text:
    Alonzo E. Axtell v. John Cullen.
    1. Debtor and creditor—Preference.—A debtor has an undoubted right to secure one creditor so far as he is able, even if in so doing he defeats the collection of the claim of another creditor, unless his real purpose in so doing was to hinder or defeat the other creditor in the collection of his claim.
    2. Knowledge by preferred creditor of the claim of another. —The mere knowledge by the creditor thus secured of the existence of other claims against the debtor will not affect his rights, there being no proof that in taking security for his debt he had any other object in view than to secure himself.
    Appeal from the Circuit Court of McHenry county; the Hon. G. W. Upton, Judge, presiding. Opinion filed May 2, 1879.
    Mr. John B. Lyon, for appellant;
    that the leasing of the land does not bring the case within the Statute of Frauds, so as to make the crop subject to sale on execution in favor of creditors, cited 1 Story’s Eq. Jur. § 367; 2 Kent’s Com. 442; Story on Sales, 653.
    Upon the right of a debtor to prefer one creditor to another'. Morris v. Tillson, 81 Ill. 607; 2 Kent’s Com. 521; Fassett v. Traber, 20 Ohio, 540; Wall v. Lakin, 13 Met. 167; Johnson v. Whitwell, 7 Pick. 74; Marbury v. Burks, 7 Wheat. 566.
    It must be shown that both vendor and vendee were guiltj of a fraudulent intent: Brown v. Riley, 22 Ill. 46; Gridley v. Bingham, 51 Ill. 153; Gray v. St. John, 35 Ill. 222; Hessing v. McCloskey, 37 Ill. 341; Hatch v. Jordon, 74 Ill. 414; Kerr on Fraud and Mistake, 201.
    If the act may he traced to an honest motive, such motive should he preferred. McConnel v. Wilcox, 1 Scam, 344; Bowden v. Bowden, 75 Ill. 143.
    Mere suspicion is not sufficient to establish fraud: Bullock v. Narrott, 49 Ill. 62.

      A sale of goods by a debtor or creditor will be presumed bona fide, in the absence of proof to the contrary: Jewett v. Cook, 81 Ill. 260.
    And the burden is upon the party claiming the contrary to establish fraud: Hall v. Jarvis, 65 Ill. 202; McConnell v. Wilcox, 1 Scam. 344; Clark v. Groom, 24 Ill. 316; Blow v. Gage, 44 Ill. 208.
    Mr. O. H. Gillmobe and Mr. J. P. Cheevee, for appellee;
    that a contract made with intent to defraud creditors is fraudulent as to them, cited 2 Kent’s Com. 512; Lowry v. Orr, 1 Gilm. 70; Deere v. Lewis, 51 Ill. 254; Boies v. Henney, 32 Ill. 130.
    A purchase of property with knowledge that the sale is intended to defraud creditors, is void: Gardiner v. Otis, 13 Wis. 514.
    Fraud may be established by circumstantial evidence: Swift v. Lee, 65 Ill. 336; Reed v. Noxon, 48 Ill. 323; Bryant v. Simoneau, 51 Ill. 324; Rothgerber v. Gough, 52 Ill. 436; Carter v. Gunnels, 67 Ill. 270.
    The crops in question were not exempt unless the exemption was claimed by the defendants in execution: Rev. Stat. 1874, 498, §12; Cook v. Scott, 1 Gilm. 333; McCluskey v. McNeely, 3 Gilm. 578.
    Objection that an improper paper was handed to the jury on retiring, must be made at the time: Smith v. Wise, 58 Ill. 142.
    The reading of improper testimony to the jury should be taken advantage of by an instruction of the court to disregard it: Kenyon v. Sutherland, 3 Gilm. 99.
    Where the instructions, taken as a whole, fairly present the case, no error is committed: Cusick v. Campbell, 68 Ill. 508; Stowell v. Beagle, 79 Ill. 525; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 309.
    The verdict will not be disturbed unless clearly against the weight of evidence: Palmer v. Weir, 52, Ill. 241; Hope Ins. Co. v. Lonergan, 48 Ill. 49; Chilicothe Ferry, etc. Co. v. Jameson, 48 Ill. 281; Chicago City R’y Co. v. Young, 62 Ill. 238; Tucker v. Watts, 64 Ill. 416; Foos v. Sabin, 84 Ill. 565; Young v. Silkwood, 11 Ill. 36.
    Where substantial justice 1 as been done, the giving of an improper instruction will not be ground for a new trial: Dishon v. Schorr, 19 Ill. 59; Schwarz v. Schwarz, 26 Ill. 81; Hall v. Groufe, 52 Ill. 421; Stobie v. Dills, 62 Ill. 433; Foos v. Sabin, 84 Ill. 564.
   Sibley, J.

This suit originated before a justice of the peace of McHenry county, on a claim, made by John Cullen against the appellants for the crops raised upon forty-four acres of land belonging to Florence and Eliza McCarty. The case was taken by appeal to the Circuit Court of that county, where a trial was had, which resulted in a verdict for the plaintiff, and damages assessed at $125. From the judgment rendered on that verdict the defendants appealed to this court.

The facts proven on the trial were few and simple. On the 15th of March, 1877, John Cullen recovered a judgment against the McOartys for the sum of $196. An execution issued upon this judgment, and was levied on the crops of wheat, corn and oats grown on the place occupied by Florence and Eliza McCarty. At the constable’s sale under the execution, in June, 1877, the crops were struck off to the plaintiff, Cullen, for one dollar and fifty cents, though he estimated their value at from $125 to $150.

Florence and Eliza McCarty having for some time been owing A. E. Axtell a considerable amount, four hundred dollars of which remained unsecured, Axtell, becoming anxious to secure a portion of his debt, on the 25th of March, 1877, leased of the McOartys (they being unable to procure the requisite means for cultivation), the land on which the grain in dispute was grown. Axtell paid the rent of $175 to the lessors in. advance, by giving them credit for that amount on their indebtedness. He also furnished the seed, prepared the ground, hired all the help necessary to cultivate the land, gathered in the harvest and made the crop ready for market.

It was proven that Axtell, when he leased the land of the McCarty’s, knew of Cullen’s judgment against them. He also employed Florence McCarty and his step-son to kelj> till the ground leased, and paid them for their labor at the end of the season a span of horses worth $125. These are the principal circumstances relied on by the appellee, who was his only witness on the trial of the cause, to show a fraudulent intent on the part of Axtell to hinder and delay him in the collection of his judgment against the McCartys. Axtell and Florence McCarty both testified that no such intent existed. But that the land was rented by the parties for the purpose only of liquidating a just indebtedness.

Upon this evidence the jury found that Cullen was entitled to recover of the appellants the value of the crops raised on the land leased to Axtell. By what process of reasoning they arrived at that conclusion, we are unable to discover. There was no question but what Axtell’s claim was an honest one. Nor can it be disputed that he had a perfect right to secure as much of it as he was able to, even if in so doing he defeated Cullen in the collection of his judgment, unless that was his real purpose in the transaction. Bupip on Fraudulent Conveyances, 218, and cases cited in note 5; Ewing v. Runkle, 20 Ill. 448; Gray v. St. John, 35 Id. 222; Hesing v. McCloskey, 37 Id. 341; Francis v. Rankin et al. 34 Ill. 169.

It is contended by counsel for appellee, that inasmuch as he was informed by Florence McCarty that things had been so fixed as to prevent Cullen from getting anything without a fight with Axtell, the jury had a right to infer a fraudulent intent on the part of Axtell in renting the land. Concede that appellee’s statement was true, although McCarty denied it, we know of no authority for holding that Axtell could in anywise be affected by it. For as to him, it was at best but hearsay evidence, and the whole record is destitute of proof that Axtell had any other object in view by leasing the land of the Mc-Cartys, except to secure at least a portion of his claim.

We do not deem it necessary to notice the other reasons pointed out for reversing the judgment appealed from, since the error assigned for not granting a new tidal is well taken. However much the court may be disinclined to interfere with the verdict of a juryupon a question of fact, the one before us is so clearly against the weight of evidence that it should have been set aside and a new trial awarded. The judgment of the Circuit Court is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Leland, J.

