author: Vv all, P. J.

text:
    Lake Erie and Western Railroad Company v. Thomas Kirts.

      Railroads—Fires—Defective Spark Arreste>— Evidence—Contributory Negligence—Instructions—Damages.
    1. The owner of property situated near a railroad is "not chargeable with negligence in respect to fires caused by sparks from locomotives, merely because he used it as if it were not so situated.
    2. In an action against a railroad company to recover the value of property destroyed by fire alleged to have escaped from a locomotive, it is held: That the verdict for the plaintiff is supported by the evidence; that there was no substantial error in the admission of evidence; that the charge given by the court contained all that was necessary to a correct view of the law involved; and that it does not appear that the damages are excessive.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Vermillion County; the Hon. C. B. Smith, Judge, presiding.
    Mr. H. M. Steely, for appellant.
    If a railroad company uses most approved appliances to prevent the escape of fire, and keeps it and the locomotive in which it is placed in constant repair, and the same is properly operated by a competent and skillful engineer, and notwithstanding these precautions fire or sparks escape and set fire outside the right of way, then the company is not liable. I., B. & W. Ry. Co. v. Craig, 14 Ill. App. 407; T., P. W. Ry. Co. v. Pindar, 53 Ill. 447; C. & A. R. R. Co. v. Quaintance, 58 Ill. 389; T., W. & W. Ry. Co. v. Larmon, 67 Ill. 68; C. & A. R. R. Co. v. Smith, 11 Ill. App. 348.
    It must appear that party suffering loss exercised ordinary care, such as a reasonably prudent man would adopt for security of his property, and want of such care is fatal to a recovery no matter how gross negligence of defendant may have been. W., St. L. & P. Ry. Co. v. Wallace, 110 Ill. 114; City of Peoria v. Simpson, 110 Ill. 294; T., W. & W. Ry. Co. v. Larmon, 67 Ill. 68; C. & A. R. R. Co. v. Pennell, 94 Ill. 448; T., W. & W. Ry. Co. v. Maxfield, 72 Ill. 95.
    Counsel have a right to require the court to give instructions as asked, when in conformity with the law. State v. Wilson, 2 Scam. 225; Hays v. Borders, 1 Gilm. 46; G. & C., U. R. R. Co. v. Jacobs, 20 Ill. 478.
    If sparks escape and are carried by a high wind to a great distance, by which a fire is caused in a place that would have been safe but for the wind, such loss is a remote consequence, and the company is not liable. Fent v. T., P. & W. Ry. Co. 59 Ill. 349; T., W. & W. Ry. Co. v. Muthersbaugh, 71 Ill. 572.
    Hr. Chakles A. Allen, for appellee.
    Even if the best appliances are used to prevent the escape of fire, yet if, through the overloading of the engine, fire and sparks are produced to a dangerous extent, the company will be deemed guilty of gross negligence. T., P. &. W. Ry. Co. v. Pindar, 53 Ill. 447.
    If this company suffers a grade to exist, they must so manage their engines at such places as to prevent damages from being done to property along the line of the road.
    The question of negligence is one of fact, which must be left to the determination of the jury (22 Ill. 264), and is peculiarly appropriate for the jury. Burkett v. Bond, 12 Ill. 87.
    And the question of the relative degree of negligence of plaintiff and defendant is one for the determination of the jury. St. L., A. & T. H. R. R. Co. v. Todd, 36 Ill. 409.
    The degree of plaintiff’s negligence, as compared to that of defendant, is a question for the jury. City of Centraba v. Scott, 59 Ill. 129; City of Rockford v. Hildebrand, 61 Ill. 155; I. & St. L. R. R. Co. v. Stables, 62 Ill. 313; I. C. R. R. Co. v. Gillis, 68 Ill. 317.
   Vv all, P. J.

This was an action on the case to recover damages for property destroyed by tire, alleged to have escaped from the locomotive engine of the appellant. There was a verdict and judgment thereon for $105.

There can be no reasonable doubt the fire did escape from the locomotive, and the property of appellee was thereby consumed. Appellant introduced evidence to prove that it had in use upon this locomotive an appliance of the most approved kind to prevent the escape of sparks; that the same was in good order, and that the person in charge of the engine was competent and skillful. On the other hand it appeared that the mesh in use in the spark arrester was larger than that used on some other engines on the road; that the train was nearly or quite a quarter of a mile in length, was loaded heavily and was making great speed.

It also appeared that this spark arrester was so contrived that the sparks would be thrown directly upward, but that in case of high wind these were liable to be blown further than the distance in question. All these circumstances were proper to be considered by the jury in determining whether proper care and diligence had been used to prevent the escape of tire. We are not impressed with the view that the verdict is in this respect so greatly against the evidence as to justify interference therewith. The statute expressly provides that the owner of property shall not he chargeable with negligence because he has used the same in the manner he would, had no railroad passed through or near it (Par. 104, Chap. 114, Starr & C. Ill. Slat.), and there seems to be no room in this case for exemption on the ground of contributory negligence by the plaintiff.

Various objections are urge 1 by appellant as to the action of the court in admitting and excluding evidence, the most important of which relates to the admission of evidence of the finding of cinders at different places on the farm after the fire occurred.

This proof is rather remote, bnt to some extent it goes to establish the charge that the engines of defendant, which were all equipped alike, save those which had the smaller mesh, were all apt to throw sparks, thereby supporting the general allegation that this fire was so occasioned, and supporting the position that too much fire was thrown for well equipped engines.

It was of the same class of proof that this engine set other fires the same day, and tended to show frequent danger from the use of engines equipped with the spark arresters in use on the road, and tended to contradict the position that the spark arresters were well adapted to the purpose for which they were used.

Other objections as to admitting and excluding testimony we deem it not necessary to notice, and we will only say in this connection we think no substantial error was committed.

The court declined to give any of the instructions asked by plaintiff or defendant and instead gave a charge of its own. This action of the court is criticised by appellant. After carefully examining the charge we find nothing worthy of substantial complaint. All that was necessary to a correct view of the law involved will be found in the instructions thus given to the jury. Without commenting upon the subject in detail, we are disposed to overrule this assignment of error.

It is urged also that the damages are excessive by the sum of about 85. The calculation upon which this conclusion is based excludes the testimony of plaintiff, which, if believed by the jury, would have justified an allowance larger than that made by the verdict. We can not interfere on this ground.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Wall, P. J.

license: Public Domain

text:
    John G. F. Powell v. John Hyndman.

      Replevin—Affidavit—Jurisdiction of County Court—Neu> Trial.

    Although the affidavit for a writ of replevin places the value of the property at a sum which brings it within the jurisdiction of the County Court, if the evidence shows that the value is such as to place it beyond such jurisdiction, it is error for said court to overrule an objection to its jurisdiction.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Greene County; the Hon. L. Larkin, Judge, presiding.
    Mr. Henry 0. Withers, for appellant.
    In suing out the writ of replevin John Hyndmán filed his affidavit that the goods were of the value of §fi!5, thus giving the County Court apparent jurisdiction to try the cause, but on the trial it appeared by the evidence of both John Iiyndtnan and William Hyndman that the goods replevied exceeded in value 81,000, and were worth in fact 82,900. This was brought to the attention of the County Court in a motion by defendant to dismiss the cause for want of jurisdiction of the subject-matter, which motion the court overruled and thereby, as we claim, exceeded its jurisdiction and rendered an unlawful judgment, which, on this point alone, should be reversed.
    A judgment of a court having no jurisdiction of the subject-matter is a nullity. Williams v. Blankenship, 12 Ill. 122; Randolph County v. Ralls, 18 Ill. 31. The County Court has no jurisdiction exceeding 81,000. Statute, Chap. 37, Sec. 120; Haines v. O’Connor, 5 Ill. App. 213.
    Ho appearance for appellee.
   Wall, P. J.

This was an action of replevin, brought in the County Court of Greene county. The affidavit for the writ fixed the value of the property at §615, but the evidence upon the trial showed clearly that the value was greatly in excess of §1,000.

The verdict was for plaintiff, and upon motion for new trial the point was raised that the court had no jurisdiction by reason of the amount involved.

This was overruled, erroneously, and the judgment will therefore be reversed and tlie cause remanded.

Reversed and remanded.


author: Wall,-P. J.

text:
    The Insurance Company of North America v. Jacob Hofing.

      Insurance—Policy on Barn and Personal Property—Misrepresentation as to Ownership— Forfeiture—Extent of—Fraud—Mistake in Policy— Estoppel—Damages—Remarks of Counsel.

