text:
    Amos Whiteley, for use, etc., v. Samuel W. Clark.

      Negotiable Instruments—Notes—Burden of Proof—Agency—Contract.

    In an action on a promissory note it is improper to instruct the jury to find for the defendant unless the plaintiff proves by a preponderance of the evidence that he is indebted on such noto. The note being produced prima facie establishes the maker’s indebtedness.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Cumberland County; the Hon. W. C. Jones, Judge, presiding.
    Messrs. Geeen & Woods and White & Wright, for appellant.
    Messrs. Jas. L. Byan and W. H. McDonald, for appellee.
   Pleasants, J.

From the evidence in this case it appears that on March 4, 1884, appellant, by a contract in writing commonly known as an agency contract, sold a bill of its machines to appellee amounting to §2,547.65, taking therefor his four notes of nearly equal amounts maturing at different times, and agreed that for such as should remain on hand unsold by him at the close of the season of 1884, in August, new notes, maturing as therein provided, should be taken and credited on the old ones. In August they made and signed a settlement, by which it was ascertained that appellee had on hand and unsold, machines of the bill so 'purchased, amounting in value, after deduction of discounts, to §952.50, for which appellee gave his four new notes for §238.12 each, and was credited with them on the old ones. These credits, with certain others, extinguished two of the original notes and paid the other two in part; and for the balance claimed to be still due on the latter and the amount of the new ones this action was bought.

The defendant pleaded the general issue, payment and set-off, and the trial resulted in a verdict for him, on which judg. ment was entered. Plaintiff’s case having been made, grima facie, by the production of the notes sued on, the defendant testified that he had paid the amount evidenced thereby, in money and collaterals delivered to plaintiff’s attorney for that purpose, the money being “about” or “more than ” “or in the neighborhood of” 81,000 and the collaterals “ over $2,000 ” which he was to collect and apply; ” but the amount of money or of collaterals was not more particularly specified by him, nor otherwise shown, though he said, in answer to a question by the court, that he had receipts for them, and the attorney referred to was there present conducting the trial for the plaintiff. Defendant further claimed, and there was evidence tending to show, that plaintiff’s agent verbally agreed to take back the machines remaining unsold, and that a number of them were tendered or turned over to him and were still in the warehouse subject to the order of the company; that he was to pay only for such as he should sell, and that he had paid for those sold and tendered back the residue in the manner above stated.

It further appears that the parties had made a like arrangement for the preceding season, and plaintiff claimed that all the collaterals received had been applied, so far as collected on notes given by defendant in the deal for that season, or otherwise as shown in a statement furnished to him and produced in evidence; that there was no agreement for the specific application of their proceeds; that the sale of machines to him in 1881 became absolute on taking the new notes, and that the agent had no authority to make any such agreement for the company as that referred to, of which defendant had notice. There was evidence to support the claim on all these points.

The instructions to the jury were few and brief, and those given for the defendant embraced the proposition that “ unless the plaintiff proves by a preponderance of the evidence that the defendant is indebted to the plaintiff on the notes sued on, the jury should find for the defendant.”

We think the law is that the notes sued on, being produced, showed, prima facie, that the defendant was indebted to the plaintiff, and that to entitle him to a verdict it was incumbent on the defendant to prove by a preponderance of the evidence that he was not so indebted.

We have not undertaken to state the case any further than was necessary to show the bearing and materiality of this instruction. But we may say that the outcome of the trial, upon the evidence preserved in the record, is not satisfactory, nor what might have been reasonably expected if the jury had been properly advised as to the burden of proof upon the issues made by the pleadings.

For the reason indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    Levi S. Correll et al. v. Clarkson W. Freeman et al.

      Partnership—Dissolution—Bill to Compel Settlement—Chancery Jurisdiction—Cross-Bill.
    1. Where a court of chancery has obtained jurisdiction for one purpose, it will retain it to do complete justice between the parties, although to do so it may be required to pass upon some matters which alone would not be cognizable in such a court.
    2. Upon a cross-bill the relief granted must be either equitable in itself or such as the party claiming it is entitled to at law, consistent with the facts found giving equity jurisdiction of the subject-matter.
    8. Upon a bill to settle partnership affairs, where the court finds that there has been a full settlement between the parties, it can not proceed to grant relief on a cross-bill claiming a balance due the defendant on such settlement.
    4. In the case presented there -atas no fact proved, either in support of the bill or cross-bill, which would bring the case within the jurisdiction of equity.
    [Opinion filed May 25, 1888.]
    In error to the Circuit Court of Sangamon County; the Hon. Charles S. Zane, Judge, presiding.
    Messrs. Patton, Hamilton & Shutt and Palmer & Palmer, for plaintiffs in error.
    The court erred in rendering a decree on the answer of Clarkson W. Freeman in his favor against the complainant and John Oorrelh Perhaps, as the parties made no objection to treating the answer as a cross-bill, it is too late, upon the mere point of practice, to object that the court so treated it, but upon the point of jurisdiction it is apparent that the subject of the supposed cross-bill is a mere legal demand against the complainant, and one which is in no sense germane to the controversy between the complainant and defendant Freeman.

      It is said, in the case of Tobey v. Foreman, 79 Ill. 489: “Relief sought by a cross-bill must be such asa court of chancery could grant by original bill.”
    In the case of Kennedy v. Kennedy, 66 Ill. 190, it is said: “ Where a cross-bill in a chancery proceeding to contest the validity of a will brought in a party as defendant who had no interest in the subject-matter of the litigation inspecting the will, and who it was alleged was indebted to the estate for the use and occupation of a house of the testator after the death of the latter, held, that the fact of such indebtedness, if proved, did not make such person a necessary or even a proper party, as a court of equity did not have jurisdiction to hear and determine that question, the remedy for the recovery of same being ample at law.”
    As we understand the rule, a defendant may, by cross-bill, set up and rely upon mere legal matters when necessary to a defense to a bill in equity, but can not, by cross-bill, set u p matters of law for the purpose of obtaining affirmative relief. It is an essential quality of a cross-bill that it shall relate to the matters of the original bill. Cross-bills are admissible only when necessary to obtain full relief to all parties touching the matters of the original bill. They are, since the statute, no longer necessary for discovery.
    The rule is well stated in Jones v. White, 14 Ill. 229: “Defendant to a bill in equity has a right to file his cross-bill stating neiv facts, if those facts are consistent Avith the subject-matter of the original suit.”
    Messrs. A. J. Walker and W. E. Lewis, for Levi S. Correll, plaintiff in error.
    Mr. Charles A. Ketes, for defendant in error.
    This case is a controversy between partners, therefore it is “ one peculiarly within the cognizance of chancery.” In the case of Bracken v. Kennedy, 3 Scam. 558, it is said that “in matters of controversy or difficulty between partners it is usual and by far the most convenient to resort to a court of equity for then1 final adjudication and settlement.”

      Equity will not only recognize and protect debts due from the firm'to an individual member, or from a member to the firm (Jones v. Bliss, 45 Ill. 143), and adjust the unsettled accounts between partners (Strong v. Clawson, 5 Gilm. 346), but will enforce a complete settlement of partnership matters. Where one of several partners files a bill for a settlement of the partnership affairs the court has power to render such a decree as the equity of the case may require, and no cross-bill is necessary in order to establish the rights of other partners. Atkinson v. Cash, 79 Cal. 53.
   Pleasants, J.

This was a case in chancery, upon a bill filed by Levi S. Correll for a settlement of the partnership business between him and Clarkson W. Freeman. It averred that on September 17, 1875, the complainant, being- then the owner of a stock of drugs and carrying on a wholesale and retail business therein at Springfield, Illinois, sold a half interest in the same to said Freeman for §4,000, and formed with him an equal partnership under the firm name of Correll & Company which continued until about htarch 30, 1876, and was then dissolved; that Freeman has not paid said §4,000, and their partnership affairs have never been settled, and that John Correll, Thomas Correll and Abraham Freeman, have, or claim to have, some interest in the property and business of said partnership, the nature of which is unknown to complainant, and are therefore also made parties defendant. Abraham Freeman disclaimed, and Thomas Correll appeared to have no interest in the matter.