license: Public Domain

text:
    Arthur Flansburg v. John Basin.
    1. Vicious animals—Liability on owner on dog accustomed to bite.—It is not necessary to show that the keeper of a dog has allowed him to hite a large number of his neighbors, or then animals, before he commences to he liable; but it is enough to show that there is within his knowledge a probability that he may do so. If he have reasonable grounds to suppose that the dog may do so, he must restrain him, or he liable for the consequences.
    2. Evidence—-Impeachment.—The jury have a right to believe a witness, notwithstanding they may think his character had, and the court ought not, by an instruction, tell them that they should not do so. It is not allowed to impeach a witness by proof of general had character, and an instruction to that effect is bad.
    3. Joint liability.—The court say that in this case it is not necessary to consider whether there can he a joint liability of owners for a joint attack of their dogs. As it is not so with cattle, it is probably not so with dogs.
    Appeal from the Circuit Court of Henry county; the Hon. Arthur A. Smith, Judge, presiding. Opinion filed May 2, 1879.
    Messrs. Mock & Hand and Mr. Thomas C. Ayres, for appellant:
    that under a plea of not guilty in this class of actions, no defense other than such denial is admissible: 1 Addison on Torts, § 585; 2 Whar. on Ev. § 1295.
    It was not necessary to prove a series of acts of viciousness: Smith v. Pelot, 2 Str. 1264; Arnold v. Norton, 25 Com. 92; Kittridge v. Elliott, 16 N. H. 77; Loomis v. Terry, 17 Wend. 406; Cockerham v. Nixon, 11 Ired. 269; Mann v. Wieand, 1 Monthly Jur. 94; Worth v. Gilling, L. R. Q. C. P. 1; Judge v. Cox, 1 Stark. 285; Fleming v. Orr, 2 Macq. 25; Meibus v. Dodge, 38 Wis. 300; Rider v. White, 65 N. Y. 54; 1 Addison on Torts. § 290.
    After one act of viciousness, if the keeper have notice of such act, and suffer the animal to run at large, he is liable: Laverom v. Mangianti, 41 Cal. 138; Buckly v. Leonard, 4 Denio, 500; Wheeler v. Brandt, 23 Barr, 324; Loomis v. Terry, 17 Wend, 496; Marsh v. Jones, 21 Vt. 378; Popwell v. Pierce, 10 Cush. 509; Sherfay v. Bartlett, 4 Sneed, 58; Burden v. Barnett, 7 Ala. 169.
    The gist of the action is the keeping after knowledge of its vicious propensity: May v. Burgett, 9 O. B. 101; Wheeler v. Brandt, 23 Barr, 324.
    An instruction that the dog must attack horses attached to vehicles or the jury could not find defendant guilty, limits plaintiff’s right of recovery to an extent not warranted in law, and is erroneous; Chittenden v. Evans, 48 Ill. 52; Bradshaw v. Mayfield, 24 Tex. 481; Smithwick v. Indross, 24 Tex. 488; Roots v. Lyner, 10 Ind. 92; Wells on Questions of Law and Fact, § 407.
    It is not the duty of the court to instruct when the instruction assumes facts not proved: I. & St. L. R. R. Co. v. Horst, 9 Chicago Legal News, 114; Michigan Bank v. Eldred, 9 Wall. 544; Ward v. U. S. 14 Wall. 28; Railroad Co. v. Gladden, 15 Wall. 401.
    The failure of plaintiff to exercise ordinary care, unless such failure contributed to the injury, will not prevent a recovery: Stumps v. Kelly, 22 Ill. 140; T. W. & W. R. R. Co. v. O’Connor, 77 Ill. 391; C. & A. R. R. Co. v. Mock, 72 Ill. 141; Centralia v. Scott, 59 Ill. 129; C. & A. R. R. Co. v. Murray, 62 Ill. 326; Daniels v. Clegg, 27 Mich.
    Instructions should be based on evidence: Coughlin v. The People, 18 Ill. 266; Chapman v. Cawrey, 50 Ill. 512.
    A contradiction, in order to affect the credibility of a witness, must be on a material point in issue, and the witness must have willfully sworn falsely: Crabtree v. Hagenbaugh, 25 Ill. 235; Meixell v. Williamson, 35 Ill. 529; Brennan v. The People, 15 Ill. 511: Chicago v. Smith, 48 Ill. 107; U. S. Ex. Co. v. Hutchins, 58 Ill. 44; Pope v. Dodson, 58 Ill. 360; 1 Greenleaf’s Ev. §462.
    Proof of general bad character is not sufficient to impeach a witness: Frye v. Bank of Illinois, 11 Ill. 332; Eason v. Chapman, 21 Ill. 33; Crabtree v. Kile, 21 Ill. 180; Dimick v. Downes, 82 Ill. 570; 1 Greenleaf’s Ev. § 461.

      Upon the question of damages: Fulsom v. Town of Concord, 46 Vt.
    Appellant was entitled tó a new trial on showing that one of the jurors had falsely stated on his examination that he had no knowledge of the case about to be submitted, when in fact he had full knowledge of all the facts: Nomaque v. The People, Breese, 145; Guykowski v. The People, 1 Scam. 476; Smith v. Eames, 3 Scam. 76; Sellars v. The People, 3 Scam. 412; Vennum v. Harwood, 1 Gilm. 659; Swarnes v. Sitton, 58 Ill. 155; Essex v. McPherson, 64 Ill. 349; Spurck v. Crook, 19 Ill. 415.
    It is sufficient if enough of plaintiff’s allegations is proved to afford ground for maintaining the action: 1 Phillip on Ev. 504; 2 Chit. Pl. 597; Pickering v. Orange, 1 Scam. 338; Panton v. Holland, 17 Johns. 92.
    Where it is apparent the jury misunderstood the evidence or were misled by the instructions, a new trial should be given: Higgins v.Lee, 16 Ill. 495; Robertson v. Dodge, 28 Ill. 161; Southworth v. Hoag, 42 Ill. 446; Haycroft v. Davis, 49 Ill. 445; Booth v. Hyms, 54 Ill. 363; C. B. & Q. R. R. Co. v. Stump, 55 Ill. 367; R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398.
    Messrs. Shepabd & Mabstox, for appellee;
    that where the evidence is conflicting, the verdict will not be set aside unless clearly against the weight of evidence, cited C. & R. I. R. R. Co. v. Hutchins, 34 Ill. 108; C. & R. I. R. R. Co. v. Crandall, 41 Ill. 234; T. P. & W. R’y Co. v. McClannon, 41 Ill. 238; Davis v. Hoeppner, 44 Ill. 306; Hope Ins. Co. v. Lonegan, 48 Ill. 49; Sawyer v. Daniels, 48 Ill. 269; C. F. R. & B. Co. v. Jameson, 48 Ill. 281; Palmer v. Weir, 52 Ill. 341; Varner v. Varner, 69 Ill. 445; Kightlinger v. Egan, 75 Ill. 141; Chapman v. Burt, 77 Ill. 337; Summers v. Stark, 76 Ill. 208; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; Bishop v. Busse, 69 Ill. 403; City of Ottawa v. Sweely, 65 Ill. 434.
    Even where the evidence was such that the jury would have been justified in finding the other way: C. & N. W. R. R. Co. v. Ryan, 70 Ill. 211; Papineau v. Belgrade, 81 Ill. 61; McClelland v. Mitchell, 82 Ill. 35; Corwith v. Colter, 82 Ill. 585.

      Under the general issue in this ease defendant could prove any matter tending to show that his dog did not commit the injury: 1 Chi . Pl. 794; Dean v. Blackwell, 18 Ill. 336.
    The owner of domestic animals is liable when, knowing their vicious habits, he keeps them, whether negligent or not: Popplewell v. Pierce, 10 Cush. 509; 1 Hilliard on Torts, 569; Cord v. Case, 5 C. B. 622; 1 Addison on Torts, 283.
    But this does not relieve the party injured from the exercise of ordinary care: Kightlinger v. Egan, 65 Ill. 235; Wormley v. Gregg, 65 Ill. 251.
    The instruction in regard to competency of the witnesses was correct: Springdale Cem. Asso’n v. Smith, 24 Ill. 480; Miller v. People, 39 Ill. 457; Crabtree v. Hagenbaugh, 25 Ill. 233.
    It is not'proper to repeat in an instruction a principle already given in an instruction: Chicago v. Hesing, 83 Ill. 204; Lonergan v. Courtney, 75 Ill. 580.
    Appellant’s instruction was properly refused, as it gives undue prominence to parts of the testimony: Hewitt v. Johnson, 72 Ill. 513; Holmes v. Hale, 71 Ill. 552; Ogden v. Kirby, 79 Ill. 555.
    Affidavits of jurors cannot be received to show misconduct on the part of one of their number: Cleem v. Smithe, 5 Hill, 560; Dorr v. Fenno, 12 Pick. 521; Hannum v. Belchertown, 19 Pick. 313; Murdock v. Sumner, 22 Pick. 157; Cook v. Castner, 9 Cush. 278; Folsom v. Manchester, 11 Cush. 334; B. & W. R. R. Co. v. Dunn, 1 Gray, 105; Chadbourn v. Franklin, 5 Gray, 212; Allison v. The People, 45 Ill. 37; Peck v. Brewer, 48 Ill. 54.
   Leland, J.

Appellant brought an action on the case against appellee, alleging that he kept a ferocious and mischievous dog, knowing that he was accustomed to attack, chase and bite horses, etc.

In the first count the word “ horses ” alone is used. In the second the words “ horses as well as other domestic animals ” are used, and in the third count the words are “horses and teams attached to vehicles.” It is also alleged that appellant on May 25th, 1875, was going home from a debate at the school house one night, on horse-back, and that when passing along the road in front of appellee’s house, the said dog came out and bit his horse, and that thereupon the horse threw him and broke his leg. The verdict was in favor of appellee.

Basin and his son-in-law, Robert J ulian, lived opposite each other, and the two together had three dogs; appellee had a large black and white one and a little rat terrier, and Julian had a common yellow shepherd slut. All three were either principals or accessories in the attack—all joined in barking extensively. Appellant says however, that it was the large black and white one which bit his horse, and he is the only person who could tell how it was. It is not necessary to consider whether there can be joint liability of owners, for a joint attack of their dogs; as it is not so with cattle, it is probably not so with dogs. Westgate v. Carr, 43 Ill. 450.

We are not disposed to find any fault with the court below for allowing it to be proved whether the slut or the large black and white dog actually did do the biting, by showing which one was the more likely to liave done so, by proving which one’s daify habits of life were of a biting, and which of a mere barking character. If the difference of size and sex would raise any presumptions, it would seem proper to explain and rebut them in this way, as tending to show that appellant was mistaken.

The questions of fact are quite elaborately discussed, but we deem it only necessary to say on that subject, that if there were no erroneous ruling, a verdict either way should stand, unless one for plaintiff were for an excessive amount, and that in such case of conflict there should be reversal for error in instructions.

If the allegations in the declaration had been that appellee was the owner of the dog, instead of that he kept the dog, it would seem under the authority of Wormley v. Gregg, 65 Ill. 251, that the case for appellant would have been stronger. Before examining the instruction, we may say on the subject of dogs generally, that their rights are better protected now than they were in more barbarous times. In Smith v. Pelah, 2 Strange, 1264, the Chief Justice ruled that “if a dog has once bit a man, and the owner having notice thereof keeps the dog and lets him go about or lie at his door—an action will lie against him at the suit of a person who is bit, though it happened by such person’s treading on the dog’s toes, for it was owing to his hot hanging the dog on the first notice; and the safety of the king’s subjects ought not afterwards to be endangered.”

In Kightlinger v. Egan, 65 Ill. 235, Justice Sheldon, in a more just and humane spirit, ruled that a dog wantonly kicked, might lawfully bite in self-defense. The dog in this case, however, would not be justified, after his passions had had time to cool, in making the attack, simply because appellant may have two or three months before, unnecessarily struck at him with a whipstock while passing.

The second instruction given for appellee, was to the effect that unless the dog was accustomed to chase and bite horses and teams hitched to vehicles, there could be no recovery.

Under the first and second counts, there could be a recovery, though the dog was accustomed to attack horses, or other domestic animals not attached to vehicles, and always avoided doing so whenever they were so attached.

