, was defendant chargeable with notice of this fraud when he purchased of him.

To entitle plaintiffs to recover, they were required to establish the affirmative on both by a preponderance of evidence. Authorities can hardly be necessary, but with special reference to the second, we cite the following: Gavagan v. Bryant, 83 Ill. 376; Schweizer v. Tracy, 76 Ill. 345; Miller v. Kirby, 74 Ill. 242; Kranert v. Simon, 65 Ill. 344; Hessing v. McCloskey, 37 Ill. 341, 352; Catlin v. Warren, 16 Ill. App. 418; Axtell v. Cullen, 3 Ill. App. 527; Storey v. Agnew, 2 Ill. App. 353.

Conceding, then, for all present purposes, that this was done as to the first, we would not feel at liberty to disturb the finding against them on the second, even if it were based on their own evidence alone. But there was very dear, positive and uncontradicted testimony on the part of defendant that he had in fact no knowledge or information whatever of any representation made by Charles to plaintiffs or to any other party of whom he bought, or that he had bought of them or either of them, nor of any fact or circumstance to excite a suspicion that he had made any fraudulent or false representations to anybody; and upon all the evidence, under any instructions that could have been properly given, a finding that he purchased bona fide, for value and without notice of any fraud upon plaintiffs, ought to stand.

The jury were instructed, as asked by plaintiffs, to the effect that if Charles obtained credit of .them for these goods with a preconceived intention not to pay for them, or by means of fraudulent representations respecting his financial condition, they would have the right to rescind the sale as against him, and if defendant participated in the fraud, to recover in this action, and that fraud might be shown by circumstances. Those given for the defendant went still further in favor of plaintiffs, and made his right to hold the goods depend upon proof that his purchase of Charles was made “in good faith, and for a valuable consideration, and without notice of said false representations.”

But appellant’s principal point is that the court refused to give also the three following: 1. That if they believe from the evidence in this case that the defendant Sandie Brown, previous to the time of the purchase of the stock of goods from Charles R. Brown, knew that Charles R. Brown was in difficulty of a financial character, and allowed Charles R. Brown to continue in business and purchase new goods of King- & Company, whether Sandie Brown knew all the facts or not, if the jury believe from the evidence that he knew enough regarding the financial condition of Charles R. Brown to put him upon inquiry, or to excite the suspicions of a prudent man, then, in purchasing said stock of goods of Charles R. Brown to cancel a pre-existing debt, he could receive no better title to said goods than Charles R. Brown had against the claim of King & Company.

2. Tells the jury that upon the same hypothesis stated in the first, the defendant “ made himself a party to the fraud,” if any there was.

3. That if from all the evidence in the case yon believe that Charles R. Brown purchased the goods from the plaintiff's upon representations of his financial worth and standing, and such representations were false, and that plaintiffs relied upon them as true and extended to said Brown a credit for such goods, relying upon such representations as true, then no title passed by such purchase in such goods to said Brown from the plaintiffs.

This last one, applying only to the title as between plaintiffs and Charles R. Brown, would be quite useless, unless it were the law that if Charles acquired no title the defendant could acquire none through him, and was, therefore, very liable to mislead the jury to that conclusion. The proposition contained in it is clearly set forth, in its proper connection and with all its legitimate bearing upon the real issue in several of those given. We think thé others were also rightly refused, as inapplicable, misleading and substantially unsound. There is no evidence in the record bringing home to the defendant the knowledge of any particular act or declaration of Charles, or of any particular fact relating to his “difficulty,” that would tend to show he had misrepresented his condition. lie had known from the first tiiat Charles started in business upon a capital almost wholly borrowed, and then knew that he had not reduced that debt, and that he owed some others for goods purchased to replenish his stock; but to whom, how much, or upon what representation, if any, he had contracted these debts for goods, or that they amounted, in the aggregate, to any considerable sum, it appears he did not know. True, the hypothesis of these instructions is “ if he knew enough regarding the financial condition of Charles E. Brown to put him upon inquiry orto excite the suspicions of a prudent man;” but that above stated is all there was to- constitute “enough.” And how prudent a man? Suspicious of what? Inquiry in regard to what? In Hanchett v. Kimbark, 118 Ill. 132, the Supreme Court say a “reasonably prudent person” and “inquiry in regard to the fraud,” but the refused instructions do not. Appellee’s knowledge may have been quite enough to excite his fear that his son would not be able to “ pull through, ” and put him upon inquiry as to that, and yet have been no ground for a suspicion that he had committed any fraud. If Charles himself, with all his own knowledge of his own condition, had not falsely represented it nor indicated an intention not to pay, otherwise than by such knowledge, it could hardly be claimed that appellants could have rescinded the sale even as to him. The reason is that such a condition is not incompatible with an honest intention to pay, and to warrant a rescission of the sale the vendor must show actual fraud consisting in a positive intention of the vendee, at the time of the purchase, not to pay (of which known insolvency is not sufficient proof—Catlin v. Warren, sitpra), or in false representation of his ability to pay. How, then, can the possession of more limited knowledge of his condition as one of financial difficulty, without other indication of such fraud on the part of Charles, be held sufficient to charge appellee with participation in whatever fraud there was and avoid his title as purchaser from Charles? See Axtell v. Cullen, 3 Ill. App. 527. Yet these instructions in effect, as applied to this case, require no more. They import that there is such a natural connection or relation between them as caxxse and effect, that the obtaining of credit for goods by a merchant xvho is in difficulty of a financial character would of itself alone suggest that he had fraudulently misrepresented his condition. We are not willing to affirm this proposition as sound in law or fact. In the Hanchett case tlie subsequent purchasers knew much more. They had themselves charged their vendor with fraud. All that appellants here had the right to ask on this point was given, as we have seen, in other instructions. We perceive no material error in this record.

Judgment affirmed.


source: Caselaw Access Project

author: Pleasants, P. J.

license: Public Domain

text:
    Louis McCall and Daniel Abbott, Executors, v. Henry R. Lee.

      Administration—Filing of Claim within Time Limited—Continuance— Re-instatement—Amendment—Allowance of Claim Toy Circuit Court—Classification—Personal Property—Life Estate, with Limitation Ocer.

    1. Where a claim against an estate is filed in the Circuit Court in time and is continued by agreement until the final determination of another case, the clerk in the meantime omitting it from the docket, the court does not lose its jurisdiction and may re-instate the claim on proper motion and notice, although such motion is not made immediately after such other case is determined.
    2. Where such a claim has been filed by an administrator within the time limited by statute, the court may subsequently allow the substitution,' by way of amendment, of the party interested, in place of the administrator, as claimant, the real claimant and the basis of the claim remaining the same.
    3. In allowing a claim against an estate the Circuit Court may leave the classification thereof to the County Court, which directly supervises the administration.
    4. This court declines to interfere with the findings and judgment of the court below, allowing a claim against an estate for the value of certain personal property turned over to the deceased under a special agreement creating a life estate with limitation over in remainder.
    [Opinion filed December 3, 1886.]
    Appeal from the' Circuit Court- of Fulton County; the lion. John C. Bagby, Judge, presiding.
    Messrs. Gray & Waggoner and Daniel Abbott, for appellants.

      Messrs. McKenzie & Calkins, for appellee.
   Pleasants, P. J.

This was a claim filed in the County Court and taken hy appeal to the Circuit Court, where the claimant obtained a judgment against the executors generally, for 87,739.60, to be paid in due course of administration-

It was originally filed in the name of Thomas McKee, as administrator of the estate of Kate H. Lee, for the value of certain promissory notes and other property, real and personal, therein mentioned, amounting in all, exclusive of interest claimed, to 87,659.

Kate H. Lee, who was the wife of appellee and daughter of Catharine Dwire, died in Knox County, December 21, 1876, intestate, without descendant, and leaving an estate of the value of twelve to fifteen thousand dollars, mostly in promissory notes and wholly in personal property, except eighty acres of land in Iowa, and her husband paid her debts.

On the 8th of January, 1877, he and Mrs. Dwire entered into the following agreement:

“Article of agreement between Henry It. Lee, of Gales-burg, and Mrs. Catharine Dwire of Canton: It is agreed and fully understood between ourselves, viz.: Mrs. Catharine Dwire and Henry R. Lee, that the property, both real and personal, belonging to Mrs. K. R. Lee, deceased, in her own right, shall be equally divided between Mrs. Catharine Dwire, her mother, and Henry R. Lee, her husband, said division to take place after all her debts are fully paid, including funeral expenses. And it is further agreed, that in case Mrs. Catharine Dwire should die first, her one-half interest shall go to Henry R. Lee; and if Henry R. Lee should die first, then his one-half interest shall go to Mrs. Catharine Dwire. We hereunto set our hands this eighth day of January, 1877.

“ Henry R. Lee.
“ Catharine Dwire.”

About the middle of February following, they made the division, she taking for her half the land referred to, being the. S. H. E. £ Sec. 21, T. 74, R. 35, in Cass County, Iowa, with the notes and other personal property mentioned in the claim, filed herein as above stated. He indorsed the notes and executed to her a quit-claim deed of the land for the expressed consideration of §1,600.

Mrs. Dwire died at her home in Fulton County, April 21, 1879, leaving a will by which she gave all her estate to a sister, a niece and two nephews, and appointed appellants her executors, to whom letters testamentary were issued May 10, 1879.