Clarkson W. Freeman put in an answer denying that he owed complainant anything as partner or otherwise, ór that, as between them, their partnership affairs were unsettled. It averred that the stock of drugs mentioned was purchased on June 17, 1875, of Henry Glidden, in the name of complainant, but for defendant as well, with means wholly furnished in equal proportions by Thomas Correll, who is the father of complainant, and Abraham Freeman, who is the father of said defendant and was then also the father-in-law of said complainant; that the partnership between these parties was formed at that time in pursuance of an arrangement expressly made therefor before and in view of said purchase; that it continued until March 12, 1876, when defendant, with the express consent of complainant, sold and transferred his interest to John Correll. a brother of complainant, for the sum of §6,000, of which §1,000 was paid down and the residue evidenced and secured by notes of the purchaser and Cornelius Correll, another brother of complainant; that it was then mutually understood and agreed that the firm accounts against complainant and defendant respectively should be offset and considered paid; that said John Correll should succeed to all the rights and liabilities of the defendant as partner, and that the new firm thus formed would pay to defendant the sum of $403, being the amount of an accommodation loan made by him to the old one some time during the following summer; that by this agreement all tfie affairs of the partnership of complainant and defendant were fully settled as between them, and that the agreement has been fully executed, except as to said sum of §103, which is still unpaid, and as to which he makes his answer a cross-bill and asks relief.

John Correll denied that he assumed Freeman’s liabilities for the debts of the old firm, or was a party to the alleged agreement to pay him said sum of $403, or any other.

Issues having been made up and proofs taken and reported, the court, on final hearing, dismissed the original bill, and on the answer of Freeman, taken as a cross-bill, decreed that said Levi and John Correll pay him said sum of $403 with interest. The record is brought here by writ of error and errors are assigned upon both branches of the decree.

It is not denied that the stock of drugs was purchased at the time and with the means stated in the answer.1 The disputed questions upon the bill are, when was the partnership formed and for whom was the stock so purchased. At that time, whether in June or September, the relations of these parties and of their respective families, were friendly. Correll’s wife was Freeman’s sister. Before the filing of this bill, however, these relations underwent a change. Correll and his wife had been divorced, and litigation about other matters between other members of these families had arisen.

In this case the testimony of Correll and his father, and of Freeman and his father, upon the questions stated, are directly in conflict, that of the former supporting the claim of the bill and that of the latter, with equal positiveness, the allegations of the answer. Corroborating circumstances are also urged on each side.

For complainant it is shown that the agreement with Glidden for the purchase was in his name alone; that the notes given for the deferred payments were signed by him as principal and by Thomas Correll and Abraham Freeman as sureties, the name of defendant not appearing upon them; that complainant was a physician and defendant a farmer; and a witness, Jacob Stacks, testified to a conversation between them about a proposition for a partnership, as late as September 12th, though his statement was denied and on its face somewhat severely criticized.

For defendant it was stated by himself as a witness and without contradiction, that at the time the transaction with Glidden was closed he was absent from the city, and that the name of his father, who was really to pay his share of the purchase price, was sufficient. From the date of purchase the business was carried on in the firm name of Correll & Company, and upon the evidence it is claimed that defendant in person took part therein as far as he could. Frank Fleury, who was in charge of the stock as trustee, while the invoice was being taken, and kept the books of Correll & Company for some months thereafter, testifiéd that he understood from both that they were partners. His testimony is summarily disposed of in the argument as judicial in style, but there is other evidence strongly tending to show that a business card produced, and bearing the names of Levi S. Correll and Clark-son W„ Freeman, respectively, at the right and left above the firm name of Correll & Company, was by the complainant personally procured to be printed and circulated in June, 1875. The supposed improbability that a physician would receive a farmer as an equal partner in the drug business in Jline is not very strong in view of the admission that he did so receive him in September. If in June, it is quite natural and highly probable in itself that the means furnished by Freeman’s father were furnished for him; and it is certainly remarkable, if he was owing Correll $4,000 for his interest, that the latter should stand by and witness his sale of that intérest for $4,000 in cash and $2,000 in notes to another party, without a word about the payment or security of that indebtedness.

On the whole, we think the evidence warrants the finding that Freeman owed nothing to Correll growing out of their partnership; and further, that, as between them, its affairs had been fully settled.. The decree dismissing 'the original bill was therefore proper. There was no ground for equity jurisdiction, as was alleged in the bill, and for that reason we also hold that in granting the relief asked by the cross-bill the court erred. According to the claim and proof of defendant their partnership affairs were settled, and by the settlement a balance of $403 was found to be due to him, which his partner and John Correll expressly promised to pay. This was a legal cause of action. Nevertheless it might have been enforced upon the cross-bill if it had been found, as alleged in the original bill, that the firm affairs as between them had not been settled; for it is a well understood rule of equity practice, that where the court acquires jurisdiction for one purpose it will retain it for all purposes necessary to complete justice between the parties interested, although that may require that some matters be passed upon which alone would not be cognizable in such a court. Pool v. Docker, 92 Ill. 501; Sherlock v. Village of Winnetka, 59 Ill. 400-1; Morgan v. Roberts, 38 Ill. 65. Thus, having acquired jurisdiction for the purpose of correcting a mistake in the terms of a promissory note, it may retain it for the purpose of ascertaining the amount due and enforcing its payment, though such ascertainment and enforcement, of themselves, are purely legal proceedings. But if, upon the evidence, the court found there was no mistake in its terms, as alleged in the bill, we apprehend it could notproperly proceed upon cross-bill or otherwise, to ascertain the amount due and enforce its payment. The relief granted upon cross-bill must be either equitable in itself, or such as the party claiming it is entitled to at law, consistently with the facts found, which give equity jurisdiction of the subject-matter. Hone such are here found. The jurisdiction was involved to settle partnership affairs, but a court of equity has no power to settle partnership affairs which have been fully and lawfully settled by the partners themselves. Ho fact proved in this case would give it jurisdiction for any purpose; and having so found, it can not properly proceed to relieve upon either the original or the cross-bill. So much of this decree as purports to do so upon the answer, treated as a cross-bill, will therefore be reversed.

Decree affirmed in fart and reversed in fart.


text:
    James H. Dunham et al. v. The Marine Bank of Springfield.

      Assignments — Judgment Notes — Delivery—Preferences—Fraud—Instructions.

    In a contest as to the allowance of a judgment claim, based on a judgment note, against an insolvent estate as a prior lien, it is held: That the contention that the judgment is void as part of the assignment, is not supported by the evidence; and that an instruction touching the delivery of the note was properly refused.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creightoh, Judge, presiding.
    Messrs. Clihtoh L. Ooeklieg and Joseph M. Grout, for appellants.
    When a debtor has formed a determination to voluntarily dispose of his whole estate and has entered upon that determination, it is immaterial into how many parts the performance or execution of his determination may be broken, the law will regard all his acts having for their object and effect the disposition of his estate, as parts of a single transaction, and on the execution of the formal assignment it will, under the statute, draw to it and embrace within it all prior -acts of the debtor having for their purpose the voluntary transfer of his estate for the benefit of his creditors. Statutes, 1877, p. 116, Act of May 22d; Preston v. Spaulding, 120 Ill. 218, and numerous authorities there cited.
    Walsh, being insolvent, formed a determination to voluntarily dispose of his whole estate among his creditors and entered upon that determination as shown by the making of numerous judgment notes on which confessed judgments were taken and executions issued, and by a deed of assignment which followed immediately. Walsh and McGrath and also Biordan knew the concern was insolvent in January, 1886. They knew that the original capital and the extraordinary profits realized up to March, 1884, had been wiped out; that the liabilities exceeded the assets by some thousands of dollars; that the assets consisted entirely of the stock, and could under no existing possibility sell for .the invoice price. McGrath and Walsh knew before this time, their insolvent condition, for they were under the repeated necessity of borrowing money before this, to meet their obligations.
    This debtor, aware of his hopeless insolvency, and having determined to make a disposition of his estate among his creditors, makes, without solicitation, a series of sixteen jxidgment notes and confesses judgments thereon, for1 the purpose of preferring certain creditors, and then makes a deed of assignment for the benefit of his creditors generally. All the judgment notes except one are retained by McGrath, Walsh’s agent, and are never delivered to the payees. Only two of the payees, the Marine Bank and C hatterton, knew of the existence of the notes, and then only on the day of failure. The series of acts from January 16th to February 18th, 1886, constituted an assignment in law of all the property of the debtor. -
    When any preferences are shown to have been made or given by the debtor to one creditor over another, by judgments by confession, in such disposition of his estate, such preferences are void and will he set aside. The County Court has full jurisdiction of an equitable character, for this purpose. Statutes Ill. 1877, Act May 22, Sec. 13; Preston v. Spaulding, 120 Ill. 218; Livermore v. McNair, 34 N. J. Eq. 478; Hahn v. Salmon, 20 Fed. Rep. 801; U. S. v. Griswold, 8 Fed. Rep. 496; Freydendall v. Baldwin, 103 Ill. 325; Field v. Ridgely, 116 Ill. 424.
    In making this disposition of his estate or this assignment, Wahh, by the confession, preferred certain creditors, of whom the Marine Bank claims to be one. He says he made the not» in controversy to protect, that is, prefer, Biordan. He made the fifteen other notes avowedly to prefer his friends.
    A note is valid only from the time of its delivery. For all legal purposes the note is to be considered as made when it is delivered. Lansing v. Gaine, 2 Johns. 300; S. C., 3 Am. Dec. 422; First National Bank v. Strang, 72 Ill. 559.
    Messrs. Patton & Hamilton, and Bead ley & Bkadley, for appellees.
   Pleasants, J.