That a dog like men, may have idiosyneracies, is not only a well known fact, but it has the sanction of judicial authority. It is held in Kightlinger v. Egan, supra, that a “ dog might have been of savage and ferocious disposition as respected other animals, and yet of a different disposition toward persons.”

Why might not the dog have had the disposition to attack horses without riders, or one with a rider, and yet have refrained, from prudential motives, when there was an ally of the horse or horses, who could defend them from the fortified position of a two-horse wagon, or a buggy? If the dog had chased and bitten animals before, or shown a disposition to do so, and the keeper knew it, he must restrain him or take the consequences; see Stumps v. Kelly, 22 Ill., 140, where the law and the gospel on the subject are well considered by Justice Walker. It is not necessary that the inclination to do so should have become fixed and customary. If it be only on rare occasions, with the keepers knowledge, it is enough. It is not necessary to prove all that is alleged, but only enough to make a cause of action, under some one count.

We perceive no objection to the third of appellee’s given instructions. If the jury could not tell from the evidence whether it was Julian’s slut or appellee’s dog which caused the horse to throw his rider, they cannot say that appellee’s dog did it. •

The fourth improperly calls attention to particular portions of the evidence, for the consideration of the jury, viz.: whipping up the horse, striking at the dogs with a rope halter, and the skittislmess of the horse, giving them undue prominence. Frame v. Badger, 79 Ill. 441; Ogden v. Kirby, 79 Ill. 556; McCartney, v. McMullen, 38 Ill. 237; Evans v. George, 80 Ill. 51; Hatch v. Marsh, 71 Ill. 370. Though for this alone there might not be a reversal. Grube v. Nichols, 36 Ill. 92.

It is also said that a failure to exercise ordinary care in either one of these particulars, though it may not in any respect have tended to cause the fall from the horse, will prevent a recovery.

Appellant may not have struck at the dog with ordinary care, and yet this may not have had anything to do with causing the rider to be thrown. City of Centralia v. Scott, 59 Ill. 129. Of course, if the negligence, if any, of appellant, did not contribute to the fall, it is immaterial. C. & A. R. R. Co. v. Murray, 62 Ill. 326.

By the 6th, the jury are informed that they should entirely disregard the evidence of witnesses, who have been successfully impeached by direct contradiction, or proof of general character, except where corroborated by other competent evidence.

The jury have a right to believe a witness, notwithstanding they may think his character bad. The worst man and the greatest bar must be believed under some circumstances, and the court ought not to have said to the jury that they should not do so, instead of saying that they may do so or not, as they think best. Jurors, not judges, are to determine the weight to be given to evidence. Suppose there are but two witnesses, and they flatly contradict each other, may not the appearance and manner of testifying of the one, or the greater probability of his tale, turn the scale, and would a jury thus instructed consider such things as other competent evidence? Hor is it true that proof that a man’s character is bad would render it necessary for a jury, who did not desire to, to disregard his evidence entirely. ¡Men who are very bad in some other respects, may not be untruthful. Even though all the people in his neighborhood might swear that a witness’s character for truth was bad, and that they would not believe him on oath, this does not take away from the jury their right to believe him, and a court should not tell them that it did. It is not allowed in this State to prove that a witness’s general character is bad in ' order to impeach him, and consequently an instruction which says it does, is bad; it must be limited to character for truth and veracity. Other defects in the instruction are pointed out, but it is not necessary to pursue this subject further.

The modification of appellant’s 1st, -2nd, 4th and 10 th instructions was proper. We understand the law in this State to be that plaintiff must prove affirmatively that he exercised ordinary care, or the negative, that he was not negligent, whichever way it may be stated. Dyer v. Talcott, 16 Ill. 300; C. B. & Q. etc. v. Gregory, 58 Ill. 272, and not that each party must j>rove the opponent’s negligence—the plaintiff to entitle him to recover, and the defendant to prevent a recovery, as is held in some other States. Shearman & Bedfield on ¡Negligence, sections 43 and 44, and notes. This is an exception to a general rule, which allows that a necessary element of a plaintiff’s case need not be alleged, but requires that it must be proved. C. & N. W. R. R. Co. v. Cross, 73 Ill. 394. The Appellate Court of this district has held that an instruction is erroneous under the foregoing authorities and others, which states that “ if there is no proof of a want of care on the part of the plaintiff, it should he presumed that she was careful rather than that she was careless.” City of Mendota v. Fay, 1 Bradwell, 418. In the case of the C. B. & Q. R. R. Co. v. Van Patten, 74 Ill. on p. 94, it is, however, perhaps inaccurately intimated that where there is no evidence of what the intestate’s conduct was, plaintiff, who was administratrix, might recover upon proof of defendant’s negligence only. Inaccurate, because if such be a necessary element of plaintiff’s case, then under the maxim that “ what doth not appear doth not exist,” plaintiff fails to make a case; and not unlike this last case is that of Ill. Cent. R. R. Co. v. Cragin, Adm. 71 Ill. see the 7th instruction on p. 184.

Appellant’s 6th instruction, being on the measure of damages, and there not having been any to measure, it is unimportant whether it was correct or not. There was no error in the refusal of the seventh instruction asked by appellant, but we do not deem it necessary to comment on this, nor on the questions as to the supposed misconduct of the juror.

We select from appellant’s brief, the following cases, explanatory of the views taken in this opinion, as to the liability in such cases. Arnold v. Norton, 25 Conn. 92; Loomis v. Berry, 17 Wend. 496; Meibus v. Dodge, 38 Wis. 300; Wheeler v. Brant, 23 Barb. 324; Marsh v. Jones, 21 Vermont, 378; Rider v. White, 65 N. Y. 54; Laveroue v. Mangiante, 41 Cal. 138; Popwell v. Pierce, 10 Cush. 509; Sherfay v. Bartlett, 4 Sneed, 58; Shearman & Redfield on Negligence, section 190, and following sections: from which it will appear that it is not necessary to show that the keeper of the dog has allowed him to bite a very large number of his neighbors or their animals, before he commences to be liable, but that it is enough to show that there is, with his knowledge, a probability that he may do so. If lie have reasonable grounds to suppose that the dog may do so, he must restrain him, or take the consequences.

For the errors aforesaid, the judgment is reversed and the cause remanded.

Eeversed and remanded.


author: Pillsbury, P. J.

text:
    Mary E. Prentiss v. Thomas Moore.
    Replevin—Return oe property.—It is error to award a return of the property replevied, on dismissal of the replevin suit, where it appears the plaintiff never obtained possession of the property under the writ. So, where defendant was in the act of removing a house and barn when they were seized in replevin, moved back into the same field from which they had been taken, and left in possession of the defendant, the object of the replevin writ has never been executed, there is nothing to return, and a writ of retorno habendo should not have been issued.
    Appeal from the City Court of Aurora; the Hon. Frank M. Annis, Judge, presiding. Opinion filed May % 1879.
    Mr.A. J. Hopkins and Mr. A. G-. McDole, for appellant;
    contending that there was no legal execution of the writ of replevin, ' cited. Rev. Stat. Chap. 119, §7.
    Mr. B. F. Parks, for appellee.
   Pillsbury, P. J.

An action of replevin was commenced in the court below by appellant to recover from the defendant a frame dwelling house and one barn, alleged to be personal property in the affidavit.

The return of the officer who served the writ is as follows:

July 9 th, 1877.
“ Served this writ by reading the same to Thomas Moore, and by taking the within described property and removing the same to the premises in said city of Aurora, from which he had taken, them, and left them in the possession and under the. control of said Moore.
“ Chas. S. Mixer, Sheriff,
“ R. B. Gates, Deputy.”

Appellant having failed to file his declaration ten days before the second term, the court dismissed the suit, and upon motion of the defendant ordered that a writ de retorno habendo should issue for a return of the property.

From this order the plaintiff appeals to this court.

Evidence was introduced upon the hearing of the motion in the court below which is preserved by a bill of exceptions.

Gates, the deputy sheriff who served the writ, testified as follows:

“ I was deputy sheriff July 9th, 1877, and for some time previous and since then. I served the writ of replevin in this case. On the day I served the writ I found the house and barn mentioned in the writ on a lot adjacent to the one on which they had been erected. The defendant was in the act of moving the house, and was then in possession of the house; he and his family were living in it. The house had been moved from a stone foundation. I took the house by virtue of the writ, and under the direction of defendant moved it back into the field from which the defendant had taken it, in a different place, but near where it originally stood. I placed the house where the defendant directed me to place it,, and left it in the possession of the defendant. He and his family were then residing in the house. The return I made on the writ is exactly and literally true.”

It is apparent that the plaintiff never obtained the possession of the property by virtue of the writ of replevin, but that the same was placed by the officer where he was directed by the defendant, and the defendant left in sole charge and possession of it.

Under such circumstances we fail to see how a return of the property to the defendant can be awarded. There is nothing to return; the writ has never been executed, and the object of the suit, - which is to obtain possession of the property, has never been accomplished.

In such case we are of the opinion that upon a dismissal or a voluntary discontinuance of the suit in replevin these facts can be shown, and thus prevent the order for a return of the property. Buckmaster v. Beames, 4 Gilm. 443. It cannot be otherwise than. improper to award a return of the property where it has never been delivered to the plaintiff upon the writ.

For this reason alone we think the court below should have overruled the motion of defendant for an order for the return of the property.

We have, however, looked into all the evidence in the case, and if we were to consider it as determining the rights of the parties to the property, we should have no hesitation in holding that the writ, under all the circumstances in proof, was properly issued. It is not necessary, however, to determine this question.

The order awarding the writ de retorno habendo must be reversed.

Order reversed.


text:
    J. H. Paxton v. Frederick Schick et al.
    Replevin.—This case presents the same questions as the preceding case, and is reversed for the same.reasons there given.
    Appeal from the City Court of Aurora; the Hon. Frank M. Annis, Judge, presiding. Opinion filed Hay 2,1879.
    Mr. A. J. Hopkins, for appellant.
   Pillsbury, P. J.

This case is the same in all respects as the case of Mary E. Prentiss v. Thomas Moore, decided at the present term, and for the reasons therein given the order awarding a return of the property must be reversed.

