text:
    Bernard Murtaugh v. Thomas Colligan.

      Negotiable Instruments — Notes—Forgery — Ratification — Inconsistent Defenses — Evidence—Instructions—Set-off.
    1. It is improper to give instructions in support of inconsistent defenses.
    2. In an action on a note and to recover money paid by the plaintiff as surety on a second note, the defendant can not repudiate the second note because it was raised in amount after it was executed by him as maker, and at the same time deny his liability on the first note on the ground that it was paid by the proceeds of a transfer of the second note.
    8. A promise by the purported maker to pay a forged note binds him without any new consideration, provided he has full knowledge of the facts affecting his rights.
    4. Where a note is assigned after maturity, matters of set-off in favor of the maker as against the payee, accruing after such assignment, can not be allowed.
    [Opinion filed December 8, 1888.]

      Appeal from the County Court of LaSalle County; the Hon. Frank F. Snyder, Judge, presiding.
    Messrs. E. D. McDonald and A. E. Greenwood, for appellant.
    It is a general rule that when the plaintiff makes out a prima facie right to recover, as was done in this case, if the defendant seeks to avoid the recovery of a judgment on the note, he must show by a preponderance of the evidence that such note was paid before the plaintiff became the owner of it. The burden of proof is upon him to rebut every presumption in favor of the plaintiff.
    It is a presumption of law that a note was assigned before maturity. Mulford v. Shepard, 1 Scam. 583; Mobley v. Ryan, 14 Ill. 51; Richards v. Bitzer, 53 Ill. 466; Clark v. Johnson, 54 Ill. 296.
    It is a rale of law that, unless otherwise specially agreed upon, the taking of a promissory note for a pre-existing debt, or a contemporaneous consideration, is treated prima facie as a conditional payment only; that it is a payment only if it is duly paid at maturity. Story on Promissory Notes, Chap. 3, Sec. 104; Heartt v. Rhodes, 66 Ill. 356; Burdick v. Green, 15 Johns. 247.
    The second instruction is erroneous in this, that it tells the jury the mere giving of the $150 note to Cain by appellee on February 5, 1885, and that Mathew Colligan obtained $150 on it, operated as a part payment of the $242.25 note, but does not state that the appellee afterward paid the $150 note, or any part of it. This instruction can not be sustained by the above authorities.
    In the case at bar the appellee was the one to be benefited by procuring the loan from Patrick Cain, and appellant was assuming a liability as a mere friendly act to aid appellee in getting the money from Cain on the.note, and when sued by Cain and compelled to pay the judgment, he (appellant) was subrogated to all the rights of Cain under that, judgment, and he had a right to sue on the $242.25 note that he held as collateral security, as the evidence shows, or he had the right to pursue appellee on the $250 note to reimburse himself for the money paid on the Cain judgment. This was all appellant was seeking to do. Harvey v. Drew, 82 Ill. 606; Hoyt v. Lock, 41 Ill. 119; Klein v. Mather, 2 Gilm. 317.
    Messrs. Moloney & Stead, for appellee,
   Lacey, P. J.

This was an action in assumpsit by appellant against appellee. The declaration contained one special count, based on a promissory note given by appellant to Mathew Colligan, for $242.25, dated February 15, 1884, due in nine months after date, with eight per cent, interest from date, and indorsed by the payee to appellant, and the ordinary common counts.

It appears from the evidence that Mathew Colligan, who was the son of appellee, held the note above described, on his father, and, as testified to by the father, on February 5,1885, the appellee and his son had a settlement and agreed there should be $100 credited on the note on account of the wages of a minor son of appellee laboring for Mathew in Nebraska for about one year up to that time. That would leave, as they agreed, $150 due on the note.