    In an action on a policy of fire insurance insuring a barn for a certain amount and articles of personal property for separate ¡amounts, it is held: That a misrepresentation in the application and proof of loss as to the ownership of the barn, in which the wife also had an interest with the assured, does not bar a recovery in respect to the personal property, although the policy provided for a forfeiture in case of attempt to defraud the company by false swearing or otherwise; that the evidence discloses' no attempt to' defraud the company; that the policy is not an entirety but is divisible; that the forfeiture is confined to the property affected by the misrepresentation; that the plaintiff is not estopped by his statement as to the amount of loss contained in the proof of loss; that the damages are not excessive; and that the remarks of plaintiff's attorney do not require a reversal.
    [Opinion filed Sepember 21, 1888.]
    Appeal from the Circuit Court of Menard County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. N. W. Branson and T. W. McNeely, for appellant.

      When the consideration of a policy of insurance against fire is single, and the amount insured a gross sum, the contract is entire, although the sum insured is apportioned among several specific items of the property covered; and therefore a breach of the conditions of the policy as to one item avoids the whole policy. Plath v. Minn. F. M. F. I. Ass’n, 23 Minn. 479; S. C., 23 Am. Rep. 697; Ætna Ins. Co. v. Resh, 44 Mich. 55; Moore v. Va. F. & M. Ins. Co., 28 Gratt. 508; Gould v. York Co. M. F. Ins. Co., 47 Me. 403; Barnes v. Union M. F. Ins. Co., 51 Me. 110; Friesmuth v. Agawam M. F. Ins. Co., 10 Cush. 587; Brown v. People’s M. Ins. Co., 11 Cush. 280; Fire Ass’n v. Williamson, 26 Pa. St. 196; Bowman v. Franklin F. Ins. Co., 40 Md. 620; Schumitsch v. Am. Ins. Co., 48 Wis. 26; Gottsman v. Penn. Ins. Co., 56 Pa. St. 210; Lovejov v. Augusta M. F. Ins. Co., 45 Me. 272.
    In the latter case there was separate insurance on a store and on goods therein, the premium being entire, and it was held that the false representation that the insured owned the store avoided the entire insurance.
    In Plath v. Minn. F. M. F. I. Ass’n, supra, the court say: “ The policy declared on in this case shows that the consideration (§1.25) paid therefor by plaintiff was single and entire. The amount of insurance secured thereby was the gross sum of §1,150, distributed upon several distinct items of property, as therein specifically stated. It is well settled, by a uniform current of authority, that a contract of insurance of this character is an entirety and indivisible, the sole effect of the apportionment of the amount of insurance upon the separate and distinct items of property named in the policy being to limit the extent of the insurer’s risk, as to each such item, to the sum so specified. Lee v. Howard F. Ins. Co., 3 Gray, 583; Kimball v. Howard Fire Ins. Co., 8 Gray, 33; Day v. Charter Oak F. & M. Ins. Co., 51 Me. 91.”
    And the court further hold that a breach of a condition of the policy forbidding a mortgage without notice to the secretary, by mortgaging a portion of the property insured, defeated all right of recovery, “ not only as respects the loss of that portion covered by the mortgage, but the entire property embraced by the policy.”

      Mr. S. H. Blake, for appellee.
   Wall,-P. J.

This was an action upon a policy of fire insurance resulting in a verdict and judgment for plaintiff for $189.20. There was some effort to show that the fire was set by the plaintiff but the evidence wholly failed to establish the charge.

The policy was payable to plaintiff and insured him against, loss to the extent of $400 on his frame barn and $150 on his buggy, tanks, street sprinkler and farming implements therein, and $800 on his hay and grain therein.

The total insurance as shown by these separate amounts was $1,350, and it was so expressed in figures in the margin; but in the body of the paper it was written “thirteen and 50-100 dollars.”

This apparent mistake was urged as a sufficient reason for excluding the policy on the ground of a variance. The declaration described the policy according to its legal effect and the court properly overruled this objection. Upon reading the whole instrument it is clear that the amount insured was as alleged, $1,350.

The most considerable objection urged here arises from the fact that the ownership of the real estate was in the plaintiff and his wife. The lot npon .which the barn was situated was conveyed nearly twenty years before the policy was issued to the plaintiff, Jacob Hofing, and his wife, Clarissa Hofing. The grantees, though husband and wife, held under this conveyance (it being made subsequent to the married women’s act of 1861) as tenants in common. Prior to that act they would have held under such a conveyance as tenants by entirety, or as sometimes expressed, by the entireties. Cooper v. Cooper, 76 Ill. 57. It is no doubt true that ‘in the application as well as in the proof of loss there was, in a technical sense at least, a mistake in stating the ownership of the real estate to be in Jacob Hofing. This condition of the • title was as a matter of fact unknown to the company until after the proof of loss was made, and it is quite evident that the insured did not understand the legal effect of it. Indeed, it is probable the fact was not on liis mind, and that he was not aware of the clause in the policy which vitiated the insurance because of the misstatement in that regard. When, upon the trial, this point was presented, he abandoned his claim to recover for the loss of the barn. It was urged, however, that lie wras barred in respect to the personal property of which he was the sole owner, because of a provision in the policy that an attempt to defraud the company in the matter of a claim for loss, by false swearing or otherwise, shall cause a forfeiture of this policy and all claim for loss thereunder.”

The position taken in this respect is that plaintiff concealed the true condition of the title, and in the proof of loss, falsely swore that he was the sole owner of the barn. The jury found, under full instructions, that there was no attempt to de-. fraud the company in this matter, and, we think, properly, under the evidence. The objection is wholly untenable.

In this connection it is urged that the policy is an entirety and indivisible, and the breach of its condition as to the barn avoided the whole policy. This position is based upon a clause in the policy which reads thus: “If insurance is desired on property bold in trust, * * or on property of any bind in which the interest of the applicant for insurance does not amount to the entire, sole and absolute ownership, it must, in every such case, be so represented to the company, and clearly expressed in the body of the policy, otherwise there will be no liability hereunder as to such property or limited interest.”

It seems very clear that by the language of this clause the forfeiture is confined to the property affected by the misrepresentation. “ As to such property” there was to be no liability. Commercial Ins. Co. v. Spankneble, 52 Ill. 53. The court properly refused the instructions asked by the company on this branch of the case.

' The remaining points, that the damages were excessive and that the verdict was induced by improper remarks of plaintiff’s attorney in the closing argument, we consider were properly overruled by the trial court. It is true the amount of damages exceeds the statement as to the personal property as it appears in the proof of loss, but we think under the circumstances in evidence the plaintiff was not estopped by that statement. The remarks of the attorney referred to, while somewhat heated and forcible, were not of such a character as to vitiate the verdict.

Upon the whole case we think the company has no cause for complaint and that the judgment should be affirmed.

Judgment affirmed.


text:
    Adam Chapman, Administrator, v. William B. Barnes.

      Administration-—-Claim for Board and Nursing—Relationship—Instructions—Evidence.

    1. This court, upon a review of the evidence, sustains a claim against the estate of an aunt of the claimant for board and nursing in the last illness of the deceased, there having been in the minds of the parties the purpose to make and receive payment for the extraordinary services rendered by the claimant.
    2. The appellant can not complain of errors in the instruction given for the appellee, when like errors appear in those given at his request.
    3. In the case presented, the instructions given at the instance of both parties were too numerous and contained too many references to specific matters of evidence.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Greene County ; the Hon. George W. Herdhan, Judge, presiding.
    Mr. Mark Meyerstein, for appellant.
    Messrs. Withers & Henshaw, for appellee.
   Wall, P. J.

The appellee presented a claim against the estate of Hannah Chapman, deceased, for board and personal services in nursing and caring for the deceased during sickness. The case was tried by jury and resulted in a verdict and judgment for appellee for S700. The deceased was the aunt of appellee’s wife. She was never married, had some money of her own, amounting to about 82,000, which at the time of her death was loaned, and for which she held promissory notes. She resided for a number of years, ten or more, in the family of appellee, and there is much in the evidence to induce the belief that for a great part of that time she was regarded as a member of the family. At least there was no specific agreement or declaration to show that there was any expectation of making payment on her part, or of receiving compensation on part of appellee, until near the close of her life, when she repeatedly said she could never repay appellee for what he had done for her, but that she intended to give him all she had.

These declarations mainly referred, we presume, to the personal care and nursing she received from him during a long and distressing illness, which extended over several months of the last year of her life. She was afflicted with a disease known as phlegmonous erysipelas, which was loathsome and infectious, required frequent dressing, and this involved more or less risk to the nurse.

One of the children of appellee was infected with the disease as the evidence tended to prove, and there can be no doubt the services which were rendered to the deceased during this illness were not only indispensable, but were of a very unusual nature and worthy of unusual compensation. It can hardly be supposed that they were rendered without purpose or expectation of compensation, in view of the situation of the parties ; and, without referring to details, unimportant, many of them, we are satisfied there was such purpose and expectation. The chief, tangible proof on this point., consists of the declarations above referred to, and of the effort to make a gift causa mortis to appellee of the notes held by the deceased. This gift failed, owing to the legal technical objections interposed on behalf of the heirs of the deceased, and thereupon the present claim was presented against the estate.

