author: Conger, J.

text:
    The People of the State of Illinois v. John Nedrow.

      Pharmacy Act—Sec. 15—“ Fine ” or “ Penalty ”—Lien of State's Attorney—Sec. 8, Chap. 53, S. S.

    A fine or penalty recovered under the Pharmacy Act is subject to the lien of the State’s Attorney for any unpaid fees due him. If no such fees are due him, or after he is paid, such fine or penalty, or the remainder thereof, is to be divided as provided by Sec. 15 of the Pharmacy Act.
    [Opinion filed February 17, 1887.]
    Agreed case certified from the Circuit Court of Adams County; the Hon. William Harsh, Judge, presiding.
    This is an agreed case certified from the Circuit Court of Adams County, arising on a motion of the State’s Attorney of Adams County, and cross-motion by the Board of Pharmacy, for a rule on the cleric of the Adams Circuit Court to pay over the penalty collected by him in the above entitled cause against John N. Nedrow.
    STATEMENT OF FACTS.
    As appears from the record and the agreed state of facts set out in the-abstract, the people of the State of Illinois recovered a judgment before a Justice of the Peace of Adams County against John N. Nedrow on the 3d of October, 1883, for §50, the penalty prescribed for violation of the 29th section of what is commonly called the Pharmacy Act. 2 Starr & C. Ill. Stat, 1607.
    Nedrow took an appeal to the Circuit Court, and on a trial there before the court and a jury, at the September term, 1834, a verdict and judgment was rendered in Nedrow’s favor. The people appealed from that judgment to this court and at the November term, 1884, but on the 16th day of January, 1885, the judgment of the Circuit Court was reversed and the cause remanded. At the October term of the Circuit Court Medrow dismissed his appeal from the Justice and paid the judgment of the Justice of the Peace to the clerk of the Circuit Court, who now holds the amount of the judgment subject to be paid over, either to the State’s Attorney or to the Board of Pharmacy or in part to one and part to the other, as it shall be judicially determined he should pay it. It is agreed further that Oscar P. Bonney, Esq., the present State’s Attorney of Adams County, was not such State’s Attorney at any time when the above proceedings were had, except when the opinion of the Appellate Court was filed, and when said cause was remanded, and the appeal dismissed, and the judgment paid to the clerk, as above stated, he was such State’s Attorney. Also that at time said judgment was paid, the unpaid fees to said State’s Attorney exceeded §500, and that said State’s Attorney does not claim and is not entitled to said §50 or any part of it for fees earned in said cause, but doe's claim the said judgment to be applied by him in payment as far as it will go, of his unpaid fees as aforesaid.
    It is further agreed as follows:
    “And it is hereby agreed between the State’s Attorney and the said Board of Pharmacy, that if the said State’s Attorney is entitled to said fifty (§50.00) dollars, or any part of the same, under the foregoing state of facts and the laws of this State, that the clerk shall pay the same to him, and that judgment shall be so ordered for the whole, or such amount as he shall be so entitled to: On the other hand, if, under the foregoing
    state of facts and laws of this State, the Board of Pharmacy is entitled to the said fifty (§50.00) dollars, or any part of the same, the court shall order the clerk to pay the same or such part thereof to the said Board of Pharmacy, under the motion and cross-motion herein.”
    Mr. Oscar P. Bonnet, State’s Attorney, in support of motion.
    Messrs. Carter & Covert, for Board of Pharmacy, contra.

   Conger, J.

It is insisted by the Board of Pharmacy that the Slate’s Attorney is not entitled to the §50 in question: first, because it was not procured by him within the meaning of the 8th Sec. of Chap. 53, for the reason that at the time of the recovery of the penalty against Medrow before the Justice, Mr. Bonney was not the incumbent of the office of State’s Attorney.' He was, however, when the remanding order from this court was filed in the Circuit Court, and Hedrow, refusing to prosecute his appeal further, dismissed it and paid the amount to the clerk.

The State’s Attorney being then present, representing the people, we think h{¡procured such payment as much as he does in cases where a defendant in a misdemeanor, fearful of the result of trial, enters a plea of guilty and pays such fine as the ' court may impose.

The money, in this case, was procured by the State’s Attorney standing ready to enforce the law by a trial, and JSTedrow preferring to pay it without trial.

The claim of the Board to the money is based upon the last clause of Sec. 15 of the Pharmacy Act, which is as follows: “All penalties collected under the provisions of this act shall inure one-half to the Board of Pharmacy and the remainder to the school fund of the county in which the suit was prosecuted and judgment obtained.”

The State’s Attorney bases his claim upon the last clause of Sec.8 of the Fees and Salaries Act, which is as follows: “ State’s Attorneys shall have a lien for their fees on judgments for fines or forfeitures procured by them for their fees and earnings until they are fully paid, and such payment shall operate as a release of the lien created by this act.”

It is insisted by counsel for the Board “that the State’s Attorney’s lien and right of payment being confined by the statute to judgments for fines vcaA forfeitures, can not be extended to judgments for penalties. The word penalty is not mentioned in the section of the act under which the State’s Attorney claims. !N or is the word fine mentioned in the Pharmacy Act. Even if the two words, fine andpenalty, may he used interchangeably in the same law, to express the same meaning. still the Legislature has not seen proper to so use these words in the same sense in these two acts.”

Counsel have not given the Pharmacy Act a very careful examination, as it is provided in Sec. 13 of the act that for a violation of its provisions the offender shall be subject to a fine of not less than §50 nor more than §100. And we hardly think counsel for the Board would admit they have no right to claim one-lialf of such fine, for the reason that the last clause of Sec. 15 mentions only penalties.

Whatever the technical difference may be in the words fine and penalty, we are satisfied they mean the same thing in the Pharmacy Act, and that the penalty in question is subject to the lien of the State’s Attorney, as provided in See. 8 of the Fees and Salaries Act, and must first be applied toward the discharge of his legal claim, and after he is paid his lien ceases, and then if any portion remains undisposed of it belongs to the Board and the school fund, as provided by Sec. 15 of the Pharmacy Act.

The decision of the Circuit Court being in accordance with these views was right, and the j udgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Lewis E. Montgomery v. Edward McGuire and Samuel T. Brush.

      Trover—-Conversion of Cattle—-Right of Possession—Contracts—Evidence—Conflict of—Statements by Third Persons—Admissibility of.

    In an action o£ trover for the conversion of 127 head of cattle which were placed in the defendant’s pasture by certain third persons, in whose possession the cattle were and who had a special contract with the defendant for the use of his pasture, it is held: That the verdict of the jury, finding that there was no change in the ownership or possession of the cattle, is conclusive, the evidence being conflicting; that statements in reference to the matter made by said third persons, unless made at the time and as a part of the transaction, were properly excluded; that the insolvency of such third persons was such a “ disability’’ within the meaning of the contract between them and the plaintiffs as entitled the latter to the possession of the cattle and gave them the right to bring this suit.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Connolly & Mather and C. C. & Stuart Brown, for appellant.
    We submit that as to Montgomery, who was without notice, the contract between McGuire & Brush of the one part and Milligan & McIlvane of the other part, made MiIligan & McIlvane the owners of the cattle, and Montgomery had the right to treat them as the cattle of MiIligan & McIlvane. Koch v. Willi, 63 Ill. 144.
    As to Montgomery, this contract was a sale of the cattle from McGuire & Brush to Milligan & McIlvane.
    When the identical thing delivered is to be returned it is a bailment, and the title to the property is not changed, but when there is no obligation to restore the specific thing, but only its value, it is a sale. Lonergan v. Stewart, 55 Ill. 44, 49.
    When the owner volunlarily parts with his goods, and clothes the purchaser with the vndicia of ownership, title passes to a third party who has no knowledge of any condition attached to the former sale, or any fraud, if there be a fraud. Jennings v. Gage, 13 Ill. 610; Brundage v. Camp, 21 Ill. 330.
    If owner has been deceived and defrauded into parting with his property, he can not reclaim it from one who afterward buys it in good faith. Parsons on Contracts, Vol. 1, p. 520.
    Appellees had, as against the appellant, neither a right of property, nor a right of possession in these cattle, at the time of the commencement of this suit in the spring of 1886.
    Both right of property and right of possession, as against the defendant, are necessary to maintain trover. Forth v. Pursley, 82 Ill. 152; Eisendrath v. Knauer, 64 Ill. 396; Bertholf v. Quinlan, 68 Ill. 297; Owens v Weedman, 82 Ill. 409-

      Mr. William J. Allen, for appellees.
   Conger, J.

This was an action in trover brought by appellees against appellant in the Circuit Court of Sangamon County, for conversion of 127 head of cattle.