The appellee, in order to pay his son this balance on the 'note, was then to raise money on his own note with security which, when raised, was to be applied on the balance due on the note in question. In pursuance of this arrangement appellee executed to Patrick Cain his note for $150, dated February 5, 1885, due in one year after date, with eight per cent, interest from date, and gave it to his son Mathew, who was to obtain the security on the note, and then negotiate it to Cain and obtain the money on it. The old note wu>s not given up by Mathew, but was to be sent to appellee. Now, as is claimed by appellee, before presenting the note to the sureties to be signed, said Mathew, without the knowledge or consent of appellee, raised the note to $250 and then procured the signatures of appellant and Maurice Colligan, and then presented the note to Cain and obtained $250 on it. As is shown by the evidence of appellant, about the time he signed the note as security Mathew indorsed and delivered to him the old note as security against signing the new note.

Afterward appellant was sued on the §250 note which he had signed as security, in a suit against him and Maurice Colligan, and judgment was rendered against them, and appellant had to pay §287.77 to Cain, besides costs. This last amount is the basis of the common counts for money paid out at appellee’s request.

Appellee now in this suit repudiates his liability to pay any part of the money paid by appellant by reason of his being security for him on the new note, because the note was raised by his son, and, if we understand the theory of instruction number two, given for appellee, he insists the old note was paid, or more properly, the balance due on it of §150. by the money his son Mathew received on the raised note of Cain. The portion of the instruction referred to reads as follows: “ And if the jury further believe, from the evidence, that the said note (the old note) was paid by the giving of a new note on February 5,1885, for the sum of §150, by Thomas Colligan to Cain, upon which note the said Mathew Colligan secured from the said Cain the sum-of §150 to apply on the said note of §242, and by the payment of §92 on the said §242 note in work and labor, then the jury are instructed that the plaintiff in this case can not recover on the said §242 note;” and the next and third instruction tells the jury that, in the event the new note in question was raised without the consent of appellee, then he would not be liable on it as principal, and appellant could not recover for having paid as surety. Thus the appellant was closed out entirely by these instructions as to defenses entirely inconsistent with each other. If the appellee is allowed to repudiate his being principal on the new note then the money was not raised by him or qn his responsibility; which he claims he should be credited for in discharge of the old note to the amount of §150. In that event, appellant would have raised this money on his own'name, without any recourse on appellee. He would have recourse on Mathew on account of the fraud perpetrated on him, and therefore the old "note which Mathew gave him would rightfully be the property of appellant to reimburse him for the money he had wrongfully paid on the Mathew account. If the appellee acknowledges his liability on the new note as principal, then the old note is paid and the appellant can recover on the common counts. But both these inconsistent defenses can not be made, and the jury should have been so told. The appellant had a clear right to recover either on the old note or for money paid out to appellee’s use, unless appellee could show some other defense to the old note. This he attempts to do by claiming a set-off to the note to the amount of §100 for work and labor performed by his minor son John for Mathew in Nebraska, after the note was indorsed to appellant by Mathew, to secure him against liability on the new note, in addition to the §100 agreed to be credited by Mathew on the note for labor before the new note was made out; also §04 that Mathew, in 1880 or 1881, on division of property by appellee among his children, agreed to pay to one Blanchard, on a debt owed by appellee, and which, suhsecpiently to the indorsement of the old note to appellant, appellee was compelled to pay. We must consider whether either of these claims was a valid set-off against the said note. We think clearly the first, and probably the second was not. Sec. 12, Chap. 98 of the IL S. (Negotiable Instruments) provides that in case a note is assigned after due, a set-off by the maker against the payee may he allowed, “if such demand be such as might have been set off against the assignor while the note or hill belonged to him.”

It will be seen that the account of appellee against Mathew for labor of his son in 1885-6, had not accrued when appellant became the holder of the old note, and under the statute could not have been set off. This claim for labor accrued after Mathew had parted with the note. The old note and interest at the time of the settlement amounted to about §261? and allowing the $100 claimed for labor, a balance would exist of about §161.

The §64 was not raid till after the transfer of the old note, the balance on which, according to appellant’s testimony, of §150, had been found due. This item was not then claimed. At best it is a stale claim, and, we think, could not be allowed as a set-off against the old note. It would be inequitable to do so. But even if this were allowed, there would still remain over §90 due on the old note, and appellant has been allowed nothing.