Order reversed.


text:
    Clayburg, Einstein & Co. v. Henry B. Ford et al.
    1. Writ—Misnomer—Wsen not material.—A writ of attachment was sued out-in the firm name of Clayburg, Einstein & Co., but as there was a declaration filed in the cause in which the full names of the members of the firm were given, and an appearance by the defendant, the irregularity in the writ-became unimportant. It was not such an irregularity as would render the writ void or sufficient to reverse.
    2. Levy of writ before deed recorded.—The writ Of attachment was levied upon the land at eleven o’clock a. m., and. the deed by defendant conveying the land to another, filed for record at two o’clock p. m. of the same day. The levy of the attachment being prior in time, is stronger in right and must prevail, there being no evidence that plaintiff in attachment had actual or constructive notice of the existence of the deed.
    Error to the Circuit Court of Peoria county; the Hon. D. McCulloch, Judge, presiding. Opinion filed May 2, 1879.
    Messrs. Cratty Bros. & Ulrich, for plaintiffs in error;
    that the levy constituted a prior lien, cited Martin v. Dryden, 1 Gilm. 187; Doyle v.Teas, 4 Scam. 202; Kennedy v. Northrup, 15 Ill. 148; Jones v. Jones, 16 Ill. 117; Stribling v. Ross, 16 Ill. 122; McClure v. Englehard, 17 Ill. 47; Reichert v. McClure, 23 Ill. 516; Massey v. Westcott, 40 Ill. 160; McFadden v. Worthington, 45 Ill. 362; Huebsch v. Scheel, 81 Ill. 281; Cushing v. Hurd, 4 Pick. 252.
    Messrs. Stevens, Lee & Gallagher, for defendants in error;
    that no notice of attachment was mailed, and the court had no jurisdiction, cited Thormeyer v. Sisson, 83 Ill. 188.
    It was proper to try the case upon the interpleader of defendant, no defense being made for H. T. Ford: Williams v. Van Mettre, 19 Ill. 293; City Ins. Co. v. Commercial Bank, 68 Ill. 348.
    An attachment can operate only upon the interest of the defendant in'attachment existing at the time the writ is levied: Drake on Attachment, § 220; Cox v. Milner, 23 Ill. 476; Samuel v. Agnew, 80 Ill. 555; Seavey v. Browning, 18 Iowa. 246; Reed v. Ownby, 44 Mo. 204.
   Leland, J.

Martin Clayburg, Morris Einstein, David Lindauer, and Bernhard Kuppenheimer, using the firm name of Clayburg, Einstein & Co., sued out a writ of attachment against Henry T. Ford, as defendant in attachment. As there was an appearance by the defendant, and a declaration by plaintiffs, in which the full names of the members of the firm were given, the irregularity of proceeding in the firm name may have become unimportant. See, on this subject, Day v. Cushman et al., 1 Scam. 475; 1 Chitty Pl. 7th Ed. p. 256, note 1. We are not disposed to consider the irregularity one which would make the writ void, even though it might have been sufficient to quash it, if not amended, or to reverse an error if there had been a default. There is, however, no cross-error assigned.

The attachment was levied upon some real estate, and appellee, Susan J. Pord, filed an interpleader under section 29, p. 157, Eev. Stat. 1874. She does not state whether she was seized in fee, or for life, but merely says she was the owner when the land was attached. Although the indications are, as stated by Justice Scott, in City Ins. Co. v. Com. Bank, 68 Ill. 348, very strong that this section only applies to personal estate, it was nevertheless held in that case, upon the authority of Williams v. Van Metre, 19 Ill. 293, to include real estate. If under this issue the interpleader should prove that she had a life estate, and defendant in attachment the remainder expectant, it might be somewhat perplexing to know what the verdict and judgment should be, or of what use the trial would be.

There is no dispute about the facts. Defendant in attachment made a deed to appellee in Kansas, which was dated, acknowledged and delivered September 12th, 1876. It was sent to Peoria, and was filed for record there Sept. 14th, 1876, at two o’clock, P. M. The writ of attachment was levied on the same day,- and the certificate of levy was filed for record under Sec. 9, p. 154, Eev. Stat. 1874, at eleven o’clock A. M. of that day.

There is no evidence that plaintiffs in attachment had actual or constructive notice of the existence of the deed. It is said that because Cratty, the attorney for plaintiff made affidavit on September 14th, 1876, that defendant had within two years last past fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder and delay his creditors and the plaintiffs, that therefore plaintiffs had notice of a deed which was not fraudulent. We are not disposed to consider that a mere general swearing of this kind, according to the form, of the statute in such case made anci provided, by an attorney, would indicate that plaintiffs knew of the existence of a deed valid as to creditors if recorded in time. See section 1, p. 152, Eev. 1874. This portion of the affidavit was entirely unnecessary. The first clause, that defendant was a non-resident, was enough. The object of mailing the notice to the defendant, as mentioned in Thormeyer v. Sisson, 83 Ill. 188, being to enable defendant to appear and defend, and as he did do so, the omission is of no moment. ISTor is it a question in which appellee has any interest. Conceding that the deed was made for a valuable consideration, to-wit: the discharge of a prior indebtedness, and that there was no motive to hinder and delay creditors—nothing hut fair and honest motives—whatever the law may be elsewhere, the levy, of the attachment being prior in time, is stronger in right, under the laws, of this State in relation to recording instruments concerning real estate. Jones v. Jones, 16 Ill. 117; Martin v. Dryden, 1 Gilm. 187, and many subsequent cases.

It being inaccurately but positively stated in the brief ,of appellee that the writ was levied after the deed was recorded, there may have been misapprehension as to dates on the tidal below. The question seems to us not to be a debatable one, and therefore the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Sibley, J.

text:
    The Chicago, Burlington & Quincy Railroad Company v. Eleanor E. Colwell, Adm’x.
    1. Negligence—Comparative—Rule as to.—Notwithstanding tin party injured may have been guilty of only slight negligence, if that of the defendant, in comparison, amounts to gross carelessness, the plaintiff would not be debarred fromjtecovery; but if the person injured failed at the time to use that care which a man of ordinary prudence would have exercised under like circumstances, then no recovery can be had, unless the negligence of the defendant was so gross as to amount to a wanton or willful wrong.
    2. Negligence in seeking unsafe position—Instruction. — An instruction which tells the jury that if the deceased, at the time of the injury was exercising ordinary care and prudence, etc., then he is entitled to recover, is erroneous, because it ignores the fact whether the deceased exercised ordinary care in venturing upon a prohibited and dangerous place in the first instance.

      Appeal from the Circuit Court of LaSalle county; the Hon. Josiah McEoberts, Judge, presiding. Opinion filed May 2, 1879.
    Mr. E. FT. Lewis, Mr. C. F. Hobert and Mr. H. F. Gilbert, for appellant;
    that where there is no contest as to the facts, a verdict that is manifestly against the evidence will be set aside, cited Lewis v. B. & O. R. R. Co. 38 Md. 588; Bannon v. B. & O. R. R. Co. 24 Md. 108.
    As to the result of a violation of the company’s regulations: B. & O. R. R. Co. v. The State, 30 Md. 47.
    A railroad company is not bound to anticipate extraordinary travel: Quinn v. Ill. Cent. R. R. Co. 51 Ill. 495.
    The deceased not being in a proper place for passengers, no recovery can be had, even though the train had been grossly mismanaged: Willis v. Long Island R. R. Co. 32. Barb. 399; P. & R. I. R. R. Co. v. Lane, 83 Ill. 448.
    The opinion of an expert must be predicated upon facts proved or admitted: Rouch v. Zehring, 59 Pa. St. 74.
    Mr. D. P. Jones, for appellee;
    that even though both parties were-negligent, if that of appellant was wanton or willful, a recovery can be had, cited C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; I. & St. L. R. R. Co. v. Stables, 62 Ill. 313; T. W. & W. R. R. Co. v. O’Connor, 77 Ill. 391; I. & St. L. R. R. Co. v. Galbreath, 63 Ill. 436.
    Appellant was bound to do all that human care and foresight could reasonably do under the circumstances to secure a safe conveyance to deceased: Fuller v. Talbott, 23 Ill. 357; P. C. & St. L. R. R. Co. v. Thompson, 56 Ill. 138; Ind., etc. R. R. Co. v. Horst, 3 Otto, 276 ; C. & A. R. R. Co. v. Engle, 84 Ill. 398.
    It is not necessarily negligence for a passenger to ride upon the platform of a car: Shearman & Bedfield on Negligence, § 284.
    Questions of negligence are facts to be determined solely by the jury: G. & C. U. R. R. Co. v. Yarwood, 15 Ill. 468; I. & St. L. R. R. Co. v. Stables, 62 Ill. 313.
   Sibley, J.

The declaration in this case contains several counts, charging that the appellant was a common carrier of freight and passengers between Streator and Ottawa, in the county of LaSalle. That in October, 1876, James FT. Colwell took passage at Streator on one of the railroad company’s freight trains, to which was attached a car for passengers, and that while temporarily standing on the platform of the passenger car, was, by the negligence of the employees of the company, suddenly jerked off and killed.

The train appears to have been loaded principally with coal, and in starting out from Streator, the switch-engine coupled on to the rear of the train, and pushed at it for several hundred feet, until near the summit of the grade, which arose at the rate of about thirty-three feet to the mile, when it was detached without any warning to the passengers on the platform, and the forward engine, in taking up the slack occasioned by the pushing of the one in the rear, after it became uncoupled from the train, produced, as was not an unusual occurrence, a considerable jerking movement, sufficient to throw Colwell off from the platform of the car, where he was standing with his back against the wheel of the brake, smoking a cigar, and was run over by the engine in the rear of the train.

On the trial of the cause in the Circuit Court of Lp« Salle county, the jury found the defendant guilty, and assessed the damages in favor of the plaintiff, Eleanor E. Colwell, administratrix, etc., at $3,500.

The defendant appealed to this court, and has assigned several errors for reversing the judgment of the court below.