On the 16th day of June, 1SS5, appellees McGuire & Brush entered into the following agreement with the firm of Milligan & Mcllvane:

AGREEMENT.
“ This agreement made and entered into this sixteenth day of June, A. D. 1885, between Edward McGuire and Samuel Brush, of Carbondale, Illinois, party of the first part, and Milligan & McIlvane, a firm composed of W. M. H. Milligan, of Perry County, Illinois, and T. D. McIlvane, of Christian County, Illinois, party of the second part, witnesscth: That the said party of the first part have, on the date of this agreement, appointed the said firm of Milligan & McIlvane their agents, to sell a certain lot of cattle, and have this day consigned to the said firm at Moawequa, in Christian County, Illinois, to be transported by the Illinois Central Bailroad Company, the said lot of cattle, consisting of two hundred and eighteen (218) head, principally one and two years old, to be sold by the said Milligan & McIlvane, as the agents of the said McGuire & Brush, under the following limitations. In consideration of the present value of said cattle, and the probable increase, by reason of growth and improved condition, and for other valuable considerations, the said Milligan & McIlvane are to assume all expense and charge of transportation, feed, pasturage and care of said cattle, from and after the date of this agreement, and hereby agree to sell or otherwise dispose of said cattle on or before the first day of November, 1885, and hereby guarantee and agree, and by these presents bind themselves, their heirs, administrators, executors and assigns, to pay unto the said Edward McGuire and Samuel Brush, or their order, their heirs, administrators) executors or assigns, on or before the first day of November, 1885, the sum of thirty-four hundred and forty-four dollars (§3,444) with interest at the rate of eight per cent, per annum from the date hereof until the same be paid ; it being understood and agreed that any amount in excess of the above named sum, with interest at eight per cent, per annum from this date until the same be paid, arising from the sale of said cattle, shall be paid to and held by said Milligan & Mcllvane, as their compensation as agents, for freight charges, feed and pasturage, and all other expenses incurred on account of same until sold.
“ It is further understood and agreed by said Milligan & McIlvane, that whenever any number or part of said cattle are sold by them, the proceeds of such sale, after deducting pro rata expenses and charges, are to be paid to the said McGuire & Brush, such payment to be entered on this contract as a credit, and when the sum of such payments shall amount to the aforesaid sum of thirty-four hundred and forty-four dollars ($3,444) and accrued interest, then this agreement shall be canceled, and the cattle remaining unsold, if any, shall become the property of Milligan & McBvane.
“It is understood and agreed that the said Milligan & McIlvane are, and shall act as agents of the said McGuire & Brush for the sale of the aforesaid cattle, and in case of the death or inability to act of cither member of said firm of Milligan & McIlvane, then the surviving partner shall carry out and execute the terms of this agreement; and further, if both members of said firm shall die or be prevented by disability from carrying on their business before compliance with this contract, then the said McGuire & Brush, or their assigns, shall have the right to take possession of any or all of said cattle remaining unsold and accounted for at such time, and to sell the same to the best advantage and apply the proceeds to the payment of the balance that may be due upon the contract, paying over the residue, if any, to the heirs or assigns, or legal representatives of the said firm of Milligan & McIlvane.
“In witness whereof the said parties have hereunto set their .hands and seals the day and year first above written.
“ Edwaed McGuiee, [seal]
“ Samuel T. Beush, [seal]
“ Milligan & MoIlvane [seal]
“It is hereby mutually agreed that the within agreement, contract and agency, in all its parts, provisions and conditions shall be, and it is hereby renewed, prolonged and extended to and until the first day of September, A. D. 1886.
“In witness whereof we, the parties to the within agreement, have hereunto fixed our hands and seals this 9th day of November, A. D. 1885.
“Edward McGuire, [seal]
“ Samuel T. Brush, [seal]
“ Milligak & MoIlvahe. [seal] ”

Under this contract the cattle mentioned therein were shipped to Moawequa and by Milligan & Mcllvane placed in pasture on the farm known as the “Tanner Farm,” on which Mcllvane was living.

About the 1st of April, 1885, the following contract was entered into between appellant Montgomery and Milligan & Mcllvane:

“Memorandum of agreement between L. E. Montgomery, of Springfield, Illinois, of the first part, and W. H. Milligan, of Pinkney ville, Ill., and D. T. McIlvane, of Willeys, Ill., known and doing business under the firm name of Milligan & McIlvane, party of the second part, witnesseth: That the said Montgomery agrees to furnish the following described tract of pasture land, to wit: The N. E. ¼ of Sec. 23; S. E. ¼ of Sec. 28; S. ½ N. E. ¼ of Sec. 28; W. ½ N. W. ¼ of Sec. 27; W. ½ S. W. ¼ of Sec. 27, Tp. 15 N., R. 2, W. of 3rd P. M., Christian County, Ill., and containing 440 acres, more or less, at the sum of twelve hundred dollars, and he is also to furnish five thousand dollars (§5,000) in money, one-half by April 1, 1885, and one-half by May 1, 1885, to be used as follows: The said Milligan & McIlvane are to purchase five thousand dollars (§5,000) worth of young, growing, healthy cattle, to stock said pasture for Montgomery to consume the season’s grass on the same, and to act as selling agents for Montgomery. Said cattle are to be marketed at the close of the grazing season, not later than December 1, 1885, to the best advantage. And it is further agreed that said second parties are to receive and accept for then' services in attending to said business for Montgomery, the profit that shall accrue from said deal, after Montgomery shall be paid the sum of twelve hundred dollars for said pasture on or before December 1,1885, with 8 per cent, interest, after that date, till paid; the sum of §5,000 furnished to purchase said cattle, with 8 per cent, interest thereon, for the time the same is used by said parties and in said stock. And the sum of seven hundred and fifty dollars and ten cents, with 8 per cent, interest thereon from March 1, 1885, being a balance due said Montgomery on a previous deal, provided the said stock bring so much. It is distinctly agreed between said parties, that the stock so furnished shall be the sole and absolute property of said Montgomery, and the said stock on said pasture shall be in his possession and in his control, said second parties having put no money in the same, all the purchase money having been furnished by said Montgomery. And it is distinctly agreed, that if said cattle put upon said pasture do not bring the sum of five thousand dollars with 8 per cent, per annum, from the time said money is invested till said cattle is sold, or until December 1, 1885; also, the sum of twelve hundred dollars for said pasture to be paid December 1, 1885, that then the said parties of the second part are to be liable personally for such deficit to said Montgomery, as the cattle are to be purchased and selected by them, and the said Montgomery does not agree to be bound by the valuation placed by them upon said cattle; and all surplus, after making the payments herein above set forth, is to be the property of said second parties. All sales are to be made by and with the consent of said Montgomery, and the money to be first used in discharging the amount coming to him.
' “L. E. Montgomeby.
“Milligau & MoIlvabe.”

Under this contract Milligan & McIlvane, in May, 1885, placed 157 head of cattle upon the farm of appellant. On the 7tli of October, 1885, Milligan & McIlvane wanted to take 125 head of these cattle out of the pasture and stall-feed them, and the following additional contract was written upon the one made in April, viz.:

“ Springfield, Ill., Oct. 7, 1885.
It is this day mutually agreed between the parties to this contract, that Milligan & Mcllvane are to remove one hundred and twenty-five (125) head of cattle to their former farm, situated in May Township, in Christian County, Illinois, where they are to feed them corn in the best manner, to cause them to fatten, for sixty (60) days, the feeding to be done under Montgomery’s direction, and this move is in no way to interfere with Montgomery’s ownership and control of the cattle, as per tenor of this contract, of which this agreement becomes part.
“L. E. Montgomery,
“ Milligan & MoIlvane.”

The 125 head were accordingly removed.

About the 10th of November, 1885, Milligan & Mcllvane transferred 131 bead of the cattle received under the Brush & McGuire contract from the Tanner farm to the Montgomery pasture, and it is the character of this transfer which forms the issue in dispute: appellant Montgomery insisting that the 131 head of cattle were thus placed in his pasture by Milligan & Mcllvane under their contract with him, and that thereby the title to them at once vested in him; while the latter, as well as appellees, contend that these cattle were removed from the Tanner farm to the Montgomery farm only for the purpose of utilizing the grass on the latter place, and with no intention whatever of making any change in the ownership or possession of the cattle.

We have examined the evidence upon this point carefully, and find it, as usual in such cases, conflicting, but we are not prepared to say that the finding of the jury, that there was no sale or transfer of title, is unwarranted.

Much would depend upon the weight given the various witnesses as to where the preponderance upon this question rests, and the jury having the advantage of seeing and hearing the witnesses, and observing their demeanor upon the stand, their verdict, when properly instructed as to the law of the case, must be regarded as settling the controverted facts.

Appellant, under this claim, some time in January, after the insolvency of Milligan & Mcllvane, replevied from their possession 127 head of these cattle, sold them, and refusing, upon demand made upon him by appellees, to account for their value, this suit was instituted.

While appellant was upon the stand as a witness, he was asked the following question: Have you heard either 'of them (Milligan or Mcllvane) say how they came to put the 131 head in there—what they put them in under? If you heard either of them say, state.” An objection was made, which was sustained by the court, and this ruling of the court is assigned for error.

Milligan & Mcllvane not being parties to the record, their statements in reference to the 'matter inquired about would not be proper unless made at the time, and as a part of the transaction, so as to make them a part of the res gestes.

The question was not so limited as to make it apply to the time of the transaction, and was therefore improper.

Appellant also contends that, at the time of the commencement of this suit, appellee had, as against appellant, neither a right of property nor a right of possession as to the cattle.

The jury having found that there was no sale to appellant he had no interest in the property, and the character of* the contract of June 16tli need not be considered in its relations to third parties.

The firm of Milligan & Mcllvane became insolvent on the 4th of January, 1886, and thereby, as we think, were prevented by disability from carrying on this business,” which event would, according to the contract, authorize appellees to take immediate possession of the cattle and dispose of them in accordance with its terms, which we think fully answers the objection as to their right to bring the suit.

The action of the Circuit Court in refusing appellant’s refused instructions Hos. 1 and 2, was proper. The judgment of the Circuit Court will be affirmed.

Judgment affirmed,.


author: Wall, J.

text:
    Chicago & Alton Railroad Company v. John J. Kemp.

      Railroads—Sfoch—Action to Recover Damages for Killing—Conflict of Evidence—Attorney Fees.
    1. In an action against a railroad company to recover damages for cattle killed by a train of cars at or near a highway crossing, this court declines to interfere with the verdict, the evidence as to whether the cattle were on the crossing being conflicting.
    2. In such a case this court has no basis on which to make an order for an allowance of attorney fees to the appellee for services on appeal. He must, therefore, seek his remedy in a court of original jurisdiction.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Williams & Capen and Fifer & Phillips, for appellant.
    Mr. Joseph M. Weakly, for appellee.
   Wall, J.

This suit was brought to recover for killing and injuring plaintiff’s cattle.

It was alleged that by reason of the neglect of the defendant to maintain a suitable fence the stock got upon the railroad and were struck by an engine and train of cars passing thereon.