In this respect the case of Freeman v. Freeman, 65 Ill. 106, is in point, where it appeared that the deceased frequently avowed his intention to compensate the claimant by devising his farm to him on account of extraordinary services rendered to the deceased. The evidence in this record, when all considered, supports the conclusion that there was in the minds of the parties a purpose to pay and receive pay for the extraordinary care rendered during the last year, and, in vie,w of the highly meritorious nature of ihe claim and of the value placed upon the services by the deceased, we are not disposed to cut down the allowance made by the jury, even if it be assumed that for the previous period the situation is such as to exclude the idea of compensation.

There are many objections urged in regard to the admission of evidence and to the instructions given at the request of appellee. The evidence objected to is chiefly the opinions of witnesses as to the value of the services, and the declarations of the deceased and the effort she made to give her property to the appellee in payment of what he had done for her. There seems to be no substantial reason for excluding any of this proof.

The insti’uct.ions are objected to because they are not sufficiently supported by the evidence and because they call attention, specially, to certain matters of testimony supposed to be worthy of consideration. The latter objection has some force, and were it not for the fact that this vicious feature appears also in the instructions asked and given on behalf of appellant we should regard it with more favor than we do.

The instructions on both sides were too numerous and contained too many references to specific matters of evidence, and were the fault on one side alone, we should hesitate; but as it is, and in view of the result, which, in our opinion, is a just one, we think the objection should be overruled. The judgment will be affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    City of Danville v. Harry Vangundy.

      Municipal Corporations—Defective Culvert—Notice—Negligence.

    This court sustains a judgment against a municipal corporation for injuries caused by defects in a culvert, the defendant being chargeable with negligence in not making a more thorough examination tor such defects.
    [Opinion filed October 3, 1888.]
    Appeal from the Circuit Court of Vermillion County; the Hon. O. B. Smith, Judge, presiding.
    Mr. George G. Marin, for appellant.
    To render the cit\ liable for injuries resulting from defects in “ streets ” it must appear either that the city had notice of the defect, or that it was a patent defect, and had continued so long that notice might reasonably be inferred, or that the defect was one which, with reasonable and proper care, should have been ascertained and remedied. Chicago v. McCarthy, 75 Ill. 602.
    We submit that the city had no notice of this defect in the culvert, and that it was not a patent defect, but a latent defect; and to hold the city liable for such would be unreasonable. The city is not required to have its streets so constructed as to secure immunity from danger in using them, nor is it bound to employ the utmost care and exertion to that end. Its duty under the law is only to see that its streets are reasonably safe for persons exercising ordinary care and caution. City of Chicago v. Caroline McGiven, 78 Ill. 347.
    Mr. F. Bookwalter, for appellee.
   Per Curiam.

Appellee’s horse stepped upon a plank culvert across a street of the city and broke through, whereby appellee was thrown and permanently injured. In this action he recovered judgment on a verdict for $200 damages.

Ho fault is found with the law as held and given to the jury by the court below, but it is insisted that the evidence did not show the city to be chargeable with notice of the defect in the plank. It was not so apparent as to be at once noticed by persons passing over it as they ordinarily do, but the city had recently made some other repairs of the culvert and was perhaps fairly chargeable with negligence in not making a more thorough examination for defects of this character. The fact that they might not be at once apparent to a superficial observer, imposed the duty of frequent and careful inspection. While the proof of negligence is not very clear or forcible as it appears to us in the record, we are not prepared to say that the jury, who saw and heard the witnesses, were not warranted in finding as they did.

Judgment affirmed.


author: Pleasants, J.

text:
    Lindauer Brothers & Co. et al. v. Samuel Lang et al.

      Insolvency—Fraudulent Judgments—-Bill Filed by Creditors—Jurisdiction of Circuit Court—Sheriff—Injunction.

    1. Where the assignee refuses to institute proceedings to protect the trust -property, a court of equity has jurisdiction of a bill filed by a creditor of the insolvent to set aside fraudulent judgments and to restrain the sheriff from paying over the proceeds of a sale to the judgment creditors.
    2. The exclusive jurisdiction of the County Court in matters of insolvency does not extend to a proceeding to remove a cloud from the title to property claimed to belong to the insolvent’s estate.
    [Opinion filed October 3, 1888.]
    In error to the Circuit Court of Scott County; the Hon. Cyrus Epleb, Judge, presiding.

      Messrs. J. M. Biggs and Thomas II. Devine, for plaintiffs in error.
    Messrs. James A. Warren and Morrison & Whitlock, for defendants in error.
   Pleasants, J.

The bill filed herein to the April term, 1886, of the Circuit Court for Scott county by plaintiffs in error, alleges that on the 4th day of January then last past, the defendant, Samuel Lang, a merchant of Winchester in said county, having on hand a large general stock of merchandise, but indebted beyond his ability to pay, in contemplation of a general assignment for the benefit of his creditors under the statute, and while his deed of assignment was' in course of preparation, confessed judgments in vacation in said Circuit Court, in favor of John P. Adams, Philip Warner and Leopold Kaiser, respectively, each for over 81,500; that said judgments were not based upon any dona fide indebtedness, but were fraudulently manufactured to cheat his real creditors; that under executions issued thereon the sheriff on the same day levied upon the entire stock and afterward sold it, still holding the proceeds; that on the day following Lang executed a deed of assignment of all his property for the benefit of his creditors; that the assignee afterward, on the 26th of February, agreed with said sheriff that he might sell under said executions and hold the proceeds to abide the event of a proceeding to try the right of property which had been commenced by said assignee as claimant, by which agreement said assignee limited himself in said proceeding to the single question whether judgments confessed only the day before the execution of the deed of assignment could have priority over it, and precluded himself from questioning the validity of said judgments; that said judgments and all proceedings thereunder are a fraud upon the dona fide creditors of said Lang, and arc the result of a scheme deliberately contrived and entered into by him with said Adams, Warner and Kaiser, for the purpose of cheating them out of their just demands against him; that although requested, said assignee refuses to take any steps to test their validity; and that complainants are creditors, respectively, of said Lang, and propose to take under said assignment. It makes said Lang, Adams, Warner and Ilaiser, with the sheriff and the assignee, parties defendant, and besides general relief, prays that said judgments be set aside and declared void; that the sheriff be required to turn over said proceeds to said assignee, and for an injunction to restrain him from paying them to the plaintiffs in said executions.

A preliminary injunction having been awarded by the master, the sheriff moved to dissolve it for want of equity on the face of the bill, and for insufficiency of the bond. The other defendants (except the assignee, who, though served with process, paid no attention to it and took no action) demurred to the bill, assigning for causes that it does not show that either of the complainants had obtained judgment against Lang or had any lien on his property, and that the matters therein set up are wholly cognizable in the County Court. Both the motion and the demurrer were sustained, the injunction dissolved, and, after awarding damages to the sheriff on suggestion tiled, the bill dismissed for want of .equity.

We think the action of the Circuit Court erroneous throughout. This was in no sense a creditor’s bill. It showed these judgments were in fraud of the trust created and .declared by the assignment, which was all the security complainants had for their claims against the assignor, and that the trustee refused to do his plain d-uty with respect to it. The County Court had no jurisdiction of the matter- under the statute relating to general assignments, because it had no possession of the property in question, which was held by the sheriff adversely to the assignment, in the interest of parties who had not submitted, and who, under the circumstances, could not otherwise be subjected 'to such jurisdiction. Hanchett v. Waterbury, 115 Ill. 220; Second Nat. Bank of Danville v. English, 21 Ill. App. 317, and cases there cited.

The proceeding for the trial of the right of property under the power given to that court by another statute, and the agreement in respect thereto mentioned in the bill, could not give to it such jurisdiction. By that proceeding, independent of the alleged limitation in said agreement, the assignee admitted the validity of the executions. Thompson v. Wilhite, 81 Ill. 356. And we apprehend that the County Court could not of its own motion, on such a trial, nullify a judgment or process of the Circuit Court which was regular on its face. The assignee further admitted that the goods levied on were, at the time of such levy, the property of the defendant in said executions; for his own claim of property was based wholly on a conveyance from him, of the day after.' What benefit he could have expected to receive from that proceeding, with these admissions, we are at a loss to conjecture.

The intervention of a court of equity was therefore indispensable to the protection of complainants5 rights under the assignment, and the assignee refusing, they could proceed in their own names to invoke it. Preston v. Spaulding, 120 Ill. 214 et seq.; S. C., 18 Ill. App. 349 et seq.; Second Nat. Bank v. English, supra.

We are further of opinion that the averments of the bill warranted the injunction against the sheriff. There was no need to charge him with fraud. It was enough that he was being the instrument, however innocent himself, to execute the fraudulent purpose of others. If the injunction bond which the master had approved was defective, or for any reason insufficient, opportunity should have been offered to complainants to file a proper one.

The decree will be reversed and the cause remanded for further proceeding in conformity herewith.

