text:
    Julia C. Shimp v. Cedar Rapids Insurance Company.

      Fire Insurance—Waiver of Notice of Loss—Payment of Premium—• Note—Evidence—Question for Jury—Agency—Distinct Defenses—Error without Prejudice,
    L Upon a second appeal this court- will not consider questions passed upon at the former hearing.
    2. The collection by an insurance company, after a loss, of a note given for part of the premium, is not a waiver of the proof of loss required by the policy.
    3. In the case presented, it is held: That the question whether its adjuster made certain declarations of the company’s intentions not to pay the loss whatever might be proved, was for the jury, the evidence being conflicting; that the statement by the plaintiff in her application, as to the use of the house, was by agreement made material; and that the knowledge of the local agent as to the currency of certain rumors concerning the use of the property was not binding on the defendant.
    [Opinion filed November 18, 1887.]
    In error to the Circuit Court of Champaign County; the Hon. O. B. Smith, Judge, presiding.
    Mr. J. S. Wolfe, for plaintiff in error.
    Messrs. George W. Gere and C. J. Beaoon, for defendant in error.
   Pleasants, J.

This was an action upon a policy of insurance against loss by fire. One ground of defense was that the insured failed to furnish proof of the loss within the time limited by the policy, which obligation, she claimed, was waived; a judgment for her having been reversed by this court (16 Ill. App. 248), and the re-trial resulting in favor of the company, she now brings the record here by writ of error.

The principal point now urged for reversal—that the Circuit Court excluded evidence of the acceptance, after the time for furnishing proof of loss had passed, of payment of the note given for part of the premium—was specifically decided upon the record formerly here, and the ruling complained of was expressly required by the opinion then filed. It was held that the premium was an entirety composed of cash and the note; that these were alike received for a consideration then fully executed, to wit, the obligation of the company to pay whatever loss should be suffered by the means stated, with the exceptions and upon the conditions also specified, among which latter was the furnishing of proof of such loss within the time limited; and that the acceptance of the money due upon the note was not a taking, at that time, of any part of the premium, and, therefore, not a waiver of the condition mentioned. See 16 Ill. App. 248. The argument now made against it we do not consider, for the reason that by that decision, right or wrong, we are hound. Ogle v. Turpin, 8 Ill. App. 453.

On the last trial two new witnesses were introduced whose testimony tended to prove that before the time for furnishing this proof of loss had passed, the company, by its adjustor, declared its intention not to pay the loss, whatever might he the proof produced, which would be another and independent waiver of its production, and it is claimed that upon this evidence the verdict and judgment should have been for the plaintiff. These declarations were said to have been made to the witnesses in the course of conversation with them separately, so that there was but one witness to each declaration. The adjuster denied them, and his denial is strengthened by the fact, testified to by him and not contradicted, that in his report to the company following the occasion of the alleged declarations, he made no such recommendation, but left the question of its liability open to the effect of the proof still expected to be furnished. It is, therefore, not improbable that what these witnesses really heard was but an expression of his doubt as to its liability, which he admits he did entertain and express. Evidence of oral statements, after the lapse of so long a time, is very liable to error, and it was for the jury to determine its value in this case, as contradicted. In our opinion the new evidence on this point, being thus in conflict, does not materially or certainly change the case first presented.

The statement by plaintiff, in her application for insurance, of the use of the house, was by agreement of the parties made material, and by their further agreement might, if false, avoid the policy at the option of the company, without regard to the question whether its actual use was more hazardous than the one so stated. Besides, it was shown without contradiction to be more hazardous. Neither the court nor the jury could he very wroijg, then, in treating thgf fact as one not in issue. Wallace v. DeYoung, 98 Ill. 688. Eor each of these reasons the objection to the instruction as to warranty is considered unsubstantial.

Nor was Hill’s relation to the company such that rumors or reports of the actual use of the house as a house of assignation, reaching him, would charge it with notice of the fact reported. His agency was limited to soliciting and forwarding applications. Policies were not sent to or delivered through him. He was not bound to communicate reports respecting applicants or their property. He took plaintiff’s application and forxrarded it just as she made it, leaving the company, from it alone, or with such other information as it had or might obtain, to determine whether to take or decline the risk. His knowledge of the currency of the rumor was, therefore, immaterial, and the court properly excluded his evidence.

But if the court erred on the subject of the warranty and in excluding the testimony of Hill, these errors worked no substantial injury to the plaintiff. They related to one distinct ground of defense only, and if she failed to furnish proof of the loss, as required by the contract, without excuse or waiver, she could not rightfully recover under any rulings on these points. The jury could hardly have done otherwise upon the evidence than find that she did so fail.

Judgment affirmed,


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    O. P. Loomis v. Hannah Downs.

      Action on Note Alleged to be Lost—Payment—Conflict of Evidence— Question for Jury—Instructions.

    1. Where the evidence is sharply conflicting this court will not interfere with the verdict of the jury.
    2. It is proper to refuse an instruction which is practically identical with another which is given.
    3. In an action on a promissory note alleged to be lost, it is held: That a question whether the note was paid was for the jury, the evidence being conflicting; that the defendant was justified in paying the note, if presented by a third person properly indorsed by the payee; and that the element of good faith in making payment was not necessary in an instruction touching the question of payment,
    [Opinion filed November 18, 1887.]

      Appeal from the Circuit Court of Champaign County; the Hon. J. F. Hughes, Judge, presiding.
    Mr. J. O. Cunningham, for appellant.
    Mr. Feancis M. Weight, for appellee.
   Wall, J.

This was an action of assumpsit upon a promissory note for $490. The defense was payment. There was verdict and judgment for defendant and the plaintiff appeals to this court. The declaration alleged the note was lost, and upon the trial, the plaintiff, not being able to produce it, testified that he had never sold or transferred the note, nor had he ever indorsed it, nor had he ever given the possession of it to any one, and that the last time he remembered seeing it was on a day named when lie had received §100 thereon from the defendant in her store, and when he made an entry accordingly on the back of the note. The defendant testified that she had paid the balance due on the note to a man whom she did not know, hut who said his name was Miller, a former partner of the plaintiff, who, as he told her, liad transferred the note to him that day in a settlement then had between them.

She further stated that the name of plaintiff was indorsed in his handwriting on the note under the words, “Beceived pay in full,” or “ Paid in full.” That she had never seen this man before or since; that she made no inquiries about it, and that she had since destroyed the note.

This is, in substance, the case made by the proof, though there is other evidence tending to corroborate these statements to some extent on each side. The main point in the case, as thus made, was whether the defendant had paid the note, as she says she did, or whether plaintiff had inadvertently left it in her store when she made the payment of §100. The note was not due when she says she paid it, but there is nothing significant about this, as she says, without contradiction, that it was understood she would pay before due, if she could, and when she paid the $100, she said to plaintiff she would expect to pay all in a short time.

If the note was brought to her with plaintiff’s name indorsed, as she says, she was justified in paying to the holder, and really the whole case turns on this point.

She was uncontradicted as to the payment thus alleged except by the denial of plaintiff that he had ever made the indorsement. The jury accepted her version of the matter and found accordingly. If the note was carelessly left in her possession by the plaintiff, and she has manufactured the story to which she testified, she is not only unusually vicious for her sex, font must have been unusually gifted to pass the ordeal of cross-examination with such a- lie in her mouth withoutbreakingdown. It seems, however, that she convinced the jury, and we are unable to say that their conclusion is not sustained by the record.

The plaintiff may have indorsed the note in blank or in the form she states, and forgot it, and the note may have been lost or stolen from his possession. This may have been the true explanation and would be consistent with honesty on both sides. Whether so or not, the jury probably so believed, and their verdict under the proof should not be disturbed.

Complaint is made of the court’s action in regard to instructions. Those refused were, so far as the point in them was applicable and well stated, given in others. That given for defendant is not Subject to the objection urged.

If the note was indorsed by plaintiff and paid by defendant to the holder, as is the hypothesis of the instruction, then the defense was good. It was not necessary to include the element of good faith, for if actually indorsed the right to pay was clear, and good faith being presumed on such a state of facts there was no need to mention it in the instruction. As has been shown the real question was whether the payment was so made or whether the defendant got possession of the note by accident.

If she did make the payment there is no occasion to question her good faith in the matter, and in this view of the case it would have imparted no strength or value to the instruction to have added the qualification that the payment must have been bona fide.

Did she pay at all, is the vital point; and the jury found she did. The judgment will be affirmed.

Judgment affirmed.


author: Pleasants, J.

text:
    William C. Cole v. Jane Bentley.

      Husband and Wife—Family Expense—Sec.\15. Chap. 68, R. S.—Physician's Services in Last Illness of Husband—Statute of Another State— Adoption—Construction.