The main issue on the trial was a question of fact, involving the negligence of the opposite parties, that contributed to the accident. For there is very little doubt that Colwell was guilty of some negligence in taking a position on the platform of the car, and remaining there while the train was in motion drawn and pushed up the steep grade, liable at any moment to be suddenly jerked by either the forward or rear engine. There was room in the car, either standing or sitting, and cards were put up in a conspicuous place notifying passengers against standing on the platform. Yet it appears that he continued there, for the reason that he desired to finish his smoking. ¡Nor do we wish to intimate that the jury, under the circumstances of the case, would not have been justified in finding that the employees of the company failed to. exercise all the care required of them. The rule, as we understand it, is notwithstanding the party injured may have been guilty of only slight negligence, if that of the defendant in comparison amounted to gross carelessness, the plaintiff would not be debarred from a right of recovery. But if the person injured failed at the time to use the care which a man of ordinary prudence would have exercised under like circumstances,- then no recovery can be had, unless the negligence of the defendant was so gross as to amount to a wanton or willful wrong. We had occasion to refer to some of the authorities upon this subject in the case of the Town of Earlville v. Joel Garter, decided at the June term of this court, 1878 (2 Bradwell, 34), and do not feel disposed to reconsider that question.

As the case must go to another jury, it is not thought proper to express any opinion upon the weight of evidence in respect to the comparative negligence of the parties at the time of the accident. But the testimony being of such a character as to require the most accurate instructions upon the law of the case, as has been repeatedly held, we shall confine our attention to that subject alone.

The first instruction given for the plaintiff was as follows:

1. “If the jury believe, from the evidence, that James ¡N. Col-well was a passenger from Streatorto Ottawa, upon a passenger car attached by the defendant to the rear of its freight train, for the purpose of carrying passengers; and if they further believe, from the evidence, that while said train was proceeding with said Colwell as such passenger thereon, on its way from Streator to Ottawa, the employees of defendant in charge of said train negligently and carelessly caused the same to be so suddenly and violently jerked as to cause the said Colwell to be thrown from the rear platform of said passenger car, where he was standing at the time, to the ground, and to be run over and killed by the locomotive of the defendant following said train; and if they further believe, from the evidence, that the said Colwell was not guilty of negligence, but was exercising ordinary care and prudence at the time he was thrown from said platform, and that his death was caused solely by the negligence and carelessness of the defendant’s employees in charge of said train in running and managing the same, then the plaintiff is entitled to recover.”

This says to the jury, in substance, that if Colwell was exercising ordinary care at the time he was thrown from the platform, then, provided the defendant’s negligence contributed to produce the injury, the plaintiff was entitled to recover; ignoring entirely the fact whether the deceased exercised ordinary care in venturing upon that prohibited place in the first-instance. What he did after he ventured there might have been one thing, and the act of placing himself in that locality quite another; and the instruction, as held in the C. B. & Q. B. B. Co. v. Sykes, 1 Bradwell, 520, was erroneous. One of the main questions in the case was, whether a man of ordinary prudence would have placed himself upon the platform at all— not necessarily how he demeaned himself after having voluntarily exposed himself to the dangerous position.

The 8th instruction, in these words:

8. “ Even if the jury should believe, from the evidence, that James N. Colwell was guilty of negligence in standing upon the rear platform of the passenger car attached to the rear end of the freight train, while said train was in motion, yet if they further believe, from the evidence, that defendant attached said passenger car to said freight train for the purpose of carrying passengers, and that said Colwell was a passenger thereon; and if they further believe, from the evidence, that the defendant’s employees in charge of said train, and of the locomotive following it, negligently and carelessly caused said train to be so suddenly and violently jerked that said Colwell was thereby thrown from the platform of said passenger car to the ground, and immediately run over and killed by said locomotive; and if they further believe, from the evidence, that such negligence and carelessness of defendant’s employees was gross when compared with the negligence of said James IST. Colwell, the jury should find for the plaintiff,” does not give a correct exposition of the law, since it contains the general proposition that even though the jury believe, from the evidence, that Colwell was guilty of negligence in standing upon the platform of the car, etc., yet if it further, appeared that the defendant’s employees were guilty of gross negligence when compared with the negligence' of Colwell, the jury should find for the plaintiff. The question arises, what was the comparison meant to be drawn? The degree of negligence that Colwell might have been guilty of is entirely omitted. Suppose he was guilty of more than slight negligence, or even of great recklessness, and the defendant was also guilty of gross carelessness. Then both would have comparatively been guilty in an almost equal degree. B.ut under such a state of facts the plaintiff certainly could not have recovered, for the law does not recognize the grading of comparisons down to such a fine distinction. It is only where the comparison is between slight on the one hand, and gross on the other, that a recovery is allowable; and this important qualification is wholly omitted in the instruction.

■ Judgment reversed and cause remanded.

¡Reversed and remanded. .


text:
    David S. Patterson v. Nelson Sweet, Adm’r.
    1. Deed—Conveying right op flowage,—A deed of a right to flow land is not a mere license revocable by the grantor. Nothing short of a re-conveyance or non-user for twenty years would destroy the effect of the deed, so that the land would revert to the grantor.
    2. Foreclosure of mortgage—Covenant against incumbrances.— Where the owner of land granted by deed the right to flow the land, and subsequently conveyed to another the title in fee of such land, receiving back a mortgage to secure the deferred payments, forecloses such mortgage for nonpayment of certain of the notes, his grantee, the defendant in such foreclosure, may have the amount of damages sustained by him by reason of such flowage, applied in reduction of the notes due and subsequently maturing. Such an easement constitutes a breach of the covenant against incumbrances, and is a proper defense to the notes.

      Ebrob to the Circuit Court of Ogle county; the Hon. W. W. Heaton, Judge, presiding. Opinion filed May 2, 1879.
    Messrs. Dixon & Bethea, for plaintiff in error;
    that the deed to plaintiff in error having full covenants, the existence of the right to flow the land was a breach of the covenant against incumbrances, cited Hawk v. McCulloch, 20 Ill. 223; Brady v. Surck, 27 Ill. 479; Moore v. Vail, 17 Ill. 185; Baker v. Hunt, 40 Ill. 264; Hubbard v. Norton, 10 Conn. 431; Kellogg v. Ingersoll, 2 Mass. 97; Mitchell v. Hozen, 4 Conn. 494; Pollard v. Dwight, 4 Cranch, 430; Beach v. Miller, 51 Ill. 206; Rawle on Covenants for title, 140.
    The easement was never abandoned, and there was no nonuser for twenty years: Washburn on Easements, 547.
    The measure of damages is the diminished value of the property, and the amount may be retained from the purchase money: Batchelder v. Surgis, 3 Cush. 201; Harlow v. Thomas, 15 Pick. 66; Wilson v. Cochran, 45 Penn. 270; Alton v. Ill. Trans. Co. 12 Ill. 38; 3 Washburn on Real Property, *674.
    The remedy was by cross-bill: Hilliard on Injunctions, 305. The cause having been heard by Judge Heaton, the decree could only have been entered by him. A decree is inchoate until approved and filed for record: Hugh v. Washington, 65 Ill. 245; Hoey v. McFarlane, 4 C. B. 718.
    The right by deed to flow the land was an easement: Angell on Watercourses, § 141; Washburn on Easements, 150; 2 Washburn on Real Property, 349; Woolrych on Waters, 153; Stirling Hydraulic Co. v. Williams, 66 Ill. 393; Gebhardt v. Reeves, 75 Ill. 301.
    Even if it is a license, it is coupled with an interest, and therefore not revocable: Woodward v. Seeley, 11 Ill. 157; Kamphouse v. Gaffer, 73 Ill. 453.
    The owner óf the dam had a right to repair and re-build: French v. Braintree Mfg. Co. 23 Pick. 216; Benham v. Miner, 38 Conn. 252; Winham v. McGuire, 51 Ga. 578; Jaqui v. Johnson, 27 N. J. Eq. 526; Angell on Watercourses, §149.
    Waiver of forfeiture of easement may be inferred from the failure to assert it, and permitting the grantee to make valuable improvements after condition broken: Kenner v. Am. Contr. Co. 9 Bush. 202; Guild v. Richards, 16 Gray, 309.
    Possession of the easement is prima facie evidence of title: C. & St. L. R. R. Co. v. Woolsey, 85 Ill. 370; Browne on Statute of Frauds, 236.
    A party having an absolute contract of sale of land, is the equitable owner, and may incumber it: Lombard v. Sinai Cong. 64 Ill. 477.
    When a party having the equitable title conveys by quitclaim deed, and subsequently acquires the legal title, it will inure to his grantee: Welch v. Dutton, 79 Ill. 465; Morgan v. Clayton, 61 Ill. 35.
    Mr. E. F. Bull and Mr. M. D. Swift, for defendant in error;
    that the easement created was only a license, cited Woodward v. Seeley, 11 Ill. 157; Kamphouse v. Gaffner, 73 Ill. 453; Huck v. Flentye, 80 Ill. 258.
    A simple grant or release does not pass after acquired title: Frink v. Darst, 14 Ill. 304; Phelps v. Kellogg, 15 Ill. 131.
   Leland, J.

The facts in this case chronologically stated, are as follows, as to the title to the land:

On and before September 25, 1860, The Illinois Central Eailroad Co. owned the land in relation to which the controversy arises, viz: the northeast quarter of section 36, T. 23, E. 7, etc. On the 25th a contract of sale was made by the company to Garner Sweet, who was to have a conveyance upon making certain payments. On the 26th day of September, 1860, Garner Sweet executed a conveyance to Joel Sanford, by which he remised, released and quit-claimed his interest in and to a part of the W. % of the M. E. ¿ of section 36, town 23, range 7; that is to say, so much of said west-half as lies on Buffalo creek, at the upper or north end of Joel Sanford’s mill-dam, situated on the K. E. J of section 1, town 23, range 7, and so much of said west half as may be necessary for said Sanford to flow back the water of said dam, when said dam is raised fifteen feet at the bulk-head. It is fully understood that this quit-claim deed extends no further than the use of said land for the said purpose of flowing the water of said dam, as above described; and further, if at any time the said dam is removed, or shall cease to be used as a dam, then and in that case the said land reverts to the party of the first part, their heirs, assigns, executors or administrators, to have and to hold, etc. in usual' form.

The Railroad Co. made a deed to Sweet December 5, 1867. On May 1st, 1869, Garner Sweet, for a consideration of $7,425, conveyed by full covenant warranty deed the above quarter section, and a purcel of land on section twenty-four, described by metes and bounds, to plaintiff in error, Patterson, who paid $3,000 down, and gave notes and mortgage on the same land for $4,425. There was a mistake in description as to the range, which was afterwards corrected.