On March 15, 1880, upon petition of appellee, administration of his wife’s estate was granted in Knox County to Thomas McKee. He, after demand of appellants for the property received by their testatrix on the division mentioned, or its proceeds, caused a citation to be issued against them by the County Court of Knox County, under Sec. 81, Ch. 3 of the It. S., and on the hearing obtained an order for the delivery thereof, from which they appealed. Afterward, on April 11, 1881, he filed in the County Court of Fulton County the claim here under consideration. Thereupon it was agreed by the parties that the case should be continued until the final disposition of the one pending in Knox County. That went up by successive appeals, through the Appellate Court, where it was decided in February, 1882, (Abbot v. The People, 10 Ill. App. 62,) to the Supreme Court, which disposed of it finally at the March term, 1883 (105 Ill. 588).

The di cisión was against the administrator. It was held that in this case the husband was entitled under the statute to the whole of his wife’s personal estate; that if the administrator got it he would only hold as trustee for him, and that as 'lie had got it directly, without the aid of the administrator, and voluntarily transferred it to Mrs. Dwire, the administrator could have no more right, as against her, than as against him. How he disposed of it, or with what effect, did not concern the administrator. The court recognized the fact that the proceeding was instigated by the husband and for his own sole benefit; that he procured the appointment of McKee for this sole purpose, but held that his actual possession of the property and transfer to Mrs. Dwire cut off all right of the administrator, and that if he was entitled to it again upon her death by virtue of the agreement with her (which the court expressly declined to decide either way, as that question was not before it), he must assert it in his own name.

Corrected and enlightened by this decision, appellee caused the active prosecution of the claim in the Fulton County Court to be resumed, and obtained leave to amend it in form by substituting his own name as claimant for that of the administrator. This resumption took place at the August term, 1883, when two or more terms had elapsed after the final decision of the Knox County case, and was pursued to the judgment from which the present appeal was taken.

Appellants say that the agreement for continuance ended when that decision was made, at March term, 1883, and that the Fulton County Court had no power, so late as its August term following, to re-instate and try the case.

Just when the decision of the Supreme Court was made, or the fact came to the knowledge of appellee or his attorney, does not appear, but assuming it was as early as April, or even March, which is not probable, we think there was no such delay as would work a discontinuance or oust the court of jurisdiction of the cause. The claim was filed within two years of issuance of letters testamentary, and notice thereof duly given to appellants. All the parties had been in court and agreed to a continuance for a time that was uncertain, but reasonably sure to be extended over many terms, which entitled appellants to anew notice before the case should be again called up for action. This was given, and the fact that it was not re-docketed at the next term after the decision of the Supreme Court and thereafter regularly continued from term to term by formal order at the instance of the claimant,' did not prejudice them. The case was in court and not disposed of. It was competent for appellants to call it up upon notice at any time after said decision, and ask to have it dismissed for want of prosecution, but no such step was taken. The court therefore rightly took action when it did, on the motion of appellee. Barbaro v. Thurman, adm’r, etc., 49 Ill. 283.

It is also urged that if any judgment could have been lawfully rendered for plaintiff, it should have classified the claim, because the statute requires the County Court to classify claims as they are allowed, and the Circuit Court, on appeal, can render no other judgment than such as the County Court might have rendered. This particular duty is required by the County Court because it directly supervises the administration. The judgment of the Circuit Court allowing the claim and ordering it to be paid in due course of administration, does not deprive the County Court of this supervision. So far, therefor, as it takes the place of the judgment of the County Court, it is the same in form and effect as would have been that of the County Court if it had allowed the claim. The statute still devolves upon that court the duty of supervising the administration, and it will classify the claim as a general judgment of the Circuit Court should be classified.

Lastly, it is contended that the judgment is erroneous, in that it does not order the amount to be paid out of subsequently discovered assets. This is based upon the assumption that the substitution of appellee as claimant was the commencement of the suit as to him, and being made September 18, 1883, was more than two years after the letters testamentary issued to appellant, which presents the main question in the case. There is no room for a doubt that this substitution was asked and allowed as an amendment to 'the form of an existing suit, and not as the commencement of a new one. By it no new defendant was brought in, no addition made to the items originally charged, nor any change in any of those so charged. The ground of claim, the cause of actiou, remained exactly as first stated; namely, the appropriation by Mrs. Dwire absolutely to her owu use of certain items of property specified and alleged to have belonged to the estate of Mrs. Lee. The object of the suit was not to recover these articles in specie, but the value of them in money. It was assumed that the articles themselves not being produced on demand made, had been disposed of by Mrs. Dwire, and could not be so recovered.' The account is in form: To amount of note ” (of third party named), “ To interest thereon,” “ To eighty acres of land,” “To piano,” etc., just as accounts of indebtedness for property usually are, as if it had been sold to her or treated by the claimant as so sold.

Nor did the amendment change the real claimant. Both the Appellate and Supreme Courts found that fact, and appellants so understood it from the beginning.

It relieved the claimant of none of the burden of proof rest- ' ing upon the original party, but rather added to it, imposed no new or greater burden upon the defendants, nor cut off any defense they might otherwise have made. Had the suit proceeded in the name of the administrator, as it would if there had been any debts "for him to pay or distribution to make, he Avould have rested upon proof of decedent’s possession at the time of her death, of Mrs. Dwire’s afterward, and of the value of the property. Under the amended form appellee Avas required to prove the same facts, and in addition thereto his oavh sole heirship, the payment of all debts of the estate, and the agreement and division above mentioned. Appellants must have proved the same facts for defense in either case, namely, a valid offset against the estate of Mrs. Lee, or a valid and still operative transfer from the sole heir claiming under her. They could not successfully traverse the prima facie case of either claimant, nor avoid it except by proof of one of these facts, and either of them would have been alike available against either claimant.

Thus the object of the suit and the real claimant remained unchanged, and yet the amendment Avas necessary “to enable the plaintiff to sustain the action for the claim for Avhich it was intended to be brought,” in Avhicli case the amendment is expressly authorized by Sec. 23 of the Practice Act. Many cases illustrating the application of this provision, and the liberality with which it is construed, are cited in the brief for appellee, but Ave transcribe only those of Thomas v. Fame Ins. Co., 108 Ill. 91, 100, and United States Ins. Co. v. Ludwig, 108 Ill. 514.

The remaining points urged by appellants relate to the facts and the weight of evidence. These were for the court, acting as a jury, to determine. We discover nothing in the record, or wanting to it, to authorize a reversal of the findings.

Judgment affirmed.


author: Wall, J.

text:
    City of Quincy v. Daniel O’Brien.

      Municipal Corporations—Stock Running at Large, a Nuisance—Power of City of Quincy to Declare—Fines—Statutes—Repeal by Implication— Ordinance.

    1. An ordinance of the City of Quincy, declaring the running at large of cattle, horses, mules, goats and sheep within its corporate limits a nuisance, and imposing a fine upon the owner for each violation thereof, is authorized by its charter.
    2. This power is not affected' by Chap. 8, R. S., entitled “Animals,” although a vote taken under the statute in the county in which Quincy is situated, resulted in favor of stock running at large.
    3. When a municipal corporation is authorized to impose a fine and no limit is fixed, the fine imposed may exceed that imposed by the State for the same offense,
    4. The repeal of a statute by implication is not favored and will not be easily presumed.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Mr. L. H. Berger, City Attorney, for appellant.
    Messrs. Sibley & Pape, for appellee.
   Wall, J.

The question presented by this record is as to the validity of the ordinance of the City of Quincy which declares the running at large of cattle, horses, mules, goats and sheep, within the corporate limits, a nuisance, and imposes upon the owner a fine of not less than §5 for each violation of the ordinance.

It is argued on the part of the city that the power to pass the ordinance is derived from the provision of the charter to be found on page 163, P. L., 1857, which confers authority “To abato and remove all nuisances and punish the authors thereof by penalties, fines and imprisonment, to define and declare what shall be deemed nuisances and to authorize and direct the summary ahatement thereof;” and from the following, found on page 170: “The City Council shall have exclusive power over the streets and alleys, and may abate any and all obstructions and encroachments therein, in such manner as may be provided by ordinance.”

Counsel on the other side insist the ordinance is void because of the passage by the General Assembly of the act known as chapter No. 8 of the Revised Statutes of 1874, entitled “Animals,” and of a vote taken in Adams County pursuant thereto, which resulted in a majority in favor of stock running at large in said county.

The point thus made is that if the city had the power under its charter, originally, to pass the ordinance, the act and vote referred to abrogated it. We think this position is untenable. That the running at large of domestic animals, such as cattle, horses and sheep, within the limits of a city, may well be deemed a nuisance, can not he seriously controverted. The city certainly had the power, under the charter, to pass the ordinance. In the case of Roberts v. Ogle, 30 Ill. 459, the Supreme Court held that the City of Carrollton, under a similar provision, might prevent swine from running at large within the corporation. It was there argued, against the power, that it was a common right in this State to allow stock to run at large, and it could not be abridged by such an ordinance; but the court held this right, which was conceded, might be wholly destroyed whenever the Legislature deemed it advisable for the public welfare, and that by the charter the power was clearly granted to the corporation to so restrain stock within its bounds. It had been decided many years before, in the case of Seely v. Peters, 5 Gilm. 130, that the common law rule, requiring the owner of stock to restrain it, was not in force in this State, so that such animals might lawfully range at. will. The Act of 1874, cited by counsel, provided in the first section that it should be unlawful for certain animals mentioned to run at large except when authorized as thereinafter provided, and imposed a fine upon the owner for a violation of the act. It also provided, in subsequent sections, that in any county a vote might be taken under certain conditions, and if it resulted in favor of animals running at large, then they might be so permitted. Therefore, in a county where such a vote had been taken with such a result, the situation would be just as it was in the State generally 5 under the decision in Seely v. Peters: and before the passage of the various statutes of which that of 1874 was a revision.