    1. The hill of a physician for services rendered at the request of the husband to himself in bis last illness, is a family expense within See. 15, Chap. 68, R. S., for which an action will lie against the widow to charge her separate property.
    2. Where a statute is copied from the statutes of another State, it is presumed to have been adopted with the construction given to it by the courts of that State.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Morgan County, the Hon. W. T. Layman, Judge, presiding.
    Messrs. Ketcham & Hatfield, for appellant.
    The language of the statute is general, and it applies to the expenses of the family without limitation or qualification as to the kind or amount. Whether it was wise or just for the Legislature to so extend the liability of the wife is a question with which the courts have nothing to do. It may be the Legislature intended to avoid the question which otherwise would be constantly recurring and which always would be difficult of solution, as to whether or not a particular expense in view of the circumstances of the case was a necessary one. . What is a necessary expense depends very much upon wealth, habits and social position of a party; what is a family expense depends upon none of these conditions, and the only question is whether the article furnished or service rendered is a family expense. The only criterion which the statute furnishes is: Was the expenditure a family expenditure; was it incurred for, on account of, and to bé used in the family? Rodemeyer v. Rodman, 5 Iowa, 426; Finn & Co. v. Rose et ux., 12 Iowa, 565; Lawrence v. Sinnamon et ux., 24 Iowa, 80; Case v. Semple, 13 Iowa, 596; Smedley v. Felt, 41 Iowa, 588; Smedley v. Felt, 43 Iowa, 608; Fitzgerald v. McCarty et al., 55 Iowa, 572; Devendorf & Mann v. Emerson, 66 Iowa, 699.
    Mr. GL W. Smith, for appellee.
   Pleasants, J.

This action was commenced before a Justice of the Peace, against a widow, to charge her separate property for services as a physician rendered to her husband in his last illness. Plaintiff had been the family physician but was not at the time of these services. That they were rendered, and at the request of the deceased, and were of the value claimed, was' not disputed, the only question made being whether they constituted a family expense within the meaning of See. 15 of Oh. 68, B. S., which declares that “the expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of the creditors therefor, and in re'ation thereto they may be sued jointly or separately.” The County Court, on appeal, held they did not, and rendered judgment for the defendant, which holding and judgment are here assigned for error.

We are not aware of any case precisely in point. The only reported decision in Illinois upon the construction of this language is that of Van Platen v. Krueger, 11 Ill. App. 627, in which it was held that services rendered to the husband in and about his business were not of this character. The section was copied from the code of Iowa, and is, therefore, presumed to have been adopted with the construction given to it by the courts of that State; and numerous decisions there made illustrate, both positively and negatively, their view of its scope and meaning, but, so far as we are advised, no case strictly analogous to the one at bar has yet arisen there. It has been held that food, clothing, medicine, household and kitchen furniture (Finn v. Rose, 12 Iowa, 365, and Hawke v. Urban, 18 Iowa, 83), a piano (Smedley v. Felt, 41 Iowa, 590), an organ (Frost v. Parker, 65 Iowa, 178), and even a lady’s watch and chain and- other smaller articles of jewelry (Marquardt v. Flanger, 60 Iowa, 148), provided for use and actually used in and by the family, were within the statute; but otherwise as to a reaping machine (McCormick v. Muth, 49 Iowa, 536), a breaking plow (Russell v. Long, 52 Iowa, 250), attorney’s fees (Fitzgerald v. McCarthy, 55 Iowa, 702), and a claim by the county for expenses of treating an insane wife in the State hospital (County of Delaware v. McDonald, 46 Iowa, 170), and it was declared, generally, that family expenses embraced whatever were incurred for and on account of the family and for anything ordered and used or kept for use in it, whether necessary or suitable to its condition or not. Fitzgerald v. McCarty, supra.

This general statement does not cover the case at bar, and those cited as recognizing food and medicine probably differ from it in that those articles were provided for the use of the family, that is, of all the members of it as individuals alike. Here the services were directly intended for and rendered, and available to the husband exclusively, as an individual-Therefore, if they are family expenses it must be for another reason or on another principle.

Webster defines a family as “the collective body of persons who live in one house, and under one head or manager; a household, including parents, children and servants, and, as the case may be, lodgers or boarders.” Worcester says: “ Persons collectively who live in a house or under one head; household.”

The elements, of the family thus consisting of certain persons in certain relations, the loss of any member by death, or the severance by other means of these relations, must affect the collective body in its composition and constitution. Any expense incurred by order of the head or manager of this body, or by his authority, express or implied, to maintain it in being as then constituted, although in one sense personal to the member whose relations were threatened, would seem to be in another and proper one a family expense.

Of this character -were the services here in question. They were rendered to the husband, by his order, while sustaining relation of head to this body and as necessary to its continuance. It is on this principle that food, clothing and all other necessaries of life for the several members while in that relation, though provided for each respectively, and available to no other as an individual, are proper family expenses. And for the same reason services rendered or articles furnished to the husband in and about his business are not. His relation to his family is not affected by the particular business in which he is engaged, nor by his success or failure in it, though the condition of the family may be, indirectly, as it may by his gratification, or disappointment in respect to his merest personal whim.

We are of opinion that the County Court erred in its holding and in its judgment,which will, therefore, be reversed and the cause remanded.

Reversed and remanded..


text:
    St. Louis & Chicago Railway Company et al. v. D. A. Drennan.

      Raih-oad—Construction—Liability for Trespasses of Contractors—Master and Servant—Evidence—Instructions.
    1. A railroad company is liable for the trespasses committed by contractors who have undertaken to construct its road on its behalf.
    2. In an action of trespass to recover damages for a wrongful entry by the servants of the defendant railway company upon the plaintiff’s premises for the construction of its road, it is held: That the evidence shows that the persons actually committing the trespasses complained of, were, as to tho plaintiff, servants of the defendant company and therein acted as such in good faith and in the line of their employment; that it was unnecessary to show in the first instance the particular contract, or that there was an express contract between the railway company and those acting on its behalf; that it was sufficient to show that they undertook to construct the road for the company; that the declarations of a director are binding on the companj-; that it was immaterial to the plaintiff’s prima facie case whether his land was on the line of the road as shown by the map of the line or any variation of it duly ordered; and that the president of the company was properly found to be personally liable.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Cbeighton, Judge, presiding.
    Messrs. Conkling & Gbout, for appellants.
    Messrs. Patton & Hamilton, for appellee.
    Contractors are the servants and agents of the railroad company, and their tortious acts are properly chargeable to the company. Lesher v. Wabash Nav. Co., 14 Ill. 85; Hinde v. Wabash Nav. Co., 15 Ill. 72; C., St. P. & F. L. R. R. Co. v. McCarthy, 20 Ill. 385; R., R. I. & St L. R. R. Co. v. Wells, 66 Ill. 321.
    In Lesher v. Wabash Navigation Co., supra, the court forcibly states the law: “ It is no answer to say that the contractors were bound by their contract to furnish all the materials at their own expenso, and for which they were to receive full compensation. The public were not bound to know the relations existing between the company and their servants. It was enough that they saw them engaged in the erection of the works of the company, and under the direction of the company’s engineer. The person who was injured by reason of acts done by those in the employ of the company and in pursuance of their charter, had a right to look to the principal, who alone had authority to direct the acts to be done, for compensation, and was not bound to seek redress from every servant who cut a tree or removed a stone. Were the rule otherwise, the company might, by the employment of irresponsible servants, compel the owner of land to stand by and see it stripped of all that made it valuable, without a hope of remuneration.”
    There can be no question, we think, respecting the liability of appellants. In trespass there is no distinction between principals and agents. All concerned in the tortious act are equally liable, whether they commit the actual trespass or direct or advise it to be done. Whitney v. Turner, 1 Scam. 253; Gilson v. Wood, 20 Ill. 37; Olsen v. Upsahl, 69 Ill. 273.
    A railroad is liable in trespass for taking possession and building its road over land before condemnation without the consent of the owner. C. & I. R. R. Co. v. Davis, 86 Ill. 20.
   Pleasants, J.

Appellee recovered judgment below upon a verdict fdr $4,760.44 damages, in an action of trespass guare clausum, for entering upon his land and cutting ditches and throwing up embankments thereon, without right, in the construction of the line of road of the St. L. & C. Ry. Co., of which appellant Wing was president. If the defendants were liable, the amount of the judgment was quite reasonable, upon the evidence.

The proof is that a company under the name of H. H. Cooley & Co., consisting of a brother and brother-in-law of appellant Wing, made a contract with the railway company for the construction of its road, which contract was not in evidence nor were the particular provisions of it otherwise shown; that appellant was the attorney in fact of said construction company and managed its business; that, as such, he made a contract with the firm of B. F. Johnson & Company whereby • the latter agreed to construct that portion of the road between Litchfield and Springfield on a certain line “as shown by a map designating the surveys, and by profiles, both on file in the office of the chief engineer of the St. L. & C. By. Co., with such variations as should be determined upon by II. H. Cooley & Company;” that as such he also notified these subcontractors to commence the work “as per (said) contract” that they then underlet the construction of four sections, being four miles, to one C. A. King, who, in the execution of his contract, with hands, teams and tools, went upon plaintiff’s land and committed the trespasses complained of. They were so engaged for about ten davrs.