There were nine notes secured by the mortgage, and there was a bill filed by the administrator of Sweet, to foreclose and sell for a note, due May 1st, 1875, for $500, with interest at ten per cent., upon which two years’ interest only had been paid. The notes maturing before this one had been sold and transferred, and there had been a foreclosure and sale of some portion of the mortgaged premises. The notes maturing after this one still belonged to the estate of the deceased. There was a cross-bill by Patterson. The defense to the note in suit was the breach of the covenant against incumbrances, in the deed from deceased to Patterson, because of the deed of September 26th, 1860, from the deceased to Joel Sanford, of the right of flowage; and in the cross-bill it was claimed that the amount of the damages sustained by Patterson, if more than the amount due on the $500 note, should be applied to subsequently maturing ones, and that they should be canceled, and surrendered, etc.; and it was also claimed that the damages were more than the amount of all the notes belonging to the estate.

Although it was proved beyond dispute that the land was flowed and damaged to considerable extent, there was no deduction made by the court below, but there was a decree for the amount of .principal and interest due on the note, and for a sale of the land.

The case was tried before the late Judge Heaton, who died without having rendered a decree. The decree was by Judge Bailey, and it is insisted, that as he did not hear the evidence, he could not render a decree.

As the question thus presented is not material, we do not deem it necessary to investigate it. We think the decree erroneous upon the evidence in the record, and that there should be a reversal for that reason.

As the case seems to us to be one where it is plain there should have been some allowance to Patterson for his damages by reason of the alleged breach of covenant, the case must be remanded to have the amount ascertained. Appellee’s counsel claim that the quit-claim deed from Sweet to Sanford was a mere revocable license, and in support of the position cite Woodward v. Seely, 11 Ill. 157, and Kamphouse et al. v. Gaffner, 73 Ill. 453. These cases do not decide that a deed of a right to flow land is revocable by the grantor, but are to the contrary effect. They decide merely that if there were ho deed, but merely a parol grant of such a right, it might be invalid under the Statute of Frauds. That such an easement ‘can be conveyed by deed, is settled law, requiring no authority to be cited in support of it. Angelí on Watercourses, Chap. V., 6th edition.

There is no force in the position that the dam has been removed, or has ceased to be used as such. The dam went out partially as dams often do, and it was rebuilt again as is not uncommon; but there has been no such removal of the dam, or ceasing to use it, as amounted under the deed of the easement to an abandonment of it, so that it would revert to the grantor. Hothing short of a reconveyance or non-user for twenty years would have this effect.

We think the construction that the right to flow was only by that particular dam, and that no right to repair if injured, or to rebuild if carried out by the next spring freshet, existed in the grantee under the deed,.is incorrect and not reasonable. We look upon it, though rather rudely expressed, as an ordinary conveyance of a right of flowage by a dam fifteen feet high at the bulk-head, commonly called a dam with a head and fall of fifteen feet, to continue perpetually unless there was that kind of an abandonment mentioned above, or some distinct indication that the grantee had permanently given up the right to the easement. The case of Huck v. Flentye, 80 Ill. 259, about the party wall, is not in point according to our construcof the deed in this case. On the subject of the right to repair and rebuild, etc., see French v. Braintree Manufacturing Co. 23 Pick. 216; Windham v. McGuire, 51 Georgia, 578, and cases cited; Benham v. Miner, 38 Conn. 252. As to abandonment by non-user, see Angell on Water Courses, 6 Ed. Sec. 252, and notes. See, also, sections 149 and 248. Jaqui v. Johnson, 27 N. J. Eq. 526; Washburn on Easements, etc., p. 447 to 557.

The easement in Sanford and his grantees constituted a breach of the covenant against incumbrances, and if so it was a proper defense as to this note, and if the damages exceeded the amount of it, relief by cross-bill as to the subsequently maturing notes was proper. Morgan v. Smith, 11 Ill. 194; Beach v. Miller, 51 Ill. 206; Jenny v. Heminway, 53 Ill. 97; 3 Wash. Real. Prop. 674, marg. p. 3d Ed.; Bachelder v. Sturgis, 3 Cush. 201; Harlow v. Thomas, 15 Pick. 66; Rawle on Covenants, etc., 140 and 344.

The answer to the point made that Garner Sweet had no title when he conveyed the easement to Sanford, and that such conveyance was not sufficient to pass a title subsequently acquired, is that by the contract with the railroad company he had an equitable one, and that when one has such title and makes a quit-claim deed, the subsequently acquired title conveyed under the contract does inure to the benefit of the grantee in the quit-claim deed. Welch v. Dutton, 79 Ill. 465.

Such equitable owner may encumber the land in equity as though he had the legal title. Lombard v. The Chicago Sinai Congregation, 64 Ill. 477.

It is unnecessary to say more. There should have been an allowance to plaintiff in error, to be deducted from the note in suit, and if large enough, from those not sued also, of such damages as would be recovered in an action of covenant for the breach of the covenant against incumbrances not capable of being removed. We have been much aided by the thorough examination counsel have given this case. We desire, however, to say to counsel for plaintiff in error, and to attorneys generally, that care in correcting the proof-sheets of of their printed briefs is of much importance. There are many typographical errors in the otherwise excellent brief of plaintiff in error as to the figures indicating volume and page, and some references we did not find at all. Among the liberal supply of authorities furnished in this case, however, we found all that were necessary to satisfy us that the decree ought to he reversed and the cause remanded.

¡Reversed and remanded.-


text:
    Isaac Van Tuyl v. Lewis Riner et al.
    1. Slahdeb oe title.—An action of slander of title may be sustained where the slander is false and malicious, and where special damage results from speaking the slanderous words, such as preventing the sale or leasing of the land. And where the action is against one interested in the title, if the motive for speaking the words be not reasonable self-protection, but malice, without probable cause, there may be a recovery.
    2. Punitive damages.—In actions of this nature there may be evidence of such a wanton, willful and malicious attempt to injure the owner of the land, as will justify the finding of exemplary or punitive damages, but the present case is not one, from the evidence, calling for anything more than compensatory damages.
    Appeal from the Circuit Court of Warren county; the Hon. Geo. W. Pleasants, Judge, presiding. Opinion filed ¡May 2, 1879.
    Messrs. Stewart, Piielps & Grier, for appellant;
    that the burden of proving malice is upon the plaintiff, cited Wright v. Woodgate, 2 Cr. M. & R. 573; Cockayne v. Hodgkisson, 5 Car. & P. 543; Pitt v. Donovan, 1 Maule, & S. 639.
    Proof must be made of damage actually sustained: Starkie on Slander, 192; Townshend on Slander, 309; Kendall v. Stone, 1 Seld. 14; Bailey v. Dean, 5 Barb. 297.
    The damages are excessive: Pitt v. Donovan, 1 Maule & S. 639; Elborow v. Allen, 3 Cro. Jac.; Law v. Harwood, 4 Cro. Car.; Gerrard v. Dickenson, Cro. Eliz. 197; Am. Lead. Cas. 105.
    Instructions should state the law correctly, and each instruction should be correct in itself: Grube v. Nichols, 36 92; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. & A. R. R. Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. 550.
    Vindictive damages should not be allowed: 2 Greenleaf on Ev. § 253; Chicago v. Martin, 49 Ill. 241.
    Messrs. Kiekpatrick & Hanna, for appellees;
    upon the question of privileged communications, cited White v. Nichols, 3 How. 266.
    Falsehood and the want of probable cause will amount to proof of malice: White v. Nichols, 3 How. 266; Pitt v. Donovan, 1 Maule & S. 639; Gerard v. Dickenson, 4 Rep. 18; Cockayne v. Hodgkisson, 5 C. & P. 543; Like v. McKinstry, 41 Barb. 186; Townshend on Slander, § 206; Addison on Torts, § 1137; Chapman v. Cawrey, 50 Ill. 512; 1 Am. Lead. Cas. 128.
    Be-assertion of the charges, by pleas, with no attempt to prove their truth, is evidence of malice: Beasly v. Meigs, 16 Ill. 139; Spencer v. McMasters, 16 Ill. 405.
    Justification must be co-extensive with the slander: Sanford v. Gaddis, 13 Ill. 329; Darling v. Barks, 14 Ill. 46.
    If claiming to act under advice of counsel, defendant must show that he fully and fairly stated to counsel all the facts: Ross v. Innis, 35 Ill. 487; Anderson v. Friend, 71 Ill. 475.
    Acting under advice of counsel is no shield, but a circumstance to be considered in determining the question of malice: Townshend on Slander, § 206; Like v. McKinstry, 41 Barb. 189; Jasper v. Purnell, 67 Ill. 358.
    Hpon the question of damages: Starkie on Slander, 192; Kendall v. Stone 5 N. Y. 14; Townshend on Slander, §206; Stark v. Chetwood, 5 Kan. 141; Paull v. Halferty, 63 Pa. St. 46.

      The verdict will not be set aside for excessive damages unless they are so great as to lead to the belief that the jury were misled by passion or prejudice: Schlencker v. Risley, 3 Scam. 483; McNamara v. King, 2 Gilm. 432; Ross v. Innis, 35 Ill. 487; Ill. Cent. R. R. Co. v. Simmons, 38 Ill. 242; Drohn v. Brewer, 77 Ill. 280; Spencer v. McMasters, 16 Ill. 405; Kendall v. Stone, 2 Sandf. 269.
    Courts will not reverse for trivial errors: Smith v. Binder, 75 Ill. 492; Nichols v. Mercer, 44 Ill. 250; Rice v. Brown, 77 Ill. 549; Sterling Bridge Co. v. Baker, 75 Ill. 139; Stowell v. Beagle, 79 Ill. 525; T. P. & W. R. R. Co. v. Ingraham, 77 Ill. 309; Durham v. Goodwin, 54 Ill. 469; Town of Vinegar Hill v. Busson, 42 Ill. 45; N. L. Packet Co. v. Binninger, 70 Ill. 571; Walker v. Collier, 37 Ill. 362; Murphy v. The People, 37 Ill. 447.
    Upon the question of a right to exemplary damages: Roth v. Smith, 54 Ill. 431; Donnelly v. Harris, 41 Ill. 126; Kendall v. Stone, 2 Sandf. 269; Sedgwick on Damages, 454; Field on Damages, §25; Grabb v. Margrave, 3 Scam. 372; I. & St. L. R. R. Co. v. Cobb, 68 Ill. 53; Dobbins v. Duguid, 65 Ill. 464; Stillwell v. Barnett, 60 Ill. 210; C. & I. R. R. Co. v. Baker, 73 Ill. 316; Cutler v. Smith, 57 Ill. 252; Farwell v. Warren, 51 Ill. 467; Smalley v. Smalley, 81 Ill. 70; Becker v. Dupree, 75 Ill. 167; Johnson v. Camp, 51 Ill. 219; Best v. Allen, 30 Ill. 30; Ously v. Hardin, 23 Ill. 403; Bull v. Griswold, 19 Ill. 631; Sherman v. Dutch, 16 Ill. 283; Oard v. Oard, 59 Ill. 46.
   Leland, J.