As to the question of ratification by appellee to the holder of the §250 note, we find the evidence quite strong. Appellee paid $15 interest on the new note, but he says he paid it before lie saw it, though lie did not object afterward.

He says in liis testimony : “ I might have agreed to pay the §250 note. I was excited. I may have agreed to pay it.” When he went to Cain’s to pay the interest he. saw the note, and paid $15 interest on it, and may have agreed to pay it. Patrick Cain testifies that he heard a conversation between appellant and appellee at the church door in La Salle, and appellee agreed to pay the note. “ He said he did not want his wife to know anything about it.”

The appellee’s instructions tell the jury in substance that this would not bind him unless such promise was on “a valuable consideration;” presumably on a new consideration, different from what passed when the note was delivered. We understand the law to be that a promise by the purported maker, to pay a forged note, binds him without any new consideration, provided the promisor had full knowledge of the facts affecting his rights. Gleason v. Henry, 71 Ill. 109; 1 Parsons on Notes and Bills, 101; Wilson v. Alexander, 3 Scam. 392. The appellee’s instruction, as given, were erroneous and calculated to mislead. It will not be necessary to notice the instructions in detail, as the views here expressed will be a sufficient guide in case of a new trial.

The judgment of the court is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Lacey, P. J.

license: Public Domain

text:
    David McCulloch v. Thomas B. Ellis.

      Venue — Commencement of Suit in Wrong County — Practice—Remedies—• Motion.

    Where a suit is improperly brought in a county other than that in which the defendant resides or is found, service being made in another county, it is proper practice to quash the writ and return and dismiss the suit upon motion,
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. Shaw, Judge, presiding.
    Messrs. McCulloch & McCulloch, for appellant.
    The well-established rule in this State is, that, where process is defective on its face, or the return of service is, of itself, insufficient, the defect may be taken advantage of by motion to quash; but where the objection to the writ or service does not appear upon the face of the proceedings, but has to be shown by matters dehors the record, the objection must be made by plea in abatement. Greer v. Young, 120 Ill. 184; Holloway v. Freeman, 22 Ill. 197; McNab v. Bennett, 66 Ill. 157; Union Nat. Bk. v. First Nat. Bk., 90 Ill. 56; Rubel v. Beaver Falls Cut. Co., 22 Fed. Rep. 282; Holton v. Daly, 106 Ill. 131; Hearsay v. Bradbury, 9 Mass. 96; Beam v. Parker, 17 Mass. 601; Guild v. Richardson, 6 Pick. 368; Charlotte v. Webb, 7 Vt. 48; Lillard v. Lillard, 5 B. Mon. 340.
    If, at the time of the commencement of the suit, appellee was a resident of Peoria county, the issuing of the alias writ to Rock Island county was proper; for the plaintiff, having commenced his suit properly, is not to be deprived of the benefit thereof by the defendant’s changing his residence before service. Funk v. Ironmonger, 76 Ill. 506.

      When the original writ has been properly issued, although not served, an alias may go to another county. Funk v. Ironmonger, supra; Hughes v. Martin, 1 Ark. 386.
    Mr. George W. Spahr, for appellee.
   Lacey, P. J.

Summons was issued in favor of appellant against appellee in Peoria county and directed to the sheriff of that county, dated July 15, 1887, and returned by the sheriff, “Thomas B. Ellis not found in this county this 23d day of September A. D. 1887.” Alias summons was issued directed to the sheriff of Bock Island county and returned served on the appellee by the sheriff of that county, November 26, 1887.

There was a declaration in assumpsit for legal services filed by appellant. At the February term, 1888, appellee entered a special appearance by attorney and moved the court to quash the writ and return thereon, and to dismiss the suit; which motion the court sustained, quashed the writ and return, and dismissed the suit and entered judgment against appellant for costs. To reverse said judgment this appeal is taken. In support of the motion to quash, appellee filed an affidavit showing that, at the time of service of the summons and commencement of the suit, he was a resident of Bock Island county, and ever since has been, and not of Peoria county, and appellant filed a counter affidavit showing that appellee was present in Peoria when the first writ was issued and suit brought.