It further appears that Wing wrote the body of a letter purporting to be signed by H. II. Cooley & Company, though the signature was not proved, which was addressed to and received by B. F. Johnson & Company, stating that it was “considered advisable by the executive committee of the St. L. & C. By. Co. to change the line of survey commencing at section nineteen and running north to Springfield, and requesting them to await definite instructions in the matter, and suspend operations on work along the line north of section nineteen if anything is being done. Wing was one of the two members who composed that committee, the other being the secretary of the railway company. Plaintiff’s land was in section thirty-one north of nineteen. Johnson & Company acted on this letter and suspended operations accordingly, but were paid for the work done by King and his hands on plaintiff’s land, upon estimates by the chief engineer of the railway company, in drafts approved by the executive committee. The line as changed was about four miles away from plaintiff’s land.

It was not positively shown that appellant Wing, or the railway company, by any of its officers, ever directed these subcontractors to go upon plaintiff’s land or knew that they were going or had gone upon it. Bor does it appear from any map or profile or any other instrument or paper of the company that his land was upon the line of its survey, or of any variation thereof determined upon by Cooley & Company, and because of the want of such proof, and of the non-production of any contract of the railway company with Cooley & Company, or proof of its contents, it is claimed on behalf of appellant that no case is properly made against them, or either of them; and, further, that the court erred in admitting evidence and in giving and modifying instructions asked.

We think it was unnecessary to show, in the first instance, the particular contract, or that there was an express contract between the railway company and Cooley & Company. It was enough to show that Cooley & Company undertook to construct the road for the railway company; for that would establish the relation of master and servant between them, as to plaintiff. But Lockridge, who was a director, says the railway company was constructing a line of road from Litchfield to Springfield, and that a contract was made with Cooley & Company, though he had forgotten, as if he had once known, its date, and he was not contradicted. If he was a “ figure head,” which is a creature unknown to the law in such a connection, he was so made by the company, and was none the less a director, for whose acts and declarations, as such, it is responsible as for those of directors who are not figure heads. But he might know that the contract was made without being a director. He testifies to the fact, and if it was important to the defendants to shd'w its provisions, they should have introduced it. Cooley & Company had no franchise of their own for building a railroad. Under that of the defendant company, -with its consent, the work was done; and that fact made Cooley & Company and all the sub-contractors its servants. Lesher v. Wabash Navigation Co., 14 Ill. 85; West v. St. L., A. & T. H. R. R. Co., 63 Ill. 545; Balsley v. St. L., A. & T. H. R. R. Co., 119 Ill. 68. For whatever they did then, bona fide, as such and in the line of their employment, the master is responsible. It is unnecessary to cite authority for this general proposition, and for its application to torts of this particular character we refer only to R. R. I. & St. L. R. R. Co. v. Wells, 66 Ill. 321, and eases there cited.

For the same reason it was unnecessary to produce the map and files mentioned in the Johnson contract, or even the contract itself, which, however, was produced under the ruling of the court. The line so shown was, by the contract, made subject to any variation that should be determined on by Cooley & Company, and besides, it was immaterial to plaintiff’s prima facie case whether his land was or was not on the line so shown or any variation of it so ordered. Nor was it required that he should prove any specific order by the company or any of its officers or agents to King to enter upon this land. That it was done for the company by its servants, as such, in good faith and within the line of their employment, was sufficient to charge it with the responsibility therefor. Specific orders to the contrary, had they been given, would not have protected it. Duty to the plaintiff required it to prevent such entry, and for that purpose, if necessary, to he on the ground by its proper agents and actually know what was being dono or about to be done. It is chargeable as if it did have such actual knowledge. Yet it took no step to prevent the trespass. On the contrary its servants, Cooley & Company, paid Johnson & Company for what they did or caused to be done by King; and the railway company itself, as nearly as we can ever get to such a body, by the executive committee of its board of directors, actually approved the payment.

Lockridge knew who was president and who was secretary, and who composed the executive committee of the board of which he was a member, and testified to the official position and activity of appellant Wing. He was recognized and acted as president and member of that committee, as Johnson also testified. That was competent and sufficient evidence of the facts.

That in the commission of these trespasses the persons actually committing them were, as to the plaintiff, servants of the railway company, and therein acted as such, in good faith and within the line of their employment, there was abundant evidence, and of its liability for their action we entertain no doubt.

The personal liability of the defendant Wing is equally clear from the proof. If he had done nothing more than sign the notice to Johnson & Company to proceed with the work of construction, as the agent of Cooley & Company for that purpose, it would have been otherwise, as the court instructed the jury. But he was and did much more. He was the managing agent of that firm, acting under a power of attorney during a part of the time. In that capacity he served it according to his will and. judgment in the matter. So, also, as an officer of the railway company, he distinctly and voluntarily aided it to do what was done upon the plaintiff’s land.

In this view the court properly modified the instruction in respect to which complaint is made by striking out what would have clearly tended to mislead the jury.

Perceiving no material error in the record and satisfied that justice was done, the judgment will be affirmed.

Judgment affirmed.


text:
    I. A. Buckingham v. The People of the State of Illinois, for use, etc.

      Fees of State's Attorney—Commissions on Collections—Statutes—“Convictions”—Cross-Errors.

    1. The State’s Attorney is entitled to a commission of ten per cent, on the gross sum collected on an account of fines and forfeitures. He may lawfully retain such commissions and the amount due him on account of conviction fees not collectible from the defendants, paying over the balance, if any, to the school fund.
    2. Neither a fine for a contempt nor a judgment in a proceeding by scire facias on a forfeited recognizance, is a “ conviction” within the meaning of the statutory provision allowing the State’s Attorney conviction fees.
    8. The rule that objections can not be first raised in this_court applies as well to cross-errors as to those' assigned in chief.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Macon County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. H. Ceba and C. C. Clabk, for appellant.
    Mr. Edwabd P. Vail, State’s Attorney, for appellee.
   Wall, J.

Appellant was State’s Attorney for Macon County, and as such collected fines and forfeited recognizances amounting to §5,640. He earned as fees for convictions in criminal prosecutions which could not be collected from the defendants, $4,490. Not having paid over to the school fund any part of the fines and forfeitures so collected, suit was brought against him and he insisted he had the right to deduct not only the amount due him for uncollected conviction fees but also ten per cent, commission upon the collections so made by him, such commission amounting to $564. The court below trying the case held adversely upon this point. Error is assigned on this ruling. It is provided by B. S. 1874, Chap. 53, Sec. 8: “The State’s Attorneys to be hereafter elected shall also be allowed the following fees: On each conviction when the crime is punished by death or confinement in the penitentiary, fifteen dollars, and five dollars each on all other convictions. Ten per cent, upon all moneys (except revenue), collected by them and paid over to the State or any county, which sum, together with the trial fees that can not be collected from the parties convicted, shall be paid out of any tines and forfeited recognizances collected by them. In each case of forfeited recognizances, where the forfeiture is set aside at the instance of the defendants, except where such forfeiture has been erroneously or irregularly entered, in addition to the ordinary costs, the sum of five dollars shall be collected as the State’s Attorney’s fees.” * * *

Ibid, Sec. 9: “It shall be the duty of each State’s Attorney of this State to make report in writing to the Circuit Court of their respective counties on the first day of every term thereof of all fees, fines and forfeitures by him collected, which report shall be verified by the affidavits of the party making it, and shall be filed by the clerk and recorded in a book by him to be kept for .that purpose.” * * *

B. S. 1874, Chap. 122, part of Sec. 82: * * * “A;xl all other fines, penalties and forfeitures imposed or incurred in any of the courts of record, * * * shall, when collected, be paid to the School Superintendent of the county wherein such fines, forfeitures and penalties shall have been imposed or incim-ed, who shall give his receipt therefor; and the same shall be distributed by said superintendent, annually, in the same manner as the common school funds of the State are distributed; and it shall be the duty of the State’s Attorneys of the several judicial circuits to enforce the collection of all fines, forfeitures and penalties imposed or incurred in the courts of record in their several circuits, and to pay the same over to the School Superintendent of the counties wherein the same have been imposed or incurred, retaining therefrom the fees and commissions allowed them by law; * * * Slate’s Attorneys shall report, under oath, to the School Superintendcnt of their respective counties, by the first of March, annually, the amount of such fines, penalties and forfeitures imposed or incurred in their respective courts, and the amount of such fines, forfeitures and penalties collected by them, giving each item separately.”

It is argued in support of this ruling that by the language of the first section above quoted the commission can be allowed only when the fine or recognizance is collected and paid over to the State or any county. By the last section quoted these moneys, less the claim of the State’s Attorney, for fees and commissions, go to the school funds, but there is express provision that the State’s Attorney may retain his fees and commissions.

By the first section he is entitled to charge a conviction fee in certain cases, and he is also given a commission of ten per cent, on collections. The conviction fees and the commissions are wholly disconnected. He earns the latter when he makes the collection. He earns the former when he obtains the conviction. The State engages to pay the conviction fees when not collectible of the defendants out of any collections he may make on fines and forfeitures, and permits him to retain these items and pay the balance over to the school fund. In doing this the money is paid over practically and precisely the same, in effect, as if the whole sum received by the State’s Attorney had been by him turned over to the school fund and the custodian of the latter had returned to him, first his commission for making the collection, and, second, enough to cover his uncollectible conviction fees.