The first general act of this class, so far as we are aware, was passed in 1872. It is not to be supposed the Legislature intended, by this enactment, to interfere with the power of cities to control the subject within their corporate bounds. The provision still remained in the charters unrepealed, and though the construction placed thereon by the courts was known to the law-maker, nothing expressly inconsistent therewith was incorporated in the law. Eepeal by implication is not favored, and will not be so easily presumed. The case of Martin v. People, 75 Ill. 605, cited by counsel, we think not in point.

It is suggested, also, that this ordinance is void because it imposed a mimimum fine higher than that imposed by the statute, and in support of this position we are referred to the case of the Town of Petersburg v. Metzker, 21 Ill. 205. That was a case where the act incorporating the town provided that the town should have power to impose fines for the breach of any ordinance, and direct such punishment to be inflicted for any offense against the laws of the corporation as was provided by law for a like offense against the State, an 1 it was held that an ordinance inflicting a minimum fine of $5 for an assault and battery, when the minimum fine imposed by the State law for the same offense was $3, was void. There is no such restriction in the charter of Quincy, the only limitation being that fines for violation of ordinances shall not exceed $100.

It has been repeatedly held, where authority is given to impose a fine for an offense, and no limit is fixed, that the fine may be greater than imposed by the State law for the same offense. See City of Pekin v. Smelzel, 21 Ill. 464, and cases there cited, also Baldwin v. Murphy, 82 Ill. 485.

The ordinance in question imposes a minimum fine of $5, but fixes no maximum. In such case the maximum of $100 would be implied, unless the matter is controlled by the terms of ordinance Mo. 976, which is as follow's:

“Whenever in any ordinance the doing of any actor omission of any act or duty is declared to be a breach thereof, and there shall be no fine or penalty declared for such breach, or no maximum or minimum fine or penalty declared for such breach, any person who shall be convicted of any such breach, shall be adjudged to pay a fine of not less than $3 nor more than $100.”

What should be the minimum fine is not the point now to be decided, nor has it been discussed. Hence it is not necesrary to inquire whether this provision is applicable in the present instance. It is not to be disputed that on the facts in proof the city was entitled to recover, if the ordinance in question is valid. The judgment of the Circuit Court was for the defendant.

Our conclusion is that the ordinance is valid, notwithstanding the objections raised thereto. Therefore, the judgment must be reversed and the cause remanded.

JReversed <md remanded.


author: Conger, J.

text:
    The First National Bank of Galesburg v. Thomas Hovell et al.

      Negotiable Instruments—Note—Genuineness of Signature—Witnesses— Competency of.

    1. In an action on a promissory note, where the signature is disputed by the defendant, a witness who has never seen the defendant write, but has merely examined certain signatures admitted to be genuine, is incompetent to testify as to the genuineness of the signature in question.
    2. Where a witness had no acquaintance with the handwriting of a party until a particular signature, purporting to be his, was disputed, the subsequent examination, by him, of the signature to an answer in chancery and to certain other papers that he heard the party state under oath were signed by him, did not render him competent to testify as to the genuineness of the disputed signature.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Fulton County; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Williams, Lawrence & Bancroft, for appellant.
    Messrs. Gray & Waggoner and Barrere & Grant, for appellee.
   Conger, J.

This was a suit brought by appellant against appellee and one O. J. Beam, upon a note for 81,000. Appellee denied his signature to the note and this was the principal question submitted to the jury.

It is urged that the court below erred in admitting improper evidence upon the question of the genuineness of the signature. Oliver Crissy, a witness called for appellee, stated that he had never seen appellee write; that in January or Febru. ary, 1885, at a time when appellee was disputing signatures, appellee took from his pocket five notes, exhibited them to the witness and others and admitted that the signature to those five notes was genuine, and that this was all the knowledge of appellee’s handwriting that the witness had.

Upon this the witness was allowed by the court below to express his opinion as to the genuineness of the signature in dispute. Knowledge thus acquired did not make him competent as a witness upon the subject. Snyder v. McKeewer, 10 Ill. App. 188; Board of Trustees v. Misenheimer, 78 Ill. 22.

O. H. Bliss, a witness for appellee, stated that he had no recollection of ever seeing appellee write, but that he had examined the signature to an answer in chancery and some other papers that he heard appellee state under oath were signed by him, and from such information expressed his opinion that the disputed signature was not genuine. It does not clearly appear from the record when he made the examination of these genuine signatures, but we infer it was after the dispute arose, and was done by the witness for the purpose of satisfying his own mind as to the genuineness of the signature in dispute. If we are correct in drawing this conclusion, and his answer will hardly admit of any other, he would clearly he incompetent under the rule in 78 Ill., supra. The evidence was conflicting, and we can not know how far the statement of these two witnesses may have influenced the finding of the jury and therefore think the question should be submitted to another jury upon such evidence only as under the rules of law is competent.

jReversed, and remanded.


text:
    Blandford, Fowler & Company v. Wing Flour Mill Company.

      Commission Merchants—Local Usage and Custom—Consignment of Unsound Flour—Advances—Suit to Recover Difference.

    1. Where produce is shipped to commission merchants to he sold in their market, there is an implied understanding that the business shall be done according to the local usage and custom.
    2. A commission merchant, who has made advances on flour consigned to him on the presumption that it was sound, may protect himself by selling it at the best advantage when it has been found to be unsound, if the consignor fails to secure him against loss. He may also recover from the consignor the difference between the amount realized and the amount advanced by him.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Coles County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. John Favorite and S. M. Leitch, for appellants.

      A person who deals in a particular market must be taken to deal according to the known, general and uniform custom or usage of that market; and he who employs another to act for him at a particular place or market, must be taken as intending that the business to be done will be done according to the usage and custom of that place or market, whether the principal in fact knew of the.usage or custom or not. Story on Agency, Secs. 60, 96, 199; Bailey v. Bensley, 87 Ill. 556; Lyon v. Culbertson, 83 Ill. 33; United States Life Ins. Co. v. Advance Co., 80 Ill. 549.
    Where the consignment is made generally without any specific orders as to the time or mode of sale, and the factor makes advances or incurs liabilities on the footing of such consignment, the legal presumption is that the'factor is intended to be clothed with the ordinary rights of factors to sell in the exercise of a sound discretion at such time and in such mode as the usage of trade and his general duty require; and to re-imburse himself for his advances and liabilities out of the proceeds of the sale; and the consignor has no right, by any subsequent orders, given after advances have been made or liabilities incurred by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment, not necessary for the re-imbursement of such advances or liabilities.
    This has long been the settled doctrine in the American and English courts. It is the settled doctrine in the courts of our own State, as evidenced and shown by numerous decisions bearing upon shipping and trading interests, and must, as we take it, bind this case. Winne v. Hammond, 37 Ill. 99; Lewis v. G. & C. U. R. R. Co., 40 Ill. 281; Peters v. Elliot, 78 Ill. 321; Nelson v. C., B. & Q. R. R. Co., 2 Ill. App. 180.
    Messrs. Wiley & Neal, for appellee.
   Wall, J.

Appellants are commission merchants doing business in Baltimore, Maryland. They received two consignments of flour from appellee, the manufacturer, of Charleston, Illinois. The appellee drew upon appellants for the supposed value of each consignment, the two drafts aggregating §1,100.75, hoth of which were paid hy the appellants.

These consignments were to be sold by the appellants in the Baltimore market for account of the appellee. Each lot was inspected on its arrival by a bonded inspector of the local corn and flour exchange and found unsound.

It was, therefore, not branded and could not be disposed of at the current rates for flour that had passed inspection. Appellee was notified of the facts, and requested a sample of each lot, which was sent, and after some three weeks, during which time there was considerable correspondence between the parties, the flour was sold by appellants at the best rate obtainable, and this action was to recover the difference between the sum so realized and the amount paid on appellee’s drafts.

A trial by jury resulted in a verdict for the defendant below, and the only point now made is that the court erred in refusing to set aside the verdict. There is substantially no conflict in the evidence as to the facts as above stated; and the only question about which there can be any serious doubt is as to the condition of the flour when it .was shipped. It is true the evidence offered by the appellee tended to show that the samples returned were not unsound, or, at least, that one of them was not, it being admitted the other had a bad smell as though affected by oil or some other foreign substance. There is no doubt, however, that it did not pass inspection and that, therefore, it would not sell at regular quotations in the Baltimore market. There is no evidence from which any want of good faith or diligence on the part of appellants can reasonably be inferred.

When the flour was sent to the appellants, for sale in the market, it was with the implied understanding that the business should be done according to the local usage and custom. Bailey v. Bensley, 87 Ill. 556; Story on Agency, Sec. 96.