In May, 1883, James E. Walsh, then and ever since a resident of Peoria, purchased at sheriff’s sale a stock of dry goods in Springfield, and there continued the business under the management of Thomas McGrath, his father-in-law, until February 18, 1886, when he failed and made a general assignment for the benefit of his creditors.

Having become embarrassed in the operation, on the 16th of January, 1886, he executed eight judgment notes to divers parties, respectively, for money borrowed of them and used in the business, aggregating about 813,000. Early in February he executed three others of like character, amounting together to something over 83,000. one of which, for 81,901.50, was payable to the Marine Bank and is here in controversy. It was delivered to Dennis Biordan, for his use, and was given for money borrowed of him to meet pressing claims and was so applied. Biordan retained it until the day before the assignment, when he transferred it with his indorsement to the bank and obtained credit for the amount.

Why it was made payable to the bank is perhaps not clearly explained. It seems that Eiordan had made frequent loans to-Walsh (or to McGrath for him) when he was pressed, without taking notes, which were repaid in a few days. He expected this would be so paid, and did not take the note until some time after the loan had been made, and when he had become somewhat anxious about it. Perhaps he was indebted to the bank or expected to bo, and hoped to use it there without indorsement. Whatever the reason, it is abundantly shown to have been delivered to him for his own use and for money actually loaned by him.

On the 16th of February, upon McGrath’s report of the condition of the business and at his urgent request, Walsh came to Springfield, and after conferring with Eiordan and with Mr. Bradley, who held some of these notes as attorney, it was deemed advisable for the protection of the payees that judgments should be taken upon them. This was done in the afternoon of the 17th. Eiordan requested the bank to take the judgment that was then entered on its note, as he was liable on it. Later in the evening Walsh sent for Mr. Patton and on his advice as counsel determined to make a general assignment for the benefit of his creditors. Both he and Mc-Grath positively testified that the subject of an assignment was not contemplated by them, or by either of them so far as the other knew, until after the judgments were entered up, and then only on Mr. Patton’s advice.

The deed of assignment was executed and filed early on the morning of the 18th and Eiordan was appointed assignee, who in due time and under the direction of the County Court made sale of the property, and holds the proceeds. Sixteen judgment claims, including that of the bank, were filed and asked to be treated as prior liens. The unsecured creditors filed objections thereto, on which issue was made and trial had, resulting in a verdict for the judgment claimants. So also in the Circuit Court; and hence the further appeal here prosecuted.

Appellants contend that these judgments were part of, and one with, the assignment, and therefore void under the statute, as preferences. For proof they rely on the condition of the business as necessarily known to Walsh and these payees when the notes were executed, and the circumstances and course of proceeding by them from that time until the deed of assignment was made. It would be useless testate these facts or to review the argument in detail. That it was ingenious and forcible, and of a character especially apt to persuade the average jury—which is found as a rule to be sufficiently alive to what are or are claimed to be signs of fraud—may well be conceded. But it was met by the interval of time between the making of the notes and of the assignment, by the positive testimony referred to of the only parties who certainly knew the intention, and by other circumstances, notably the large amount of indebtedness paid by Wa'sh, through Mc-Grath, in December, January and February preceding the assignment, in excess of the amount realized on sales during that period, as showing a hope and purpose, continuing after these notes were made, to carry on the business. Upon this conflict of evidence two juries have passed, reaching the same conclusion.

The instructions given were all that appellants asked, with the exception of one to the effect that the relation of debtor and creditor between Walsh and the bank did not arise until the delivery of the note in controversy to the bank, and t! at said note is not to be considered in existence until such delivery.

Without passing upon the technical soundness of the proposition last stated, we are of opinion that, as applied to this cise, it was clearly misleading, the proof being that it was delivered to and received by Biordan. As evidence of Walsh’s indebtedness to him, and the means of securing it, upon the question whether it was or was not a part of the assignment, its bearing is precisely the same as if it had been made payable to him, or been by him immediately transferred to the, bank. For that reason we think it was properly refused; and besides, if it had a legal existence at any time before the assignment was contemplated, it would bo immaterial whether that time was an hour or a month. Judgment affirmed.


author: Conger, P. J.

text:
    City of Roodhouse v. Edward Jennings et al.

      Municipal Corporations—City Attorney—Appointment of—See. 73 Chap. 24, R. S.

    1. Although the statute provides for the election of a city attorney, the mayor and council of a municipal corporation may employ counsel to commence and prosecute suits for violation of city ordinances, in case of vacancy in the office of city attorney. An attorney thus employed need not be a resident of the city which he represents.
    2. It is improper to dismiss a suit, as commenced without authority, by counsel so employed.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Green County; the Hon. George W. Hbrdman, Judge, presiding.
    Mr. John G. Henderson, for appellant.
    Mr. Mark Meyerstein, for appellee.
   Conger, P. J.

This is an action of debt, instituted by appellant against appellees to the September term, 1887, of the Circuit Court of Green County, and was, upon motion of the appellees, dismissed by the court upon the 10th day of September, 1887.

It appears that on the 6th day of June, 1887, the city attorney had resigned, and appellant has remained without such an officer up to the time of the dismissal of the suit.

After the city attorney had resigned it became necessary, in the opinion of the mayor and the members of the city council, to employ some competent attorney to prosecute those who were violating the city ordinances, and therefore the mayor, by the request and direction of the members of the city council, did employ Mr. Henderson for such purpose and instructed him to bring the present suit. Upon the 8th day of Septemher, two days before the suit was dismissed, the following resolution was passed by the city council:

“ Whereas, on the 6th day of June, A. D. 1887, John W. Starkey, mayor of the city of Roodhouse, Illinois, by and with the consent and direction of the members of the city council of the said city, employed John G. Henderson as attorney to prosecute and defend, for and in behalf of said city, all suits for the violation of the ordinances of said city relative to the sale of intoxicating liquors, and all other cases brought by or against said city, now, therefore, be it resolved, by the city council of the said city of Roodhouse, Illinois, that the action of the mayor in so employing the said Henderson, and the contract with said Henderson, are hereby ratified and approved, and the beginning and the prosecutions of all suits by said Henderson for violation of said ordinances aforesaid, and all other suits, are hereby ratified and approved, as done by and with the authority of the city council of the said city of Rood-house, Illinois; and they hereby request and authorize the prosecution to final settlement and conclusion of all suits now pending in the Circuit Court of Green County, and all other suits which may be brought "by said Henderson for said city whether same are brought originally in said court or by appeal from justice of the peace.”

The reasons given in the motion of appellees for the dismissal of the suit were, that Mr. Henderson was at no time the city attorney or city counselor of the city of Roodhouse, and because he instituted the suit without any authority from the plaintiff.