Upon a trial by jury there was a verdict for plaintiff for §175. Three steers were killed and two others badly hurt. Of the latter, one finally got well and one was permanently damaged.

The only question for the jury was whether the animals were struck on the crossing of a public highway or beyond it. It is not denied that for several weeks the railroad fence had been down at a point near the crossing and that stock might have gone on the road through this breach. The plaintiff’s cattle, some fifteen head, escaped from his pasture into the public highway. According to the plaintiff’s theory, those that were injured went through this defective fence and thence on the track. According to the defendant’s theory they were on the highway when struck.

Only one witness, Carnahan, testified that the cattle were inside the fence and beyond the crossing when they were struck. This witness was nearly or quite a quarter of a mile away, yet he claims that his position was such that he had a full and unobstructed view. The distance and the standpoint being near the railroad, are to be considered in weighing his evidence. He went to the place shortly afterward and found three of the cattle lying at different points from two and a half rods to 100 yards south of the crossing. There was evidence tending to show by the tracks and by marks on the ties that they were probably south of the crossing when struck.

On the other hand there is the testimony of the engineer, fireman and one brakeman, who were all at the head of the train, and of the conductor and one brakeman who were at the rear of the train, that the collision was on the crossing. The train was composed of sixty or more cars and was going-thirty miles an hour.

■ The two witnesses who were at the rear of the train, considering the distance from the crossing, the speed, and that they were trying to set the brakes, and their attention thus divided, might easily have been mistaken.

The three witnesses at the head of the train had superior facilities for observation, but they may have been mistaken. They probably did see some cattle on the crossing, in the highway very near the train, and might not have known precisely where those in question were struck. The whole occurrence was in the space of a few seconds and when all the circumstances are taken into account it must be apparent that there was a chance for the most observing person to be at fault in this particular.

The defendant also offered evidence tending to contradict and explain that of the plaintiff with reference to the tracks, etc. In a word, the evidence is irreconcilably conflicting. That of the plaintiff is sufficient to support the finding. That of the defendant, judging it by the number of witnesses and their means of observation, was certainly sufficient, as it appears on paper, to have justified, if not required, a finding for defendant.

Of course, we must concede the presumption that, perhaps, there were circumstances and considerations not possible to put in the record which may have properly influenced the conclusion, and it must be inferred that the presiding Judge discharged his duty faithfully and carefully, and that he was satisfied with the result.

Various arguments are pressed upon our consideration as to the probabilities and the inferences to be drawn from all the circumstances in proof. Among others, the fact is adverted to that one of the animals was found so near the cattle-guard as to induce the conclusion that it must have been struck on the crossing since such an object is always carried some distance before it is cast off.

This may or may not have been so in the present instance, and there is no way by which it can be certainly known, but whether so or not the verdict might be sustained as to the amount if this animal were left out of consideration. Applying well known rules so often stated by the Supreme Court in cases where the testimony is in hopeless conflict, we do not feel warranted in reversing the judgment upon the ground that the court erred in refusing to set aside the verdict. No other error is assigned.

We are asked by appellee, if the judgment is affirmed, to assess also a suitable amount for attorney’s fees in this court. The statute provides in this class ofmases that the plaintiff, if successful, may also recover “reasonable attorney’s fees in any court wherein the suit is brought for such damages or to which it may be appealed.” There is no provision, however, authorizing a court of appellate jurisdiction only to hear and determine, primarily, a question of fact, and so far as we are advised such courts have not undertaken -the inquiry in those case but have left the plaintiff to seek his remedy in a court of original jurisdiction.

There being no statutory scale of fees in such cases, the question would have to be determined upon evidence pro et con, subject to the right of cross-examination, and we have no convenient means by which to make the necessary investigation. In the present case there is no evidence upon which to base the allowance had we the power to consider it. The judgment of the Chcuit Court will be affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    Ezekiel C. Howell v. William W. Foster.

      Bill to Remove Cloud—Parties.

    Upon a bill filed to remove a cloud from the complainant’s title to certain lands by reason of several judgments for costs against his grantor, it is held,: That the various persons interested in sustaining the judgments are necessary parties.
    [Opinion filed February 17, 1887.]
    In error to the Circuit Court of Macon County; the Hon. J. F. Hughes, Judge, presiding.
    This was a bill filed in the court below by the plaintiff in error to remove a cloud from the title to lands purchased by him from Frederick Aholtz, by reason of several judgments for costs against said Aholtz and one against Leah Aholtz, upon all of which, some nineteen in number, executions had been issued upon each judgment and placed in the hands of defendant Foster, as Sheriff of Macon County, and by him levied on the property described in the bill,
    Messrs. H. Pasco and B. I. Sterrett, for plaintiff in error

      The defendant filed a general demurrer to the bill, which was by the court sustained and the hill by the court dismissed, and complainant having elected to stand by his bill brings the case to this court on error.
    Messrs. Outten & Vail, for defendant in error.
   Per Curiam.

It is unnecessary to consider any of the questions raised in this record except the ■ one as to proper 2>arties.

The various persons interested in sustaining the fee bills were necessary parties. Their rights were involved in the controversy, and, as the bill only made the Sheriff a defendant, the court properly sustained a demurrer to it. Plaintiff in error failing to amend his bill it was properly dismissed.

Affirmed.


text:
    Frederick Aholtz v. James H. Durfee and William W. Foster.

      Ecw Trial—Bill to Obtain—Cumulative Evidence—Affidavit.

    1. Upon a bill filed to obtain a new trial in a chancery proceeding between the same parties, it is held: That the demurrer to the bill was properly sustained; that the newly discovered evidence was merely cumulative and not conclusive; and that the affidavit of the witness should have been produced.
    2. Evidence which merely multiplies witnesses to any one or more of those facts before investigated, or only adds other circumstances of the same general character, is cumulative.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Macon County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. H. Pasco and B. I. Sterrett, for appellant.

      Messrs. Outten & Vail, for appellee.
   Conger, J.

This was a bill in chancery filed for the purpose of obtaining a new trial of a cause before that time had in a chancery proceeding between the same parties. A general demurrer was filed to the bill, sustained by the court and the bill dismissed.

The grounds relied upon in the bill was the newly discovered evidence of one Lewis EL. Goon. We think the demurrer was properly sustained for several reasons.

The evidence of Coon, as stated by him in his letter which is made an exhibit, would not be conclusive, in which case no new trial should be awarded; for, as stated in Crafts v. -Hall, 3 Scam. 131, “ the evidence must be very satisfactory; ” and in Adams v. The People, 47 Ill. 376, 380, it is said it must be conclusive; but it would be merely cumulative—in which case it would be no ground for a new trial.

“ Evidence is cumulative,” said Church, J., in Waller v. Graves, 20 Conn. 383, “ which merely multiplies witnesses to any one or more of those facts before investigated, or only adds other circumstances of the same general character.”

Tested by this rule there can be no question that the proposed evidence of Coon would simply be an additional witness to the payment of the costs, as already testified to by appellant on the former trial.

Another requirement is that the affidavit of the witness himself should be produced, or its absence accounted for. Graham and Waterman on New Trials, Vol. 3, page 1021.

The only attempt at compliance with this rule is a private letter from Coon written to appellant. We are not called upon to presume that such a statement is equivalent to a statement made under oath.

For the reasons given and others that appear in the record, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, for use, etc., v. James H. Leaton et al.

      Appeal Bond—Defect in Form—Approval by Cleric—Action on Official Bond.

    1. When the Circuit Court makes an order allowing an appeal to this court on bond being filed, “ with security to be approved by the clerk,” the clerk is not bound, at his peril, to see that the bond presented is correct iu matters of form.
    2. Where a defective appeal bond has been filed and treated by all parties as sufficient, an action on the official bond of the clerk does not lie.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Blades & Neville, for appellants.
    Messrs. Kerrick, Lucas & Spencer and John J. Morrissey, for appellees.
   Conger, J.

This was a suit brought by appellants against appellees on the official bond of appellee, James H. Leaton, as clerk of the Circuit Court of McLean County.

The declaration alleged that L,eaton, as such clerk, approved an appeal bond in the case of Wm. J. Brownell and John E. Pollock against Charles D. Hank, that was appealed from the McLean Circuit Court to this court; that such appeal bond was defective in form in this: that Brownell alone was named in such bond as the obligee, omitting from the bond the name of Pollock, his co-plaintiif, and that thereby and in consequence of said clerk’s failure to take a bond good in form, appellants have been injured.

A general demurrer to the declaration being sustained, the suit was dismissed. The single question presented is whether, under the facts alleged in the declaration, the clerk of the Circuit Court, when the court makes an order allowing an appeal on bond being filed, “ with security to be approved by the clerk,” must, at his peril, see that the 'bond presented to him, in matters of form, contains the recitals and conditions required by law.

The statute provides that the appellant shall give and file in the office of the clerk of the court from which the appeal is prayed, bond, in a reasonable amount to secure the adverse party, to be fixed by the court with sufficient security to be approved by the court.” 68 Sec. Practice Act.

The clerk of the court may, by order of the court made at the time of praying the appeal and entered of record, approve of the security offered upon such bond.” 69 Sec. Practice Act.

Here a bond was filed apparently in the case, and treated at the time by all parties as a bond sufficient to perfect the appeal, and which in fact, did produce the delay usually following an appeal. „ Ho demand was made upon the clerk to issue an execution, and we think under such circumstances no liability attached to the clerk because of the informality of the bond.

Had it been demanded of the clerk that he ignore the bond and issue an execution, it might be the duty of the clerk to determine, at his peril, such a question as to the sufficiency of the bond, but this view of the case not being presented by the record, it is unnecessary to pass upon it.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


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    The People of the State of Illinois v. William Toomey et al.

      Official Bond—Sureties—•Extent of Liability—County Clerk—Action on Bond.