The appellant insists that the summons and return should not have been quashed and the suit dismissed on motion; that plea in abatement should have been filed by appellee; and secondly, that the suit should not have been dismissed. We think there was no error in the action of the court. It appeared on the face of the record that the appellee yras served in a different county from the one in which he was sued. The service and return on the summons both showed it, at least prima facie.

There was nothing in appellant’s affidavit to show that appellee was a resident in Peoria county at the time the suit was brought or afterward, and we think that the words, “ may be found,” in the statute, have reference to the service alone. The affidavit of appellant only proved his personal presence in the county at the time the suit was brought, not that he was a resident.

It is not necessary in a case like this to file a plea in abatement. The relief may be obtained on motion. It appears to be the proper practice. In Safford v. Sangamon Ins. Co., 88 Ill. 296, where motion was made by the defendant to quash the writ, the court say: “The motion to quash the summons ought to have been allowed. On that motion it was shown to the court that this was a case in which the issue and service of this summons was forbidden by statute.” See also Kenney v. Greer, 13 Ill. 432-450.

It is strenuously claimed that the suit ought not to have been dismissed. We are of opinion that the ruling in that respect was correct. The statute provides that it shall not be lawful to sue any one out of the county where he resides or may be found. The record showed that this was done in this case.

The appellee was sued in Peoria county, where he did not reside, against the express prohibition of the statute. Appellant had no right to have the suit remain on the docket to worry and annoy the appellee, and it was proper and right to dismiss it.

It would have been lawful to either quash the declaration or dismiss the suit. See cases above cited. It was unlawful to plant the suit in Peoria county.

Them being no error in the record the judgment is affirmed.

Judgment affirmed.


author: C. B. Smith, J.

text:
    City of Abingdon v. Clinton H. Meadows et al.

      Instructions — Fast Driving — Ordinance—Abstract.
    1. An instruction in the nature of an argument upon the facts and the duty of the jury in the premises, is erroneous.
    2. The instructions must be in writing, unless that form is waived by the parties, and relate only to the law of the case.
    3. Every intendment being in favor of the judgments of a court of gen. eral jurisdiction, where complaint is made of certain in»tractions, all others given should also appear in the abstract.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge,, presiding.
    Messrs. Williams, Lawrence & Bancroft, for appellant.
    Mi-. F. F. Cooke, for appellee.
   C. B. Smith, J.

This was a prosecution brought against appellees before a justice of the peace for violating an ordinance of the city of Abingdon, and was appealed to the Circuit Court of Knox county. A trial was then had resulting in a verdict and judgment for the defendants. Appellant brings the ease here for review. The ordinance in question is as follows:

“Whoever shall purposely and rapidly or immoderately ride or drive any horse or mule or other domestic animal or any team in any street or alley in the frequented part of the city * * * shall be subject to a fine of not less than $3.”

The defendants were charged with violating this ordinance by rapidly and immoderately and purposely driving their horses in one of the frequented streets of the city. That the appellees were speeding their horses together in a frequented street is not denied. The proof is clear that the contest between the two men and their horses was in the nature of, and in fact was a race.

The contention of the defendants was that they were not driving so fast as to bring them within the prohibition of the ordinance. We think the proof clearly shows that this driving was voluntary and wilful and that it was both rapid and immoderate in a public street, and that it clearly came within the prohibition of the ordinance and that the verdict of the jury was manifestly against the evidence.

The first and second instructions appear to be similar to those given in the case of L. & P. Ry. Co. v. Foster, 43 Ill. 480, and are not obnoxious to the objections made. But conceding the erroneous character of these instructions we should not reverse on that ground, because of the failure of appellant to abstract its own instructions and brine them to the attention of the court; so that we can not say that their own instructions may not have cured any error complained of in appellant’s instructions. Every intendment must he in favor of the judgment of a court of general jurisdiction.