This was an action brought by appellees against appellant for slandering the title to eighty acres of land of appellees, situated in Warren county.

Actions of this kind have rarely if ever been brought in this State, perhaps because a great deal of latitude of discussion of such subjects has been practiced and tolerated.

Without doubt, however, such an action may be sustained, where the slander is • false and malicious, and where special damage results from speaking the slanderous words, such as preventing the selling or leasing' the land, etc., usually, however, against a stranger, who has no interest in the title, because of the difficulty of making out a merely malicious motive in one who has an interest to protect by discussion of the question of title. If the motive, however, be not reasonable self-protection, but malice, without probable cause for speaking the words, there might be a recovery against one interested in the title.

Mrs. Lewis Riner and Mrs. Isaac Van Tuyl were sisters. Their father, Asher Davis, who was eighty-one years old in August, 1878, had in February, 1873, conveyed the alleged slandered land to Mr. and Mrs, Riner, and they had executed a contract to support Davis and his wife, who were both old and feeble, during their lives, and to bury them when dead, and this contract was the consideration for the deed.

It also appeared, however, that Davis had three daughters and three eighty-acre tracts of land; two of the daughters in. this State and one in Ohio, and two of the tracts of land in Iowa, and one in this State. He conveyed one of the Iowa tracts to the Ohio daughter, Mrs Bell; the other, at the request of Mi’S. "Van Tuyl, to her son by a former husband, Asher D. Shauman, and the Illinois tract, which was the most valuable, to Mr. and Mrs. Riner, and they were to support and bury the old gentleman and his wife, as before stated.

This too often resorted to contrivance to save trouble, as is usual, made more instead of less, and among others came this unpleasant family law-suit.

Riner and wife desired to sell the land and go to Kansas, and the old gentleman, whose testimony does not seem to indicate any weakness of intellect, said: “ I am alone. My wife is dead, and I am satisfied that I am just as near heaven in Kansas as I am here, and it don’t make any difference where this old body lies when I am dead. Sell out and go, and I will go with you.” And thereupon, with the full consent of Davis; Riner and wife, in April or May, 1877, entered into negotiation with Peter Staley, and a verbal offer was made by the latter to pay $3,800 cash on Sept. 1st, 1877, or $1,800 then, and $2,000 March 1st, next, "with interest at ten per cent. On September 1st a deed was tendered, and Staley declined to take it and pay tlie money, as he says, because "Van Tuyl told him in August that his wife was legal heir to that piece of land; also Mrs. Bell of Ohio was another heir, and that if he bought he would buy a law-suit; that Mr. Davis was not capable of doing business; that Mr. Davis had not been capable of doing busifor a good many years; said he supposed Riner had a deed, but if he had a deed, had just got it from Mr. Davis some way, and he could go in and talk to Davis and he would make him a deed in some way; said old man was not at himself, and had not been for a great many years; was not capable of doing business. Asked him if he would swear Davis wasn’t at himself. Said he would, and his wife would, and Isaac Shauman and his wife would, and he could get a hundred witnesses in this State and Ohio that would swear the old man not capable of doing business; said he was fearful if Riner and wife sold the land, the old man would be thrown on public charity; said he heard they were some in debt, and was afraid if they went off and spent what they had, old gentleman might come back on him to keep. Said if Riner sold out and went west would probably spend all of it, and was good deal in debt, and old man would come on him for support. Said for his part he would not move, but said his wife would not give him rest day or night, till he came to see me. Said one reason why he did not want me to buy was, that Riner might spend what he'had got from the old man, and the old man would be deprived of his support, and would have to come on him. Shauman told me old man had right to support off that land. May have told me he would see the old man had his rights. SI i an man did a good deal of talking. Might have said that, can’t tell; can’t recollect that he said that. Think he said something about the old man’s support.

I proposed to take the land at same price if they would make deed good. Told Van Tuyl I would have nothing to do with it unless he and Riner would settle the thing up. Expect I would have taken it if he (Riner) had made me good deed. He said it could not be settled up, I believe. This and other evidence as to the speaking the words in the declaration, and also evidence as to the extent of the damage to the plaintiff because of the failure to sell to Staley, and on the subject of the defendants’ motives being malicious, and of bis intent being to enable bis son-in-law and himself to sell an eighty-acre tract to Staley, as they did do, instead of plaintiff’s doing so, and to enable his wife to share in the land as heir, etc., constituted plaintiff’s case.

There was evidence on the part of the defense tending to show that the motives for speaking the words were not malicious, but honest and without malice, and that the damage, if any, by reason of not completing the sale to Staley, was trifling. The jury found for plaintiffs, and their verdict was as follows:

“ We, the jury, find the issue for the plaintiffs, and assess the damages on the land at one thousand dollars, and exemplary damages at five hundred dollars; total, fifteen hundred dollars.” As to such a verdict being proper, see Sedgwick on the Measure of Damages, p. 573, note, and p. 744, note, top paging, 6th Ed. The court, however, considering the verdict informal, caused it to be put in the following form: “We, the jury, find the issue in favor of plaintiffs, and assess the damages at fifteen hundred dollars.” We are not disposed to say that upon the evidence there ought not to have been a verdict in this case for the plaintiffs, nor would we be inclined to disturb it if it had been for the defendant.

As to whether defendant and his wife honestly feared that if-the land was once converted into money, the latter “ might take unto itself wings and fly away,” and the old father be made to suffer because of the inability of Riner and wife to take care of him, or whether this interference with the sale was from selfish, dishonest and malicious motives, was a question for the jury to determine.

Although in the verdict as reduced to form, the compensatory and punitive damages were merged and consolidated in the one actually rendered by the jury, they were as we have seen, separated. The one thousand dollars compensatory damages, for preventing this sale to Staley, seems to us unreasonably large. We think that the advantage which appellees had obtained over Staley, in their trade with him, has been overestimated, and that the injurious consequences of a statement, the accuracy or inaccuracy of which could readily be ascertained by Staley, has been much magnified. The only real questions of fact were, whether Davis, in February, 1873, had sufficient mental capacity to make a deed, and whether in September, 1877, he had mind enough to consent that appellees might sell the land. It is rather difficult under tlié circumstances to come to the conclusion that the spoken- words prevented Staley from purchasing, when by the Statute of Frauds he was not legally compelled to; if he had really made a bad bargain with appellees, and when he had the means of as readily ascertaining whether the statement of Van Tuyl was accurate or not, as he would if he had told him the land was full of rocks, or had on it many creeks and sloughs, etc. If this verdict had been for reasonable compensatory damages only, we might say that verdicts should not be interfered with except in clear cases of an indication that there ■ was passion, prejudice, or other improper influence operating upon the jury, and that the power to do so should be sparingly used. While we are disposed to concede that in a case of slander to the title to real estate, there may be evidence of that wanton, willful and malicious attempt to injure the owner of the land, which would justify punitive or exemplary damages (Kendall v. Stone, 2 Sandf. N. Y. 269, cited approvingly by Sedgwick in his work on the Measure of Damages, 6th Ed. p. 679), we do not think this case one for anything more than just and reasonable compensation. Counsel for appellee applies to the conduct of appellant the scriptural quotation “ She gave me of the tree and I did eat.” Though the consequences in that case were fraught with disaster to the man and the woman, the authority is not fairly applicable to the facts in this case. A sick woman might be anxious about the future comfort of her father, and a husband continually importuned to do so by the wife, might be a little earnest in his discourse on such a subject under her promptings, without being punished for it any more than was necessary to fully compensate one whose title to land máy have been injured by words thus spoken.

We think the case is one where the jury, under some influence which was not proper, have made their verdict too large. Even if appellant and his wife did not arrive at a just conclusion as to the fairness of the disposition of the father’s estate, this was a question in which they had an interest, and some reasonable latitude of discussion must be allowed to people in defense of their own interests, without their being punished for it. It does not appear that the motive of appellant was to sell his and his son-in-law’s land to Staley. This is purely imaginary. Appellant swears that it was not thought "of when he spoke the words, and he is not contradicted in this by any one. Without giving a detailed statement of the evidence, we content ourselves with saying that after a careful and thorough consideration of it all, the sum of one thousand dollars actual damage seems quite large, and we think that there should not have been the added punitive damages upon the facts in evidence, but just compensation only, if anything.

The 2nd instruction for plaintiff is erroneous. The jury are therein directed that they should assess the plaintiff’s damages at whatever amount the proofs show they are entitled to, together with such exemplary damages as they may think right and proper under all the circumstances in proof. To have made the instruction proper, at least the words “if any ” should have followed the words “ exemplary damages,” or there should have been some equivalent expression. The instruction as given requires the jury to give some punitive damages, leaving the amount only to be fixed as they think right and proper under the facts and circumstances in proof, with no pointing out what facts would make a proper case. Malice is always necessary to maintain the action, and yet it does not follow that because there is this legal malice that therefore there must always be not only the actual, but also vindictive damages, though perhaps there might be. The court has convicted the defendant and left the fine with the jury.

It may be well questioned whether punitive damages ought ever to have been allowed to a plaintiff. Holmes v. Holmes, 64 Ill. 294. They certainly are not to be favored, and it should not be assumed, as it is in this instruction, that smart-money or exemplary damages should be allowed. Collins v. Waters, 54 Ill. 485. If the law were that jurors should always make the separation made in this case, and that the punitive share should go into the public treasury, where it more justly belongs than to the plaintiff, it would look more like justice and reason.