The law does not provide for this process of circumlocution, this unnecessary paying over and paying back, but fixes the rule and permits the State’s Attorney to retain what he may lawfully claim and the balance shall go to the fund as designated. The Act of I860,1 Gross, 281, where such a provision first appears, differs from the present in saying merely that the fees and commissions shall be paid out of fines, etc., collected, but we think this does not affect the construction we are inclined to give to the act now under consideration.

The latter act reads: 61 Ten per cent, upon all moneys (except revenue) collected by them, and paid over to the State, or any county, which sum, together with the trial fees that can not be collected from the parties convicted, shall be paid out of any fines and forfeited recognizances collected by them.”

When the money is properly appropriated and accounted for it is “paid over”in the sense here meant. Two classes or kinds of compensation are fixed and provided for, one for each service, and the officer may retain both items when he settles with the school fund.

He has his commission for one service, his fee for the other, and the fact that the latter can not be collected of the defendant but is assumed by the public, was not intended to deprive him of any part of his commission for making the collection of a fine or forfeiture in some other case. We are of opinion the court erred in its ruling on this point.

It is also insisted that the court erred in not allowing the appellant a conviction fee of $5 in each of nineteen cases where parties had been charged with contempt and fined therefor.

There is no express provision for a fee to the State’s Attorney in such cases and unless they are within the terms of See. 8, Chap. 53, the fee can not be allowed. That section provides for fees “ on each conviction when the crime is punished by death or confinement in the penitentiary fifteen dollars, and five dollars each on all other convictions.” A fine for contempt is not a “ conviction ” within the meaning of this provision, which had reference to “ criminal offenses ” such as are to be punished by a prosecution on behalf of the people for a violation of a public law.” The phrase, “ all other convictions,” referred to all those of the same general character as those specially named in 'the preceding clause; to wit, for “ crime,” but where the punishment was different.

What we have here said disposes also of the objection that the court should have allowed conviction fees for obtaining judgments in proceedings by scire facias on forfeited recognizances.

These are not convictions in the sense here intended. The compensation for this service is included in the commission for making the collection if it can be made. If not, there is no compensation.

The appellees assign cross-error and seek to raise the objection that the court should have allowed interest upon a basis or theory different from that which it is assumed was adopted. Ho exception was taken by appellees to the action of the court in this respect, either in the holding or refusing propositions of law, or in assessing damages. We do not understand that error can be assigned upon a ruling or finding as thus proposed, where there was no objection or exception, and this principle applies as well to cross-errors as to those assigned in chief. As the cross-error is not properly assignable we can not consider it.

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

Reversed and remanded.


author: Conger, P. J.

text:
    Louis Oswald v. David Hutchinson.

      Replevin&emdash;Demand&emdash;Evidence&emdash;Second Appeal.
    An action of replevin may he brought against one whose possession is wrongful, without previous demand.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Greene County; the Hon. George W. Herdman, Judge, presiding.
    Messrs, James R. Ward and Frank R. Whiteside, for appellant.
    Mr, Henry C. Withers, for appellee.
   Conger, P. J.

This case was formerly before this court and is reported in 17 Ill. App. 28.

Upon its" being remanded a new trial was had and the jury were instructed in accordance with the law as held in the former opinion of this court.

Under these instructions and the evidence offered, the jury found that in the sale from Mitchell to Oswald no title to the wagons in controversy passed from Hutchinson but that he remained the owner of them, and, we think, they were fully justified in so finding.

Oswald having no title, his retaining the wagons in possession under a claim of ownership was such a wrongful possession as relieved appellee from making a demand before bringing suit. Wells on Replevin, Secs. 345-373; Clark v. Lewis, 35 Ill. 417.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    David H. Harts et al. v. William Wendell, Sheriff, for use, etc.

      Action on Replevin Bond—Attorney's Fees—Instructions—Offer to Return Part of Property.

    1. In an action on a replevin bond containing a condition “ for the payment of all costs and damages occasioned by the wrongful suing out ” of the writ, attorney’s fees may be recovered.
    2. The plaintiff in a replevin suit is bound to accept an offer to return a substantial part of the property replevied.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Logan County; the Hon. G-eobge W. Herdmah, Judge, presiding.
    Messrs. Blihn & Hoblit, for appellants.
    Messrs. Beach & Hodhett, for appellees.
   Wall, J.

The plaintiffs below recovered a judgment in an action of debt on a replevin bond.

The first question presented is whether certain items of expense for attorney’s fees and for printing, which were necessarily incurred in defeating the replevin case, can be included as a part of the damages in the suit on the bond. The conditions of the bond were, as required by statute, that the suit should be prosecuted with effect and the property returned, if so awarded, that the Sheriff should be saved and kept harmless, and further, tCfor the payment of all costs and damages occasioned by the wrongful suing out of said writ of replevin.” This last condition, which was first required by the amendment to the statute in 1879, is in substance like one of the conditions of an attachment bond, under which, so far as we are advised, attorney’s fees have always been recovered. Churchill v. Abraham, 22 Ill. 456. We are of opinion the lan. gnage employed is clearly sufficient to include such an item of expense. The evidence tended to show that the amounts charged had been agreed upon and were fair, and, if so, there is no reason, for not allowing the same. The authorities cited seem not to sustain the appellant on this point.

The other question for consideration is as to the action of the court in giving the following instruction at the instance of the appellees:

icThe court instructs the jury on behalf of the plaintiff that if you believe from the evidence defendants have offered to return only a portion of the property that they replevied from the plaintiffs, then the court instructs the jury that the plaintiffs would not be obliged to accept any of the property so replevied, and it would not preclude plaintiffs from maintaining their suit on the replevin bond.

s‘The court instructs the jury that even although they may believe from the evidence that the defendant Harts offered to return a portion of the property described in the writ of replevin offered in evidence, if the jury believe that such writ was ever so offered, that the said J ones and Emmons were not legally obliged to receive such portion of the property, but it was the duty of the defendants to return all of the property taken under the writ of replevin in performance of the condition of the hond offered in evidence, if the jury believe the bond has boon so offered.”

There was evidence tending to show that a very considerable portion of the property stored in what was known as the “ Primm building ” was tendered to the officers and accepted by them, and that this property was in the same condition and in the same place as and where it was when replevied, and where it had remained during the replevin suit. It consisted of fifty-six of the eighty-two cultivators replevied, except the shovels belonging thereto. The other cultivators and the other parts of these were in and about the 16Mangas shop” when replevied and it does not appear they had been returned or tendered. The position is assumed that unless all the property replevied is returned or offered it is of no avail, and full damages are recoverable.

We can not assent to the proposition as applied in this case. The property in question was substantial in value and quantity, and was in the same condition as when replevied. The plaintiffs in the replevin case had the right to return it and he admitted to their defense pro tanto. The obligees in the bond could not decline to accept it, nor could they return it without the assent of the obligors. Wells on Replevin, Sec. 422.

The court erred in its instructions to the jury on this point The judgment must he reversed and the cause remanded.

Reversed and remmided.


author: Coegeb, F. J.

text:
    Drainage Commissioners v. The People of the State of Illinois ex rel., etc.

      Drainage—Assessment of Damages for Land Taken—Service of Justice’s Notice—Jurisdiction—Certiorari.
    A return showing that the service of a notice issued by a Justice under the Drainage Act. in a proceeding to assess damages for land taken for a ditch, was by the officer and land owner, each reading it in part, is insufficient to give the Justice jurisdiction.

      [Opinion filed. November 18, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. Tiptoe & Beaveb, for appellants.
    Messrs. Kebbick, Lucas & Speeceb, for appellee.
   Coegeb, F. J.

This was a writ of certiorari to review the proceedings had before a Justice of the Peace, wherein damages were assessed to the relator for his land taken for a ditch under the drainage law.

Two points were made: First, that the notice to be issued by the Justice, as required by the Drainage Act, is process, and is void because it does not conform to the constitutional requirement that all process shall run in the name of the people. Second, that the service of the notice upon the relator was not such as is required by law, and therefore gave the Justice of the Peace no jurisdiction of the person of the relator.

The return of the officer as to the manner in which he had served it was as follows:

a By reading a part of the within notice to the within named Charles L. Rutledge, and Charles L. Rutledge read a part, and by leaving a copy with the within named, on the 2d day of March, 1886. Dated this the 29th day of January, 1887.

“J. F. Lipp, Constable.”

The Drainage Act prescribes that such notice shall be served in the same manner and with like effect as process in civil cases, and the law in reference to summons before a Justice of the Peace is, “ that every summons shall be served at least three days before the time of trial mentioned therein by reading the same to the defendant.”

By an inspection of the foregoing return it will be seen that the officer read a part of the notice to the relator, and the relator read a part, but what part, or how much each of the parties read, nowhere appears.

We think this return was clearly insufficient to show a legal service of the notice upon the relator, and as he refused to appear before the Justice at the hearing, the proceedings before the Justice were without jurisdiction, and consequently void.

If there was no service upon the re’ator and no jurisdiction in the Justice the question of the constitutionality of the summons or notice is eliminated from the record. The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Per Guriam.

text:
    L. T. Larned v. Harvey B. Platt.