Heverstd a/nd remanded.


text:
    Genafeva Mueller v. Emma Newell.

      Forcible Detainer—■Parties—Abstract—Omission of Instructions.

    1. The action of forcible detainer can only be maintained by one who is entitled to possession.
    2. This court declines to consider instructions which are omitted from the abstract.
    [Opinion filed October 3, 1888.]
    Appeal from the Circuit Court of Cass County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Leeper & Thacker, for appellant.
    Messrs. Pollard & Phillips, for appellee.
   Pleasants, J.

Forcible detainer. Verdict and judgment for defendant. Plaintiff’s agent,, who was her husband, testified that when the suit was commenced, the premises had been and were leased to one Thompson, and though he spoke of the lease as in writing and then produced it, counsel here, claim it is only an agreement to lease; yet the abstract shows nothing of it. From the evidence as abstracted it would seem that he was then entitled to the possession as against her, so that she could not maintain the action.

Since the instructions given or asked are wholly omitted from the abstract, we decline to consider any point made on them. This is the least we can do to sustain the rule. Enough appears to satisfy us that the judgment should not be reversed.

Judgment affirmed.


author: Per Guriam.

text:
    Jerry Shea v. Jacob A. Wagner.

      Practice—Error without Prejudice—Physician—Special Contract— Conflict of Evidence.

    1. This court will not reverse for an error in the admission of evidence which has worked no injury to the appellant.
    2. This court will not interfere with a verdict based on the conflicting testimony of the parties.
    [Opinion filed October 3, 1888.]
    Appeal from the County Court of Adams County; the Hon. B. F. Beeriae, Judge, presiding.
    Mr. L. H. Berger, for appellant.
    Mr. George C. McCroee, for appellee.
   Per Guriam.

It is, perhaps, fortunate for both parties, that the materiality of the errors in this record is not in direct proportion to their number.

Appellee brought the suit before a justice of the peace to recover for services as a physician, and got judgment for $30-On appeal it was stipulated that no question would be made as to the rendition or value of the services, the only defense being that they were rendered upon an express contract to effect a perfect cure of defendant’s catarrh for §25, which had not been effected.

The parties were the only witnesses to the contract or employment, and their testimony was quite irreconcilable.

Plaintiff was permitted to prove, as in rebuttal, that on the trial before the justice he did not admit that there was a special contract of the character claimed, and also, what would be proper treatment in the cases put to the expert witnesses. No such matter had been introduced by the defendant, and, of course, all this testimony was improper ; but we do not see how it could have strengthened plaintiff’s case or prejudiced that of the defendant.

Neither the abstract nor brief gives us any idea of the instructions. We do not understand that the ruling on the motion to retax the costs is embraced in this appeal.

Judgment affirmed.


text:
    The First National Bank of Jerseyville v. John H. Belt.

      Banks—Overdraft—Sale of Cattle—Title—Application of Proceeds— Agency.

    Where the proceeds of stock, shipped for the owner by a local dealer to a broker, are improperly placed to the credit of a bank for the use of such local dealer, the bank can not- apply the same on a previous overdraft by him.
    [Opinion filed October 3, 1888.]
    Appeal from the Circuit Court of Jersey County; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Goodrich & Ferns, for appellant
    If Moore was so indebted to the bank, and on the 3d it credited the proceeds of the sale to his credit, or on the morning of the 4th, before they received the telegram sent by Cassidy Bros. & Co., and not having learned of Belt’s claim until the next day, the bank was justified in so doing, and would, in law, be freed from any liability to appellee on his pretended claim. The deposit in this case, under the law, was a general deposit. Brahm v. Adkins, 77 Ill. 263.
    And where money, paid into a hank, is passed generally to the credit of the owner, the bank' does not hold the money as bailee, but the relation of debtor and creditor is created, and the money may be applied by the bank to the payment of any demand it may have, against the depositor. The appellee and Moore, then, on the 3d day of December, 1886, were mutually indebted to each other; and Moore could only call as a matter of right for the balance due him. Commercial Bank of Albany v. Hughes, 17 Wend. 94; Morse, Banks & B., 2d Ed. p. 48; International Bank of Chicago v. Jones, 7 West. R. 693.
    Mr. Joseph S. Carr, for appellee.
   Pleasants, J.

Isaac Moore kept a meat market at Jersey-ville and occasionally shipped live stock. In September, 1886, he made an arrangement with Cassidy Bros. & Co., a commission firm at East St. Louis, by which the net proceeds of all hogs shipped by him to them were to be deposited in the Fourth National Bank of St. Louis “for advice and credit of ” appellant. In the preceding spring he had sold to appellee, a farmer near Jersey ville, thirty-four head of cattle, with an agreement to re-purcliase them at 84.50 per hundred weight if they should do well on the grass. By a later arrangement he took, during the summer and fall, hv two or three ata tíme as he needed to supply his meat market, seventeen of the number, paying for them on account from time to time as he could. When winter came on and they required to be fed, appellee pressed him to take the rest and close up the matter. But cattle had fallen and he claimed to be unable to pay for thorn. It was thereupon agreed that the price to him should be reduced to §4.30 ; that he should ship them to his commission men in the name of appellee, “ so that the net proceeds would come straight to him,” and that he, Moore, would bear the anticipated loss. Accordingly on the night of December 2d, he did ship to them, by the Alton road, the remaining seventeen head, the shipping contract being signed tc John H. Bolt, shipper,per I. Moore.” On the third he telegraphed them, in the name of appellee, to “give hog ma.ket and if cattle sold, give net proceeds,” with which they complied by answer on the 4th, addressed to “John H. Belt, Jerseyville, Ill.,” stating that “the cattle sold net §487.47.”

It appears, however, that notwithstanding the notice so given they deposited these proceeds to the credit of appellant for the use of Moore, and so advised it on the 8d. They also sent the account of sales to Moore, which he received on the evening of the same day, and thereupon immediately telegraphed them that “the cattle were Belt’s,” of which they advised appellant by ten o’clock a. m. of the 4th. On that day also appellee called at the bank and asked the teller “if they didn’t have §487.47 there from his cattle,” to which the answer was that “ there was just that amount that came from cattle Moore shipped to Cassidy Bros. & Co., but he would have to see the president about it.” Appellee then tried to see the president but did not succeed until the 7th, when he demanded the money, which was refused on the ground that Moore, who was indebted to the bank by overdraft, had already been credited with it.

Thereupon this action was brought for money had and received, and plaintiff obtained a verdict for the amount stated with interest, on which the court, after overruling a motion for a new trial, rendered judgment.

It is claimed that to be entitled to recover, appellee was bound to prove that the title to these cattle, when they were sold on the market, was in him, and that the bank had notice of his interest when it credited the proceeds to the account of its debtor. All the objections urged to the rulings of the court below rest on this idea, of the law; and then it is insisted that the evidence failed to show it had such notice or he such title.

We think the question is, to whom did the money rightfully belong when this suit was brought? Who owned the cattle is immaterial, unless it throws light upon that question. He would not necessarily own the proceeds, for he might effect, ually appropriate them to another in anticipation of their receipt. In this case, if Moore re-acquired the title from Belt and did not part with it until the sale was made by Cassidy Bros. & Co., he clearly appropriated the proceeds to Belt, and with his concurrence, in part payment for them. To this there was no legal hinderance; nobody else had acquired any right in or lien upon the cattle or the proceeds as against him, and the notice to the agents who received them was sufficient to protect the rights of Belt.

The only other view from the evidence, upon the supposition that Moore owned the cattle, is that he invested Belt with the title when he delivered them to the carrier. This, also, he was free and competent to do; and that he understood he did it, is manifest from his signature to the shipping contract and his telegrams to the consignees.

In either, it is clear that the deposit to the credit of appellant for the use of Moore, was an error on the part of Cassidy Bros. & Co. This money was not within the arrangement of September. It was not the proceeds of hogs, nor of anything shipped by Moore or for his account, but of cattle shipped by Belt, or for his account. It should therefore have been deposited to his credit. But appellant received notice of this error almost as soon as of the deposit—while it was in possession of the money without any right acquired or liability incurred in respect of it which could justify the withholding of it from the rightful owner. The entry on its boobs to the credit of Moore’s overdrawn account amounted to nothing. It does not appear that it had settled with Moore on that basis. And if it did, it would have been a settlement in error, which would bind nobody—certainly not Belt, who was in no way responsible for it. Moore himself could not ratify it and it required no voucher from him for its correction.

We see no error in this record, and think the judgment was plainly right. Judgment affirmed.


author: Pleasants, J„

text:
    James C. Moore v. John A. Montelius.

      Sales—Possession Retained by Vendor—Fraud—Exemptions.

    A sale with possession remaining with the vendor is not fraudulent as to his subsequent creditors.