    1. The contract of a surety is to be construed strictly, and he is not to be held responsible beyond the precise terms of his undertaking.

      2. Where the contract relates to the acts and conduct of one holding an official position, the violation of the condition must occur during his term of office. The surety is then only liable for official acts done or omitted. The default complained of must be in respect to the manner of his performance of the duties required of him by law in his official capacity and must be the efficient cause of the loss.
    3. Where a County Clerk, during his term, has improperly made a certificate or statement of what is matter of official record, and, after his term expired, presented it to the County Board and secured an allowance thereon not warranted by law, there is no such breach of the condition of his bond as to justify a recovery against the sureties.
    [Opinion filed February, 17, 1887.]
    Appeal from the Circuit Court of Logan County; the Hon. G. W. Herdman, Judge, presiding.
    Messrs. Oscar Allen and Robert Humphrey, for appellants.
    Although this money was obtained by Toomey after he went out of office, it was obtained by him as the result of official misconduct while in office.
    He kept no account of this as a part of the gross earnings of his office, as the law requires him to do; he made no report of it, as he ought to have done; he used his official position to show that the amount was due him when it was not, and only by his false and illegal system of keeping his accounts, reporting and accounting, was the money obtained.
    The sureties of an officer are liable for money received by him after the expiration of his term of office when it is so received by him in consequence of acts which he was bound or had a right to do by reason of his having been such officer.
    The final settlement of an officer under our statute can not be made until his term has expired, and that settlement, and the receiving of money by reason of it, would seem to be as much an official matter for which his sureties are bound, as is the receipt and misappropriation of money by a Sheriff out of office in finishing and settling up the matters of his office. Elkin v. People, 3 Scam. 207; Larned v. Allen, 13 Mass. 295-
    Messrs. Blinh & Hoblit and Beach & Hodhett, for Toomey and Blinn, appellees.

      The liabilities of sureties are sfriotissimi juris and can not be extended by construction or enlarged by the acts of others. People v. Pennock, 60 N. Y. 428; McClusky v. Cromwell, 1 Ker. 593; Supervisors of Rensselaer County v. Bates, 17 N. Y. 242; Citizens’ Loan Association v. Nugent, 11 Vroom, 215; S. C., 29 Am. Keps. 230.
    The violation of the condition of the bond must have been during the term of office. People v. Pennock, supra; Mayor of Rahway v. Croxvell, 11 Vroom, 207; S. C., 29 Am. Reps. 224; Mutual Fire Ins. Company v. Clark, 33 Barb. 198; Gilbert v. Luce, 11 Barb. 91.
    The surety can only be held liable for official acts done or omitted. Gerber v. Ackley, 37 Wis. 44; State v. Mann, 21 Wis. 695; People v. Pennock, supra.

    Mr. E. E. M. Cochran, for D. H. Harts, appellee.
   Wall, J.

It appears from the record in this case that William Toomey was County Clerk of Logan County, and as such gave the bond, as required by laxv, upon xvhich the present action xvas brought. The term of his successor began on the 4th day of December, 1882, and the last official day of the term of said Toomey was the 2d day of said month.

On said last mentioned day he made out a statement in the form of an account, showing the county indebted to him in the sum of §2,133.78 for his fees in extending State and county taxes, xvhich paper he certified officially to be correct and left it in the office. He also made out his semiannual report of receipts and expenses of the office for the last six months of his term. This report can not be found, but it appears from the proceedings of the Board of Supervisors that it shoxved a balance in his hands of §414.23 due the county, xvhich sum he paid over. Whether, in this report, there is any reference to the account for §2,133.78, does not clearly appear. Ho official acts were performed by Toomey after the 2d of December. On the 4th of December his successor took charge, and on the same day there was a regular meeting of the County Board, to which Toomey presented said account, asking an allowance therefor.

The bill was referred to the committee on claims. The committee reported, December 6th, recommending the payment of the claim, which report was adopted and the claim paid.

To recover the money so paid this suit is brought on the official J)ond of said Toomey. There was judgment for the defendants in the Circuit Court, and the case comes here by the appeal of the plaintiffs.

It is a familiar principle that the contract of a surety is to be construed strictly and he is not to be held responsible beyond the precise terms of his undertaking, and where the contract relates to the acts and conduct of one holding an official position the violation of the condition must occur during the term of office.

The surety is responsible only for official acts done or omitted. It must be conceded that the making of the account in the form here stated was not the proper performance of the official duty of the County Clerk. He should, in the regular semi-annual report, have incorporated all the earnings as well as the receipts and expenses of the office, and therefore it was not necessary or proper to place the matter in that form for any purpose, so far as we are advised. The condition of the bond sued on is as follows: “The condition of the above bond is such, that if the above bounden, William Toomey, shall perform all the duties which are or may be required by law to be performed by him as County Clerk of the said County of Logan, in the time or manner prescribed by law, or to be prescribed by law, and when he shall be succeeded in office, he shall surrender and deliver to his successor in office all books, papers, moneys and other things belonging to said county and appertaining to his said office, then the above bond to be void, otherwise to remain in full force.”

The default complained of must be in respect to the manner of performance of the duties required of him by law in his official capacity and must be the efficient cause of the plaintiff’s loss. Admitting the impropriety of making and leaving this account, so certified, in the office, and with the conceived purpose of afterward using it in the way it was used, is there such a necessary connection between it and the injury complained of as to hold his official sureties for the money so obtained? We think not. It was clearly illegal to pay him this money. This must have been known to the County Board. They can not plead ignorance of the law which forbade them to make the allowance. They are in pari delicto with liim> and for this reason, if for no other, should not be heard to demand restitution as against his sureties!

Whether the county might not maintain an action against him for the money is not the question.

But the efficient cause of the loss was the act of Toomey in demanding and of the Board in allowing the claim after the term of office had expired, for which act the sureties can not, according to well settled rules, be held liable. It may be tine that the certificate made on the 2d of December was the evidence upon which the Board based its action; but this was proof merely that the fees were earned as therein stated, a fact which is nowhere denied, and which might have been proved by producing the books of the office from which the statement was derived. The sole ground upon which this action can depend is, therefore, that a- certificate improperly made, because unnecessarily made, by the officer during his term, amounting merely to a tabulated statement of what is shown by the official records, was, after the term expired, by him presented to the County Board and by the Board accepted as sufficient proof upon which to make an allowance not warranted by the facts so proved. In our opinion this is no such breach of the condition of the bond as to justify a recovery against the sureties.

Suppose this certificate had been used by some other person as proof upon which to support an unjust claim against the Board. Ho one would urge that in such case the bondsmen of the clerk could be held for the amount obtained thereby. The fact that the claimant and the person making the certificate are identical can make no difference. The substantial matter of which complaint is made, is an act done after the term had expired, and for which the sureties are not responsible, because it is not within the scope of their undertaking.

' The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


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    J. Irving Pearce, Imp’d, etc., v. The Bryant Coal Company.

      Trust Deeds—When Trustee M¡ust Release—Bonds.

    The trustee is bound to release a trust deed given to secure bonds issued by the grantor, when every person interested in both the debt and the property incumbered request such release, such request being indorsed on each bond, although the bonds are not canceled.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Fulton County; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Gray & Waggoner and McCagg & Culver, for appellant.
    Mr. W. C. Goudy, for appellee.
   Conger, J.

The facts necessary to an understanding of this case are as follows: June 15,1874, the Forsythe Coal Mining Company, being indebted to the Haskell & Barker Car Company, executed to the latter company thirty-five bonds of $1,000 each, payable in three years, with interest at ten per cent, per annum, payable semi-annually on the 15th of .December and June of each year, evidenced by coupons attached thereto, and at the same time executed a deed of trust upon certain property to secure said bonds to appellant, J. Irving Pearce, as trustee.

The bonds were not paid when due, and on the 15th of June, 1877, the coal company issued a promissory note for $35,000 to the Haskell & Barker Car Company, due in one year, with interest at ten per cent, per annum, payable semiannually, and at the same time executed a deed of trust to Henry T. Haskell to secure the promissory note. The car company retained the unpaid bonds and the first deed of trust as security for the debt.

The property conveyed by each of these two deeds of trust was the same and the indebtedness was the same; the transaction amounted to an extension for the payment of the debt one year.

Default was made in payment of the debt, and on the 22d day of August, 1878, Henry T. Haskell, the trustee in the second deed of trust, under the power of sale therein, sold and conveyed the property to the Haskell & Barker Car Company ' for §23,000, and credited that amount on the promissory note.

December 20, 1878, the Haskell & Barker Car Company sold and conveyed all of the property to William C. Goudy and S. Corning Judd, and at the same time, and as a part of the same transaction, the car company sold and delivered the thirty-five bonds and the promissory note to them.

January 15, 1879, Goudy and Judd sold and conveyed the property to the Bryant Coal Company whereby that company became the owner of the real estate described in the deeds of trust, subject to the incumbrance appearing unreleased on the record for the thirty-five bonds and the note for §35,000.

July 6, 1882, the Bryant Coal Company procured the consent of Goudy and Judd, then the holders and owners of the thirty-five bonds, to the release of the mortgaged property, and at the same time said company obtained resolutions passed by its board of directors, requesting Pearce, the trustee, to release the property from the deed of trust to him, in which request the Forsythe Coal Mining Company joined. Pearce was requested, a number of times,, to execute such a release, but he failed to do so, and on the 23d of March, 1883, a certified copy of the resolutions requesting the release, with the consent of the Forsythe Coal Mining Company and also of Goudy and Judd, were formally presented to Pearce, and the offer made to pay him his reasonable costs, expenses and charges, and requesting him to execute a release of all of the property. Pearce refused to make the release.

A short time after May 3, 1882, the following letter was presented to Pearce by Judd, and at the same time the bonds held by Goudy and Judd were shown him with a request indorsed on each bond that he would release the trust deed.