      Malicious Prosecution—Probable Cause—Instructions—Impeachment of Witness—Arbitrary Buie as to Number of Witnesses—Discretion.

    1. A general rule limiting the number of witnesses to the reputation of a witness for truth and veracity to a particular number on each side, excludes the exercise of discretion and is unreasonable and unlawful.
    2. In an action for a malicious prosecution, it is held: That the defect in the plaintiff’s instructions in not clearly including the want of probable cause, was cured by the prominence given to the subject in those given for the defendant.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
    Messrs. Kebbick, Lucas & Spencer, for appellant.
    Mr. James S. Ewing, for appellee.
   Per Guriam.

Action on the case for malicious prosecution, brought by appellee, who recovered judgment on a verdict for §250.

The defense insisted that there was probable cause for the prosecution complained of, and the instructions for plaintiff were faulty in not clearly including the want of it as an essential element of his case; but those given for the defendant did so present it, and with such prominence that it was hardly j>ossible for the jury to misunderstand or overlook it.

Plaintiff was his own principal witness, and was contradicted in relation to important facts respectively by several who had no direct interest in.the event of the suit. We intimate no opinion as to the preponderance of the evidence, hut his credibility was plainly a very material question. Having examined eight witnesses as to his reputation for truth and veracity, the defendant called a ninth, who was objected to and excluded under a general rule of the court, which limited the number to that point, on each side, to eight. Still others were proposed to be called, but for the same reason were also excluded. To this ruling exception was taken, and it is assigned for error.

While the trial judge may limit the number to be produced by each party to such a question, in his discretion, we hold it must be an actual and judicial discretion, exercised in view of the special character and circumstances of the particular case, and that a general rule of limitation, which applies to all alike without regard to these, and so controls or rather excludes discretion, is unreasonable and unlawful.

From the remark of the judge when his attention was called to it in support of the objection, it is to be inferred that he did not assume to exercise any discretion, as was his practice in his own circuit, but deferred to the local rule. We think this was error, and are not satisfied that it did not materially injure the defendant. For this reason the judgment will be reversed and the cause remanded-

Reversed and remanded„


text:
    Chicago, Burlington & Quincy Railroad Company v. William Schaffer.

      RnPronds&emdash;Defective Bridge&emdash;Successive Actions for Overflowing Adjoining Premises&emdash;Contributory Negligence&emdash;Former Recovery&emdash;LossofGrotoing Crops&emdash;Measure of Damages&emdash;Evidence&emdash;Opinions of Witnesses&emdash; Extraordinary Storm&emdash;Question for Jury.
    1. Where the amount of damage sustained is a matter of opinion, and it Is difficult to give the jury an adequate idea of the thing injured, the witnesses may be permitted to express their opinions as to the extent of the damage.
    2. The measure of damages for the loss of growing crops is their value at the time of the loss. To determine this, evidence as to their probable yield, if the loss had not occurred, is admissible.
    S. In an action against a railroad company to recover damages for overflowing the plaintiff's lands by means of a defective bridge, the defendant can not defend on the ground that the plaintiff contributed to the injury complained of by constructing and maintaining a levee, which was so constructed before the bridge was built. It was the defendant’s duty to build the bridge with reference to existing conditions.
    4. In the case presented, whether the injury complained of was due to an extraordinary storm, was a question for the jury. 5. Where a permanent structure is lawfully and properly erected by a railroad company, a cause of action thereby arising in favor of an adjoining property holder is an entirety on account of which there can be but one recovery. But if the structure is faulty in construction, prospective damages can not be recovered, and successive actions may be maintained as often as injury is thereby.occasioned.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Adams County; the Hon. William Mabsh, Judge, presiding.
    Messrs. J. F. Cabbott and O. F. Pbioe, for appellant.
    The opinion of a witness that any damage was done to the land is not admissible; and the question as to whether or not this land was damaged should have been left exclusively to the jury to find, from descriptions given by the witnesses of the land, its value, and the particular injuries done to it. Evansville, etc., R. Co. v. Fitzpatrick, 10 Ind. 120; Farrand v. C. & M. W. Ry. Co., 21 Wis. 435; Harrison v. Iowa Mid. R. Co., 36 Iowa, 323; Ala. & F. Ry. Co. v. Burkett, 42 Ala. 83; C. & A. R. R. Co. v. S. & N. W. R. R. Co., 67 Ill. 142.
    The defendant company, under the law, was only required to construct the bridge with such care and skill as to make it sufficient for all ordinary floods and freshets. P., Ft. W. & C. R. R. Co. v. Gilleland, 56 Pa. St. 445; Norris v. Vt. Cent. R. Co., 28 Vt. 99; Henry v. Vt. Cent. R. Co., 30 Vt. 638; Sprague v. City of Worcester, 13 Gray, 193; Smith v. Agawam Canal Co., 2 Allen, 355; Town of China v. Southwick, 12 Me. 238; Lawler v. Baring Boom Co., 56 Me. 443.
    The pleadings in the former action show that the same questions were in issue in that case that were in issue in this case, and the record further shows that the former case was tried on its merits, and that there was a verdict for the plaintiff for $600, on which the court entered judgment, and that said judgment was afterward paid and satisfied in full. Hence, it necessarily follows that the former judgment is conclusive upon all questions which were put in issue, or might have been put in issue, in the former case. Fowle v. N. H. & M. Co., 112 Mass. 334; Stodghill v. C., B. & Q. R. R. R. Co., 53 Iowa, 341; Hahn v. Miller, 68 Iowa, 745.
    Messrs. Cartee & Govert, for .appellee.
    “ A recovery for erecting a nuisance bars another action for the erection, but not other actions for the continuance of the nuisance.” Staple v. Spring, 10 Mass. 72, 74; Hodges v. Hodges, 5 Met. 205.
    “ Where a stream was obstructed wrongfully, and several years later this act caused the plaintiff’s land to be overflowed, it was held that the Statute of Limitations ran only from the later event.” Devery v. Grand Canal Co., Ir. R. 9 C. L. 194; Schoch v. Forman, 3 Brewst. 157; Gould on Waters, See. 210.
    “In an action for injury to the plaintiff’s land by backwater, the measure of damages is the actual injury to the land by the overflow (Phinizy v. Augusta, 47 Ga. 260), or its fair rental value from the time when the injury commenced to the date of the writ.” Baldwin v. Calkins, 10 Wend. 167; Chicago v. Huenerhein, 85 Ill. 594.
    In these cases, only the damages actually accrued before action brought can be recovered; and any further damage must be recovered in a separate action when it actually accrues. Waggoner v. Jermaine, 3 Denio, 306; Baldwin v. Calkins, 5 Wend. 167; Philipp v. Terry, 42 N. Y. 313; Whitemore v. Bischoff, 5 Hun, 176; Duryea v. Mayor, 2; Hun, 120; Beckwith v. Griswold, 29 Barb. 291; Thayer v. Brooks, 17 Ohio, 489; Polly v. McCall, 1 Ala. Sel. Cas. 246, 37 Ala. 20; Stein v. Burden, 24 Ala. 130; Savannah Canal Co. v. Bourquin, 51 Ga. 378; Shaw v. Etheridge, 3 Jones, 300; Burnett v. Nicholson, 86 N. C. 99; Duncan v. Markley, 1 Harper, 276; Langford v. Owsley, 2 Bibb, 215; Cobb v. Smith, 38 Wis. 21; Hazeltine v. Case, 46 Wis. 391; Dorman v. Ames, 12 Minn. 451; Clark v. Nevada Mining Co., 6 Nev. 203; McConnell v. Kibbe, 29 Ill. 483.
   Wall, J.

Appellee recovered a judgment against appellant for §500 for damage occasioned by erecting and maintaining a railroad bridge across a water-course called “ Harkness Branch,” whereby the natural flow of water was obstructed, causing the land of appellee to be overflowed.

The first objection urged is to the admission of evidence offered by appellee, consisting of the opinions of witnesses as to the amount of damages. Counsel press the point that the witnesses should have been restricted to a description of the premises, leaving the jury to estimate the damages for themselves. Such testimony is often received, and while, in a certain respect, it may trench upon the province of the jury, yet it is competent. The witness must, of course, show his knowledge of the subject, and some ability to form such an estimate. Where value is a matter of opinion the lessening of that value by an injury must also be a matter of opinion, and because of the great difficulty of giving the jury an adequate description of the thing injured, it is not unusual to permit the witness to express his opinion as to the extent of the damage. Somewhat from necessity such evidence, under an exception to the general rule, is admitted.' Ottawa v. Graham, 35 Ill. 346; G. & S. E. R. R. Co. v. Haslam, 73 Ill. 494; C. & St. L. R. R. Co. v. Woosley, 85 Ill. 370.

By cross-examination the merit of the opinion may be thoroughly tested, the information, interest and capacity of the witness being considered, and the jury can thus have the means of giving it such weight as it may seem to deserve. Other evidence complained of was as to what the crops destroyed would have yielded had they progressed to maturity. As to this item the measure of damages would be the value when the loss occurred, which, of course, would involve something as to the prospect of maturing favorably. Intrinsically the immature crop had no value of importance, nor would it sell in the market at any definite sum. It was proper to ascertain what would have been the probable yield if properly cared for and with the ordinary season, and in this way the then value could be approximated. Had the witness been required to give his opinion as to the value at that time he would have taken these considerations into account in making his reply. We think the evidence was competent.