We think the action of the court in dismissing the suit was erroneous; there being no city attorney, it was clearly within the power of the city authorities to employ an attorney to represent the city in litigation in which it was interested.

In 1 Dillon onMun. Corp., Sec. 479, it is said: “Resulting also from the power to make contracts, to own property, and to incur liabilities, is the authority in a municipal corporation in the absence of express or implied restriction, to employ an attorney to conduct or defend suits in which the corporation is interested in its corporate capacity.”

“ The power to employ counsel whenever and wherever, in the discretion of the board, it is necessary for the corporation to be represented by counsel, for the preservation and protection of its interests, is necessarily implied, to enable the corporation to effect the purposes of its creation, and to execute faithfully the trust committed to it.” City of Memphis v. Adams, 9 Heisk. 518.

In Smith v. Mayor of Sacramento, 13 Cal. 533, the court says: “We are not aware of any well recognized rule of con-, struction which goes to the extent of holding that under a general provision like this, the power of protecting the interests of the city by the employment of counsel is denied to the city authorities. The legal protection of the property may be as much involved in procuring competent attorneys or counsel as in paying the costs and expanses of defending actions brought for the recovery of its real or personal property. * * * It is true the charter provides that an attorney shall be elected by the people to attend to the business of the city; but this does not prevent the employment of other counsel when it is impossible for the attorney of the city to discharge the required duty.”

The mayor and council of appellant having, as we hold, the undoubted authority to employ counsel, when there was no city attorney to protect the interests of the city, need not necessarily exercise such power by a formal vote. The mayor, by the direction and with the approval of a majority of the city council, might make such appointment in cases of emergency, or when from any cause action was required before there could be a formal meeting of the council.

The action of the mayor with the consent and approval of the majority of the council was sufficient to make Mr. Henderson de facto the attorney of the city, and his proceedings under such appointment would bind the city in the litigation that he undertook under such authority, and it therefore does not lie in the mouth of appellee to question it.

It is urged that Henderson could not act because he was not a resident of the city. There was no attempt to make him city attorney or to fill that office, but only to employ an attorney to look after the city’s interest for the time being.

The judgment of the Circuit Court will be reversed and the cause remanded. . Reversed and remanded.


author: Wall, J.

text:
    John Alden v. Daniel Yeoman.

      Exemptions—Belay in Making Schedule—Replevin.

    A debtor failing to make a selection of property allowed him by law, within the time required by the statute, loses his right of exemption.
    [Opinion filed May 25, 1888.]
    Appeal from the County Court of Fulton County; the lion. T. A. Boyd, Judge, presiding.
    Mr. II. W. Masters, for appellant.*'"
    No appearance for appellee.
   Wall, J.

¡Replevin for chattels levied upon by the appellant, a constable, by virtue of three writs of execution against the appellee. The executions were read to the defendant therein on the 16th of July, 1887. He says the officer told him he need not make his schedule at that time. This is denied by the officer. It is immaterial. The case is governed by the act of 1887, which was then in force, and which required the defendant to make his schedule within ten days after notice of the execution.” On the 15th of August the officer again went to the defendant and made the levy, whereupon the defendant made and tendered his schedule, which, being disregarded, the present action was brought, in which there was judgment for the plaintiff. The law was not complied with in regard to the schedule, and the plaintiff had no cause of action. The schedule came too late.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Grayson Dye, Administrator, v. Laban Gritton.

      Administration—Prosecution of Suits by Foreign Administrators— Pleading—Evidence.

    Where it is sought to dispute the right of the plaintiff to sue in the capacity o: administrator, a plea must be interposed to that effect. Where this is not done, it is unnecessary to make proof of the plaintiff’s appointment, or of his right to sue in the assumed capacity.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Yermillion County; the Hon. C. B. Smith, Judge, presiding.
    Mr. M. W. Thompson, for appellant.
    In Collins, adm’r, v. Ayers, 13 Ill. 362, the court say: “ Letters testamentary and of administration must be pleaded witlua proferí, when an executor or administrator is plaintiff. If a defendant intends to question the right of a plaintiff to sue in such capacity, he must plead ne unques executor or administrator. If he fails to put the fact in issue, the plaintiff will not be compelled on the trial to make any proof of his representative character. It is considered as admitted by the defendant.”
    In Transit Co. v. Shacklet, 119 Ill. 238, the court say: “ The right of the plaintiff to sue as administratrix not having been put in issue by plea, it was not necessary to make any proof in respect to her appointment or her right to sue in her representative capacity. See also 1 Chit. Plead. 489 (6 Eng. Ed.); M’Kimm v. Riddle, 2 Dall. 100; Champlin v. Tilley, 3 Day, 303; McKinley v. Braden, 1 Scam. 67; Ballance v. Frisby et al., 2 Scam. 65; Chi. Leg. News Co. v. Browne, 103 Ill. 320.
    The question of the power of the Probate Court of Ohio to appoint the administrator in this case, or the regularity of said appointment, can be raised only in a direct proceeding to reverse it. In Wight v. Wallbaum, 39 Ill. 563, the court say: “ The Probate Court had jurisdiction of the subject-matter and of the person, and thereby became fully empowered to act, by refusing or granting such letters.” Shepard v. Rhodes, 60 Ill. 305; I. C. R. R. Co. v. Cragin, 71 Ill. 180; Bostwick v. Skinner, 80 Ill. 157; The People ex rel. v. Brislin, 80 Ill. 433; Lehmer v. The People ex rel., 80 Ill. 601; C. N. W. Ry. Co. v. The People ex rel., 80 Ill. 601; C. N. W. Ry. Co. v. The People ex rel., 83 Ill. 470; Andrews v. The People ex rel., 83 Ill. 531; Gage v. Parker, 103 Ill. 536.
    Mr. J. B. Manh, for appellee.
    Administration in a State other than the State of the last domicile of the intestate is known as ancillary administration, and is granted for the purpose of collecting and preserving the local assets and paying local indebtedness, if any. This is the Bill scope of the authority of such ancillary administrator. Schouler, Executor and Administrator, Secs. 162, 167.
    In the case at bar there is an attempt to make the ancillary administration the principal one. The statute allowing foreign administrators to sue is in derogation of the sovereign rights of the State and must be strictly construed.
    It is not within the reason of the statute to permit an ancillary administrator to remove the assets from the jurisdiction of the court having the power to appoint a principal administrator and take them to another jurisdiction where they would be subject in the first instance to the payment of local debts, and where no creditor of the domicile could follow it. 3 Redfield on Wills, Sec. 2, part 15; Dawes v. Boylston, 6 Mass. 337.
    When the ancillary administrator brought suit against a person who did not reside within the jurisdiction of the ancillary administration it was held no recovery could be had, as such debt or money did not constitute assets within the jurisdiction, and it made no difference that no other administration upon the estate had been taken. 3 Redfield, Sec. 2, part 13.
    The ancillary administration can not be allowed to draw into its jurisdiction any assets not locally situated within its limits.

      In this view of the case the Circuit Court having learned by the testimony that an attempt was made by an ancillary administrator to collect a debt which was within the jurisdiction where principal administration could be had, very properly refused to allow the appellant to make any further proof of his case, since in no event could he establish his right to the debt.
   Wall, J.

This suit was brought by appellant in the capacity of administrator, against appellee.

The plaintiff in his declaration alleged an indebtedness by the defendant to the intestate in his lifetime, and that letters of administration were duly granted by the Probate Court of Miami county, Ohio. The defendant pleaded general issue and set-off. On the trial plaintiff proved the indebtedness as alleged, and also offered in evidence a duly certified copy of his letters of administration.