      [Opinion filed October 3, 1888.]
    Appeal from the Circuit Court of Ford County; the Hon. Aleeed Sample, Judge, presiding.
    Mr. Alex. Claek, for appellant.
    Under the plaintiff’s replication that the property replevied was not that of B. F. Clark but his own, he would have to prove by a preponderance of the evidence a right to the possession of each animal awarded to him by the jury. Atkins v. Byrnes, 71 Ill. 329.
    The same law governs the increase that governs the mothers. The owner of one is the owner of the other. Blackstone Com., Book 2, Chap. 25, * 388.
    That for the purposes of this execution the mothers were Clark’s property, see Lefever v. Mires, 81 Ill. 456; Thompson v. Wilhite, 81 Ill. 356. The last was a case very similar to this. Hogs were left with the owner and he was employed to feed them. That employment did not make him the agent of the purchasers for the purpose of making his possession the purchasers’. So that admitting, which we do not, that the agreement between Clark and Montelius changed the former from a renter to a hired man, that would not avoid the necessity of a change of possession to make the title to the stock bought from Clark, or its increase, good in Montelius against this execution creditor.
    But assuming that a portion of the stock placed by Montelius upon the premises occupied by Clark, or their increase, were levied upon, what was the interest of Clark in them at the time of such levy with reference to the execution creditor? Had he not a special property in them as bailee, coupled with an interest liable to execution ?
    In Weaver v. Darby, 42 Barbour, 411, B. was to furnish D. money to buy 15,000 feet of oak timber in th'e woods. It was to be cut, hewn and rafted by D. and delivered at Troy, and D. was to have for his compensation 10£ cents per cubic foot of the proceeds; held, B. had general property in the timber but no right to possession thereof. D. had a special property accompanied by possession, and an interest liable to execution.
    Messrs. Cook & Moffett, for appellee.
    Creditors can not complain of any dealing with exempt property. Faurote v. Carr, 9 N. E. Rep. (Ind.) 350; Burdge v. Bolin and wife, 6 N. E. Rep. (Ind.) 140; Freehling v. Bresnahan, 28 N. W. Rep. (Mich.) 531; Gillespie v. Brown, 20 N. W. Rep. (Neb.) 632; Anderson v. Odell, 16 N. W. Rep. (Mich.) 870; Cole v. Green, 21 Ill. 104; Buckley v. Wheeler, 52 Mich. 1.
    Where the possessor of exempt property sold it and it was levied on for his debt, held, that the purchaser might reclaim it from under the execution, but the vendor could not find title on which to rest a suit. The question must arise between the vendee and the creditors. Mandlove v. Burton, 1 Ind. 39.
    It is beyond question that in March, 1884, when Clark sold his stock to Montelius, this execution creditor had no claim against him. The arrangement had been running from that time until 1885, before any of this debt was contracted.
    If it be conceded that the delivery was not sufficient, still none but those who were creditors at the time of the sale can question its validity. The fatal weakness of appellant’s case is that the record fails to show that he was a creditor of Clark in March, 1884, when this transfer was made. Ives v. Hulce, 14 Ill. App. 389, citing Wooldridge v. Gage, 68 Ill. 159.
   Pleasants, J„

One B. F. Clark having been tenant of appellee for two years, on March 1, 1884, they made an agreement in writing whereby appellee bought certain of his live stock then on the premises, and was to furnish more, with other things mentioned, and Clark was to take care of it and of the farm and “ have for his services” one-lialf the proceeds of sales of their increase and product, all of which were to he made by or under the direction of appellee.

In December, 1886, appellant, a constable, under an execution issued by a justice of the peace against Clark, levied on and removed from the place twenty-one head of cattle, which appellee replevied and recovered by this action.

The only defense attempted to be set up by the evidence was justification under the writ. It was contended that the sale to appellee was void because possession of the property was left unchanged in Clark ; and that four of those replevied were calves of cattle included in that sale.

Several points are made on the rulings of the court below, among which was an instruction for the plaintiff to the effect that if, at the time of the sale, the property was exempt from execution against Clark, the sale could not be fraudulent as against his creditors.

While we are not to be understood as approving this instruction in its application, under the statute then in force, to property not specifically exempted and in respect to which no steps had been taken to exempt it, we affirm the judgment for the reason that the evidence fails to show the plaintiff in the execution was a creditor of Clark when the sale was made. It clearly indicates that the indebtedness all arose afterward. In the like case of Ives v. Hulce, 14 Ill. App. 389, this court decided that “ such transactions are void only as to prior, and not as to subsequent creditors,” citing Wooldridge v. Gage, 68 Ill. 159, in which other decisions of the Supreme Court to the same effect are referred to.

Some "other questions are made in the argument, but none that interfere with the operation of this rule. We therefore deem it unnecessary to consider them.

Judgment affirmed.


text:
    John B. Hunter v. Urban B. Harris, Administrator.

      Evidence—Promissory Note—Action by Administrator—Issue as to Genuineness—Conflict of Evidence—Irrelevancy— lime and Place—Possession—DcCte—Whether Material—Presumption—Practice—Sworn PUa —Instructions—Remarles of Counsel.

    1. In an action by an administrator on a promissory note the execution o£ which is denied, the plaintiff may show that it existed prior to his appointmenfc among the papers of the deceased and in the place where he usually kept such papers.
    2. Where the genuineness of a promissory note is in issue, the defendant may show such facts as would exclude the possibility or probability of its execution at the time and place indicated on its face.
    3. While the date of the note is prima facie evidence of the time of its execution, it is not conclusive.
    4. Evidence of but slight importance is admissible, if not wholly irrelevant.
    5. Where the evidence is sharply conflicting, and no error of law has intervened, this court will not interfere with the verdict of the jury.
    6. It is proper in a case wherein a sworn plea is filed, to instruct the jury to disregard the affidavit of the defendant, as such affidavit is not evidence.
    7. The jury were properly instructed in the case presented, that it is immaterial whether the note was executed at the purported time and place, although the defendant had sought to prove that it was not made at such purported time and place. The rule stated is correct and applicable to the case presented.
    8. Instructions which, taken together, .are accurate and clear, are sufficient.
    9 An objection to remirks of counsel can not be first raised in this court.
    [Opinion filed October 3, 1888.]
    Appeal from tbo Circuit Court of Sangamon County; tbe Hon. J. A. Creighton. Judge, presiding.
    Messrs. John M. & John Mayo Palmer, and Brows', Wheeler & Brown, for appellant,
    Messrs. Patton, Hamilton & Shutt, for appellee.
    Tbe date is no part of the note, nor does it show where it was made. Shaw v. Wood, 8 Ind. 518; 1 Daniel on Neg. Inst., Sec. 83; Michigan Ins. Co. v. Leavenworth, 30 Vt. 11.
    If a note is not dated, it will be considered as dated at the time when made. Giles v. Bourne, 6 Maule & S. 73.
    The place where the note purports to have been made, usually written before the date, is no part of the note. Hence no presumption exists that the note was written or signed at that place. The place mentioned in the date is only a suggestion as to where the maker resides, and is not considered an admission or stipulation that the demand of payment may be made at that place. Edwards on Bills and Notes, 152, 2d Ed; Anderson v. Drake, 14 Johns. 114; Taylor v. Snyder, 3 Den. 145.
    Smith had paid about §60,000 for Hunter and it is perfectly reasonable that appellant, as he prospered in business after his discharge in bankruptcy, should have been willing to pay back more of this sum than §5,000. And this note, for anything that appears from the letter and what was said at the time by Smith (who seems to have been dissatisfied), may and most probably was made and delivered after the 6th of March, 1880, and dated back for some reason unknown to us. And this seems the more probable since the note was payable five years from date.
   Wall, P. J.

This case was here at a former term and was then reversed because certain evidence offered by appellant was rejected. 24 Ill. App. 637. A second trial resulted, as did the first, in a judgment for the appellee.

The action is assumpsit upon a promissory note for the sum of §10,000, alleged to have been given by appellant to William S. Smith, now deceased, on the 6th day of March, 1880, payable five years after date, with interest at the rate of six per cent, per annum from date.

The execution of the instrument was denied by sworn plea and the burden of proving it was thereby devolved upon the plaintiff.

The sole issue of fact was whether the defendant wrote his name there, as it was not suggested that he had authorized it to be written by another. The payee having died and the suit being maintained by his administrator, the defendant was incompetent to testify, and the proof consists mainly, on both sides, of the opinions of witnesses as to the signature, and sundry circumstances tending to support the respective positions of the parties. The appellee proved by a daughter of the deceased that she saw the note in his possession some months before his death, which occurred in May, ,1883. . During his last illness, which was protracted, she rendered him such assistance as he required in reference to his business matters, attended to the most of his writing and had occasion to examine his papers. At one time, probably in February, a man whose name was Harlin, called to pay his note, and at her father’s request she went to the wallet where he kept such papers, and, in looking in the pocket market H, she saw the note in suit She was surprised to see it, read it over and meant to speak to her father about it, hut on account of his illness, and for other reasons possibly, she neglected to do so though she frequently noticed it after that time. When Mr. Smith died, this note and other papers of value were securely kept in manner described by her until the note matured and suit was brought upon it. The plaintiff produced the testimony of twenty-five persons to the effect- that they were acquainted with the handwriting of the defendant and that, in their opinion, the signature in question was his.