We find nothing in the record to excuse the appellee for not making good the loss. Appellants had advanced their money upon the presumption the flour was marketable, and they had the right to protect themselves by selling to the best advantage and might then call upon appellee for the difference, if any. It was only after repeated requests upon appellee to secure them against loss and after fair warning that they resorted to this course.

It may be that the Baltimore market was at that time very exacting, and that in other markets the flour might have sold much better, but this was not the fault of appellants.

Upon the undisputed facts in the case we think' the plaintiffs below were entitled to recover and that the court erred in refusing to set aside the verdict. The judgment is reversed and the cause remanded.

Reversed and remanded


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    George H. Proctor and Frank Lohman, Jr. v. The People of the State of Illinois.

      Dram Shops—Sale of Liquor to Minor—Action to Recover a Fine— Whether a Civil Action—Instruction.

    1. A suit before a Justice of the Peace under Sec. 12 of the Dram Shop Act, to recover a fine for selling liquor to a minor, is a civil action and not a criminal prosecution.
    2. Upon appeal in such an action the Circuit Court may instruct the jury that a clear preponderance of evidence is sufficient to authorize a recovery by the people.
    [Opinion filed February 17, 1887.]
    In error to the Circuit Court of Cass County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Leeper & Thatcker, for plaintiffs in error.
    Messrs. R. R. Hewitt, State’s Attorney, and George L. Warlow, for appellees.
   Conger, J.

This was a prosecution originally commenced before a Justice of the Peace, to recover a fine for selling intoxicating liquor to a minor, under the provisions of the Dram Shop Act.

The suit was based upon the 12th section of said act, which is as follows: “Any fine or imprisonment mentioned in this act may be enforced by indictment in any court of record having criminal jurisdiction, or the fine above may be sued for a/rod recovered before any Justice of the Peace of the proper county, in the name of the people of the State of Illinois, and in case of conviction the offender shall stand committed to the county jail until the judgment and costs are fully paid.”

Upon the trial in the Circuit Court, upon the appeal of appellants, the Circuit. Court instructed the jury that “a clear preponderance of the evidence was sufficient to authorize the people to recover,” and this presents the only question in the case which we deem it necessary to notice.

Appellants insist this instruction was erroneous; that the case was in fact, as well as in theory, a criminal prosecution, and therefore they were entitled to have the jury instructed that the offense charged against them should be proven beyond a reasonable doubt.

The distinction between a criminal prosecution and a civil action to recover a penalty is not always clear nor easily defined, nor is there any general rule by which it can in all cases be determined under which class a particular case falls.

In Ferguson v. The People, 73 Ill. 559, it was held, under the 9th section of the Act of the 13tli of January, 1872, that prosecutions before a Justice of the Peace under that section were not criminal.

That section was as follows: “ The penalty and imprisonment mentioned in the sixth section of this act may be enforced by indictment in any court of record having criminal jurisdiction, and all pecuniary fines or penalties provided for in any of the sections of this act (except the 4th and 5th) may be enforced and prosecuted for before any Justice of the Peace of the proper county, m an action of debt, in the name of the people of the State of Illinois, as plaintiff, and in case of conviction the offender shall stand committed to the common jail until the judgment and costs are fully paid.” * * * It will be noticed that the principal difference in the language of this section and the present law is, the words, “ in an action of debt, ” are omitted from the present law, and the words, “ may be sued for and recovered,” are substituted in the present law for the words, “ may be enforced and prosecuted for,” in the Act of 1872.

Appellants insist that the Legislature, by the omission of the words, “in an action of debt,” from the- present law, intended to make all suits before a Justice of the Peace for the penalty a criminal prosecution.

If this were the only charge made there would be force in the suggestion, but when the words, “may be enforced and prosecuted for,” are omitted and their place is supplied with the significant expression, “may he sued for and recovered,” we think the Legislature meant to declare that the fines and penalties to be recovered before a Justice of the Peace under the section under consideration were to be so recovered by a civil action, and not by a criminal prosecution, and hence the expression, “in an action of debt,” was no longer required to make the meaning clear, and was omitted in the revision.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


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    Robert Fisher v. A. J. Ham.

      Negotiable Instruments—Action on Note—Execution—Evidence—Instructions—Practice.

    1. In an action on a promissory note, it is held: That the evidence sustains the verdict, and that there was no error in giving and refusing instructions.
    2. This court ma,y decline to consider whether the court below improperly refused instructions asked, where the abstract does not contain those given.

      [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Champaign County; the Hon. James F. Hughes, Judge, presiding.
    Messrs. J. S. Wolf and M. W. Mathews, for appellant.
    Messrs. J. L. Ray and F. M. Wright, for appellee.
   Wall, J.

The substantial issue in this case was whether the appellant executed the note sued on, and the point mainly pressed upon our consideration is that the evidence did not support the verdict.

We have carefully read the evidence as it" appears in the record, and find it fully sustains the conclusion of the jury. We can not interfere on this ground. Appellant complains of the refusal to give certain instructions. The abstract does not contain the instructions which were given, and for this reason we might well decline to consider the point, but on referring to the record, we think there is no occasion for the complaint-Two of the instructions so refused, so far as they were important, were sufficiently embraced in those that were given. The third was refused no doubt because there was no evidence upon which to base it. The main and indeed the only issue of fact before the jury was as to the execution of the note. Of course, if the note was paid or settled, there could be no recovery upon it, and this is a proposition no jury would need instruction upon; but we can not say there was such evidence as made it the duty of the court to call attention to the point. It would be unduly technical to reverse the case on this ground alone. We are satisfied that upon the merits the judgment is right, and that it should be affirmed.

Judgment affirmed.


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    William Buckworth v. Amanda A. Crawford.

      Dram Shops—Suit under Sec. 9, Ch. 43, B. S.—Parties—Amendment after Verdict—Evidence—Sufficiency of—Discretion.

    1. In suits underSec. 9 of the Dram Shop Act the plaintiff may proceed against any and all persons jointly or severally who may have caused the intoxication in whole or in part, without reference to whether they have equally contributed to the injuries complained of. They stand upon the same footing as persons engaged in a joint tort, each being liable for the entire damage.
    2. Upon a motion for a new trial in such an action the court may enter judgment against one defendant after permitting the plaintiff to dismiss as to another.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. Tipton & Beaver, for appellant.
    Messrs. John T. Lillard and Frank B. Henderson, for appellee.
   Wall, J.

This was an action on the case under Sec. 9, Ch. 43, entitled Dram Shops, against appellant and one David Martin. The appellee in her declaration charged that the defendants furnished intoxicating liquors to her husband, whereby he became habitually intoxicated, and that by reason of his condition thus produced he squandered his property and neglected his business, thereby injuring her in her means of support, and that while so intoxicated he assaulted her and drove her from home, thereby injuring her in health.

The case was tried by a jury. There was a verdict for plaintiff for $350. Upon a motion being made for new trial the plaintiff by leave of the court dismissed the case as to defendant Martin, and the court overruling the motion for a new trial, rendered judgment against appellant for the amount of the verdict. It is urged that it was error to permit the plaintiff to dismiss as to one defendant of the verdict, without dismissing as to the other.

The Practice Act, Sec. 24, Ch. 110, expressly authorizes this to be done. In the case of Cogshall v. Beesley, 76 Ill. 445, the plaintiff recovered a verdict in an action of assumpsit against two defendants, and upon a motion for new trial being made, was permitted to discontinue as to one of them and take judgment on the verdict against the other. The Supreme Court held this in accordance with the statute referred to.

In suits to recover under Sec. 9 of the Dram Shop Statute the plaintiff may proceed against any and all persons jointly or severally, who may have caused the intoxication in whole or in part, and in such cases it is not important that the several defendants have contributed in the same proportion to the injuries complained of, and they stand upon the like footing as persons who are engaged in a joint tort, each being subject to liability for the whole damage. Hence, when the court can see that there is a clear case against one of such defendants and the verdict is not in any wise excessive or unwarranted by the proof, it would be justified in granting permission to amend as to parties, under Sec. 24, Ch. 110, above referred to.

To a great extent, if not wholly, this is a matter within the discretion of the court—-its sound legal discretion—and its action should not be interfered with by an appellate tribunal, unless it is apparent this discretion has been abused and injustice thereby occasioned. We think there is no such abuse disclosed here. It is next urged that the evidence did not sustain the verdict. After an examination of the abstract we feel compelled to disagree with this position of counsel. It is satisfactorily shown by the proof that the husband, who was at one time quite prosperous, acquired settled habits of intoxication, squandered and wasted his estate, neglected his business and mistreated the plaintiff, his wife, so that she was compelled to leave home on several occasions.

One of these times she went away bareheaded, when the weather was severe, causing her to take cold and resulting, as she says, in the loss of an eye. The misconduct of the husband finally caused a separation. No one can read the testimony without coming to the conclusion that if her story is true, and it is somewhat corroborated, she has suffered grievously, and that the verdict is an exceedingly moderate allowance for the damages she has sustained.

Whether the appellant furnished any considerable amount of the liquor which produced these misfortunes was a question for the jury to determine.

While there was some conflict in the evidence, we are satisfied with the conclusion arrived at in this respect. It is quite evident that a large part of the liquor consumed by the husband was obtained from appellant after he had been requested by appellee to let him have no more. The judgment will be affirmed.