The Circuit Court rejected the proof as to the grant of administration, and instructed the jury to find for the defendant, which, was done, and judgment was rendered against the p’aintiff for costs. This action pf the court was no doubt based upon the view that the Probate Court of Ohio had no power to grant the letters of administration, because the deceased was a resident of Illinois at the time of his death. There was evidence tending to prove that such was the case, and it is argued by counsel that when it appeared to the court .that for this reason the letters of administration were improvidently granted, it was tlie duty of the court to ignore the plaintiff’s right to sue, and by the instruction given, end the case. The evidence as to the residence of the intestate came out incidentally and is not conclusive, by its direct effect or by necessary inference; conceding, however, that the proof fairly shows, as urged, that the residence was in Illinois, and that administration in chief should have been granted in this State, still it is clear the action of the court was erroneous. There was no plea under which such a question could arise. If the defendant desired to dispute the right of the plaintiff to sue in the capacity of administrator he should have interposed a plea to that effect. The right of the plaintiff to sue as administrator not. having been put in issue by plea it was not necessary to make any proof in respect to his appointment or his right to sue in the assumed capacity. Collins v. Ayers, 13 Ill. 358; C. L. N. Co. v. Browne, 103 Ill. 317; Transit Co. v. Shacklet, 119 Ill. 238; 1 Chit Pl. 489, and notes. The defendant, by his pleading, waived the question.

The judgment will be reversed and cause remanded.

Reversed and ‘remanded.


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    Samuel Nicholson v. The People, etc.

      Dram Shops—Municipal Corporations—Payment of License—Keeping a Common Kitisance—Dram-Shop Act, Secs. 2, 6 and 7, Chap. 03, JR.S.-—• Once in Jeopardy—Ecidence—Instructions—Pleading.

    1. Where the commission of a particular act constitutes two offenses of different grades of criminality and punishable differently, a conviction or acquittal of a charge of committing one of them will b ¡ no bar to a conviction for the other. The second charge places the defendant in jeopardy for a new offense.
    2. Upon an information charging a dram-shop keeper with keeping a “ common nuisance,” the docket of the police magistrate before whom he was tried on a previous complaint for selling intoxicating liquor in violation of the statute, is inadmissible to prove that the defendant was then found “not guilty.”
    3. To warrant the conviction of a dram-shop keeper for keeping a common nuisance, it must be shown that he, or his agent or keeper, has knowingly and intentionally sold intoxicating liquors at the place in question, in violation of the statute.
    4. In the case presented, the court below improperly instructed the jury that a single sale of intoxicating liquor toa minor without the wril ten order-required, although the vendor does not know whether the vendee is a minor, is sufficient to make the place of sale a common nuisance.
    5. The Legislature may make a distinction between two offenses in respect to an act common to both, with reference to whether actual intention shall be material.
    6. This court will not reverse for errors which worked no injury to the appellant.

      [Opinion filed May 25, 1888.]
    Appeal from the County Court of Fulton County; the Hon. Thomas A. Boyd, Judge, presiding.
    Messrs. P. Gallagher and Cook & Edwards, for appellant.
    Messrs. W. M. Yandeventer and Gray & Waggoner, for appellee.
   Pleasants, J.

This was an information in two counts, charging, in the first, that appellant kept a dram-shop at Lewiston in which he sold intoxicating liquors to persons intoxicated and to persons who were in the habit of getting intoxicated, whereby the place became and was a common nuisance; and in the second, that he there sold intoxicating liquors in less quantity than one gallon without having a legal license to keep a dram-shop, and to minors without the written order required by Sec. 6 of the dram-shop act, whereby, etc., as in the first.

That he did there keep a dram-shop and sold in less quantities than one gallon was proved and not denied, but we do not understand that a conviction was sought or claimed on that ground. Evidence was also introduced to show he sold to persons who were in the habit of getting intoxicated, and to minors without the written order required; and the verdict found the defendant “ guilty in manner and form as charged in the information, of selling to a minor;” on which judgment was entered.

We hold that the information does not charge in each or either count distinct and different offenses, but only the one offense of keeping a common nuisance. They allege, in general terms, the violation of several different provisions of the act, but merely as specifications of divers uses to which the place was put, either of which would make it the nuisance charged; and this, we think, is proper pleading.

Since it is known from the verdict which óf these uses was found, and consequently also which were not, we might dismiss without further considering the errors complained of in rulings relating to them. They did no harm to the defendant. Thus, the license excluded might have disproved the alleged use of the place for the sale of liquor without a license, but could have had no tendency to disprove either of the others, including the one found, or to rebut any evidence introduced to prove them. So of the allowance of the question put to several witnesses—whether certain persons used or were in the habit of using intoxicating liquors intemperately; though this court sanctioned a like question in the case of Gallagher v. The People (post), which was affirmed in 120 Ill. 179.

George Weatherlow testified that he was under age, and that on July 28, 1886, he bought beer twice of some one behind the bar at the place “ they say33 was kept by the defendant; but he lived at Ellis ville, twenty-five miles from Lewis-ton, and could not swear as of his own knowledge that it was kept by him. It appeared on his cross-examination that a complaint was made against appellant for these supposed sales and a trial had thereon before the police magistrate of Lewis-ton in September, 1886, and that the witness testified on that trial. He was asked a number of questions as to what he then stated, and claiming, as to some, that his memory did not serve him, was challenged to explain how he could remember any fact as of a particular date, and not the particular date of every subsequent fact that he could remember, or how remember any one thing he had done in July, and not everything he had said in the more recent month of September—a metaphysical mystery that may never be solved to the satisfaction of adverse counsel, and that costs a deal of time which might be saved for better use if they would only consider how little it troubles courts and juries. Ho further attempt was made to show what the witness did say on that trial, but the defense offered, with all due preliminary proof, the docket of the police magistrate showing that the defendant was found “not guilty;33 which the court, upon objection by the State’s attorney, excluded.

Was this error % That the question of fact, whether appellant sold beer to the witness, was alike provable and material in that case and in this; that the docket entry was proper evidence of the verdict in that; and that such verdict and the judgment thereon would be a bar to any subsequent prosecution of the defendant for the same ofíense, are propositions not open to debate. But here the proposed evidence was not offered under a plea of former acquittal of the same offense. It was offered alone, without proof of the particular issue or evidence on which it was rendered, as of itself independent affirmative evidence upon the question of fact, treated as open and triable, to contradict the witness’ statement that he bought the beer, that statement having been corroborated by Foutz, who was with him at the time, and who also knew and identified the place as appellant’s saloon. Its claim to competency for that purpose must rest upon the assumption that a verdict of not guilty in such a case, unaided by further evidence, disproves the allegation of each and every fact that was necessary to maintain the complaint; for, being general, it can have no specific application to only one or some of such facts, and yet the law is that if any one of them be not proved beyond a reasonable doubt the verdict should be “not guilty.” It may therefore be consistent with the existence and full proof of all but one; and since it furnishes no means of determining which one was intended, it can not be evidence to contradict either. It is not like a finding upon a particular issue ; nor have counsel suggested that it negatives the allegation that the witness was under age, or did not present a written order from his parent, guardian or family physician, authorizing the sale. We are therefore of opinion it did not tend to disprove,the allegation of the sale.

For would it have been competent if offered under a plea of former acquittal. In Wragg v. Penn Township, 94 Ill. 11, the Supreme Court, recognizing the difficulty of the question, the conflict of decisions thereon in other States, and the unsteadiness of its own holdings on the subject, seems to have settled the law for Illinois that there is no prohibition on the power of the Legislature to declare that the commission of a particular act shall constitute two or more offenses, each of a different grade of criminality, and punishable in a different manner ; ” and that “a conviction or acquittal in such case, under either statute, would be no bar to a conviction under the other, for the accused would not be twice in jeopardy for one offense, but only once in jeopardy for each offense.” Here, though the act of selling involved was the same, the offenses charged were different, as is obvious upon inspection of-the complaints and of the two provisions of the statute. The evidence under the information must therefore be, on the one side and on the other, just as if there had been no complaint and trial before the police magistrate, except so far as the incidents of that trial, and not its result alone, furnished legitimate evidence upon some issue here made; and the docket, unaided, was rightly excluded.

In' giving, refusing and modifying instructions asked, the County Court acted upon the understanding and advised the jury that a single sale of intoxicating liquor to a minor without the written order required, whether the vendor does or does not know the vendee is a minor, is sufficient to make the p’ace of sale a nuisance, and the keeper guilty as such under the statute; and the soundness of this construction is the main question in the case.