“Chicago, May 3, 1882.
UF. Irving Pearce, Esg., Chicago:
“We are the holders of thirty-five (35) bonds issued by the Forsythe Coal Mining Company, bearing date June 15, 1874, falling due June 15, 1877, which are secured by a deed of trust executed by said company to you, and desire to have the property described in said deed of trust released. We therefore produce to you the bonds to show the fact of ownership, with our indorsement thereon requesting such release, and ask that you sign a proper release of such trust deed.
(Signed) “William C. Goudy, “S. C. Judd.”

On the 29th of March, 1882, the present bill was filed by the Bryant Coal Company setting up the foregoing facts, and praying for a decree requiring Pearce to execute a release.

To the bill Pearce filed an answer and also a cross-bill, alleging that he had, at the request of the Forsythe Coal Company, taken up the first set of coupons upon the thirty-five bonds, paying therefor $1,750, and had never been repaid by any one; and, secondly, giving as a reason for not releasing the trust deed that he had no right to do so upon any other terms than the absolute cancellation of Goudy and Judd of the bonds held by them, and, secondly, the trust deed; and these are the questions involved.

It satisfactorily appears from the evidence that Pearce did pay, as he claims—these coupons—but it is insisted that he was repaid by Mr. Bryant, the treasurer and general manager of the coal company.

Upon this question the evidence is conflicting; but upon a careful consideration of the evidence we see no reason for disturbing the conclusion reached in the court below, that such repayment had been made.

If repayment of these coupons to Pearce was made, it then becomes unnecessary to notice the point made in the argument as to whether Pearce paid these coupons for the coal company and thereby became an ordinary creditor, or, on the other hand, purchased the coupons with the right of having them secured and protected by the trust deed.

The second reason given by the trustee for refusing to release the trust deed is not valid.

He was requested by every party interested both in the deed and the property incumbered to release the trust deed. He was tendered the necessary expenses and the bonds themselves were presented to him, showing upon their face that they were past due, and a written request indorsed on each bond that he should execute the release.

This was all that was necessary to protect the trustee and to require him to release. The parties had a right to keep the bonds alive as the obligations of the coal company, if they desired, and the trustee had no right to insist that they should be canceled.

When the indorsement was placed on each bond requesting the trustee to release the trust deed, it was a complete protection to the trustee for complying with such request, against any and every subsequent holder of such bonds. The decree of the Circuit Court will be affirmed.

Decree affirmed.


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    The City of Jacksonville v. Ellis M. Allen.

      Municipal Corporations—Extent of Powers—Officers — Policemen— Tenure—Wrongful Discharge—Remedies—Other Employment■—Burden of Proof—Charter and Ordinances of Jacksonville—Instructions.

    1. A municipal corporation can exercise such powers only as are expressly granted or fairly implied in, or incident to those expressly granted, or essential to the declared objects and purposes of the corporation.
    2. Where the charter of a municipal corporation establishes the terms of its officers, such tenure can not be changed by ordinance.
    3. The word “ officers,” as used in the charter of the City of Jacksonville, includes policemen.

      4. The City Council of Jacksonville can not discharge a regular policeman without giving him an opportunity to be heard in his own defense.
    5. Where an officer is entitled to a hearing before he can be lawfully discharged, the proceeding must, be had by and before the authorized body duly assembled, and not by and before a committee of such body.
    6. In an action to recover damages resulting from a wrongful discharge from the defendant’s service, the burden of proof is on the defendant to show that the plaintiff has been actually engaged in other profitable employment, or that, he might have been so engaged.
    7. Where a servant has been wrongfully discharged, it seems that in this State he should declare for the damages sustained in consequence of the breach of contract, and not for his wages as such.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Richard Yates and Morrison & Whitlock, for appellant.
    Messrs. Springer & Dummer and William Brown, for appellee.
   Wall, J.

This was an action of assumpsit by appellee against appellant, to recover an amount alleged to be due for salary as policeman.

The judgment was for plaintiff below for $390, from which defendant prosecitted an appeal. The first objection urged in the brief of appellant is that the declaration was insufficient, and that the demurrer to the pleas should have been carried hack and sustained to the declaration. The plaintiff alleged that he was, on the 16th of April, 1885, appointed policeman for one year at a salary of $50 per month; that he was not permitted to discharge the duties of his office after the 18th of August, and this without his fault, averring that he was at all times able and willing to perform his duty and was prevented from so doing by the defendant.

The court overruled a demurrer to the first count of the declaration as finally amended. The defendant then filed six pleas. A demurrer was filed and sustained as to all except the first of these.

The defendant then withdrew the first plea and took leave to amend the third, fourth and fifth. The plaintiff replied to these pleas as amended, and upon the issue thus presented the case was tried. It may be regarded as a somewhat unsettled question, whether a servant who has been wrongfully discharged may recover Ms wages as such for the remainder of the term on the allegation that he was ready to perforin the service and that, therefore, he has performed it, constructivelyj or whether he should declare for the damages sustained in consequence of the breach of the contract. In England, and generally in the United States, the current of authority supports the latter view-, which seems to be the more logical when the respective rights of both parties are taken into account. Such appears to be the doctrine in this State also. We do not propose to discuss the subject and will merely refer to some of the cases where it has been considered. Cutler v. Powell, 2 Smith’s Lead. Cas. *20 and *21; Trustees v. Shaeffer, 63 Ill. 243; Jones v. Dunton, 7 Ill. App. 580.

We are precluded from passing upon the point suggested, because it does not arise under any of the errors assigned upon the record, and must consider the case upon the issue as made by the pleadings. That issue, strictly speaking, was whether the appellee xvas discharged without a hearing before the City Council, and this leads to a statement of the real matter in controversy, xvhicli is whether the City Council has poxver to discharge a regular policeman xvithout giving him an opportunity to be heard in his defense. The question must depend upon the provisions of the charter. A municipal corporation is an agency of the State, created for the purpose of regulating local affairs xvitliin the incorporated district. Of every such corporation the charter or statute by which it is created is its organic act. It can exercise such powers only as are granted expressly or fairly implied, in, or incident to, those expressly granted, or essential to the declared objects and purposes of the corporation.

Any reasonable doubt concerning the existence of the power is solved by the courts against the corporation, and the power denied. All acts in excess of the granted powers are void. Dillon, Municipal Corp., Vol. 1, See. 55.

The provisions of the charter of the City of Jacksonville, so far as they are important in this connection, are as follows:

Art. 2, Sec. 1. “ The municipal government of the city shall consist of a City Council to be composed of the Mayor and one Alderman from each ward. The other officers of the corporation shall be as follows: A City Clerk, a City Marshal, a City Treasurer, a City Attorney, a City Collector and Assessor, a City Street Commissioner and a City Surveyor, who, in addition to the duties prescribed by this act, shall perform such duties as may be prescribed by ordinance.”
Art. 2, Sec. 2. “ All officers to be elected or appointed under this act, except as are otherwise provided, shall hold their offices one year and until the election or appointment and qualification of their successors respectively.” * * "x
Art. 2, Sec. 5. “ Any officer elected or appointed to any office may be removed from such office by a vote of two-tliirds of all Aldermen authorized bylaw to be elected, but no officer shall be removed except for good cause, nor unless furnished with the charge against him and heard in his defense.”
Art. 4, Sec. 17. “The City Council shall have the power to appoint a City Engineer, or Surveyor, and a City Treasurer and the necessary number of policemen and regulate the duties and fix the pay of each.”

These extracts are from the special charter passed in 1867. P. L. 1867, Yol. 1, 336. In 1869 the following amendment was passed (P. L. 1869, Yol. 2; page 2):

Sec. 5. . “ That hereafter the City Street Commissioner and City Surveyor, provided for in the first section of article two of the act to which this is an amendment, shall be appointed by the City Council, and said officers shall be subject to the orders and be under the control of said Council and said Street Commissioner and Surveyor and all other officers and ageihs now authorized, or that may be hereafter authorized to bo appointed by said City Council may be removed from office and their places filled by other persons by a vote of the majority of said Council, as provided in the fifth section of the second article of the act hereby amended.”

It is contended on the part of the city that policemen are not within the scope of Art. 2, Sec. 5, or of the amendment. The city, therefore, adopted an ordinance in 1887, which provided, among other things, that policemen should continue in office during the pleasure of the Council, and in 188Í it adopted an ordinance which declared in Sec. 1, that all appointees of the Council to the offices of city treasurer, attorney, street commissioner, engineer, sexton, health warden, surveyor, policeman and such other offices as might thereafter be created, should be considered asemployedby themonth, and each of said officers should accept and hold his appointment subject to the right of the City Council by a majority of all the members elected to discharge him from the service of the city at the end of every month. If, at the end of any month, no order was made discharging him he was to be considered as retained for another month, and in like manner and subject to such conditions should hold during the municipal year. Provided, the ordinance should not apply to special policemen, nor, prevent the discharge of any officer for cause under See. o, Art. 2 of the charter and Sec. 5 of the amendatory act.

Sec. 2 declared that every commission should contain a provision to the effect that the same was given and accepted subject to the foregoing section. The commission issued to the appellee contained such a provision.

The city had no power to pass these ordinances so far as they operate as a limitation upon the terms of the officers therein named.

Sec. 2 of Art. 2 declares that all officers elected or appointed under the act, except as otherwise provided, shall hold their offices one year, and it was not competent for the City Council thus to affect the terms of these officers.

There can be no doubt that the term “officers” will include policemen. Such is a common meaning. Indeed the ordinance last referred to seems to so regard them, as does the other, by implication, at least.

The term of office being by the organic law for one year, the Council could not make it more or less, and the appointment, when made, would be for the period prescribed by the charter. The clause in the commission, based on the invalid ordinance, may be treated as surplusage and disregarded.. Such was the view taken by the Supreme Court of Michigan in the case of Stadler v. City of Detroit, 13 Mich. 346.