After the jury had been out nearly twenty-four hours, the court on its own motion and without request from either party or from the jury, called the jury into court and gave them this instruction:

“The court of his own motion further instructs you as follows: One of the modes provided by our Constitution and laws for deciding questions of fact in common law cases, such as the one you are now considering, is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, mathematical certainty can not be attained or expected. Although the verdict to which a juror agrees must of course be his own verdict, the result of his own conviction, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, without pride of opinion and without a partisan spirit, and with a proper regard and deference to the opinion of each other, and in conferring together, listen to each other’s arguments with a disposition to be convinced. You should consider that the case must at some time be decided and that it is important to the parties to this suit that it be done now and by you if it can be done properly. That you are selected in the same manner and from the same source from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men more impartial or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other; and with this view, it is your duty to decide the case if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other in a.ll cases. In the present case the burden of proof is on the plaintiff, and if the city has failed thus to make its case by a clear preponderance of all the evidence in the case, you should find" the defendants not guilty; on the one hand, if much the larger number of your panel are for a conviction, the dissenting jurors should consider whether the conclusion reached by them from the evidence is correct when the majority of the jury come to an opposite conclusion, when they are equally honest and equally intelligent and have heard the same evidence with the same attention, and with an equal desire to arrive at the truth, and under the sanction of the same oath; and on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated, and the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.”

Sec. 52, Chap. 110, B. S. requires the court to instruct the jury in writing, and only as to the law of the case. The instruction complained of is in plain violation of this statute and is more in the nature of an argument upon the facts, and the duty of the jury upon the facts, than a statement of the law of the case.

The instruction was an invasion of the rights of the jury to determine for themselves when, if ever, they would agree, and what verdict they would render. The giving of this instruction was error.

The court had the right to recall the jury at any stage of their deliberations and to instruct them further upon the law of the case, either upon its own motion, or on the motion of cither party, if they had not been fully and correctly instructed as to the law before retiring. It is not only the right but the duty of the court to see that the jury is fully and correctly instructed, and this the court may do on its own motion, but it must always be done in writing (unless that form is waived by the parties), and must relate only to the law of the case.

For the error in giving the above instruction, and because the verdict was against the evidence, the judgment is reversed and the cause remanded.

Bevei'sed and remandad.


author: Lacey, P. J. C. B. Smith, J.,

text:
    William Ennor v. Thomas H. Hodson.

      Negotiable Instruments — Note—Action, by Assignee — Defenses—Holder for Collection — Settlement by Maker with Payee — Fraud—Instructions and Evidence■ — Pevietv of — Signature—Practice—Verification of Plea■ — Time — Trusts — Dissenting Opinion.

    1. The maker of a promissory note may settle the same with the real owner, ancl thereby defeat an action thereon brought by a holder merely for collection. Questions as to the sufficiency of the amount paid in settlement and whether the owner has been defrauded, can not be raised in such action.
    2. In an action on a promissory note, it may be shown that the plaintiff is merely a holder for collection, in order to let in the defense of payment and settlement made to and with the payee.
    3. The court below properly allowed, after the trial commenced, the verification of a plea dem-ing the execution of the indorsement on the note in question.
    4. In the case presented, this court, upon a review of the instructions and the evidence, finds that there was no error in giving, modifying or refusing the instructions asked, and that the evidence supports the verdict for the defendant.

      5. Where a trustee has placed himself in a position antagonistic to the trust, he can not claim any benefit under the same.
    6. A witness having testified th it he is acquainted with a person’s signature from seeing it attached to papers known to have been signed by him, is competent to testify to a supposed indorsement by such person.
    [Opinion filed December 13, 1888.]
    Appeal from the Circuit Court of Jo Daviess County; the Hon. Joseph M. Bailey, Judge, presiding.
    Messrs. D. & T. J. Sheean, for appellant.
    Messrs. E. L. Bedford and William Spensley, for appellee.
   Lacey, P. J.

The appellant sued the appellee in an action of assumpsit on a promissory note given by the latter to Alice Ennor, and averred to have been indorsed to appellant. The note was given in the sum of §6,000, without interest, if paid when due, dated September 18,1882, and due in twelve months from date.