It is objected that appellee had, by constructing and maintaining a levee on his premises, increased the flow of water in the Harkness Branch, and thereby so contributed to the result that he should not be allowed to recover. It appears, however, this condition of things existed before the bridge was built, and therefore the objection is untenable. Appellee having lawfully made the levee before the bridge was put there, had the right to maintain it thereafter, and appellant can not justly say that this act of appellee has increased the danger of overflow, for it was the duty of appellant when building the road, to consider the situation as it then was and make such provision as that situation required.

Appellant urges that it is not liable because the overflow was due to a storm of extraordinary and unusual character against which it was not bound to provide. This was a fair question of fact for the jury under proper instructions, and, after fully considering the evidence, we find no occasion to interfere with the finding in this respect.

It is also urged that appellee neglected to take measures to avert or modify the danger growing out of the presence of the bridge by making certain improvements on his premises; but we see no force in the point thus made, nor are we able to agree with appellant that the damages are so excessive as to warrant us in setting aside the judgment.

We come to what we deem the important question in the case, which is as to the legal effect of a former suit between these parties. At the March term, 1884, of the Adams Circuit Court, the appellee recovered a judgment against appellant for §600 on account of damages sustained by reason of similar injuries, prior to October, 1883. That judgment was paid and it is insisted it constitutes a bar to the present action. We may assume the cause of action set up in each declaration is in substance the same, the claim in the prese:,t case being expressly limited, however, to such damages only as have occurred since the commencement of the former suit.

Where a permanent structure is lawfully erected by a railroad company upon its right of way, and thereby an injury is occasioned to adjoining property, if the structure is properly built with reference to its use, and so as to produce no unnece ssary damage, the cause of action thus arising is an entirety. When suit therefor is brought it should embrace all claims, prospective as well as present, and the whole demand inures to the then owner, and will not pass by conveyance of the land to a subsequent owner. One recovery will bar all future actions for the same cause. But it is an essential element of this doctrine that the structure is permanent in its character, and that it is properly constructed. Where the construction is faulty and imperfect the rule does not apply.

In- such cases the company has not performed its duty in that behalf, and is guilty of negligence. The structure so negligently erected may properly he deemed a nuisance, which it may be presumed will not he permanent, and for the continuance of which successive actions may be maintained as often as injury is thereby occasioned. Here it is distinctly averred that the defendant, by the means aforesaid, wrongfully obstructed the flow of the water. Under this allegation evidence was heard as to the character and fitness of the structure, for the purpose of allowing the passage of water, and at the instance of defendant the court instructed the jury that unless the bridge was improperly or negligently constructed by the defendant, and the plaintiff’s injury thereby occasioned, the verdict should be for defendant.

Several instructions were given for defendant in which this point was repeated, and while in those given for plaintiff this limitation does not appear, yet no objection is taken to them in this respect. It is apparent the jury were made to understand that the negligent construction of the bridge was an indispensable feature of the plaintiff’s ease, and it must be assumed that the verdict is based upon a finding that there was such negligence.

The distinction here stated will reconcile an apparent conflict in the authorities cited, and the propriety of it is well illustrated by the facts in the present case. Had the plaintiff in the first trial sought to recover prospective damages, the defendant might well have insisted that it was not to be presumed a defective bridge would be continued perm mently. Such a structure would not only occasion loss to the plaintiff but an equal if not greater loss to the defendant, in the destruction of its track and embankment, and in the interruption of its traffic; and if another and better mode of construction was reasonably practicable, it would doubtless be adopted. Hence it would be unjust to assess damages upon the theory that the nuisance would be permanent, and the plaintiff might bring new actions as he had new injuries. We reach the conclusion, therefore, that if the bridge was improperly and imperfectly built, in the respect complained of, it would be competent to bring several actions, as occasion might require, and that the former action was not, as a matter of law, a bar to the present. This view disposes of objections urged to the action of the court in reference to instructions on this branch of the case. As bearing upon the point under consideration, see I. C. R. R. Co. v. Allen, 39 Ill. 205; I. C. R. R. Co. v. Grabill, 50 Ill. 248; C. & A. R. R. Co. v. Maher, 91 Ill. 312; C. & E. I. R. R. Co. v. Loeb, 118 Ill. 203; Wood on Nuisances, Secs. 865 to 869, and citations.

We deem it unnecessary to consider other objections urged in the brief as they are minor in their character, and appear to be quite untenable. Finding no substantial error in the record, we affirm the judgment.

Judgment affirmed.


text:
    John M. Pearson et al. v. Christian Zehr.

      •Jurisdiction—Validity of Statute—Killing of Diseased Stock—Damages —Liability of Live Stock Commissioners.

    This court declines to review a judgment against the Board of Live Stock Commissioners for damages on account of horses killed on the ground, that they had the glanders, the validity of a statute being involved.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Tazewell County; the Hon. N. W. Greene, Judge, presiding.
    Messrs. Palmers & Shutt, for appellants.
    Messrs. W. R. Curran, C. H. Radford and B. S. Pretttman, Sr., for appellee.
   Conger, P. J.

This was a suit instituted by appellee against appellants, who are the members of the Board of Live Stock Commissioners, to recover damages for four horses of appellee, killed by the order of appellants upon the ground that they were diseased with glanders. Verdict and judgment for appellee for the sum of §2,100 and costs.

All examination of this case, from whatever standpoint it is considered, leads directly to an investigation and determination of the validity of the law under which appellants seek to justify their action.

If the law is to be sustained under the exercise of the power of eminent domain, then the fact that the law makes no adequate provision for compensation for the property destroyed raises a question at once as to its validity.

If the authority to destroy the property in question is to he placed under the police power of the State, then the constitutional question arises as to whether there is such an overruling necessity to destroy the property in question as to justify its exercise and destroy private rights without compensation.

We have no power to determine either of these questions, and believing, as we do, that they lie at the threshold of any .adequate and proper consideration of the facts presented by this record, the appeal is dismissed.

The clerk will permit the record to be withdrawn if desired.

Aggeal dismissed.


text:
    Albert W. Jansen v. Cornelia B. Grimshaw.

      Partnership—Dissolution—Actual Notice to Holder of Firm Note— Whether Necessary—New Note—Action to Charge Members of Original Firm—Pleading—Misdescription of Note—Default as to Part of the Defendants—Final Judgment—Correction of Error.
    1. A person who has loaned money to a firm and holds its note, is entitled to actual notice of its dissolution. If, without such notice, he extends the loan after dissolution and accepts a new note in the firm name, he may maintain an action against the members of the old firm, including the retiring members.
    2. In the case presented, it is held: That the declaration which contains counts upon both notes and a common count for money had and received, is sufficient to sustain a general finding for the plaintiff; that it was discretionary with the court below whether to permit the plaintiff to read the second note under the common count, there being a stipulation that he "would rely upon the instruments described in the first and second counts, and said second note being misdescribed in the second count; and that there was no substantial error in permitting the plaintiff’s counsel in his opening address to read certain instructions which the court subsequently gave for the plaintiff, nor in permitting an objectionable remark in the closing address of the same counsel in reply to something irrelevant from the other side.
    3. It is erroneous, upon default of some of the defendants, to enter final judgment as to them while the case remains undisposed of as to others. It seems that the court may correct the error by setting aside the judgment at any time prior to the final disposition of the cause.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. Carter & Covert, for appellant.
    A judgment against one member of a firm, for a debt due from the firm, constitutes a bar to a recovery against the other members. Wann v. McNulty, 2 Gil. 355; Thompson v. Emmert, 15 Ill. 415; Gray v. Gillilan, 15 Ill. 453; Ward v. Johnson, 13 Mass. 148; Mason v. Eldrid, 6 Wall. 231; Mitchell v. Brewster, 28 Ill. 163; and it is held that the entry of a nolle prosequi as to a defendant who pleads the general issue, in an action ex contractu against several, discharges all. Tolman v. Spaulding, 3 Scam. 13.
    Judgment must be taken against all who are served or none. The cause of action is merged in the judgment, those not included in it are released, and the judgment-is a complete bar to any further recovery. Gribbin v. Thompson, 28 Ill. 61; People v. Harrison, 82 Ill. 84; Byers v. Bank, 85 Ill. 423; Felsenthal v. Durand, 86 Ill. 230; Faulk v. Kellums, 54 Ill. 188; Goodale v. Cooper, 6 Ill. App. 81; Kimball v. Tanner, 63 Ill. 519.
    Even where the obligation is both joint and several, if the defendants are sued jointly, the rule as to joint contracts will govern, and separate judgments can not be rendered. Gould v. Sternburg, 69 Ill. 531.
    The court had no power to set aside the judgment after the term at which it was rendered. Therefore, the motion of the plaintiff to vacate and set aside said judgment, should have been overruled, and defendant’s cross-motion to strike the cause from the docket, should have been sustained. Garner v. Crenshaw, 1 Scam. 143: Ryder v. Twiss, 3 Scam. 4; Cook v. Wood, 24 Ill. 295; Cox v. Brackett, 41 Ill. 222; Messervey v. Beckwith, 41 Ill. 452; McKindley v. Buck, 43 Ill. 488; Knox v. Winsted Savings Bank, 57 Ill. 330; Lill v. Stookey, 72 Ill. 495; Coursen v. Hixon, 78 Ill. 339; Becker v. Sauter, 89 Ill. 596.
    Where a new note is given in lieu of an old one, and the old one is surrendered and canceled, the old note is no longer in force for any purpose, and will be regarded as paid. Wickencamp v. Wickencamp, 77 Ill. 92; Wilkinson v. Stewart, 30 Ill. 48; Yates v. Valentine, 71 Ill. 643; Tucker v. Conwell, 67 Ill. 552; Morrison v. Smith, 81 Ill. 221; Fridley v. Bowen, 5 Ill. App. 191.
    Mr. Joeqt H. Williams, for appellee.
    The giving of a promissory note in lieu of another, unless intended and understood By the parties as a payment, is no payment and does not discharge the maker from liability on the first note. Hill v. Marcy, 49 N. H. 268; Thompson v. Briggs, 28 N. H. 40; Yates v. Valentine, 71 Ill. 643.
    A retiring partner is liable for debts contracted by the firm after his retirement with those who have had prior dealings with the firm, unless they have had actual notice of his retirement. Warren v. Ball, 37 Ill. 76; Meyer v. Krohn, 114 Ill. 514.
    A party can not allege errors which relate exclusively to other parties, who are not complaining and who are not before the court. Clark v. Marfield, 77 Ill. 258; Henrickson v. Van Winkle, 21 Ill. 274; Horner v. Zimmerman, 45 Ill. 14; Cromine v. Tharp, 42 Ill. 120; Richards v. Greene, 78 Ill. 525.
   Wall, J.