The injurious effect of this instruction is not removed, because in the first and eighth it is said the jury may give exemplary damages, etc. On a subject like this, each instruction should be correct in itself. C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; Ch. & Alton R. R. Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. 550.

The following two unnumbered instructions were,_to say the least, calculated to mislead and confuse the jury:

First. “ The jury are instructed that defendant cannot excuse or justify himself in this case by showing that what he did he did at the m-gent request and solicitation of his wife or any other person.”

Second. “ The jury are instructed that in actions of this kind, if a defendant wishes to justify or excuse himself for words spoken, the justification must be as broad as the charge, Therefore, in this case, if the jury find from the evidence that defendant represented and asserted to said Staley that if he (Staley) bought the land in controversy, he (Staley) would buy a law-suit, and asserted and represented a want of capacity in said Asher Davis in the manner and under the circumstances and for. the purpose set forth in either the first or second instruction of plaintiffs, then the jury are instructed that defendant cannot excuse himself by showing merely’ that he or his wife were fearful that if plaintiffs sold the land described, they might spend or waste the proceeds, and that in consequence said Asher Davis might be thrown upon defendant and his wife for support.”

Even if they might be accurate as to the mere question whether plaintiffs should have a verdict or not, a jury would be very likely to consider them as meaning that the facts stated should not be taken into account as an excuse in determining the amount of the verdict. Counsel should have distinctly used such words in them, or the court should at least have so modified them as to clearly convey the idea that the plaintiff would be entitled to a verdict, notwithstanding the facts might be as stated, and that they should only be considered in mitigation of exemplary damages. This, however, is not clear as to the last one, because if defendant and his wife were really and honestly fearful that the father might be deprived of the support to which he was entitled under the contract, and be thrown upon the defendant and his wife for support, and that the words were spoken merely for that reason, it is difficult to perceive how there could be a malicious motive to inj ure, especially if the words were spoken at the urgent request and solicitation of a wife who had such honest fears, to a husband who also honestly entertained them, though there may have been exaggeration in the statement as to the mental capacity of the father. It is enough, however, to say that a jury would not if a lawyer might, understand what was meant by the words excuse or justify,” and would consider themselves instructed that such facts made it no better for appellant, and that they should have no influence as to the amount of their verdict.

We think another jury should pass on the case.

Reversed and remanded.


text:
    Murray Nelson et al. v. George W. Ravens et al.
    Pabol agbeement to pat a non-existing bill.—R. & Son became indebted to N. & Co., and to enable them to go on with their business and pay up this indebtedness, N. & Co_. placed a person in charge of the books of R. & Son, and agreed to advance further sums for the purchase of grain, and reimburse themselves, and pay the old indebtedness from the sale of such grain. In furtherance of this agreement, the agent of N. & Co. called upon appellees, who were bankers, informed them of the arrangement with R. & Son. requesting that R. & Son might open an account with appellees, and told them that N. & Co. would honor all bills drawn on them by R. & Son in the regular course of business with N. & Co. Drafts were afterwards drawn by R. & Son, and cashed by appellees to large amounts. N. & Co. refused to honor the drafts in suit, because of the insolvency of R. & Co. Held, that the parol promise to pay such drafts when made was valid, and that N. & Co. were Hable for the same; that the true measure of damages should be the amount clue appellees for money paid to R. & Son on account of the business transactions done in pursuance of such contract.
    Appeal from the Circuit Court of LaSalle county; the Hon. Josiah MoRoberts, Judge, presiding. Opinion filed May 2, 1879.
    Messrs. Blanchard & Blanchard, for appellants;
    that the credit was not given to H. & Co., and therefore the promise, if any, was collateral and within the Statute of Frauds, cited Ruggles v. Gatton, 50 Ill. 412; Eddy v. Roberts, 17 Ill. 505; Patmor v. Haggard, 78 Ill. 607.
    In this case the statute may be relied on under the general issue: Tyler v. Merrill, 55 Ill. 52; Meyers v. Schemp, 67 Ill. 469; Durant v. Rogers, 71 Ill. 121.
    Messrs. Richolson & Snow, for appellees;
    that the question at issue was solely one of fact, and the finding should not be disturbed where there is evidence to support it, cited White v. Clayes, 32 Ill. 325; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; Harbison v. Shook, 41 Ill. 142; First Nat. Bank v. Mansfield, 48 Ill. 494.
    A parol promise to pay an existing or non-existing bill, is not within the Statute of Frauds: Nelson v. First Nat. Bank, 48 Ill. 36; Jones v. Council Bluffs Bank, 34 Ill. 313; Mason v. Dousay, 35 Ill. 424; Sturges v. Fourth Nat. Bank, 75 Ill. 595; 2 Greenleaf’s Ev. § 104.
   Pillsbury, P. J.

Assumpsit upon the common counts for money paid by appellees to E. Richardson & Son, upon draft drawn by them upon appellants, which appellants refused to pay.

On the 23d and 25th days of October,- 1875, E. Richardson & Son drew the two following drafts upon appellants:

“ $500.00. ' Ottawa, 111., Oct. 23d, 1875.
“At sight, pay to the order of Exchange Bank five hundred dollars, value received, and charge to account of
“Ho. 70. E. Richardson & Son.
“To Murray Helson & Co., Chicago, 111.”
“ $500.00. Ottawa, 111., Oct. 25th, 1875.
“At sight, pay to the order of Exchange Bank five hundred dollars, value received, and charge the same to account of '
“Ko. 71. E, Richardson & Son.
“To Murray Kelson & Go., Chicago, 111.”

These drafts were passed to the credit of the drawers by appellees, who were the proprietors of the Exchange Bank, and the amount thus credited was drawn out by Richardson & Son to the extent of $680.89, before notice of non-payment of the drafts reached appellees.

Richardson & Son had for a long time been engaged in the buying and shipping grain at Ottawa, Illinois. From the fall of 1874 the appellants had been their commission men at Chicago.

In June, 1875, Richardson & Son became financially involved, and Pickering, of the firm of Murray Kelson & Co., went to Ottawa, and there made a settlement with them, when it was found that they were indebted to appellants in about the sum of $1,250 dollars, for money advanced them with which to purchase grain. At this time, June 22nd, an agreement was 1 made by appellants and Richardson & Son, by which Richard- A son & Son would continue in the business of buying grain and 1 shipping the same to appellants; and appellants were to sell/ the same on account of such prior indebtedness and any future advances, and for the purpose of protecting the interest of Kelson & Co., Richardson & Son were to employ one Borland, who was to have the exclusive charge of the books, and to furnish Kelson & Co. a statement when required by them to do so, and was to receive and disburse all moneys advanced by Kelson & Co. to Richardson & Son.

On the trial George W. Ravens, one of the plaintiffs, testified that after this contract was made, Pickering came into their bank and told him that Richardson & Son desired him to speak with plaintiffs about opening an account with them; that he told Pickering that the Richardsons were hard up, and that they did not care to take hold of their business unless they could safely do so. That Pickering then informed him that Murray Kelson & Co. were going to furnish money to the Richardsons, and would see them all right, as they were going to have one of their men in the office; as long as he was there it would be all right; that Borland would draw drafts on Nelson & Co., to he signed by the elder Richardson, and Borland would check out the amounts in the regular course of business, signing checks E. Richardson & Son, by Borland, and that if the arrangement was broken up he would telegraph to plaintiffs; and that Murray Nelson & Co. would honor all drafts drawn on them as they carne in. The witness further testified that from that time to the time the drafts in question were drawn, they received and cashed drafts drawn by Richardson & Son on Nelson & Co. to the amount of $50,000. That the plaintiffs would not have allowed Richardson & Son to. check against such drafts had it not been for the promise of Pickering to honor them when presented.

Pickering as a witness denies he made any arrangement with the plaintiffs as testified to by Ravens; that while they were to furnish money and did pay the drafts presented to them, yet it was done in the usual course of business, and not by agreement with plaintiffs. He says, however, these two drafts would have been paid had not Richardson & Son been closed out by the sheriff levying executions upon the grain then on hand.

These two witnesses were the only ones who testified upon this disputed question of fact.

While it is true that the burden of proof was upon the plaintiffs, upon this proposition we cannot say as a matter of law that the court trying the case in place of the jury was not justified in finding the issue upon this point in favor of the plaintiffs. The court acting as a jury, was peculiarly the judge of the credibility of the witnesses, and many circumstances may occur upon a trial that will give greater weight to one witness than another, that cannot be reproduced upon paper: such as the appearance of the witness upon the stand, his apparent candor and fairness, the degree of intelligence and recollection manifested by him in detailing the facts surrounding a given transaction, and many others that will convince the mind of the court or jury that he is entitled to the greater credit, and of which an Appellate Court is less qualified to judge for want of equal opportunities of seeing the witnesses and observing all the circumstances surrounding them upon the witness stand. We therefore feel bound to hold that the finding of the court is sustained, that such contract was made as testified to by Ravens.

A parol promise to pay a non-existing bill was held valid by our Supreme Court in Murray Nelson v. The First National Bank of Chicago, 48 Ill. 36, a case like the one at bar in all material respects, so far as the facts are concerned, and that such promise is not within the Statute of Frauds. The same doctrine was held in Sturges v. Fourth National Bank of Chicago, 75 Ill. 595, and would seem to be decisive of the case here, as it holds that the evidence is admissible under the common counts.

The plaintiffs are then entitled to recover, but we think the court should have deducted from the amount of the judgment the sum of §319.25, that being the sum standing to the credit of Richardson & Son at the time, the drafts were returned not paid, and which was on the 11th of November, applied by appellees in the payment of a debt due from Richardson & Son prior to the agreement in June.

We think the true measure of damages in this case should be the amount due them for money paid to Richardson & Son on account of the business transactions done in pursuance of such contract.

The §47.55, amount of insurance due upon corn shipped to appellants under such contract should be allowed, making the amount properly due plaintiffs on the 25th day of October, the sum of §680.89, for which the plaintiffs should have judgment, with interest from the 25th day of October, 1875.

For the reason that the judgment is for too great a sum, it must be reversed, and the cause remanded; and if the appellees will remit in the court below all above the amount indicated, the court below will enter judgment for such sum without further trial.

Reversed and remanded.