There was a plea of the general issue and notice given in accordance with the provisions of the statute of several special defenses. 1. That the note was never indorsed by the payee to appellant. This was accompanied by affidavit sworn to. 2. The appellee, without notice of any indorsement, paid "the payee the said note in full in a deed for eighty acres of land and the sum of §3,412.43, in full satisfaction of the note. 3. That the note was only held by said appellant as the agent of Alice Ennor, and that it was indorsed fraudulently, and that the appellant paid no consideration for the note. The cause was tried by a jury and resulted in a verdict in favor of appellee, and the court, after overruling a motion for a new trial, gave judgment against the appellant for costs, from which judgment this appeal is taken.

On the trial of the cause two defenses were particularly relied on. The first was that the note had never been indorsed by the payee, and hence no recovery could be had on it in the name of appellant as the legal holder, as was attempted. The second was that even if the note had been indorsed by the payee, it was only indorsed for collection, and that after such indorsement the appellant’s agency for collection had been revoked by the payee, and that she had settled the note in full with the appellee, and that nothing remained due on it

Concerning the first issue in regard to the indorsement, the evidence was conflicting and contradictory, but as we view it? sufficient to sustain the verdict. If that had been the only issue, and if the instructions given for appellee had not laid down the law as to the second point of the defense, it would not be necessary to examine the case further. ■ But as the jury may have found for appellee on the theory that, while the note was actually indorsed by Alice Ennor, yet she was the equitable owner and had received full satisfaction of it from appellee, it results that the instructions and rulings of the court concerning the last named issue must be correct, and we must pass on those questions also. We must also pass upon the complaint of the appellant that the court erred in modifying his second and fifth given instructions, the modification complained of being that the court so charged them as to make the right to recover depend on the appellant being the equitable as well as legal owner of the note, instead of his being the legal owner only, as they were offered by appellant. This action of the court is one of the matters most seriously complained of by counsel for appellant. In discussing the merits of the defense offered, we will confine ourselves to the facts and circumstances and the law thereto applicate concerning the alleged payment of the note to Alice Ennor. It appears that appellant is the father of Alice Ennor, and that on May 29, 1878, he deeded to Alice the 160 acres of land afterward sold to the appellee, and for which the note in question was given, for a named consideration in the deed of §4,500, which deed was duly recorded in La Fayette county, Wisconsin, where the land was situated, January 17, 1879. Alice Ennor, on the 18th day of September. 1882, deeded the land in question to the appellee in consideration of §6,000 named in the deed, and for which the note in question was given to her for the amount. It appears that the appellant throughout the entire transaction acted for Alice in making the sale of the land to appellee, taking the note and transacting the business generally. It appears, too, that Alice did not pay her father any money for the land. The appellant, after taking, the note in question, held the same in his own possession, and claims that Alice, within about one month after it was given, indorsed it to him in her own hand, as appeared on the back of the note, the name of Alice purporting to be her own handwriting. Some time prior to Hay, 1885, Alice, who was at the time of the trial about fifty-nine years old, and her father, had a falling out, and she undertook to repudiate her father’s right to act as her agent concerning the note any farther, and on the 4th of Hay, 1885, entered into a written contract with appellee wherein it is recited that the land in question was deeded to him under a contract that he was to subdivide said land into ten-acre tracts and sell the same, and make deeds to purchasers, and ’receive for such services all sums or amounts which might be realized over and above the sum of $6,000, and was to be allowed, over and above the sum of $6,000, the sum of $100 for expenses, and that appellee was to be allowed at least $30 per acre for the land remaining unsold when the agency should terminate; and further reciting that appellant retains said note and threatens to sue it and get the money into his own hands against her will, and reciting that the land had been attached as the property of appellant and the moneys realized from the said sale placed in the hands of a trustee to abide the event of the suit. It was therefore agreed in and by said instrument, and she did in terms revoke the agency of appellant in the matters in question and forbid his bringing suit against the appellee in the note, and she further agreed to receive the land remaining unsold (the eighty acres) back, which had been conveyed to appellee in trust, and the further payment to her of the $3,442.43 remaining in the hands of E. L. Bedford, as trustee, in full satisfaction of her claim against appellee. The appellee showed in evidence a receipt signed by said Alice, dated August 24, 1886, in full for the $3,442.43, and a deed back to her of the eighty-acre tract of land, in full .compliance with the terms of said last mined agreement. The appellee further showed a notice in writing signed by Alice, directed to appellee, of August 16, 1886, notifying him that she never signed a note for §6,000 to her father for the Elk Grove land and notifying him she would hold him responsible for the amount and authorizing him not to pay it to her father, as it belonged to her. The appellee further showed an indemnifying bond given by Alice to him of the same date with the receipt, agreeing to keep him harmless against the said note and all costs and expenses by reason of its being in the hands of appellant, and against any claim he or any one might have in the note. The evidence no doubt shows that the execution of the contract, the notice and the subsequent payment and accord with Alice ivas done at appellee’s instance.