As to the facts of the case there is but little controversy. It appears that a charge of incompetency and misconduct had been preferred against the appellee. This was referred to the publ.c committee. The appellee was notified by the city attorney in writing, that on the 18th of August, 1885, at 7:30 p. m., there would be a special meeting of the Council when the committee would present a report recommending his discharge from the police force on account of the use of intoxicating liquors, at which time he might, if he saw fit, appear and be heard in defense.

He appeared at the time set. The report was presented and by his attorney he asked for a hearing and an investigation but the Council denied the request and having adopted the report of the committee, discharged him from the police force of the city. It is now contended that within the purview of Sec. 5, Art. 2, of the charter and the amendment, he ewas not entitled to a hearing before the Council, but only before the committee, and that the court should have permitted proof, which was offered, that he had an opportunity of being heard before the committee.

Dillon on Municipal Corporations lays down the rule that the proceedings “must be had by and before the authorized body duly assembled.” ”

The “authorized body” in this case is the Council, not the committee. The committee may prefer a charge, but' the power to act upon it is in the Council. It can not be, and was not in this case, delegated to the committee. It would be unreasonable to suppose that a hearing might be had before a body which could only make a charge.

Obviously the hearing intended was by and before the Council, which alone could remove. At such hearing he was entitled to produce his witnesses and by himself, or attorney, to cross-examine those of the prosecution. Anything short of this would not deserve the name of a hearing. See Dillon, Mun. Corp., Secs. 191, 192, 193.

That inconvenience may arise in the administration of this provision is not unlikely, but when the legislative intent is clear this can make no difference. If it were uncertain as to the true construction, such an argument might have great weight in arriving at the design of the law, but it has no place here in the view we have taken.

It is objected that the court instructed the jury that the measure of damages was the amount of the salary for the unexpired term which the plaintiff was not allowed to serve.

There was no evidence as to whether plaintiff earned or might have earned anything in other employments during that period, save his own statement that he had endeavored to get other employment but had been unsuccessful. This was uncontradieted, and upon the facts the instruction w'as a correct statement of the plaintiff’s rights. It is insisted by appellee that the ordinary rule of compensation merely is not applicable in a case where an officer seeks to recover his salary after having been prevented from performing the duties of the office, and that he is absolutely entitled to the salary.

We do not feel called upon to determine whether such a , rule should be applied in a case like this, as the ruling of the court may be sustained without it. In the case of Fuller v. Little, 61 Ill. 1, where private persons only were concerned, it was said: “But the rule in actions of this character is that the burden of proof is on the defendant to show the plaintiff lias been actually engaged in other profitable employment, or that such employment had been offered him and rejected. 2 Greenleaf, Ev., 261 a, and cases cited in note. * * * It can only be said, on this point, the defendant wholly failed to make out his defense and he can not call upon us to reverse a judgment on the ground that the instruction was inaccurate in confining deductions to net earnings when there was no evidence upon which the jury could properly have made a deduction for earnings of any sort. Sedgwick on Measure of Damages, 2d Ed. 221; Field on Damages, Secs. 133, 340.

With regard to the instructions given and refused, we deem it necessary to say, only, that the case appears to have been properly put to the jury, according to the views we entertain and have expressed.

Ho substantial error is presented, and the judgment will therefore, be affirmed. Judgment affirmed.


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    Royal Insurance Company of Liverpool v. Harry W. Roodhouse and B. F. Roodhouse.

      Fire Insurance-—Adjustment—Account Stated—Change in Ownership-Assignment of Dower—Evidence.

    1: In an action against a fire insurance company an adjustment fairly made is conclusive upon the defendant, and the account thereby fixed may be recovered under the common count on an account stated.
    2. An adjustment of a loss on a house insured for the benefit of the heirs, and subsequently set off to the widow as dower, can not be avoided on the ground that the adjuster was misled by statements of the plaintiffs in reference to their legal obligation to rebuild. The facts being undisputed both parties are presumed to know their legal effect.
    3. An adjustment is not rendered contingent by the fact that a party to it is subsequently to furnish formal evidence of his authority to act for a third party.
    4. The exclusion of competent evidence is not a sufficient ground for reversal, if its admission could not have changed the result.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Greene County] the Hon. G. W. Herdmak, Judge, presiding.
    Messrs. Paddock & Aldis, for appellant.
    Mr. Mark Meyerstein, for appellees.
   Wall, J.

This was an action of assumpsit upon a policy of fire insurance. The case was tried by jury, resulting in a verdict for plaintiffs for $1,693.66, upon which a motion for a new trial having been overruled, judgment was entered.

The record is brought to this court by the insurance company.

The declaration counted "specially upon the policy which bore date July 22, 1880, and in consideration of $37.50 insured the heirs of Peter Roodhouse until July 22, 1885, in the sum of $2,000 upon their two-story frame building, etc. There were the usual allegations of loss, etc. The declaration also contained the common counts upon an account stated, etc. The pleas were non-assumpsit, and a special plea setting up the facts of a chancery proceeding for partition and assignment of dower, allotting the premises in question to the widow of Peter Roodhouse and a change of possession whereby, it was averred, the policy was forfeited. To the second plea there was a replication that the insurance company was at the time fully notified of said proceedings and made no offer to return any part of the unearned premium, but retained the same and did not cancel the policy.

This replication was demurred to and the demurrer was overruled. The company abided by the demurrer and made no further answer to the replication. The issue before the jury was, therefore, upon the plea of non-assumpsit, and the chief question of fact' was whether there was an adjustment of the loss and an agreement upon the amount to be paid.

The negotiations were conducted by Harry W. Roodhouse, for himself and for his minor brother Benjamin, for whom he was guardian, with R. R. Manners, the adjuster for the company, and resulted, as claimed by the plaintiff and not seriously denied by the defendant, in a compromise upon the sum of $1,575.50, which was to be paid to plaintiffs.

It was argued by the company, however, that this adjustment was not sufficient to support the count on the account stated because the promise to pay was contingent upon the furnishing of a certified copy of the letters of guardianship to the local agent of the company, and because the adjuster was not fully informed of all the facts, and was misled by statements of the plaintiffs and their attorney in reference to their obligation to rebuild.

It appeared that the plaintiffs were the only heirs of Peter Roodhouse and were the owners of the property at the time the policy was issued, their title and interest being subject only to the dower of the widow of said Peter Roodhouse.

After the policy was issued, and two or three years before the fire, a proceeding in chancery was instituted for partition and assignment of dower, resulting in the allotment of the premises in question to the widow for the term of her natural life. She secured possession and was occupying, hy her tenant, when the fire occurred.

The local agent of the company was notified by Harry W. Roodhouse of these proceedings and was requested to make any needed change in the policy. No action was taken, however, nor was any objection made.

Assuming that the company was not hound hy the adjustment referred to, evidence was offered by the defense to show what was the value of the life interest of the widow and thereby reduce the claim of the plaintiffs.

This evidence was excluded by the court, and this ruling is the chief objection urged in the brief of appellant.

This is, indeed, the only substantial ground of complaint. It is argued by appellant that by the express terms of the policy the insured could claim payment only to the extent of their interest in the property; that by virtue of the proceedings for partition, their interest had been diminished by reason of the assignment of the widow’s dower, and while the company could not claim a forfeiture of the policy, it having been notified of the facts and making no objection, it had the right to prove the value of the widow’s life interest, and thereby reduce the claim of the plaintiffs.

It is insisted, upon the other hand, that in a legal sense the interest of the plaintiffs, so far as this contract of insurance was concerned, had not been affected by these proceedings, and while the widow’s right of possession was exclusive for her life, and while there was no obligation to rebuild, on the part of plaintiffs, it was still their property, in all respects, and that the company could not thereby avoid any part of its liability under the policy, as it was originally made. After a very thorough consideration of the case, we deem it unnecessary to decide this point, for the reason that, upon the evidence contained in this record, the jury were justified in their verdict, and could not reasonably have reached a different conclusion if the excluded evidence had been admitted. We think there can he no substantial doubt that there was an adjustment of the loss, and an agreement upon the part of the company, through the adjuster, to pay, and upon the part of the plaintiffs, through Harry W. Roodhouse, to accept the sum of $1,575.50 in full.

This was to be paid to the plaintiffs as soon as the certified copy of the letters of guardianship was placed in the hands of the local agent, which was done within a day or two. It was not denied that Harry W. Roodhouse was the guardian of his brother Benjamin, his co-plaintiff, and that he had the right to act for him in the premises, nor is it now denied. But it was denied that the formal evidence of that fact should be supplied as a part of the voucher to be held by the company.

Counsel argue that this was such a contingency that the adjustment was not final, and that there was nothing upon which to rest the claim of an account stated. We can not agree to this position. There was no contingency as to the subject-matter of the settlement.

The only condition was the procuring and furnishing of the certified copy before the payment of the money. There was also the implied condition that the policy should be surrendered and the usual release or receipt executed, and we regard this as of the same character. It is urged with more force, however, that the adjuster was misled by the statement of Harry W. Roodhouse, that the heirs were bound to rebuild-This was a question under discussion, the adjuster insisting there was no such obligation.

In his testimony the adjuster makes the following statement: “I got back to Chicago a week after and there was put in my hands a proof of loss, made up in the hand of Mr. Meyerstein. After seeing the paper I went down there about the 14th or 15th of December, 1884. Then I had these conversations the other witnesses have spoken about. I got there on the morning train. I met Harry Roodhouse and he told me that we would go to his lawyer’s office. He told me he had put the case in the hands of his attorney and we went there and there were present, Meyerstein, Roodhouse, Captain Pearce and Gardner and Shepherd. We discussed the dower interest of the widow, because I had information confirming my idea that the widow was not an heir. Hr. Meyer-stein at once admitted the fact that she had no status under the policy. Judge Whitlock was not present, as I recollect. Immediately following their admission that she had no status under the policy, he said, while that may be true, we are legally bound to rebuild the property, ánd he said, therefore, we have the entire insurable interest.

te Here followed a long talk between Heyerstein and myself as to the right of the company to deduct the amount of the widow’s interest from the whole sum and make the remainder the basis of the company’s liability. He insisted upon the full insurable interest under their legal obligation to rebuild, which, as I contended, did not exist under any general requirement of law. Considerable discussion followed and the outcome was that §1,«575.50 was agreed upon to represent the value of the building. I proceeded to make up our blank proof of loss under their instructions. I had no lawyer.”