On the part of defendant we find the testimony of an equal number of persons that they were acquainted with his handwriting, and that they had a contrary belief. Three of these had testified for the plaintiff, hut had been led to change their opinions. Probably the jury were inclined to reject all the testimony of these three, thus leaving each side with twenty-two witnesses whose conflicting testimony was to he weighed and considered and to he given such credit as seemed warranted by their intelligence, means of knowledge, fairness and general capacity to speak upon the point in issue. The defendant also offered the evidence rejected on the first trial, and which is stated as fully as need he in the former opinion rendered in this case, which tended strongly to show that, at the time and place when and where the note purports to have been executed, the parties had a different transaction, and not this one, and therefore if this note was genuine it must have been made at some other time and place, and for some unknown reason dated as now appears.

It is urged on behalf of appellant, that it was error to admit the evidence of the daughter of deceased as to the possession of the note by him, as already stated. We passed upon this point when the case was here before, and we are disposed to adhere to the views then expressed, in that respect. For the reasons then given, the objection is overruled.

In the second place, it is argued with great force and apparent confidence that the evidence does not support the verdict and that the court below erred in refusing a new trial. As already remarked, it may be said there are twenty-two witnesses arrayed on each side as to the verity of this signature. We can not now refer to the testimony of each in detail, though there are many matters which might well be dwelt upon, pro et con, as to their respective weight and value.

It is conceded the signature bears a close resemblance to the genuine, and if a forgerv, it is a clever one. The proof thus offered by plaintiff is exceptionally strong. It comes "from men living in different localities and engaged in different avocations, who were familiar with the defendant, and most of them had numerous and important transactions with him, wherein they became more or less acquainted with his handwriting. Hearly half of them were bank officers and the like, and by means of their daily occupation were especially skilled in regard to handwriting, and presumably their opinions should have extra weight on that account.

For the defendant, also, there were a number, though a smaller number, of such witnesses, who may be called experts, and the proof on the part of the defense in this respect is entitled to great weight and consideration by reason of its quantity and its quality.

There are not a few salient points on each side in reference to the amount of information (and the mode of its acquisition), the interest or bias of the various witnesses and the business and other relations they sustain to the parties, as well as the different degrees of confidence and force displayed in their respective statements.

A part of this testimony on both sides was in the form of depositions, but so far as it was oral the jury and the - court below could tell better than we what credit should be given to each witness.

We do not advert to sundry matters of proof which were urgently pressed upon our attention in the argument as to the circumstances of the transactions which occurred on the 6th of March, 1880, the date of this note, the extensive business relations of the deceased with the appellant and his partners, the various declarations and actions of the deceased, seemingly inconsistent with the possession of this note if genuine, the supposed improbability that it would have been given by appellant, etc., nor shall we follow counsel in their suggestions, explanations and theories in support of their respective positions upon the main question of fact involved. We have considered all! these, and have carefully examined the whole record, and, bearing in mind the large amount at stake and the unfortunate consequences of error upon our part in this respect, we are not impressed with the belief that injustice has been done by this verdict.

Two juries have reached the conclusion that the signature is genuine, though only the second jury had before them all the proof contained in this record.

It is hardly necessary to quote or even suggest the well settled rules now prevailing in courts of review, where there is such a conflict of evidence. Applying those rules, we are satisfied that we should not interfere upon the point now under consideration, and that, unless some error of law has' intervened which tended to prejudice the appellant, the judgment should be permitted to stand ; and this brings us to the instructions given for appellee of which complaint is made by appellant. The second instruction is said to be misleading. It is as follows :

“2. The court instructs the jury that the affidavit of the defendant denying the execution of the note, is not evidence ; and they have no right to consider it in determining whether the defendant executed and delivered the note in evidence.”

It is argued in the brief that, as a matter of fact, the affidavit was not in evidence, and the effect was to call the attention of the jury to something not before them, as though it was, and then stigmatize it as false and unworthy- this to the prejudice of the appellant. We think no such consideration could reasonably arise in the minds of the jury. Such an instruction is often given in cases where a sworn plea is necessary under the practice act, and is not improper, from the fact that the jury will necessarily know that such an affidavit has been made by the defendant, and, unless advised by the court, they may not know that its only office is in aid of the pleading, not in aid of the proof. There was no error in this respect.

In the third place a vigorous and ingenious argument has been made to demonstrate that the Circuit Court erred in giving the following instruction at the instance of appellee :

“ 3. The court instructs the jury that it is not material whether the note sued on was executed at the time and place it bears date or at another time and place, provided you believe from all the evidence, that it was in fact signed by the defendant and delivered by him to William S. Smith in the lifetime of said Smith.”

It is urged that, in effect, this advises the jury to disregard the evidence offered by appellant, tending to show that the note was not made at the time and place it bears date, and the evidence in this connection tending to discredit the instrument generally. While this position is pressed upon us very earnestly, we are unable to see anything substantial in it. True, the appellant labored hard to prove the note was not made at the purported time and place, and true, the court here instructs the jury that such proof would not vitiate the undertaking if it was in fact made at another time and place. This is conceded to be good law, and the case was one where it was applicable beyond all question, for it may be assumed the jury concluded the note was not made at Buffalo on the 6th of March, 1880, but at a later date, and ante-dated for some reason not shown. What error was there in giving the jury this instruction? Had they not been so instructed they might have found for defendant, though believing he made the note, but not at the date therein given. Such a finding would have been manifestly wrong, and to provide against the danger of it, the instruction was pertinent and proper. The jury can not be presumed to have understood the court to mean that all evidence tending to show that at said time and place the note was not made, and that a different and apparently inconsistent transaction occurred, was immaterial and to be disregarded. That is not the obvious and natural import of the instruction, and when taken in connection with the evidence referred to, and as to the competency whereof no objection is made, there is no reason to believe the jury were misled by it, even when it is considered alone. But, however this may he, all doubt disappears when we refer to the following instructions which were given at the instance of appellant on the same subject:

“5. The court further instructs you that the law presumes the note sued on in this case was executed (if at all) on the day it bears date, and this presumption continues until overcome by proof; and you can not presume, or infer without proof, that the note in controversy does not bear the true date.
e‘ 6. If you believe from the evidence that the note in controversy bears date March 6,1880, the presumption is that it was executed (if at all) on that date, and this presumption continues, unless you believe from the evidence that it was made or executed on some other or different date.”

If it could be supposed that, upon the third instruction for appellee, the jury might have received the impression suggested, it is impossible to believe the)' could have retained it after the reading of these. We think this objection is untenable.

A minor objection is raised in reference to the admission of the evidence of Miss Smith, that she was not at home during the month of March, 1880. She appeared to have been greatly relied upon by her father during the closing months of his life in all his business affairs, and it might have been inferred from her silence that she knew he made but one visit to appellant in March, 1880. We see no objection to this proof, in order to negative such an inference.

The matter, though of but slight weight, was not wholly irrelevant.

In the oral argument, some stress was laid upon certain extracts from the closing speech of plaintiff’s attorney upon the trial. It does not appear that the attention of the court was called to the remarks referred to, and for this reason, no error can be assigned in that regard; hut upon reading the remarks, and without knowing in what connection, or in reply to what, from the other side, they were made, we think not much importance should be attached to this complaint.

Ho other objections were urged in the argument or in the printed brief, and we are of opinion the judgment of the Circuit Court should be affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, for use, etc., v. William W. Foster et al.

      Sheriff—Bond—Debt—Practice.

    In an action upon a sheriff’s bond to recover moneys alleged to be unlawfully retained by him, this court, in consideration of the importance of the question involved, declines to interfere with the judgment for defendant, with a, view to expediting a consideration of the case by the Supreme Court.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Macon County; the Hon. C. B. Smith, Judge, presiding.
    Mr. Edward P. Vail, for appellant.
    Messrs. Johns & Randolph, Crea & Ewing, Mills Bros., and Bunn & Park, for appellees.
   Per Curiam.

This was an action of debt on the official bond of the sheriff of Macon county, to recover various sums unlawfully retained by the sheriff, as alleged, and sundry amounts illegally claimed by the sheriff, as alleged, and allowed him by the county board.'

The declaration contained twenty-seven breaches. To the greater number of these breaches a demurrer was sustained, and to certain pleas which were interposed to remaining breaches a demurrer was overruled, and final judgment was rendered against the plaintiffs.

Several important questions of law aris.e upon these rulings, and it seems important that there should be an authoritative settlement of these questions as early as possible. While we are not entirely satisfied with the conclusion of the Circuit Court as to some of the points involved, we deem it advisable to affirm the judgment in order that the ease may go to the Supreme Court without the delay and expense that would be occasioned by a reversal in this court.