Judgment affirmed.


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    Robert S. McIntyre, Administrator, v. Levi Sholty, Administrator.

      Lunatics—Liability for Torts—Evidence.

    1. A lunatic is liable in a civil action for a tort committed by him.
    2. In an action to recover damages for the wrongful burning of the plaintiff’s barn by the defendant’s intestate, it is held: That the court below properly refused to permit the defendant to prove that the deceased was a lunatic; and that the evidence sustains the verdict for the plaintiff.
    [Opinion filed February 17, 1887.]
    In error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Blades & Neville, for plaintiff in error.

      The will or volition we are concerned about here, is the power to control and direct the intellectual faculties of the mind. In the insane this is lost.
    If the brain is diseased so that the individual has no volition, how, on principle, is the case to be distinguished from that of pure accident, or that resulting from merely physical, and even inanimate causes? “For a purely accidental occurrence causing damage without the fault of the person to whom it is attributable no action will lie; for though there is damage, the thing amiss—the in/juria—:is wanting.” Cooley on Torts, 80, and cases cited; note to Vincent v. Stinchour, 29 Am. Dec. 146.
    If one is driving his domestic animals along the public highway he is bound to observe due care, and if, notwithstanding he is guilty of no negligence, they escape from him and go upon private ground, he is not-responsible, provided he removes them within a reasonable time. Cooley on Torts, 341, citing, Goodwin v. Chevely, 4 Hurl. & N. 631.
    Messrs. Kerrick, Lucas & Spencer and Tipton & Beaver, for defendant in error.
    The rule is, that lunatics are liable civilly for all torts or wrong committed by them. To that rule there is only one exception that we know of, and that is, a lunatic is not liable for slanderous words uttered by him while totally deranged. Bryant v. Jackson, 6 Humph. 199. The following authorities declare the general rule: Weaver v. Ward, Hob. 134; Cross v. Andrews, Cro. Eliz. 622; Cross v. Kent, 32 Md. 531; Kron v. Schoonmaker, 3 Barb. 649; Williams v. Cameron, 26 Barb. 172; Hartfield v. Roper, 21 Wend. 615; Morse v. Crawford, 17 Vt. 499; S. C. Ewell’s Leading Cases, 635; 2 Saunder’s Pl. & Ev. 318, 1163; 1 Chit. Pl. 76; Shearman and Redfield on Neg., Sec. 51, 57; Broom Com. 684, 857; Bush v. Pettibone, 4 N. Y. 300; Brens v. McKinsey, 23 Iowa, 343; Lancaster County Bank v. Moore, 78 Pa. St. 407, 412; Ex parte Leighton, 14 Mass. 207; Cooley on Torts, 99.
   Conger, J.

This was a suit brought by defendant in error against plaintiff in error, for the wrongful burning of defendant in error’s barn, by Benjamin D. Sholty, plaintiff in error’s intestate, and judgment was rendered for $2,200 and costs.

There are two points urged as a ground for reversing the judgment of 'the court below. First, that the court erred in refusing to permit plaintiff in error to prove that said Benjamin D. Sholty was insane at the time of the alleged burning, and secondly, the insufficiency of the evidence to show that he set fire to the barn.

We think the Circuit Court was right in excluding the proposed evidence. That a lunatic is liable for torts committed by him is well settled. In 1 Chitty’s Pl, 76, it is said:

Although a lunatic is not punishable criminally, he is liable to a civil action for any tort he may commit.”

The reason of the rule is very clearly stated by Cooley, as follows: 61 "Undoubtedly there is some appearance of hardship, even of injustice, in compelling one to respond for that which, for want of the control of reason, he was unable to avoid; that it is imposing upon a person already visited with the insufferable ca'amity of mental obscurity, an obligation to observe the same care and caution respecting the rights of others that the law demands of one in the full possession of his faculties. But the question of liability in these cases, as well as in others, is a question of policy, and it is to be disposed of as would be the question, whether the incompetent person should be supported at the expense of the public, "or of his neighbors, or at the expense of his own estate. If his mental disorder makes him dependent and at the same time prompts him to commit injury, there seems to be no greater reason for imposing upon the neighbors or the public, one set of these consequences rather than the other—no more propriety or justice in making them bear the losses resulting from his unreasoning theory, when it is upon them or their property, than there would be in calling upon them to pay the expenses of his confinement in an asylum, when his own estate is ample for the purpose.

All questions of public policy must be settled on a consideration of what, on the whole, is the rule that will best subserve the general welfare. Among the considerations hearing on the proper rule in the case of an offending person are such as relate to the appointment of a committee or guardian, empowered by law to take charge of him, and restrain his action so as to prevent injury to himself or others. The appointment of this custodian is properly attended to by relatives or friends, those who have a personal or family interest in him, or who might be entitled to succeed to his estate if it were preserved. Would it not be an important stimulus to their action if the estate is to be held responsible for all injuries committed by him to others, and would it not tend to indifference on their part if the law were to leave the injured party to bear the loss without redress?

“Unless these questions can be answered in the negative, the reasons for holding his own estate responsible seem conclusive.

“Another immediate consideration is derived from the fact that the distinction between insanity and the cunning of malice is not always sufficiently clear for ready detection; and a rule of irresponsibility in respect to such persons would be likely to result in similar difficulties in civil cases, to those which have brought the administration of criminal law into disrepute wherever the plea of insanity is interposed. Nothing could present to the depraved mind a stronger temptation to simulate insanity for the purpose of mischief and revenge, than a rule of law which would give full immunity in case the deception proved successful, etc.” Cooley on Torts, pp. 100, 101. To the same effect see Ex parte Leighton, 14 Mass. 207; Kron v. Schoonmaker, 3 Barb. 649; Shearman and Redfield on Neg. Secs. 51, 57; Morse v. Crawford, 17 Vt. 499.

As to the second objection, we think it is not well taken. We have carefully examined the evidence, and think the jury were fully warranted in reaching the conclusion they did. The judgment will be affirmed.

Judgment affirmed.


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    The People of the State of Illinois v. Samuel Hamilton and Charles W. Grogan.
    Quo Warranto—Discretion—Village Trustees—Qualifications—Taxes— Arrears—Paragraphs 34 and 192, Chap. 24, Starr <& C. III. Stat.

    1 It seems that the provisions of paragraph 34, Chap. 24, Starr & C. 111. Stat., touching the qualifications of Aldermen, are not made applicable to Village Trustees by paragraph 192-of said chapter.
    2. Upon a proceeding by information in the nature of a quo warranto to test the right of the defendants to hold the office of Village Trustees, it is held: That disqualification arising from being in arrears in the payment of taxes as provided in said paragraph 34, if applicable, applies to the office and not to the election; that payment of the tax by one of the defendants, before assuming the office, removed the objection; and that the other defendant was not in arrears within the meaning of the statute, his arrears being caused by the fault of the collector of taxes.
    3. In a proceeding by quo warranto, the issue of a writ does not end the discretion of the court. Where the writ has been improvidentlv issued the court may decline to proceed or to grant the relief sought.
    [Opinion filed February 17, 1887.]
    Br error to the Circuit Court of Cass County; the Hon. George W. Herdhan, Judge, presiding.
    Mr. Oscar A. De Leuw, for plaintiffs in error.
    Messrs. Roach & Jones and Beach & Hodnett, for defendants in error.
    The granting of leave to file an information in the nature of a quo warranto is within the sound discretion of the court. The People v. Waite, 70 Ill. 25; The People v. Moore, 73 Ill. 132; The People v. North Chicago Railway Co., 88 Ill. 537.
    The issue of the writ does not end the discretion of the court. Commonwealth v. Chuley, 56 Pa. St. 270.
    The City Council is the judge of the election and qualifications of its own members. Starr & C. Ill. Stat., Vol. 1, Sec. 35, p. 458; People v. Metzger, 47 Cal. 524; Duffield’s Case, 20 Leg. Int. 100; Brightly’s Lead. Cases on Elections, 651; Commonwealth v. Garrigues, 28 Pa. St. 9; Commonwealth v. Leech, 44 Pa. St. 332.
    A disqualification existing at- the time of election, hut removed at the time of entering upon the duties of the office, is not cause for removal from office. State v. Murray, 28 Wis. 96; State v. Trumpf, 50 Wis. 103; Privett v. Beckford, 26 Kan. 52.
   Wall, J.

This was a proceeding by information in the nature of a quo warranto to test the right of Samuel L. Hamilton and Charles W. Grogan to hold, respectively, the office of Trustee of the Village of Ashland, in the County of Cass. A demurrer was interposed to the joint pleas of the defendants and was by the court overruled. The plaintiffs electing to abide by the demurrer, judgment was entered for the defendants. The record is brought here by writ of error and the ruling of the court upon the demurrer is now to be considered.

The said Hamilton and Grogan were elected Trustees of said village on the 20th of April, 1886, and on the 6th day of May following took the proper oath and entered upon the duties of the office. The only objection to the right of Hamilton to hold the position is that at the time he was elected he owed the sum of §1.44 for village tax, which sum was then unpaid and standing against him upon the books in the hands of the Sheriff as tax collector of the county, which sum was by said Hamilton paid on the first day of May, after his election, and before his assumption of the office.