It is manifest there was no fraud or deception here. The facts were not disputed. The legal inference is, that as each side was presumed to know, they no doubt did know what was the correct view. The company can not upon this ground avoid the adjustment.

The remaining point is that the adjustment was made in ignorance of the fact that by the partition proceedings, the widow was assigned the premises and was in possession under the order of court. From the evidence it is not to be doubted that the whole matter was fully and thoroughly understood by the adjuster.

It is true he says that he did not so understand it, and that nothing was said about the partition case until his return from Chicago, on the 29th of December, some two weeks after the adjustment was made. In this, however, he is contradicted and discredited by the testimony of H. W. Roodhouse, Judge Worcester, Captain Pearce, Heyerstein and Gardner, all of whom say, with more or less particularity, that the whole matter was fully and distinctly stated. From his own evidence and from the testimony of these witnesses, we think the jury were justified in the belief that the position taken on the 29th of December was an afterthought, or else that the adjuster had sought to entrap the plaintiffs by getting H. W. Boodhoxxse to make out new proof of loss at the time of the adjustment, in which the total loss was stated at $1,575.50, intending to make this the basis of settlement only and not intending to pay the full amount of it to the plaintiffs as promised. It is clearly shown that the sum was agreed upon and to be paid to the plaintiffs, they consenting to accept as a compromise and to get the money without further delay, though claiming the loss was really much greater, as they had stated in the original proof, and it appears that when the adjustment was so agreed on and, as a part of it, the new proof of loss was drawn up by the adjuster and sworn to by the plaintiff, H. W. Boodhouse. Before signing this it was suggested that the amount of loss was really greater, but the point was overruled by the adjuster’s reply that the greater would include the less, that it was merely a matter of form, and that the money would be paid in a few days.

Thus assured, Boodhouse signed and swore to the paper without further examination, and did not know that it contained the statement, afterward much relied upon by the company, that there had been no change in the ownership of the property, since the issuance of the policy. We are constrained to hold that upon the proof before them the jury were bound to find that the adjustment was made as alleged by the plaintiffs, and that the excluded proofs, if admitted in evidence, coxild not have changed the result. If the proof was competent, and if it was error to exclude it, the judgment shoxxld not be reversed for that cause. It is setfed in this State that an adjustment, when fairly made, is conclusive upon the company, and that the amount thereby fixed, may be recovered under the common count on an account stated. Illinois Mut. F. Ins. Co. v. Archdeacon, 82 Ill. 236; Home Ins. and Banking Co. v. Mayer, 93 Ill. 271.

There was such an adjustment in this case and the judgment is responsive to the rights of the parties.

Judgment affirmed.


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    John Mayers and Harry H. Miller v. Maria Smith.

      .Dram Shop Act—Action by Wife under Sec. 9—Evidence—Preponder-ance—Instruction—Means of Support—Damages—Whether Excessive or Exemplary—Impaneling Jury—Peremptory Challenges.

    1. Under Sec. 21, Chap. 78, R. S., when, in impaneling a jury, a panel of four has been accepted by both parties, they become a part of the jury and can not thereafter be challenged peremptorily.
    2. In an action brought by plaintiff under Sec. 9 of the Dram Shop Act, to recover damages for the death of her husband, alleged to have resulted from intoxication, produced by intoxicating liquors procured from defendants, it is held: That the evidence sustains the verdict fir the plaintiff; that the statute imposes liability when the intoxication is caused in whole or in part by the liquor furnished by the defendant; that the plaintiff was properly permitted to show the extent to which she was dependent upon the deceased for her means of support; that the damages are not so excessive as to justify interference by this court; that under the evidence and instructions it will be presumed that only actual damages were allowed.
    [Opinion filed February 17, 1887.]
    . 1st error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. J. W. Firer and T. C. Herrick, for plaintiffs in error.
    In impaneling the jury, plaintiff and defendants accepted two panels of four, and in doing so defendants used but one peremptory challenge. While passing upon the third panel, and before it was accepted by defendants, and before any of the jury were sworn, and while defendants still had two unused peremptory challenges, defendants offered to challenge peremptorily jurors Owen and Carpenter, who were in the panels previously accepted but not sworn. The court refused to permit the challenges, or either of them, and defendants made no further peremptory challenges. We contend that a party has a right, after the acceptance of a juror and before he is sworn, to challenge such juror peremptorily, and such right is not subject to the discretion or the control of the court so long as it is confined to the number of peremptory challenges allowed by law. Hendrick v. Com., 5 Leigh, 707; Jackson v. Pittsford, 8 Blackf. 194; Hunter v. Parsons, 2-2 Mich. 96; Jhons v. People, 25 Mich. 500; Hamper’s Appeal, 51 Mich. 71; State v. Pritchard, 15 Nev. 74; Jones v. Vanzandt, 2 McLean, 611; People v. Kohle, 4 Cal. 199; People v. Jenks, 24 Cal. 11; Edelen v. Gough, 8 Gill. 87; People v. Carpenter, 36 Hun (N. Y.), 315; Hooker v. State, 4 Ohio, 348, 350; Beauchamp v. State, 6 Blackf. 299-308; Munly v. State, 7 Blackf. 593; Morris v. State, 7 Blackf. 607; People v. Reynolds, 16 Cal. 128; People v. Ah You, 47 Cal. 121; Drake v. State, 51 Ala. 30; Kleinback v. State, 2 Speers, 351, 418; Schumacker v. State, 5 Wis. 324; Lindsley v. People, 6 Park Cr. R. 233; Drake v. State, 51 Ala. 30; People v. Bodene, 1 Denio, 281; 1 Cliitty Cr. L. 545; People v. Carrier, 46 Mich. 442; State v. Armington, 25 Minn. 29.
    Messrs. James S. Ewing and Pitts, Bent & Lindley, for defendant in error.
   Wall, J.

This was an action on the case under the 9th section of the Dram Shop Act.

The declaration alleged that defendants sold and gave intoxicating liquors to David Smith, husband of the plaintiff, which contributed to his intoxication, and in consequence thereof he came to his death, whereby the plaintiff was injured in her means of support. ,

A trial by jury resulted in a verdict of $2,500 for the plaintiff, and the court, after refusing a motion for new trial, rendered judgment thereon.

The record is brought here upon a writ of error. It is alleged that the evidence does not show with such clearness as to support the verdict, that deceased came to his death in consequence of his,intoxication, nor that he obtained liquor from defendants, or either of them, and that, admitting liquor was obtained by him from defendant Miller, it does not appear that it could have contributed so substantially to his intoxication as to render him liable in any event.

These questions of fact have received our attentive consideration, for they were urgently pressed in the oral argument as well as in the printed briefs. It seems to be reasonably apparent from all the evidence, that Smith was so far intoxicated on the last night of his life as to lose his road homeward, and that while in this condition he fell from a high embankment into a shallow stream of water, where he was found the next morning lying on his face, dead. It is probable death was produced by drowning, as no severe wounds or bruises were discovered. He left the shop where he was emiployed as a journe)rman tailor, in the City of Bloomington, about 5 o’clock in the afternoon of October 5th, with the sum of §5. He paid $3 to one Parker and a small sum at a meat shop, and when found the morning of the 6th, he had 25 cents on his person.

According to the testimony of Dunn, he was seen about 6 o’clock in the afternoon, stepping off the sidewalk in front of Miller’s saloon, in which place he drank whisky a few minutes afterward. He was somewhat intoxicated when Dunn first saw him, and although this witness tried to get him to go to his home, he did not succeed. He finally gave Dunn the meat he had purchased for his supper, and, persisting in his refusal to go home, Dunn left him.

He was found soon afterward at the saloon of Mayer, the other defendant, where he remained for some time, leaving there a little before 8 o’clock in company with Bowen, another tailor, considerably intoxicated. The evidence of the plaintiff tends to show that he drank whisky three or four times while at Mayer’s saloon. About 11 o’clock he was seen going in the direction of the place where he lost his life, having come from the direction of Mayer’s saloon somewhat under the influence of liquor. This was the last time he was seen alive.

All the circumstances tend to show that he was so intoxicated that he failed to go home at the usual hour for supper; that he continued to drink and that he did not finally start homeward until the saloons were required to close for the night. The details of the testimony, which can not now be referred to, are consistent with this view, and the whole evidence considered, there was enough to warrant the jury in believing that his death was due directly to his intoxication. That he was in the saloons of the defendants is not denied, but it is seriously and stoutly controverted that he drank anything at either place. Upon this point the conflict was settled by the jury in favor of the plaintiff, and without referring to the particulars of it, we think there was enough in the proof to justify the conclusion. The liquor was obtained at Miller’s, if at all, four or five hours before he.was last seen alive, and it is strongly insisted this could not have contributed to the fatal result. The statute imposes liability where the intoxication is caused in whole or in part by the liquor furnished by the defendant. Conceding as a reasonable construction that the liquor so furnished must have contributed in some direct and substantial, though possibly slight degree, it seems apparent that if he did drink there, as testified by Dunn, being then somewhat intoxicated, and that he kept on in the same course, as shown by the other testimony, the contribution of the defendant, Miller, is sufficiently direct and substantial to bring him within the scope of the law.

It follows that we can not interfere with the j udgment, upon the ground that the evidence fails to support it.