The statute forbids the sale of intoxicating liquors in any quantity less than one gallon, or in any quantity whatever to be drank upon the premises, or in or upon any adjacent pi a-re of public resort, without having a license to keep a dram-shop; R. S. Chap. 43, Sec. 2; or in any quantity, even with such license, to any minor without the written order of his parent, guard ian or family physician, or to any person intoxicated, or who is in the habit of getting intoxicated. Ibid, Sec. 6. It is held that the letter of these provisions is as broad as their spirit, and proof of a literal infraction is sufficient to convict. Excepting the case of liquor sold to be drank on the premises etc., (in which this purpose is clearly made an element of the offense,) it is only necessary, prima facie, to show the sale, together with the simple circumstance in each case, respectively, to wit, the quantity sold, or the age, condition or habit of the vendee, bringing it within the description of that which is prohibited in general. It is the act of selling in such quantity without a license, or in any quantity, with or without a license, to such a person, that is, in general, unlawful; and upon proof of the sale made, it is for the party charged to bring himself within the exception by showing his license or the written order mentioned, as the case may be. That at the timé'of sale he did not know the age, condition or habit of the vendee would be no defense. Knowing-that he was selling to the particular vendee, and that if the latter was of the age or in the condition or habit stated, it would be unlawful; it was for him to ascertain the fact, and he must sell at his peril. McCutcheon v. The People, 69 Ill. 601, 605; Humpeler v. The Same, 92 Ill. 400.

The information here, however, is not for unlawfully selling intoxicating liquor, but for keeping a place alleged to be a common nuisance. It is brought under another section of the same act, which declares “.all places where intoxicating liquors are sold in violation of this act * * * common nuisances, and all rooms, taverns, eating houses, bazars, restaurants, drug stores, groceries, coffee houses, cellars or other places of public resort, where intoxicating liquors are sold in violation of this act, shall be deemed public nuisances,” and provides that “ whoever shall keep any such place by himself, or his agent or servant, shall, for each offense, be fined,” etc., the penalty being greater in amount than for unlawful selling, though of the same kind,-and including in addition the shutting up and abatement of the place until the keeper shall give the bond therein prescribed.

The question is upon the proper construction of the phrase, ‘‘where intoxicating liquors are sold in violation of this act.” Does it include a place where they are so sold in a single instance and without the actual permission or consent of the keeper?

It is said that the keeping of the place being innocent except for the unlawful sales there made, such selling is the principal element of the offense; that what is an unlawful selling under the preceding sections must be equally so here; that as knowledge on the part of the seller that they are unlawful is not material under them it can not be so under this, and therefore proof of a sale that is in fact unlawful, and that the defendant kept the place where it was made, meets all the requirements of the statute.

We observe that under those sections the party charged can be held liable only for sales made by himself or his agent. The actual seller must necessarily have actual knowledge of the particular sale when proposed, and therefore, since not all are lawful, something to put him on inquiry as to its lawfulness. Every proposition to buy furnishes an occasion for this inquiry. He is in a position to choose, and must choose at his peril, between different courses, to make the sale or not to make it. If he makes it and it is in fact unlawful, he intentionally commits the act which is forbidden, and so, whether" he intends to violate the law or not, a “criminal offense” within the statutory definition. In thus doing what is in fact a violation of a public law, there is the requisite “union or joint operation of act and intention;55 and his ignorance, in such a case, of a condition of fact which makes the act unlawful, must be charged to “criminal negligence. R. S. Chap. 38, Sec. 280.

But, upon the construction of Sec. 7, here contended for, it might be otherwise. One may keep a place where such sales are in fact made, but without his knowledge, and by another, who is in no sense his agent in that behalf. He may have no suspicion that liquor is there sold at all, nor any knowledge of any fact to put iiim on inquiry in that direction. If a grocer’s clerk should clandestinely make one such sale in the store, the merchant who kept it would be within the law, so construed, although not liable for the sale itself under either of the other sections; hut, would he be within its real meaning, liable to he fined and imprisoned as a criminal, and to have his store closed until he should give bond that nobody thereafter, clandestinely or otherwise, would make another such sale therein? The grocer is no more entitled to protection against such danger from unauthorized acts of others than the druggist or restaurant keeper.

Nor is the case of the licensed dram-shop keeper different in principle. Until the contrary is shown he too is presumed to be honest and law-abiding in the conduct of his business His liability under Sees. 2 and 6, for unlawful sales by his clerk or servant, rests upon the fact that they are made by his authority. From the character of the business the authority of the agent to sell must be general as to vendees. The principal can not limit it by excepting persons in classes, as minors, drunkards and habitual drunkards. The law itself limits his own authority as well as that of agents, by excepting these; and that which he gives them, to sell generally, though subject to these exceptions, necessarily carries with it authority to determine whether the proposing purchaser is of an excepted class, and also the risk to himself of their selling to such, ignorantly or wilfully. Upon any other construction it would be difficult, if not impracticable, to enforce these provisions as against licensed dram-shop keepers, by reason of the lawfulness of their sales in general and of the irresponsibility in general of mere bartenders.

But since he is not responsible even for unlawful sales made at his place by others who are not his agents and without his permission, he surely can not be liable for keeping a place where intoxicating liquors are unlawfully sold if the sales are made by such others and without his permission. Then, proof of the mere facts that he keeps the place and that unlawful sales are there made, is not sufficient to warrant his conviction. Something more than a literal infraction of this statute must be shown.

We further observe that an agent to sell, who in respect to sales may stand in the place of the principal, with authority to sell as generally as he, may not be his agent to keep the place; and that no other can make him liable under section seven. The act of an agent only to sell will charge him only as seller.

The question, then, is whether his keeping a place where an unlawful sale is made for which he is liable as seller, though made without his actual permission or knowledge, brings him within the meaning of that section.

It may seem a natural inference from his liability for the sale, on whatever ground, that he should be treated for all purposes as the actual seller; that whatever consequences would legally follow from a sale by himself would so follow from one made by an agent for whose act he is legally responsible. But the Legislature certainly might make a distinction between two offenses, in respect to an act common to both, so that actual intention should be a material element in one and not in the other. We are inclined to the opinion that it has so done in this statute.

It has made the act of selling, in person or by an agent, in certain specified cases, under conditions actually existing and in no way dependent upon the knowledge or intention of the seller, absolutely unlawful. Such are the provisions, interms, of sections two and six, and for reasons above suggested a construction in accordance with them would seem to be necessary to give them practical effect. But it has not so declared the possession or control of every place where liquor happens to be sold in violation of law, nor of every place where it is so sold by an agent. The language of the act, transposed without changing the sense, is “ whoever, by himself, or his agent, or servant, shall keep any such place,” etc. We understand that the “beeping” of a place, imports knowledge, of the manner or condition in which it is kept and a continuing purpose so to keep it. Here the term is applied to a place specifically described as one where intoxicating liquors are sold in violation of the act, and the purpose thus imported must extend and apply to such a place. Similar language in reference to other places is in common use, with no difference in the common understanding of its meaning. If it he said of any that goods of a certain kind are there sold on stated terms or for stated purposes, this understanding would be that they were so sold with the knowledge or according to the purpose of the proprietor. So, if it be said that intoxicating liquors are there sold in violation of law, nobody would suppose that reference was had to sales that were accidental, occasional, or made by unscrupulous or compliant agents, against the will or without the knowledge of the principal. The usual sense of the language is that such sales are characteristic of the place. Furthermore, the act declares it to be a common or public nuisance; and it is believed that in all like cases, whether at common law or under statutes, knowledge of the facts or conditions which make the place such, is and must b'e fairly imputable to the beeper, or to the agent, for whose keeping he is responsible. See 2 Bishop’s Crim. Law, Secs. 258, 258a (2d Ed.) and the Kentucky cases there cited. If it be indeed a public nuisance these must be such as they might and should know; so that actual ignorance of them would be inexcusable.