As to Grogan the objection is that he owed the sum of 44 cents for the same tax, which was paid on the 18th of June, 1886, before the filing of the information and after he had entered upon the office. It is alleged in the plea that prior to said election said Grogan wrote to the Sheriff, requesting him to send him, said Grogan, a statement of the amount of his taxes; that the Sheriff sent him a statement which did not include said 44 cents for tax on personal property; that he paid the amount so stated by the Sheriff before the election; that he did not know the amount of said personal tax then, nor until after he was elected, but would have paid it with the realty tax had he known what it was.

Plaintiffs in error contend that Hamilton and Grogan were disqualified to hold the office and rely upon the provisions of paragraphs 34 and 192 of Chap. 24, R. S. Paragraph 34 declares that “no person shall be eligible to the office of Aider-man unless * * * nor shall be eligible if he is in arrears in the payment of any tax or liability due the city.” * * * Paragraph 192, relating to villages, provides for the election and powers of Trustees, and after declaring that the village corporation shall have the powers in said act conferred upon cities of 5,000 inhabitants, except as therein otherwise expressly provided, concludes in these words: “ And wherever the words c City Council’ or ‘Mayor’ occur in this act, the same shall be held to apply to the Trustees and President of such village, so far as the same may be applicable.”

It may be well doubted whether this clause has the effect and meaning contended for. The paragraph 192 is devoted to the matter of providing for the creation of the office of Trustee, stating the powers and duties attached thereto and the functions of the village corporation. In thus providing for the creation and powers of the corporation, it is declared that the words “ City Council ” and “ Mayor,” wherever occurring, shall be held to apply to the Trustees and President.

From the connection it would seem naturally that the only purpose was to confer power, and state or limit the same, upon the corporate officials named. Had it been designed to Sx or prescribe the qualifications of the persons who were to hold the offices, different and more appropriate terms would have been employed. It would be a strained and unnatural construction to give this provision the force and effect suggested by counsel, and when the result would be to impose a restriction upon the right of the people to select and of the citizen to serve, we are very strongly inclined to hold otherwise.

But admitting, for the sake of argument, that the construction contended for is sound, we think the ruling of the Circuit Court may be sustained upon other grounds. _ Hamilton paid his tax before he assumed the office. The provision of paragraph 34 is that no person shall be eligible to the office who is in arrears, etc.

Webster, in defining the term eligible, says: “Legally qualified—as eligible to office.” The provision here is with regard to eligibility to office. In the case of State v. Murray, 28 Wis. 96, this distinction is recognized, the court observing that “the term ‘ineligible’ means as well a disqualification to hold an office as disqualification to be elected to an office.” In that case the point presented was whether one who was an alien, when elected Sheriff, could, by removing the disqualification before the term began, fit himself to hold the office. It was decided he could.

There was no provision of statute or constitution on the subject, but it had been held to be the law of the State that none but electors could hold office, and it was, in the case cited, declared that this disqualification related merely to the holding of the office and not to the election. The doctrine was adhered to in State v. Trumpf, 50 Wis. 103; McCrary on Elections, 2d Ed. 232; Privett v. Beckford, 26 Kan. 52. Referring again to paragraph 34, it will be seen that this distinction seems to have been in view when the paragraph was drawn. It provides that “no person shall be eligible to the office of Alderman unless he is a qualified elector and resident in the ward for which he is elected, nor shall he be eligible if in arrears for any tax or other liability * * * nor if he shall have been convicted of malfeasance, etc.; nor shall he be eligible to any office, the salary of which is payable out of the city treasury, if, at the time of his appointment, he shall be a member of the City Council.”

We are satisfied that if the paragraph is applicable to the case of Village Trustees the disqualification is as to the office and not the election—that the payment of the tax before assuming the office met the requirement of the law and therefore that as to Hamilton the plea disclosed a perfect defense. As to Grogan it may be said that according to the true interest and spirit of the law he was not in arrears.

The object of the provision was to exclude those who were really and substantially debtors to the corporation, it being supposed that such persons could not safely be trusted to administer the municipal affairs. It would be unwise and dangerous to public interests that those who are indebted to the city should control its finances, and this would be especially so in large cities where the transactions are numerous and important and where the details of public affairs are not so well understood by the people generally as in smaller corporations. This was the evil sought to be avoided. It was never intended that the accidental omission to ¡Day the trifling sum of less than a half dollar, where there had been an honest intent and effort to pay all that was due, should exclude a citizen who was the choice of the people from holding the position to which he was elected. Such a case is not within the spirit and hardly within the letter of the law.

Grogan had requested a statement of his taxes from the proper officer who was charged with the collection thereof. The statement was furnished and the sum called for was paid. The amount omitted would have been paid if included in the statement.

That it was not, was through the fault of the officer and not of the taxpayer, and while this did not release the tax, there was no such arrearage as was meant by the provision in question.

It is suggested that the maxim “ de" minimis non ourat lex” is applicable. It is familiar that in proceedings by quo warranto the court may, in the exercise of a sound legal discretion, 3-efuse leave to file the information. People v. Waite 70 Ill. 25; People v. Moore, 73 Ill. 132; People v. N. Chi. Ry. Co., 88 Ill. 537; Dillon on Municipal Corp., Vol. 2, Sec. 722.

Had the facts disclosed by this plea appeared upon the face of the information the court would have been justified in refusing permission to file it. When it appears that the writ was improvidently issued the court may well decline to grant the 3'elief sought.

The issue of the writ does not end the discretion of the court and if the case made by the pleadings is such that leave to file would have been refused in the first instance the court may decline proceeding to judgment. Commonwealth v. Cheely, 56 Pa. St. 270.

In the view we have taken it is not deemed necessary to consider the point made by defendants in error, that as the Board of Trustees may judge of the election and qualification of its own members, the remedy by quo warranto is abrogated.

The Supreme Court intimated adversely to this position in Linegar v. Rittenhouse, 94 Ill. 208, and so it has been recently decided by the Appellate Court of the Fourth District in the case of People ex rel, etc., v. Bird, 20 Ill. App. 568.

Upon the whole case we are satisfied with the ruling of the Circuit Court and the judgment will therefore be affirmed.

Judgment affirmed.


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    Daniel Doyle et al., Imp’d, etc. v. Sherman E. Baughman.

      Drainage—Power of Commissioners to Change District Boundaries—Petition—Additional Signattires—Final Order—Defect—Act of 1885—Retro-spective Effect of— Trespass—De Facto Officers—Contractors—Damages— Presumption—Res A djudicata.
    1. It is within the power of the commissioners to change the boundaries of a drainage district so as to exclude lands already included or to include additional lands. They may also permit additional signatures to the petition.
    2. In an action of Trespass against certain drainage commissioners and contractors, it is held: That a defect in the final order organizing the district was cured by the Act of 1885; that the commissioners were such de facto officers as to afford protection to the contractors and their employes; that it must be presumed that the plaintiff’s entire damages, “consequent upon the construction of the proposed work,” were considered by the jury in the condemnation proceedings; and that the verdict for the plaintiff is against the law and evidence.
    S. Where a proceeding under a statute is defective in some particular which the Legislature might have dispensed with, it may be dispensed with by a subsequent act operating retrospectively.

      [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Christian County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Anthony Thornton and James M. Taylor, for appellants.
    Mr. John G. Drennan, for appellee.
    The drainage district was not legally organized, and this being an action of trespass against appellants as individuals the appellee had the right to attack the organization of the drainage district, when set up in justification of the acts of appellants, and such attack is not collateral. Blake v. The People, 109 Ill. 504, 517; Stowe v. Flagg, 72 Ill. 397; Biglow v. Gregory, 73 Ill. 197.
   Wall, J.

This was an action of trespass quare clausum fregit, by the appellee against the appellants; verdict and judgment for plaintiff below for §395.83.

Three of the appellants, Doyle, Vermillion and Salliday, were Highway Commissioners of Stonington Township, and by operation of law, drainage commissioners of the town.

They assumed to organize a drainage district, and made a contract under which certain ditches were constructed on the lands of the appellee. The other appellants were the contractors and their employes in doing the work.

The entry upon the land and the making of the ditches were the trespasses complained of. The appellants justified under the right of the drainage commissioners to cause said ditches to be constructed. Whether the organization of the drainage district was legally effected, was one of the questions made on the trial and controverted here. The only objection urged is that the district, as finally organized, comprised forty acres of land not embraced in the original petition and other proceedings.

It is within the power of the commissioners to change the boundaries, so as to exclude or include lands, and they may “ permit additional signatures to be made to the petition by any adult person owning land in, or owning land desired to be taken in the proposed district, to the end that a majority of the adult owners of land in the district as finally to be organized, and who shall be owners in the aggregate of more than one-third of such land, shall have signed the petition, which facts said commissioners shall find and shall put such finding in writing.” The final order of the commissioners organizing the district did not find that the district, as so organized, including this forty-acre tract, had been petitioned for by a majority of the adult owners, and owners of more than one-third of the lands therein, but such was the finding in the order made at the first meeting, and in the final order the map or plat showing the boundaries of the district and the lands included therein, was referred to as filed therewith. Turning to this map and comparing it with the petition, it readily appears that these statutory requirements, as to ownership in the petitioners, were abundantly complied with, and that the failure to set out the finding to that effect was probably the result of more inadvertence.