Frederick G. Jansen, Charles C. Jansen and Albert W. Jansen were partners in trade under the name and style of F. W. Jansen & Son. While so engaged the firm borrowed §2,000 of Mrs. Grimshaw, the appellee, and gave her a promissory note for that sum, dated February 1, 1881, payable two years after date with interest at the rate of seven per cent, per annum. On the 1st of November, 1881, Albert W. Jansen retired from the firm but the business was continued under the same name and style.

The interest was paid on the note for the first year, February, 1882, and when the note was about to mature appellee again called for her interest, saying that she could get eight per cent, elsewhere, and after some conversation a new note was made for the same amount, dated February 1, 1883, payable in two years, with interest to be paid semi-annually at eight per cent. This note was signed in the firm name of F. W. Jansen & Son, and was given to the appellee, whereupon she surrendered the old note, which was afterward marked “paid” by the bookkeeper of the firm. The transaction making a new note and giving up the old one was had by the appellee with Frederick G. Jansen in the office of the firm, the bookkeeper being present.

The interest was paid on the new note for several years when the new firm became insolvent.

This suit was brought against the firm as originally composed, to the March term, 1886, of the Adams Circuit Court The first count was on the old note, the second count was intended to be on the new note, hut did not properly describe it in respect to the provision for payment of interest semiannually. The third was a consolidated common cdnnt for money had and received, etc.

Albert W. Jansen filed separate pleas putting in issue the question of his liability and at the same term of the court filed his petition, praying for the removal of the cause into the Circuit Court of the United States.

While this application was pending the other defendants withdrew their pleas and judgment was entered against them for the amount then due on the note. Afterward the petition for removal was granted.

The United States Circuit Court at its October term, 1886, remanded the cause to the State court, and the record being 'filed in the latter court at its October term, 1886, on motion of the plaintiff, the order of the March term entering judgment against the defendants Frederick GL and Charles C. Jansen, was vacated. Those defendants then filed their plea of former recovery, setting up the judgment rendered against them at the March term, to which plaintiff replied there was no record of such judgment, on which there was joinder and' issue.

The cause was tried by jury at the October term, 1886. The verdict was for the plaintiff for §2,125.75, and was followed by a judgment, motions for new trial and in arrest being overruled. Appeal was prayed by the defendants and each of them and allowed accordingly, but was perfected by Albert W. Jansen only.

There are some twenty different assignments of error. ¥e do not feel called on to follow counsel through the various points and objections urged in the argument. In our judgment there are but two really important questions in the case.

First. As to the effect of the judgment at the March term, 1SS6, against Frederick Gr„ and Charles C. Jansen, and the vacation thereof at the October term, without entering into an elaborate discussion of the immediate point involved, or of those collaterally arising, it may be said that it was, no doubt, erroneous to enter final judgment as against those two, while the case remained undisposed of as to the other defendant. At that term it is certain the court might have corrected the error by setting the judgment aside, and we are of opinion that it might do so at a subsequent term, so long as the ease was in fieri and not wholly disposed of. Whether this appellant is in a position to raise the point or not, we hold there was no error in allowing the motion to vacate the judgment.

Second. Was appellant discharged by the taking of the new note? When the firm was dissolved by the retirement of appellant in November, 1881, notice of the fact was given by advertisement in a newspaper published in the city where the firm was engaged in business. The appellee testified that she had no knowledge or notice of the fact until long after the making of the new note.

The appellant, however, testified that he informed her in February, 1882, when she called for her interest, that he was not connected with the firm and that she should see the others. This was in the store. She then passed into the office where the interest for the first year on the original note was paid to her. She testified as to this that she had no recollection of it, and the jury evidently found that her version of the matter was the true one, or that whatever may have transpired at that time did not properly charge her with notice of the retirement of appellant. We can not say the jury were mistaken in this conclusion. On the contrary, it is probably correct, and it may be assumed, therefore, that she had no notice of any change in the firm until after the new note was given, and the interest had been paid on it for two or more years. When appellant withdrew from the firm In's liability for subsequent undertakings of the firm ceased, if proper notice of his retirement was given. As to what is proper notice the general rule is that as to persons who have never had any business transactions with the firm, notice by publication is sufficient, but as to those who have had previous dealings with it, actual notice or its equivalent must be shown.

As was said in Meyer v. Krohn, 114 Ill. 585. 66 This rule seems to be supported by an unbroken current of authority and it is certainly promotive of justice and fair dealing.” Appellant does not controvert this proposition of law but insists that appellee is not within the rule, one transaction such as here disclosed not being such “ dealings ” as to make actual notice essential. The transaction was a loan of money to be used in the business of the firm. How many or how frequent interviews may have occurred before the loan was made, or ' how often it was the subject of discussion afterward, does not1 appear. The record shows merely the giving of the note when the money was furnished and the payment of the interest for one year.

We understand that the “dealings” referred to in the rule above stated need not be confined to any particular sort of transaction but may include any transaction within the ordinary scope of the business of the firm, in the course of which one who deals with the firm is induced to act on the faith and belief, well founded, that certain individuals compose the firm and are bound by the contracts made in the firm name within the scope of its ordinary business. One who so deals has the right to expect the firm will not be dissolved by the retirement of a solvent member without notice to him. We think the appellee may insist upon the application of the rule in this case. The transaction here disclosed brings the parties within the letter and spirit of the rule.

The inquiry arises, upon which note should liability be dectired? If the old note was given up under a misapprehension of fact a material circumstance being known to the debtor but not to the creditor, it would seem clear the latter might logically say that the debt was still subsisting, and that the old evidence of it, the original note, might still be deemed valid and in full force. Hill v. Marcy, 49 N. H. 268. It would, however, as already stated, be perfectly consistent with law and fact to say that the new note was valid and binding upon all the members of the original firm including appellant, and as there was a general finding upon the whole declaration it might be referred to either view or, perhaps, more logically to that view which is the more beneficial to the plaintiff.

After what has been said as to the merits of the case we deem it unnecessary to discuss the various objections urged as to the action of the court in giving, modifying and refusing instructions. We find nothing in this respect for substantial complaint.

It is said the court erred in permitting the second note to be read in evidence under the common count, there being a stipulation that the plaintiff would rely upon the instruments described in the first and second counts. This stipulation was to avoid a motion for a continuance because there was no account filed with the common count. .The spirit and purpose of the agreement was to limit the plaintiff to the cause of action on which the first and second counts were based, or intended to be. There was a misdescription of the second note in the second count, and it was a matter of discretion with the court whether to enforce the stipulation according to the strict etter or according to the spirit and purpose of it.

We think there was no error in the exercise of discretion as here shown. It was manifestly the note intended and understood, there was no surprise, and the court could have permitted an amendment to the second count, or, as was done, admit it under the common count.

Other objections are argued as to the conduct of the trial Judge in permitting counsel for plaintiff in his opening argument to the jury, to read certain instructions, which he commented upon and which he said he would ask the court to give, and which the court did give; also with reference to a remark by same counsel in his closing address as to a matter not in evidence.

The points relate to subjects mainly within the sound discretion of the court and we find nothing in them calling for our interference. An attorney may, in his argument, lay dowrn the propositions of law on which he depends, and may without impropriety assert his belief that the court will so instruct the jury, or at least that he will so request, and we see no serious objection to his reading them from a paper as the instructions which he will ask.