Under the provision of the Ohio law, from which ours so far as above quoted is literally copied, it was held necessary to aver in the information and prove on the trial that the place where the liquor was .bought was a place of public resort. And the proof must also show that it was a place where liquors were.habitually sold in violation of the act. A single sale does not make the place a nuisance, or the seller a keeper, within the meaning of the act. A series of sales is necessary.” Miller v. The State, 3 Ohio State R. 488. And while a majority of our own court declined to follow the construction there given to the corresponding provisions against selling to minors, etc., which required the allegation and proof of knowledge by the seller that the purchaser was a minor (McCutcheon v. The People, supra), and, in another case, the rule of pleading declared in Birney v. The State, 8 Ohio, 230, therein cited (Ells v. The People, 4 Scam. 509), these differences from the Ohio court do not relate to its views above quoted. Indeed, in the case in 4 Scam., which, like that of Birney, was for harboring and secreting a slave, it was conceded that an actual intention to defraud the owner—which certainly implies knowledge that the party harbored was a slave—was of the essence of the offense, but held unnecessary to aver it in terms, because “the words eharbor and secrete’ have, by long usage in connection with this subject, acquired a specific meaning which includes both act and intention,” and because the indictment was in the exact language of the statute, which our law provides “ shall be considered sufficiently technical and correct.” In Streeter v. The People, 69 Ill. 598, speaking of the provisions of this seventh section as they stood in the act of 1872 (Sec. 3), the court said: “The object is to prevent the assembling of idle and evil disposed persons for the purpose of violating the laws of the State. Under what is called the police power, the Legislature has the right to authorize the abatement of a public nuisance; and the carrying on of an illegal traffic in intoxicating liquors, and the assembling of idle and vicious persons for that purpose, is a nuisance, and may be so declared and abated according to law;33 and the Ohio case above cited is referred to with approval on several points. Although the construction of this section was not directly involved, these expressions indicate an opinion in harmony with that of the Ohio court, that the evil intended was the keeping or maintaining of a place of public resort for the purpose of violating the laws of the State by carrying on the illegal traffic. Such violation hy individual sales, wherever and however made, is expressly and amply provided against by the two other sections, and it is not to be presumed that the Legislature intended to cover the same cases by a further provision, in still another section, with heavier and additional penalty, which might be used to close up places of lawrful business because of an unlawful sale there made without the knowledge or permission of the proprietor or of his agent in charge of it. Such a construction does not seem necessary to give practical effect to the law in cases clearly contemplated by it, and would make it unreasonable, unjust and oppressive.

In view, then, of the general principle that the commission of an act which is not malum in se, in blameless ignorance of a fact which makes it unlawful, is not criminal—-of the nature of the offense in question—of the terms used to describe it, including the offender and the place—of the other provisions relating to unlawful sales, and of the authorities cited, we hold that to warrant a conviction under this section it must he shown that the keeper of the place, or his agent to keep it, intended there to make unlawful sales of intoxicating liquors as well as that they were so made. We do not say the indictment or information should allege the scienter in terms. As in the case of Ells v. The People, supra, it is implied in the terms “kept33 or “keeper,33 and a charge in the language ef the statute may be sufficient. 2sTor is it necessary to prove that the place was kept as charged, for any particular length of time (Commonwealth v. Gallagher, 1 Allen, 592); but the jury must find from the evidence that the defendant or his agent, as keeper, knowingly and intentionally kept such a place.

For the error in the instructions on this point the judgment will be reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.


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    Williamson-Stewart Paper Company, for use, etc., v. Joseph W. Seaman.

      Parties—Promise to Pay Debt of Another—Declaration—Demurrer.

    1. Where one enters into a contract with another for the benefit of a third person, such third person may maintain an action in his own name for a breach thereof.
    2. Where the agreement is to pay the debts of the promisee, it is not necessary to name the creditors. It is sufficient to show that the indebtedness in question is due from the promisee.
    3. In the case presented, it is held: That the declaration disclosed a good cause of action; and that the demurrer thereto was erroneously sustained.
    [Opinion filed May 25, 1888.]
    In error to the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. Carter & Govert, for plaintiff in- error.
    Mr. George W. Fogg, for defendant in error.
   Wall, J.

The plaintiff in error brought an action of assumpsit against the defendant in error. The Circuit Court sustained a demurrer to the declaration, and the only question is as to the propriety of that ruling. It appears in substance from the averments of the declaration, that one H. U. Wheeler had incurred an indebtedness to the plaintiff for paper and other material used in carrying on the business of publishing a certain newspaper called the Quincy Herald, and that the defendant being, or claiming to be, the owner of the property and effects used in the publication of said newspaper, and being desirous of selling and delivering said property, in consideration that said Wheeler would deliver the property to one Hynes, made and delivered to said Wheeler an agreement in writing as follows: “Quincy, Ill., Jan. 22d, 1883. I hereby agree to relieve H. U. Wheeler of all indebtedness now outstanding against the Herald office. J. W. Seaman;” that in pursuance of said agreement, Wheeler delivered the property to Hynes, to whom the defendant had sold it; that the parties to the agreement intended thereby to refer to the indebtedness incurred by Wheeler in publishing said newspaper, of which the plaintiff’s claim was a part; that defendant had refused to pay, etc. It is well settled in this State that, where one person for a valuable consideration engages with another by simple contract to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of the engagement. Where the engagement is to pay the debts of the promisee it is not necessary that the creditor should be named. In such case it is sufficient for the creditor to show that his debt was due from the promisee. The consideration need not move from the creditor and his assent will be presumed. Eddy v. Roberts, 17 Ill. 595; Bristow v. Lane, 21 Ill. 194; Beasly v. Webster, 64 Ill. 465; Snell v. Ives, 85 Ill. 279; Barlow v. Myers, 64 N. Y. 41; Kelly v. Evans, 3 Penrose & Watts, 387; Stout v. Folger, 34 Iowa, 71; 1 Wait, Actions and Defenses, 183, 375, 390.

In the present case the defendant in writing undertook “to relieve Wheeler from all indebtedness now (then) outstanding against the Herald Office.” The natural meaning of the language thus employed, was that he would pay off that indebtedness. Such is the ordinary import of the promise' It appears by proper averment, that Wheeler was then conducting a paper known as the Herald, and that in so doing he incurred the indebtedness held by plaintiff, which was a part of that intended and referred to, in and by the promise of the defendant. The writing is to be read in the light of surrounding circumstances in order more perfectly to understand the meaning and intent- of the parties, (1 Greenl. Ev. 277, 288,) and the averments of the declaration as to the situation of the parties, and the indebtedness referred to were well made. We are of opinion the declaration disclosed a good cause of action, and that it was error to sustain the demurrer.

The judgment will be reversed and the cause remanded.

It ever sed and remanded.


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    James H. Wilcox and Theodore F. Hopkins, Partners, etc., v. John Carson.

      Reaping Machine—Sales—Warranty—Action to Recover Price—Instructions.

    1. In an action to recover the price o£ a reaping machine, it is held: That the evidence touching the warranty that the machine would work well, sustains the verdict for the defendant; and that there was no error in the modification of an instruction, by s'riking out the clause in regard to the reliance of the defendant upon the warranty.
    2. A warranty includes a representation made to assure the buyer, and relied on by him as an inducement to purchase.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cybus Epleb, Judge, presiding.
    Messrs. G. W. Smith and M. T. Layman, for appellants.

      Messrs. Brows & Kirby, for appellee.
   Wall, J.

This was assumpsit by appellants against appellee, to recover the price of a reaping machine known as the Buckeye Binder. The defense was that the machine was warranted to work well and that it failed to do so. The case was tried by jury and the verdict was for defendant. A motion for new trial was overruled and judgment rendered against the plaintiffs for costs. The objections now urged are, (1) that the verdict should have been set aside becaiise contrary to the evidence; (2) that the court erred in modifying ah instruction asked by the plaintiff's.

The only question of fact upon which there was any substantial controversy, was whether the machine worked well. There was enough evidence to warrant the verdict as to this point. The arguments of counsel in their brief against the verdict were no doubt urged upon the jury, and were probably before the Circuit Court upon the motion for new trial, but they are not so conclusive as to require an Appellate Court to reverse the judgment. There was certainly a great deal of trouble in operating the machine, and while it may be that this was due to the way it was managed by the defendant, yet there is sufficient to support the conclusion that it was due to other causes, for which the defendant was not responsible.

As to the second point, the plaintiffs asked the court to give the following instruction:

“ The court instructs the jury for the plaintiffs that, before the defendant can defeat the plaintiffs5 cause of action by reason of a warranty of the machine, he must prove, first, that there was a warranty; second, that the defendant in purchasing the machine, relied on the warranty, and that such warranty induced defendant to purchase the machine; third, that the machine was not such a machine as it was warranted to be. And that the defendant must prove all the above propositions by apreponderance of all the evidence, and if the evidence is equally balanced on either of the above propositions, the jury must find for the defendant as to the question of warranty.55

The court struck out the second proposition and gave the instruction as thus modified.