It is also urged that the court erred in refusing to permit the defendants to challenge peremptorily two of the jurors. In impaneling the jury, the plaintiff and defendants had each accepted two panels of four each. After the third panel of four had been passed on and accepted by the plaintiff, but before it had been accepted by the defendants, and before any of the jury had been sworn, the defendants asked leave to challenge peremptorily two of the jurors who were in the first and second panels, which had been accepted by both sides, the defendants having up to that time used but one peremptory challenge. The court refused this request and defendants excepted.

The propriety of this ruling depends upon the construction to be given See. 21, Ch. 78, R. S., which reads as follows • “Upon the impaneling of any jury in any civil cause now pending or to be hereafter commenced in any court in this State, it shall be the duty of the court, upon the request of either party to the suit, or upon its own motion, to order the full number of twelve jurors into the jury box, before either- party shall be required to examine any of the said jurors touching their qualifications to try any such causes; provided, that the jury shall be passed upon and accepted in panels of four by the parties, commencing with the plaintiffs.”

In the case of Sterling Budge Co. v. Pearl, 80 Ill. 251, the Supreme Court had occasion to consider this section, and held it required that there should, at all times while the jury xvas being impaneled, be twelve jurymen in the box, and though the point xvas not before the court for decision, it was remarked by the court: “ When the panel of four is accepted by both parties they become a part of the jury, and a panel of four more is called up, and the same process is repeated.” This can not, of course, be regarded as a judicial construction upon the point noxv at issue, because it was not involved in the case then before the court, but we are of the opinion it is the sound construction, and that the trial court ruled properly in the case at bar. Many of the references of counsel are irrelevant, and none of them, so far as we are advised, is directly in point, because none of them arose upon a statute like ours. It is conceded, if the two panels had been sxvorn as they were accepted, it xvould have been too late to exercise the peremptory challenge. We suppose the practice is not uniform in this State as to the sxvearingof the jury by panels as accepted, or the xxdiole twelve after the three panels have been filled by acceptance on both sides.

Considering the requirement that twelve jurymen shall at all times be in the box while the jury is being made up and considering the plain terms of the provision above quoted, “that the jury shall be passed upon and accepted in panels of four by the parties, commencing with the plaintiff,” we have no doubt that the right of peremptory challenge must be availed of before the panel is accepted, and when the panel is accepted it becomes a part of the jury. It would be inc insistent to say that a party might accept a panel and afterward reject a part of it; and this is not, in onr opinion, the meaning of the provision. Of course, it would be within the sound discretion of the court to allow a party to withdraw his acceptance of a panel and make his challenge, and the court would permit this whenever any good and sufficient reason should be disclosed, the party having used proper diligence and care to inform himself of all facts necessary to protect his interests, hut something in this nature should affirmatively appear to- require the court to exercise its discretion.

In the present instance no such cause was assigned or even suggested, it being assumed the right of challenge remained until the jury was sworn.

It is next urged the court erred in admitting improper testimony offered in behalf of the plaintiff. The first item of evidence objected to, is that in which the plaintiff is permitted to state that she had no means of support other than her husband and that she was wholly" dependent upon him. In this there was no error. The law distinctly bases the right to recover upon an injury to the person, property or means of support of the plaintiff occasioned by the intoxication of the party to whom the liquor is furnished. This being one of the grounds upon which the recovery may be predicated, it is certainly proper and competent to show the extent of the support furnished by the person in question. "Where he was the entire means of support the loss would be greater than where he was but partially so. Cases might arise where the husband, by reason of ill health or other causes, is of no support whatever to the wife, and it would surely be competent to show this fact.

We understand this to be the clear inference to be drawn from the adjudications of the Supreme Court in various cases, among which may he cited Keedy v. Howe, 72 Ill. 133; Meidel v. Anthis, 71 Ill. 241; Confrey v. Stark, 73 Ill. 187; Flynn v. Fogarty, 106 Ill. 263.

The other item of testimony complained of is an answer of the witness Dunn in describing the action of Smith when they got to the saloon, kept by one Haker. He was asked, what took place there, and answered: He (Smith) wanted to take another drink.

We are unable to see anything objectionable in this. If the witness was by this expression seeking to strengthen his position that Smith had already taken one drink, the fact could probably be shown,by the proper cross-examination.

If the statement was in truth a quotation of what was said by Smith, it was competent because part of the Tes gestae. Wharton on Evidence, Vol. 1, See. 258-9.

It is urged next, that the court erred in giving the following instruction for the plaintiff: “ 5. By a preponderance of the evidence is not necessarily meant a greater number of witnesses, but if the plaintiff has proven the material allegations of her declaration by such evidence as satisfies and produces conviction in the minds of the jury, then she has proven her case by a preponderance of the evidence.” “Given.”

It is said, by way of criticism, that this instruction wonld warrant the jury in disregarding the evidence offered by the defendants, and that by the terms employed in it, if the evidence of the plaintiff considered alone, regardless of all else in proof, satisfies and produces conviction in the mind of the jury, then she' has a preponderance of the evidence. We can not suppose that any practical man of ordinary intelligence would so understand it. It can hardly be possible that such a man would be induced by it to overlook all the evidence of the defense, discard it wholly, and rely alone on that of the prosecution. Such is not the ordinary and natural meaning to be attached to it, and when it is read in connection with all the other instructions given on either side in reference to the weight and preponderance of evidence referring pointedly to the conflicting nature of the testimony and the duty of the jury to weigh it all in the light of the various considerations properly applicable, there is no reason to apprehend that it was misunderstood in the way suggested.

It is urged also that the damages are excessive. While it may be said they are fully as high as the evidence would warrant, they are not so great as to justify interference by an appellate court upon that ground alone. There was no evidence whatever tending to make a case for the allowance of exemplary damages, and it is not to be presumed any part of the verdict is for such damages.

Nowhere in the evidence or instructions of plaintiff does it appear that anything more than actual damages were sought, and it will be assumed the jury took nothing else into account. This consideration disposes of the only remaining objection, urged in the brief of appellants, that the court excluded evidence offered by defendants to show they had instructed three barkeepers not to sell to said Smith.

Such instructions would be no bar in any event to actual damages, if liquor was furnished, and as there was no evidence or claim by plaintiff for exemplary damages, the offer was irrelevant and properly refused.. The judgment will be affirmed.

Judgment affirmed.


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    J. A. Caldwell v. A. H. Wright.

      Municipal Corporations—Ordinance—Fine—Settlement.

    A municipal corporation may accept a note in settlement of a fine imposed for a violation of an ordinance.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.
    Mr. George W. Smith, for appellant.
    Messrs. Morrison & Whitlock, for appellee.
   Conger, J.

The single question presented by this record íf, has a municipal corporation the power to take from one, who has been fined for a violation of the ordinances of the municipality, his promissory note in settlement of the judgment recovered for the fine? We think they have, both from reason and authority.

It is said in Petersburg v. Mappin, 14 Ill. 193: “ The power to prosecute suits on behalf of the corporation includes the power to settle the same. So the power to defend suits brought against the corporation gives them the same power of adjustment. They may compromise doubtful controversies, to which the corporation is a party, either as plaintiff or defendant.” The proceedings to collect a penalty for the violation of a town ordinance is a civil suit. Hoyer v. Town of Mascoutah, 59 Ill. 138.

Being a civil suit—simply for the recovery of money—the municipality, when acting in good faith, may settle or compromise its claim in any way it sees proper.

Such a transaction can in no sense be considered as a general dealing in negotiable paper, but is simply taking, perhaps, the only feasible method to collect a debt due it.

Again, the appellant having given the note in question for the purpose of releasing his principal from imprisonment and having received the benefit and advantage for which it was given, can not now be heard to say that the action of the corporation in receiving the note was ultra vires.

Affirmed.


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    Pacific Express Company v. R. M. Peadro.

      Practice—Appeal from Justice—Control of by Appellant—Procedendo —Jurisdiction—Presumption.

      1. An appeal by the plaintiff in a suit before a Justice, from a judgment in his favor, may be dismissed by him against the wishes of the appellee.
    2. Upon the dismissal of an appeal from a Justice it is proper to award a procedendo.

      3. In the absence of anything to the contrary appearing in the record the regularity of judicial proceedings is presumed.
    [Opinion filed February 17, 1887.]
    Appeal from the County Court of Moultrie County; the Hon. J. Meeker, Judge, presiding.
    Messrs. W. H. Shinn and Walter Rose, for appellant.
    Messrs. Cochran & Harbaugh, for appellee.
   Wall, J.

The appellee brought suit against appellant before a Justice"of the Peace and obtained adjudgment for $37.70. From this judgment he took an appeal to the County Court, the appeal bond being filed before and approved by the Justice. In the County Court the plaintiff, appellee here, being the appellant there, moved for leave to dismiss his appeal, which was allowed and the appeal dismissed with procedendo to the Justice.

The defendant, appellee there, objected to the ruling of the County Court and having brought the record here by appeal assigns error thereon.

The point involved was expressly decided by the Supreme Court in Bacon v. Lawrence, 26 Ill. 53, where it was held that an appellant had an undoubted right to dismiss his own appeal and that, if the other party was dissatisfied with the decision, of the Justice, he should have taken an appeal also. Taking an appeal by one party does not deprive the other of the right to do the same thing. A party may appeal from a decision in his favor. Kasting v. Kasting, 47 Ill. 438. The appeal having been dismissed it was proper to award aj'procedendo requiring the Justice to proceed with the collection of the judgment. Reed v. Driscoll, 84 Ill. 96.

It is suggested the Justice lost jurisdiction by taking the case under advisement. The question does not arise, as we think, in the present condition of the record, but it seems that appellant misapprehended the fact.

The transcript recites that the case was tried by the Justice on the 4th day of May and taken under advisement, the time for rendering decision being set at 10 a. m. the next day, and on that day, though the hour is not stated, the case was decided. It is to be presumed it was at the hour fixed by the previous order. The judgment is affirmed.

Judgment affirmed.