The judgment will therefore be affirmed.

Judgment affirmed.


author: Conger, J.

text:
    Sarah Dulin and J. W. Dulin v. Ezra M. Prince.

      Replevin — Contract to Convey Real Estate — Collateral Security — Chattel Mortgage—Former Adjudication.

      1. A former adjudication docs not bar a matter not made an issue or necessarily involved therein.
    2. In an action of replevin brought by a mortgagee to obtain possession of chattels mortgaged to secure a note given as collateral security for the execution of a contract to convey real estate, this court declines to interfere with the judgment for plaintiff.
    [Opinion filed November 23, 1888.]
    Appeal from the County Court of McLean County; the Hon. C. D. Myer, Judge, presiding.
    Messrs. Tipton & Beaver, for appellants.
    It is a well settled rule of law that a party can not occupy inconsistent positions, and where one has an election between several inconsistent courses, he will be confined to that which he first adopts. Any decisive act of the party done with knowledge of his rights and of the fact, determines his election and works an estoppel. Bigelow on Estoppel, 578; Herrington v. Hubbard, 1 Scam. 569; Derrickson v. Krause, 4 Ill. App. 508.
    Appellee had two remedies: one to proceed by bill in chancery for specific performance, and the other by action at law for damages; and in this event he held the chattel mortgage as collateral security, unless it shall be determined that appellee simply took the mortgage to enable appellants to get their goods out of the State.
    It is not claimed that appellee gave any consideration for the chattel mortgage other than as it formed apart of the contract of September 7, 1886, and the court clearly erred in refusing to allow defendants to prove this fact, that if the mortgage was given for the purpose claimed by appellants then appellee could not recover as it was in fraud of creditors of the appellants. Miller v. Morckle, 21 Ill. 153; Whitson v. McFarland, 22 Ill. 40; Reidle v. Munlausen, 20 Ill. App. 74; Lill v. Brant, 6 Ill. App. 374; Dunaway v. Robertson, 95 Ill. 426.
    Where a party lias two or more remedies for the same wrong, in which the measure of damages might be different, electing one and pursuing it to judgment is a bar to any other remedy. Walshehal v. Chesapeake & O. C. Co., 59 Md. 423; Wan v. Percival, 61 Me. 391; Goodrich v. Yale, 97 Mass. 15; Beale v. Pearre, 12 Md. 566; Bunker v. Tufts, 57 Me 417; Bennettshal v. Hood, 1 Allen, 47; Sweet v. Barclay, 53 Me. 346; Smith v. Way, 9 Allen, 472; Holbrook v. Foss, 27 Me, 441; Warren v. Cumings, 6 Cush. 103; Morton v. Dougherty 3 Gray, 372; R. R. Co. v. National Bank, 102 U. S. 14; Crogin v. Lowell, 109 U. S. 194; Briscoe v. Lloyd, 64 Ill. 33; Hicks v. Chapin, 67 Ill. 375; Peterson v. Nehf, 80 Ill. 25.
    A judgment on decree is conclusive on the parties. Howley v. Simons, 102 Ill. 115; Cooper v. Cabin, 105 Ill. 224.
    And it is equally true that when a party has his election to proceed at law or in equity, if he proceeds at law he is estopped from proceeding in equity. Hanley v. Shelly, 62 Col. 155; Wells, Fargo & Co. v. Robinson, 13 Col. 141; Hicks v. Chapin, 67 Ill. 375; Cranson v. Smith, 47 Mich. 647.

      If the chattel mortgage was collateral and part of the contract as found by the decree, then the decree bars any right of recovery on the chattel mortgage. The principle of res adjudieata embraces not only what was, but what might have been decided in the case. Rogers v. Higgins, 67 Ill. 244; Shelly v. Donlin, 70 Ill. 378; Ruegger v. Ind. & St. L. R. R. Co., 103 Ill. 449; Stockton v. Ford, 1 Blackf. 360; Stockton v. Ford, 18 How. 518; Hicks v. Chapin, 67 Ill. 375; Briscoe v. Lloyd 64 Ill. 33.
    “This principle of res adjudieata embraces not only what actually was determined in the former case but also extends to any other matter properly involved and which might have been raised and determined in it.” Rogers v. Higgins, 67 Ill. 247; Tilley v. Bridges, 105 Ill. 336; Hanna v. Read, 102 Ill. 599.
    Hr. Frank R. Henderson, for appellee.
    The consideration and bona fide of the note and mortgage were res adjudieata by the decree in the chancery case. Wherever a in dement cannot be rendered without decidme V O o specific issues it will be conclusive on those issues in any future litigation between the same parties. 1 Herman on Estoppel and Res Adjudieata, 232, Sec. 210.
    Appellee is not estopped by that decree from maintaining his suit, a former judgment being no bar to a matter not made an issue or necessarily involved in the former suit, or which, under the pleadings in the former suit, could not have been decided. 6 Wait’s Actions and Defenses, 785, See. 28; Bentley v. O’Brien, 111 Ill. 53; Lloyd v. Lee, 45 Ill. 278; West v. Jarnett, 3 Har. & J. 485; Barth v. Burt, 43 Barb. 628.
   Conger, J.

The appellants, on the 7th of September, 1886, entered into a written agreement with appellee, by the terms of which appeljec was to procure for appellants a United States homestead right to 160 acres of land in Kansas, and appellants were to convey to appellee twenty acres of land in McLean county. To secure performance on the part of appellants, they at the time executed to appellee a chattel morígage on certain property, to secure their note of $500, given to appellee.

Appellants refusing to comply with their agreement to convey the twenty acres, a bill in chancery was filed, and a decree rendered requiring them to convey, and upon default that the master should. The decree also found that the chattel mortgage was given as collateral security to secure the performance of the agreement to convey.

Afterward appellee brought an action of replevin for the goods and chattels included in the chattel mortgage, recovered them below, and appellants bring the record of that replevin suit for review.

We see no grounds for complaint upon the part of appellants. The validity, good faith and purpose of the chattel mortgage were adjudicated and determined in the chancery proceedings, and no more.

How much appellee might he entitled to recover under his chattel mortgage was not before that court, and could not have been determined at that time. That court did determine that it was given to secure the performance by appellants of their part of the written agreement, and it follows that the mortgage is a valid one, and that the possession of the property described in it would rightfully pass to appellee as under any other chattel mortgage. When appellee has been repaid for all such things as the mortgage contemplated he should be secured in, then it will be time for appellants to demand a settlement and repayment of the balance, if there be any.

The judgment of the Circuit Court will he affirmed.

Judgment affw'med.


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    Lake Erie & Western Railroad Company v. George W. Cruzen et al.

      Railroads — Fires—Spark-Arresters — Evidence — Instructions—Damages.

      1, A railroad company is responsible for damages done by fire caused by sparks from its locomotives igniting inflammable matter on its right of way, however recently the same was acquired from another company.
    2. In an action to recover for damages suffered through the burning over of grass lands by reason of sparks escaping from a locomotive engine, this court declines to interfere with the judgment for plaintiff, there being no substantial error in the admission or exclusion of evidence.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Ford County; the lion. Alfred Sample, Judge, presiding.
    Mr. Miltoe" H. Cloud, for appellant.
    Messrs. Tiptoft & Moffett and Cook & Moffett, for appellees.
    Appellant company, when it took possession, knew of the condition of this right of way. In assuming to run and operate said road, and in assuming to run its engines over this road with right of way in such condition, assumed all the liabilities attending therewith, and became liable for damages resulting. Illinois Central R. R. Co. v. Kanouse, 39 Ill. 272; The Toledo, P. & W. R. R. v. Rambold, 40 Ill. 143; The East St. Louis &. C. R. R. v. Gerber, 82 Ill. 632; Pittsburg & St. L. Ry. Co. v. Campbell, 86 Ill. 443; Balsley v. St L., A. & T. R. R. Co., 119 Ill. 68; Slossen v. Burlington, C. R. & N. W. Ry. Co., 14 N. W. Rep. 244.
    The law in this State is that proof that fire was communicated by a locomotive engine while upon or passing along any railroad in this State, is full p?'ima faoie evidence to charge with negligence the railroad company operating such road or such engine. R. S., Chap. 114, Sec. 104; Chicago, etc., R. Co. v. Quaintance, 58 Ill. 389; Pittsburg, etc., R. Co. v. Campbell, 86 Ill. 443; C. & A. R. R. Co. v. Pennell, 110 Ill. 435.
    To overcome this, appellant is required to show by aifirmative evidence that its engines at the time or times in question were equipped with the most approved appliances to prevent the escape of fire, and that same were in good repair; that the engines were in good repair, and were properly, carelully and skillfully handled by a competent engineer. Chicago, etc., R. Co. v. Quaintance, 53 Ill. 389; Pittsburg, etc., R. Co. v. Campbell, 86 Ill. 443; I., B. & W. Ry. Co. v. Nicewander, 21 Ill. App. 305; C. & A. R. R. Co. v. Pennell, 110 Ill. 435.
    The Statutes of Illinois provide, Chap. 114, Sec. 63:
    “It shall be the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds or other dangerous combustible materials; and for neglect shall be liable to penalties named in Section I.”
    Section one referred to in this section is the section in regard to fencing, erecting cattle-guards, etc.
    The duty imposed in the one section is as imperative in the one as the other. It is a statutory duty imposed, and a failure to comply with the requirements of the statute is negligence per se, or what in law is termed negligence, without regard to facts. Alsop v. O. & M. Ry. Co., 19 Ill. App. 292; St. Louis, A. & T. H. R. R. Co. v. Huggins, 20 Ill. App. 639; Rockford, R. I. & St. Louis R. R. Co. v. Lynch, 67 Ill. 149; T. P. & W. Ry. Co. v. Pence, 68 Ill. 524.
    In other words, in a failure to comply with a statutory duty, the law will impute negligence and so declare it, and that without any proof of actual negligence. St. L., A. & T. H. R. R. Co. v. Huggins, 20 Ill. App. 639; I. B. & W. Ry. Co. v. Nicewander, 21 Ill. App. 305; Pittsburg, C. & St. L. Ry. Co. v. Campbell, 86 Ill. 443; Rockford, R. I. & St. L. R. R. Co. v. Rogers, 62 Ill. 346.
   Wall, P. J.