It is urged hv counsel that in this the court erred, and reference is made to Hawkins v. Berry, 5 Gilm. 36. In that case the court say : “ To constitute a warranty the term warrant need not be used, nor is any precise form of expression required; but there must be an affirmation as to the quantity or quality of the thing sold (notassertedasa matter of opinion or belief) made by the seller at the time of the sale for the purpose of assuring the buyer of the truth of the fact affirmed and inducing him to make the purchase, which is so received and relied on, by the purchasee. 2 Kent’s Com. 485; Chitty on Contracts, 35.” A warranty, as thus defined, includes a representation made for the purpose of assuring the buyer, and by him relied on as an inducement to buy. The -first proposition in the instruction was, that there must have been a warranty. This included, in a legal sense, the point that the representation was relied on, and the instruction, as modified by striking out the second clause, was technically perfect. Had the court been called on to define a warranty, it would, no doubt, have done so in the language of the books. It would have done no harm to have given the instruction as asked, though it was somewhat tautological, but it was not error to modify it as was done.

We do not see how the appellants can make any complaint in this respect, even if it were assumed that the instruction, as asked, was correct and should have been given.

There was no doubt upon the evidence, that there was a representation that the machine would work well, and that the purchaser relied upon it, and that this was a material inducement to make the purchase. It is not at all probable that the jury were in doubt on this point, or that the verdict would have been otherwise if the instruction had been given as asked. The frictional point, as already stated, was as to how the machine worked, and what caused the trouble. We find no error in the record and the judgment must be affirmed.

Judgment affirmed.


text:
    The Northwestern Benevolent and Mutual Aid Association v. Sylvia W. Hand.

      IAfe Insurance—Suicide—Construction of Application and Certificate as One Instrument—Reference—Pleading—Demurrer—Jurisdiction—Remittitur.
    1. In an action brought on a certificate of membership in a mutual benefit association, the deceased member having committed suicide, the application, which contains a stipulation excepting death by suicide from the risk, and the certificate, will be construed together as one instrument.
    2. In the case presented, upon a review o£ the pleadings and action of the court below in disposing of certain demurrers, this court reverses the judgment for the plaintiff.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Blades & Neville, for appellant.
    Mr. Edgar S. Van Meter, for appellee,
   Pleasants, J.

February 14, 1883, appellant issued to Gilbert Hand, the husband of appellee, a certificate of his memibership in the association and right to participate in its [beneficiary fund to the amount of §2,000, to be paid within sixty days after his' death, to his wife, upon the conditions ■¿herein prescribed. He died August 19, 1886, and in default of payment she brought this suit. The declaration is in assumpsit upon special counts on the certificate, and the common counts. Defendant pleaded non-assumpsit and several special pleas. Issues of law on the special pleas or replications thereto, and of fact on the general issue, were all determined in favor of the plaintiff and judgment entered for $2,000 damages, and the costs.

The questions presented on this appeal arise upon the determination by the court of these issues of law:

The fourth plea limits the cause of action to that stated in the first count, and as to that, avers that just before the issuing of said certificate, said Hand made an application in writing to the defendant to become a member and to have said certificate issued to him, in which application it was stipulated and agreed, among other things, that if his death should result from suicide said certificate should be void; that “ by reference in said certificate, said stipulation was made a part of said contract; ” and that his death did result from suicide.

A replication was filed averring that said stipulation was not made part of said certificate by express reference thereto in said certificate, and was not a part of said contract; to which defendant demurred specially, for duplicity.

The first count of the declaration, which the plea purported to answer, did not set out the certificate in haeo verha, but according to its alleged legal effect, and the character of the reference, if any there was, to the application or stipulation mentioned, does not appear. Biff we do not get from the pleadings or arguments, nor have we in our own minds, any clear idea of the supposed distinction between a reference and an express reference in a written instrument. We apprehend that anything in a written instrument which, however indefinite, would refer the mind of the reader to a particular stipulation, must be an expression, and that the reference in that ease would be express, though some part of its meaning might be implied. When, therefore, the plea averred that the stipulation was made part of the contract by reference in the certificate, it necessarily signified an express reference, and it inrplied, by the expression of the means stated, that it was not otherwise so made. So that the replication, in denying an express reference, denied nothing more or less than the plea affirmed ; and the further statement that the 'stipulation was not a part of the contract was a necessary inference, though quite an unnecessary statement—mere surplusage, which does not vitiate.

We do not wish to be understood, however, as approving the plea. It would have sufficed to aver as the ultimate fact, that the stipulation was a part of the contract. If the pleader relied on the reference as the means by which it was so made, he should have set out the reference itself instead of his own opinion of its tendency and weight, as evidence. But if the plea is good, we think the replication is not liable to objection for duplicity. In either case the judgment on this demurrer was proper.

The seventh plea is like the sixth, except that it sets out the stipulation in haeo verla, and avers that the same was and is a part of said contract of insurance. Plaintiff replied that it was not made a part of said contract by express reference thereto in said certificate of membership; to which replication defendant demurred, assigning for causes (1) that it is not material, (2) that it tenders an immaterial issue, and (3) that it contains a negative regnant.

In the case of the N. W. Benev. & Mut. Aid Association v. Bloom, 21 Ill. App. 159, we held that for other reasons the application and certificate should be construed together, as one instrument, and it is conceded that if that be the law this replication is bad. In that view counsel first argue that the plea also is bad, and carrying the demurrer back to it, the judgment was rightly rendered against the defendant. The points- made against the plea are, first, the averment that the stipulation was part of the contract is a conclusion of law, and second, that it does not aver the company issued the certificate in consideration of a reliance upon this stipulation. We think it an averment of the ultimate fact, properly leaving for the proof those that are relied on to establish it; and if the stipulation is in fact a part of the contract, it is of course, supported by the consideration for the contract. Its materiality is unquestionable.

A very elaborate and forcible argument is also made against the opinion in the case of Bloom referred to, and a strong array of authorities is presented in support of the proposition that the stipulation can be made part of the contract only by express reference thereto in the latter making it so. To many, if not all of these, onr attention was called and given in that case.

We fully recognize their respectability as authority, and their weight in reason, but believe, as we then did, that in the conclusion reached, we followed the view of onr own Supreme Court, which was regarded as controlling. We therefore hold that the Circuit Court erred in overruling the demurrer to this replication.

The eighth plea avers that the stipulation was proposed by Hand in order to induce the defendant to issue to him the said certificate of membership, well knowing that it would not receive him as a member and issue said certificate unless he so stipulated ; that, in fact, it would not have been issued if he had not so stipulated; and that he committed suicide. A gen. eral demurrer to this plea was sustained.

It is claimed that the only averment therein which can be pretended to allege that the certificate was issued in consideration of or reliance upon the stipulation, is the averment that it would not have been issued if the application had not contained that stipulation, and that this is immaterial. In N. W. B. & M. A. Assoc. v. Hall, 118 Ill. 171, where the medical examiner was asked whether Hall’s application for membership would have been favorably passed upon if it had been stated in such application that he drank liquor, the court say: “ What would have been the effect if some different statement from that therein contained had been made to the association, was of no consequence.”

The reason for this, however, as also stated by the court, was that “ the real issue was whether the statement made in the application was true or false.” The question raised by this demurrer is quite different. It is whether the stipulation was material; and upon that point the question whether the obligation to pay would have been assumed by the company if it had not been made, was pertinent and of some consequence.

If the stipulation that suicide would avoid the obligation of the company should be disregarded, as of no consequence, it seems to us that a fraud upon it would be permitted, and therefore that the court below erred in sustaining this demurrer.

We do not agree with counsel for appellant that a court of law has no jurisdiction of this case ; and the error of excess in the amount of damages allowed, being ten per cent., which the contract provides may be retained by the company as compensation for collection and disbursement, would be cured by remittitur; but for the reason above stated the judgment will be reversed and the cause remanded.

Reversed and remanded.