The practice will not be generally adopted because of the danger that the court may decline giving the proposed instructions, a risk not to be taken in all cases.

The objectionable remark in the closing address referred to was heard by the court, and was made in reply to something irrelevant coming from the other side. All things considered the court did not deem it of much consequence, nor do we. Certainly it is not of such importance as to require a reversal of the judgment. Other objections, not necessary to state, have been considered, and are overruled.

The judgment will be affirmed.

Judgment affirmed.


author: V Wall, J.

text:
    John J. Mitchell v. Northwestern Manufacturing and Car Company et al.

      Garnishment—Admission of Indebtedness—Bill of Interpleader—In. j unction—Assessment of Damages—Iteversal of Decree.
    1. Where a garnishee has incurred liability by answering the process, admitting indebtedness to the judgment debtor, he can not maintain a bill of interpleader, although he has incurred liability under a mistake.
    2. In the case presented this court reverses the decree allowing damages upon the dissolution of an injunction, because the record fails' to show the evidence upon which the damages were assessed and there is no such finding of facts in the decree as would dispense with the necessity of preserving the evidence.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Tipton & Beaver, for appellant.
    Mr. A. E. DeMange, for appellee.
   V Wall, J.

This was a bill in chancery to compel the defendants to interplead with reference to the debt in question. The complainant alleged that he, bought a belt from one Grover for §15. which sum he agreed to pay to said Grover, who was in possession, and apparently the owner of the article; that subsequently complainant was garnisheed by the Nelson Manufacturing Company, and he, supposing Grover was the true c’aimant, answered that he was so indebted, and judgment was entered against him by the Justice of the Peace, who issued the garnishee process. Still later, and after the time for taking an a]>peal had passed, complainant was notified by the N. W. Manufacturing Company that Grover was merely its agent in the sale of the belt, and that it would insist upon receiving the price thereof, and threatened to bring suit against him for the same. An injunction was obtained on this bill, restraining the Kelson Manufacturing Company from collecting its judgment.

The Circuit Court sustained a motion to dissolve the injunction for want of equity on the face of the hill, and allowed the last named company §25 as damages upon a suggestion thereof.

The bill shows that complainant had incurred liability to the Kelson Manufacturing Company, by answering the process admitting indebtedness to Grover, and suffering judgment. According to the rule applicable, he can not maintain a bill of interpleader, even though he may have so ii.curred liability under a mistake. He does not stand indifferent between the parties since one-of them has a valid legal demand against him at all events. Pomeroy’s Eq. Jur., Sec. 1326.

It may well be questioned also, whether, upon'the facts as stated, the second claimant has such a demand as it could enforce against the complainant. The Circuit Court properly held the bill should be dismissed for want of equity.

The record fails to show the evidence upon which the damages were assessed, nor is there any such finding of facts in the decree as would dispense with the necessity of preserving the' evidence. For this reason the decree must be reversed, and the cause remanded. The cost of this appeal will be equally divided.

Reversed and remanded.


author: Pleasants, J,

text:
    City of Mason City v. Morgan Barngrover.

      Municipal Corporations—Barbed Wire Fence—Ordinance Requiring Removal of—Whether Reasonable.

    In an action to recover a penalty for the violation of an ordinance in neglecting to remove a barbed wire fence, this court affirms the judgment for the defendant on the ground that, in its application to him and his lots, the ordinance is unreasonable and unauthorized.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Mason County; the lion. Cyrus Eplee, Judge, presiding.
    Mr. T. "N. Mehaüst, for appellant.
    “ The power conferred on municipal corporations is not to declare what may be a ‘public nuisance’ ora ‘ nuisance per se¡ but it is to declare what shall be a ‘ nuisance,’ and to abate the same.” Harmon v. City of Chicago, 110 Ill. 400, 412.
    “ But when the City Council will exercise the powers with which it is clothed, rests in its legislative discretion, and the consequences that may flow from the enforcement of ordinances enacted within powers conferred, rest alone upon the body enacting them, and with which the courts can have no concern.” Harmon v. City of Chicago, 110 Ill. 400, 414.
    “ Every intendment is in favor of the validity of city ordinances.” Dillon Mun. Corp., Sec. 353, and note 4.
    “An ordinance is not invalid because it prohibits what might 'otherwise lawfully be done.” Dillon, Mun. Corp., Sec. 260,
    “It is an unavoidable consequence of city ordinances that they in some degree interfere with unlimited exercise of private rights.” State v. Freeman, 38 N. H. 428.
    “Every actual encroachment upon a highway by the erection of a fence or building thereon or any other permanent or habitual obstruction thereof may fairly be said to be a nuisance. Even though it does not operate as an actual obstruction of public travel, the public is entitled to the full and free use of all the territory embraced within a highway in its full length and breadth,” etc. Wood on ¡Nuisances, 237.
    As to what regulations are proper in cases of preserving the peace and protecting the person and property of its citizens, “Much,” says the court, “ must be loft to the judgment and discretion of the corporate authorities.” Dillon, Mun. Corp., Sec. 340, note 2. . -

      The Supreme Court, speaking of an ordinance passed under the power “to declare what is a nuisance and to abate the same,” says: “In doubtful cases, where a,thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in legislative functions, under a general delegation of power like the one we are considering, their actions, under such circumstances, would be conclusive of the question. Harmon v. City of Chicago, 110 Ill. 400; North Chicago Ry. Co. v. Lake View, 105 Ill. 207.
    “ If any doubt exists as to the ordinance the construction thereof must be in favor of the municipal corporation, who represents the public.” Charles River Bridge v. Warren Bridge et al., 11 Pet. 545.
    Although the act of the Illinois Legislature may pronounce barbed wire a legal fence, this does not make a city ordinance void because it pronounces- it a nuisance within its corporate limits. Chebanse v. McPherson, 15 Ill. App. 311.
    Mr. G. W. Eixsbebby, for appellee.
    Municipal corporations exercise only delegated and limited powers, and in the absence of statutory authority to that effect courts are authorized to indulge in no presumptions in favor of the validity of their ordinances. Schott v. People, 89 Ill. 195.
    When an ordinance is objected to as evidence, authority to pass it must be clearly shown. City of Alton v. Hartford Fire Ins. Co., 72 Ill. 328.
    The dangerous doctrine that whatever a city council declares to be a nuisance, whether it in fact has that character or not, really becomes a nuisance and liable to removal or destruction simply because of that declaration, never was and never will be tolerated in this country. “ This would place every house, every business, and all the property in the city, at the uncontrolled will of the temporary local authorities.” Yates v. Milwaukee, 10 Wall. 505; Dillon on Mud. Corp., Sec. 308; C. R. I. & P. R. R. Co. v. Joliet, 79 Ill. 25.
    The discretion of a city council is not unlimited. It must look to the charter for it? authority in all eases. Sherlock v. Village of Winnetka, 68 Ill. 530; People v. Village of Crotty, 93 Ill. 180.
    A nuisance, if denied, must he proven. A sweeping declaration amounts to nothing. Ewbanks v. Town of Ashley, 36 Ill. 182; Poyer v. Village of Des Plaines, 18 Ill. App. 225; Wood on Nuisances, Secs. 23, 27.
    Not every use of one’s property that injures another’s projaerty is nuisance. Every man has a right to the reasonable enjoyment and protection of his own property, and because of this principle the courts proceed with great caution in declaring nuisances. Wood on Nuisances, Secs. 2, 6, 8.
   Pleasants, J,

This suit was commenced November 15, 1886, before the police magistrate against appellee for the violation of an ordinance of the city approved November 23, 1885, and duly published, as follows: “ All fences made and constructed on any street or alley within the limits of Mason City, in whole or in part of barbed wire, is (are) hereby declared to be a nuisance (nuisances), and any person or persons who shall build such fence or neglect or refuse to remove such fence, or such part thereof as is made of barbed wire, after this ordinance shall take effect, shall be fined in any sum not less than §5 nor more than §25.” It was tried, on appeal, by the court without a jury, and the finding and judgment were for the defendant.

There is no disagreement as to the facts; Mason City is about one mile square, with a population of nearly 2,000. Its center of business and population corresponds very nearly with that of its area. Cattle are allowed to run at large in it.

Appellee owned the lots composing the east half of the block at its northwest corner,, excepting only the one at the north end. As a body they faced two streets and were inclosed, a year or two before the passage of the ordinance, by a barbed wire fence set back about afoot from the street line. There was no sidewalk along them until about four months before the commencement of this suit, when a narrow one of plank was laid on the east front. This sidewalk and the streets along the lots are very little used.

The only question made in the court below and here respects the validity of the ordinance. The city is incorporated under the general law, and the discussion has taken a wide range upon the express powers over streets and to declare nuisances thereby given, and the general police power of cities. We conceive it would be of but little, if any, use to follow it at length or to review the authorities so numerously cited on both sides. A majority of the court are of opinion that this ordinance in its application to the appellee and his lots- is clearly unreasonable and, therefore, beyond the power of the City Council to pass. The writer does not concur therein.

Judgment affirmed.