The appellees recovered a judgment against the appellant for §600 for damages occasioned by fire set upon the premises of appellees by engines passing over the railroad of appellant.

The fires occurred at four different times between February 28 and August 1, 1887. It is contended on behalf of appellees that three of these fires originated on the right of way, which was foul with combustible matter, and that the other started in the field beyond the right of way, and there is evidence tending to support this position.

There can be no doubt that during the greater ¡Dart of the period in question the right of way was in bad order, foul with weeds and grass, more or less inflammable, and that the engines of appellant set the fires complained of as well as many others, which by reason of the vigilance of appellees and other persons were extinguished before any great damage was done. During a considerable part of the time appellees had a man on watch whenever trains passed, and he was able to stop a number of the fires before they made much headway. The amount of damage done to appellees rested mainly upon a comparison between the product of that part of the meadow burned over and the part not burned over. Other items were involved in the consideration, and although it is insisted by appellants that the verdict is excessive, we are not inclined to agree with that view. The amount allowed is within the range of proof, and is probably not too high.

Tbc appellant having set the fire, and the verdict not being excessive, the question is as to liability. So far as the fires originating on the right of way are concerned, liability is clear enough if appellant is to be held responsible for the condition of the right of way.

It is shown that appellant had acquired the road from a former occupant only seven days before the first fire occurred, and that the rubbish on the right of way had accumulated during the management of the former occupant. We cannot see that this circumstance is of any weight. The appellant should not have taken the road in its then condition unless it was willing to be responsible for the consequences of operating it. It was a business matter to be determined by appellant when it assumed possession, whether the road could be operated according to law, with a profitable result, and it is clear appellant should be regarded precisely as though the condition of the right of way had arisen during its own management. Appellant took the road mm onere, and can not avoid responsibility. It might as well plead that the engines were in bad repair when it got them.

The case of Ill. C. R. R. Co. v. Kanouse, 39 Ill. 272, is in point. In that case, the railroad company had leased a line which was unfenced, and when sued for damage to stock, set up the defense that it was not responsible for the want of a fence. It was decided that as the defendant undertook to use the road, defective in that respect, the demands of public policy required that it should be held for all injury resulting from using the road in that defective condition. The company knew the risk and assumed it. What we -have here said on this subject will dispose of the .objections urged by appellants to the instructions of the court given at the instance of the appellee in regard to the liability growing out of the foul condition of the right of way.

This leaves for consideration, so far as the facts are concerned, merely the question whether, in respect to the fires originating beyond the right of way, the appellant had in use upon its engines & sufficient spark arrester, in good order, and properly handled. On this question the appellant offered no proof as to one or more of the fires occurring just before harvest, by which a small amount of damage was done in burning over two or three acres of meadow, but as to the main fires it offered evidence tending to prove that its spark arrester was well devised for the purpose, in good order and well handled. ■ It also offered evidence coinparing its spark arrester with another called the extension front end,” which was in quite general use on the Illinois Central and some other lines, and tending to show its superiority. There was evidence that the spark arrester would so break up and confine the sparks that fire would not be carried and set more than a distance of twenty-five feet, when in good order and jrroperly managed, and there was abundant evidence that these engines did throw a much greater distance, and that they were habitually setting fire to the right of way and adjoining premises. The eleventh instruction for appellee is objected to on account of its reference to these features of the proof. In the preceding case of the same appellant against Ilelmerick, we had occasion to consider a similar instruction, number five, couched in substantially the same phrase, and what we there said will dispose of this instruction and of the point involved therein.

It is urged that the ninth instruction for appellees is erroncous because it required the engines to be of an approved pattern or style or make. This is a strained construction and does not fairly arise from the language used. The mode or style referred to is with regard to the spark arrester—nothing else.

The point is made that the court erred in admitting evidence offered by plaintiff; first, in allowing the witness, Olson, to testify to the contents of certain reports that he made to his superiors as to the origin of the fires. Olson was the section fireman, and after testifying that he reported the fires as they occurred, the reports being in writing, he was permitted to say that he reported one or more of the fires as set by the engines of the company. He was not giving the language used nor was the contents of his report at all important to know. It was immaterial what he reported, and as there can be no doubt that the fire did originate from the engines, it is wholly unimportant to consider whether, in a technical sense, it was error to allow this general statement of what he so reported; second, it is objected that the witness Bonner was allowed to state that he put in two weeks watching the fires. Hb testimony in this respect was a part of his statement as to the history of the numerous fires occasioned by the engines of appellant during that season, and was competent. I. C. R. R. Co. v. McClelland, 42 Ill. 355; G. T. Ry. Co. v. Richardson, 91 U. S. 454; third, it is objected that the witness Cramer was permitted to testify that the right of way was foul with dry grass and weeds for two or three years before appellant acquired the road. This point has been disposed of; fourth, that sundry witnesses were permitted to testify that at various times the engines of appellant had emitted sparks and cinders of different sizes along the line for a distance of seven or eight miles. This was competent, as was the testimony of Bonner, though not confined to the engines which probably set the fires in question. The appellant denied liability on all grounds and especially rested its defense upon the proposition that it had done its duty in providing sufficient spark arresters which were in use on all its engines. To meet this it was competent to show the frequent escape of fire, from which it might be inferred tliát there was a general want of safety, and that, if in good order and skillfully managed, as was claimed, there was some radical defect in the contrivance; fifth, that it was error to permit .the evidence of Ostrander, because he was not an expert as to the subject ot' his testimony. He seemed to be quite familiar with the matter and his statement was competent, it being for the jury to give it such weight as it was entitled to.

As to evidence offered by appellant, it is objected that Haggerty should have been permitted to state the condition of his spark arrester August 1st. lie had stated quite fully iu this respect and it was within the discretion of the court to allow or deny a repetition. There was no substantial error as to this. As to the witness Pratt, whose meadow had once been burned off and who stated that he saw no loss in the crop, it is insisted the court erred in not permitting him, upon tliis experience, to express an opinion as to whether in such cases generally there would be any appreciable injury to the crop. It was held that as the conditions would vary in different cases, such a single experience would not qualify him to pass an opinion unless it appeared the conditions were the same in this instance as in his case. It is manifest such an opinion could be of but small value, and that there was no such familiarity with the subject from experience as to qualify the witness as an expert. There was positive proof as to the comparative condition of the parts burned over and those untouched by the fire, and even if it was competent to take the opinions of experienced men as to whether the fire made the difference, we think there was no material error in rejecting the opinion of this witness whose experience was limited to one occasion, the conditions of which did not appear to be like those of the case in hand.

The court also rejected the evidence of three witnesses offered to show that the engines of the Illinois Central, which were equipped with a different spark arrester, threw more sparks than did appellant’s engines. Appellant had in its evidence in chief set up a comparison of its spark arrester with that in use on the Illinois Central and had offered such proof as it had as to the comparative merits of the two. This evidence might have been then admitted, and though of but small value unless accompanied by proof as to the conditions of speed, grade, burden, together with the state of repair and the care in management, yet it is to be presumed it would not have been rejected if then offered. We can not say that the court in its discretion was required to admit it after defendant had once rested, and it was not, under the circumstances, error of a substantial sort to exclude it. *

The whole record considered, we are of opinion that the judgment is according to the merits and that there is no sufficient ground of reversal in the points presented by the argument of the appellant.

The judgment will therefore be affirmed.

Judgment affirmed.