Without discussing or deciding the question whether this omission would divest the commissioners of the defense which their official character of drainage commissioners would give them when called to account for their own acts, we think it is clear they were such de facto officers as that protection would be afforded to the contractors and their employes for any act properly performed by their direction, and that as to these the organization of the district must be -regarded sufficient and legal. The proper proceedings had been instituted and there was jurisdiction to act therein. The only complaint is of an irregularity in the final order. As to the public and the rights of third persons there was a de facto organization at least. Blake v. People, 109 Ill. 504, and the authorities there cited. Whether the organization is so faulty as not to afford protection' to the appellants Doyle, Vermillion and Salliday, who aver that by reason of their proceedings in such organization they clothed themselves with an official character, need not be determined, in view of the curative statute of 1885.

This act in unequivocal terms declares that all drainage districts heretofore organized under any one or more of the acts hereby repealed (1879, 1881, 1S83) shall be held, and are hereby declared to be legally organized and the assessments made therein shall be held legally made.

The validity of this act is not to be settled in this court, but there seems to be no reasonable ground to call it in -question. Where the thing which failed to be done and which constitutes the defect in the proceeding is something which the Legislature might have dispensed with the necessity of, by a prior statute, then a subsequent act dispensing with it retrospectively must be held valid. Cooley on Const. Lim. 371; Blake v. The People, etc., supra; and such curative legislation may be efficient, though “ passed after the litigation began.” Cowgill v. Long, 15 Ill. 202. The organization of the drainage district may, therefore, be regarded as legal so far as it is concerned in the present inquiry.

It appears from the record that the most important and substantial ground of complaint by the plaintiff below was that the dirt taken out of the ditches was left upon the land along, and twelve feet distant from the ditches on either side, in irregular piles, thereby interfering with the cultivation of the land not occupied by the ditches.

The drainage commissioners were not able-to obtain the release of the appellee and proceeded under the statute to condemn the right of way and assess the damages of the appellee in the premises. A trial was had and a finding by jury, which remains unreversed and in force, that those damages were §138. There was upon the trial of the present case a contention by, the appellee that such assessment did not cover his damages in the respect named for so leaving the dirt upon his land, but that it included merely the right of way and other damages.

Under the statute in question it is provided that upon such assessment of damages “the jury shall hear the evidence offered in the case as to the value of the land proposed to be taken and all damages consequent upon the construction of the proposed work.”

Of course the only part actually taken is what is covered by or included in the ditch but “ the damages consequent upon the construction of the proposed work” might well embrace such as those complained of. It appears very plainly that to properly construct the ditch the course pursued here was necessary and that such is the result, and uniform if not the universal, practice in such works. It appears also that it was so contemplated in this instance from the form of release which was sought to have executed by appellee and which was before the jury on the trial of the condemnation case.

Whatever was proper for the jury to take into account as a part of the damages consequent upon the construction of the proposed work it must be presumed, was considered by them on such assessment and such an item can not be the subject of another claim for damages. The matter is res judicata. Freeman on Judgments, 272.

We think there can be no reasonable doubt that this item was within the scope and range of the investigation upon the assessment of damages. The organization of the district being deemed regular for present purposes the only important question of fact to be determined by the jury, was whether the damages now complained of were “such as were consequent upon the construction of the proposed work.” If they were, then it is a presumption of law, which the jury were not at liberty to disregard, that these damages were included in the assessment referred to and could not, therefore, form the basis of an allowance in the case at bar.

The instructions given by the court are complained of by the appellants and so far as they are not in harmony with the views here suggested we deem them erroneous.

The verdict is manifestly against the law and evidence, and should have been set aside. It is not necessary to consider the instructions in detail as what has been said will sufficiently indicate the course to be taken on another trial in this respect. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The Chicago & Alton Railroad Company v. Joseph I. Hill.

      Railroads—Injury to Animal, Unlawfully at Large—Liability.
    A railroad company is liable for killing an animal, although it was unlawfully at large and upon the defendant’s track, if by the exercise of proper care and prudence, after the discovery of the animal, its engineer might have prevented the injury.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Green County; the lion. George A. Herdbian, Judge, presiding.
    Messrs. Patterson & Starkey, for appellant.
    The only theory by which the appellee could expect to recover in this case was the gross negligence of the defendant’s servants, as he concedes that the ców was running at large in violation of law. The following aro some of the leading cases which, in our judgment, are similar to the casi at bar: C., B. & Q. R. R. v. Bradfield, 63 Ill. 220; T. H. & I. R. R. Co. v. Jenuine, 16 Ill’. App. 209; R., R. I. & St. L. R. R. Co. v. D. O. Linn, 67 Ill. 109; P., P. & J. R. R. Co. v. Champ, 75 Ill. 577; T., W. & W. R. R. Co. v. Barlow, 71 Ill. 640; I. C. R. R. Co. v. John S. Bull, 72 Ill. 537.
    Mr. David F. King, for appellee.
    Even if plaintiff was guilty of contributory negligence, this fact did not relieve the company from the duty to exercise proper care, and observe all reasonable precautions to avoid the accident. P., P. & J. R. R. Co. v. Champ, 75 Ill. 577.
    The cases cited by appellant are not similar to case at bar, as in those cases the engineer saw the stock grazing near the track, but in this case engineer saw cow was frightened and chased her down the track. For similar cases see T., W. & W. Ry. Co. v. Barlow, 71 Ill. 640; I. C. R. R. Co. v. Middlesworth, 46 Ill. 494; R., R. I. & St. L. Ry. Co. v. Rafferty, 73 Ill. 58; C. & A. R. R. Co. v. Engle, 84 Ill. 397; C. & St. L. R. R. Co. v. Woosley, 85 Ill. 370; Ewing v. C. & A. R. R. Co., 72 Ill. 25; C., B. & Q. R. R. Co. v. Cauffman, 38 Ill. 424.
   Conger, J.

This was a suit against the railroad company to recover the value of a cow killed by one of the company’s trains within the corporate limits of Boodhouse. Appellee recovered in the court below, and appellant asks a reversal of the judgment, on the ground, principally, that the verdict of the jury is not sustained by the evidence.

The evidence shows that on the 15th of October, 1885, appellee’s cow was grazing on the west side of the railroad track at a point some 150 feet north of a public crossing, upon which she was afterward struck and killed. From the point where the cow was grazing, south to the crossing, there was a fence twenty-nine feet west of the track, and extending south about 130 feet the same distance from the track to. the street or crossing, so that when the cow started to run south she would be confined to this space of twenty-nine feet until she reached the crossing or street, when she could turn west away from the track, or east across the track.

On the day in question appellant’s regular passenger and mail train, consisting of engine, mail and baggage car com bined, and three passenger cars, left the station at Boodhouse for St. Louis. After passing a curve the train reached the straight track about 300 feet north of where the cow was, the train running at the rate of about ten miles per hour. Paul, the engineer, says: “After I started around the curve I saw a cow on the west side of the track, eating grass. As I came onto the straight track, she started and ran down the side of the track a little ways and then took off toward the west to a fence around some lots, and I supposed she was going where some cows were grazing out on some vacant lots. After running off in that direction she turned suddenly about on the road and attempted to go across the crossing, when I struck her and, I suppose, killed her.” Other witnesses state that the cow ran nearly all the way upon the track, while others think she ran close to the track, within a few feet of the ends of the ties. The cow was at large, in violation of the ordinances of the town, and at a place where the road was not required to be fenced; so that the rule of liability was, as laid down in T., W. & W. Ry. Co. v. Barlow, 71 Ill. 642: “ The rule of liability, where an animal is unlawfully upon a railroad track, we conceive to be that the company is not in general liable, unless its servants, after they discovered that the animal was in danger, might, by the exercise of proper care and prudence, have prevented the injury; that it is not sufficient in such case to charge the company to show that they were running at a- high rate of speed, or without proper care in other respects.”

The unquestioned facts were, that the engineer saw the cow grazing at the side of the track, when at least 300 feet from her; that upon approaching her he saw that she started to run south, and that she was confined to the space between the track and the fence, twenty-nine feet wide, and could not turn west, except to press closer to the fence until she should run a distance of about 130 feet to the crossing$ and that then it would be impossible to tell whether she would turn west, as the engineer says he expected her to do, and thus escape, or turn east across the track, as she did. The distance within which the train could have been stopped is shown by the fact that after the cow was struck, the train was stopped within the length of the engine and baggage car. The railroad was fenced south of the crossing, so that the animal was compelled to turn at the crossing. The engineer states that he did everything he could to stop the train when he saw the cow trying to cross the track, but made no attempt to do so prior to the moment that she reached the crossing and suddenly rushed on the track ahead of the train. We think it was a question for the jury to find from the facts whether the engineer was exercising proper care and prudence in thus racing along immediately behind this animal, without attempting to check his train, upon the mere hope or expectation that when she emerged from the trap where she was and reached the crossing, she would turn west instead of east; and their conclusion that the engineer, after he discovered the animal was in danger, might, by the exercise of proper care and prudence, have prevented the injury, we do not feel warranted in disturbing.

The instructions of "appellee are not subject to the objections made by appellant, but are substantially correct.

The judgment of the Circuit Court will be affirmed.

AjJirTned.


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    Joseph Hatton v. The Village of Chatham.

      Municipal Corporations—Platting of Town—Alleys—Encroachment— Ordinance—Fine—Notice—Ejectment.

    1. In the absence of an adverse possession, the mere platting of a town gives the public the right to the use of the streets and alleys.
    2. Upon appeal from a judgment imposing a fine for a violation of a village ordinance, in relation to obstructions in its streets and alleys, it is held. That the village need not resort to an action in ejectment, and that the written notice given was sufficient.
    [Opinion filed February 17, 1887.]
    Appeal from the County Court of Sangamon County; the Hon. J. H. Matheny, Judge, presiding.
    Messrs. Palmers & Shutt, for appellant.
    Messrs. Patton & Hamilton and Noah H. Turner, for appellee.
   Conger, J.

The Village of Chatham was laid out and platted in 1836. In 1859 one Smith owned lots 13,14,15 and 16, constituting the southeast quarter of block 5 of said village, and built a barn and fence on the alley at the north end of lot 16, and the barn still remains where originally placed. It is claimed by the village, but denied by appellant, that said barn and fence encroaches upon the alley some two feet at one place and six at another. The court below found such encroachment to exist, and in the consideration of the case we shall assume such finding to be correct.

Appellant now owns said lots by conveyance from Smith. In July, 1885, the president and board of trustees of the vil_ lage passed an ordinance which provides that:

“ The owner of any building or any structure or enclosure already erected or built extending into or encroaching upon any street, avenue or alley * * * within the village, who shall not remove the same within thirty days after being notified in writing to do so by the street commissioners, shall be subject to a fine of not less than ten dollars nor more than one hundred dollars.”

Written notice was given appellant to remove this barn and fence off of the alley, and upon his failure to do so he was prosecuted under the ordinance and fined 810 before the Justice who originally tried the case, and the appellant appealed to the County Court, where the judgment was affirmed.

Appellant insists That as the public, the village, has never had possession of the ground which is covered by the appellant’s possession and claim of title, the village must sue in ejectment and recover possession, and can not sue for a penalty,” and cites City of Chicago v. Gosselin, 4 Ill. App. 570, as authority for the proposition.

We are at loss, however, to discover the application of the doctrine announced in that case to this. In that case the street had never been open to public use. But in this case it is stated in the abstract prepared by appellant’s counsel, as an undisputed fact, that the town was laid out and platted in 1836, and that the lots in question ran back to this alley, which was, and is, sixteen feet wide. Mr. Porter states that he has known this alley since 1836, and owned lots on the northeast corner of the block in question, and says: “I suppose there was no use for the alley; sometimes it was fenced up, and sometimes it wasn’t.”

From this it is reasonable to assume that the alley was laid off in 1836, and used when needed until encroached upon by Smith in 1859, and from that time to the present has been open a part of the time and fenced up a part of the time.

The mere fact that the alley was, prior to 1859, but little used because the lots bounding upon it were not inclosed, and therefore there was no necessity for keeping within its exact limits, would not interfere with its existence, or tend to show that it was not a legal public alley. ¡Neither would it show that the village was not, during such time prior to its being fenced, in the possession of the same. The mere fact of platting a town gives the public the right to the use of the streets and alleys when at the time there is no adverse possession.

The other point relied upon, that the written notice was signed by the president and clerk of the Board of Trustees, and not by the street commissioner, has no merit.

The notice plainly indicated its purpose. It was given appellant by the street commissioner, and was at least a substantial if not a technical compliance with the ordinance.

The judgment of the County Court will be affirmed.

Judgment affirmed.


text:
    Hans H. Littlefield v. Robert Schmoldt.
    Practice—Nunc pro Tunc—Mechanic's Lien—Amendment—Notice.'

    1. In proper cases the court may allow amendments and proceedings in a cause to be filed nunc pro tunc. But this should never be allowed when it would work injustice.
    2. Where a trial has been had upon a petition for a mechanic’s lien, it is improper to allow amendments and to enter a decree nunc pro tunc, without notice to the defendant. Where this has been done, the fact that injustice may have been done the defendant is sufficient ground for reversal.
    [Opinion filed February 17, 1887.]

      Appeal from the Circuit Court of Cass County; the Hon. George W„ Hehdmah, Judge, presiding.
    Messrs. Morrison & Whitlock and Mills & McClure, for appellant.
    Messrs. Hewitt & Thacker, for appellee.
   Conger, J.

On the 29th day of September, 1885, appellee filed his bill to enforce a mechanic’s lien against one Wm. Bennett and appellant, alleging that on or about May 23, 1885, Wm. Bennett and Hans H. Littlefield were about to enlarge and repair a barn on lot 3, block 21, in Beards town, Illinois, and contracted with appellee for lumber, shingles and other building materials to be used in and about the improving and repairing of such barn. Appellant answered denying the making of any contract, express or implied, or that the material was bought with his knowledge and consent, or that he was consulted about the purchase of the materials, etc. ¡Replication being filed the cause was, on the 16th day of October, 1885, referred to the master to take and report the proofs.

On the 19th of August leave is granted appellee to amend his bill, which the record says was done. Bennett is dismissed from the cause and the record then proceeds: “ And the court finds for the petitioner herein, and thereupon, by consent of the parties hereto, the decree herein is to be signed in vacation as of this term of court.” The appellant then prays an appeal, which is allowed, etc.

The amendment, which appears to have been made in August, was in fact filed on the 10th day of September, 1886, as of the 19th day of August, 1886, and it set up an express contract as the basis for a lien. To this amendment a demurrer on the part of appellant was filed September 14, 1886, but which was never passed on.

On the 13th of September, appellant made an affidavit which was filed in the clerk’s office on the next day, setting forth that he has upon that day for the first time seen and read the amended bill filed on the 10th of September, that he is surprised by it, and unable to go to trial upon it during vacation. And after setting forth the particulars wherein the amendment is different from the original bill, asks that the case be not passed upon until the next • regular term of the court convenes, which will be in three weeks from that day.

On the 27th day of September, 1886, counsel for appellant received the following letter from Judge Herdman.

Copy of letter:
“Jebsetvtlle, III., September 27, 1886.
“ B. W. Mills, Esq.,
“Virginia, Ill.

'•’•Dear Sir: Herewith I return to you all the papers in the ease of Bobert Schmoldt v. Wm. Bennett et ah, without signing the decree. I have been too busy since I received the papers on the 16th inst. to read them until now. As you will have a term of court beginning next week, there will be but little time lost in having a hearing on the amended petition, which I think is best now, as the amendment seems to be broader than was contemplated. Show this to Messrs. Hewitt and Thacker and J. H. Grid ley, so they may know in time to avoid unnecessary delay.

“Tours truly,
“Geo. W. Hebdmae.”

On the 10th day of ¡November, 1886, in vacation after the the October term, 1886, at chambers, before Judge Herdman, appellee, by leave of the Judge, withdraws the amendment tiled September 10th and makes another amendment without notice to appellant, so far as the record shows, and upon that day the final decree is signed by the Judge and filed in the c'erk’s office, as of August 19, 1886.

" The evidence in this case does not make it entirely clear that justice has been done appellant, though we should not be disposed to interfere with the conclusion reached by the Circuit Court were it clear that appellant had been given an opportunity to fully make his defense. There is no impropriety in proper cases to permit amendments and proceedings in a cause to be filed nunc pro timo, but it should never be allowed when it works injustice, and in this case there is at least a probability that such has been the effect.

The trial was had upon the original bill, proofs and arguments addressed to the court upon the theory presented by it Afterward, without notice to appellant, the bill is changed, a decree rendered upon it, and appellant, though diligent in seeking a hearing upon the amended bill, is informed that by a fiction of law these amendments and proceedings are supposed to have taken place in August, when he did have the opportunity of meeting and replying to them.

We can not know nor are we called upon to assume that injustice has actually been done appellant by these proceedings. It is enough to say that such may be the case, and that appellant has not had an opportunity to meet the allegations of the amended bill, as the law intends he shall.

For these reasons we feel constrained to reverse the decree of the Circuit Court and remand the cause.

Reversed and rema/nded.


author: Per Curiam.

text:
    Thomas Gardiner, Sheriff, v. John W. Bunn & Company.

      Practice—Second Appeal—Defective Possession by Sheriff—Rights of Third Parties.

    1. Upon a second appeal this court declines to reconsider the questions passed upon when the case was here before.
    2. Although the original possession of goods by a Sheriff may have been defective, third parties can not complain if such possession was perfected by a legal and complete levy before their rights attached.
    [Opinion filed February 17, 1887.]
    In error to the Circuit Court of De Witt County; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Moore & Warner, for plaintiff in error.
    Mr. Joseph M. Grout, for defendants in error.
   Per Curiam.

This case was before ns at the November Term, 1885, and is reported in 18 Ill. App. 94, when the judgment of the Circuit Court was reversed and the cause remanded.

Upon a second trial the court below proceeded upon the theory of the law held by this court, and we are now asked by appellant to review the same questions that were passed upon when the case was here before. We decline to do so.

Appellee assigns as cross error the holding of the court below as to the Pettingall execution, but we think such holding was correct.

However defective the possession of the stock of goods by the Sheriff may have been originally, it was perfected by a legal and complete levy and possession before appellee’s rights attached.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.