The appellee sold, in addition to the land for which the $3,442.43 was realized, one other twenty-acre tract, and afterward received a deed hack for it, hut realized the sum of 8400 for it. The deposit of 83,442.43 drew four per cent, interest per annum while the litigation between appellant and the Cleveland Iron Company proceeded, and principal and interest at the time of the date of said receipt amounted to about 83,700, which, added to the $400, makes $4,100 realized by appellee out of the land. The evidence discloses that appellee only paid Alice Ennor, in cash, .$2,400, and gave her a deed for the eighty acres of land unsold, leaving in his hands $1,790 unaccounted for. The evidence shows that appellee had some arrangement with Alice by which he was to keep this -amount, but what that was — whether for fees for legal services (for appellee was an attorney at law) or for what purpose — the evidence does not disclose. It is claimed, in the argument of counsel for appellant, that the land in question was deeded by appellant to Alice Ennor, and the $6,000 note taken in her name as a scheme to prevent the Cleveland Iron Company from reaching the land. It appears that the Cleveland Iron Company had a large judgment which they were trying to collect of the appellant, or, at least, it was in existence at the time of his deed to his daughter. If this theory were correct, and the land was really the land of appellant and was neither intended as a gift to his daughter nor was conveyed to her in consideration of his indebtedness to her for money used by him, left to Alice by her mother, and Alice indorsed the note hack to appellant as his own, it would be conceded that the appellant had a right to recover on the note in question, notwithstanding any settlement made by appellee with Alice. The possession of the note by appellant with the indorsement would be sufficient notice to appellee that the note belonged to appellant. But, on the other hand, if the appellant never had any interest in the note except to hold it as the mere agent of Alice, we think it equally clear that she had a right to collect it from the maker, and the mere fact that the legal title to the note was in appellant for collection and that he held the possession, would make no difference. Tie, having no interest in the note, could not insist on its collection after it had been settled with the real owner. And such settlement may be made with the maker by the real owner of a promissory note as against the mere holder of it for collection, either before or after the suit is instituted. Even in case of the indorser of a note holding it as collateral security for a sum less than the face of the note and interest, the maker may have his defense against such indorser as he would have had against the payee, as to any balance due on the note over and above the amount for which the payee held it for security, even though the indorser were an innocent holder. Such defenses are allowed because it is equitable to do so, and it prevents circuity of action. Steere v. Benson, 2 Ill. App. 260; Mayo v. Moore, 28 Ill. 428; President, etc., v. Chapin, 8 Met. 40; Jones v. Heffert, 2 Starkie, 3 Eng. C. L. 356; Atlas Bank v. Doyle, 9 R. I. 76.

The same principle is involved here, and, on the theory of appellee’s case, its application is more forcibly demanded, for the appellant received the indorsement knowing of the peculiar contract concerning the deeding of the land in question to the appellee, besides accepting the indorsement of the note as a mere volunteer. We therefore perceive no error in the modification of the appellant’s second and fifth instructions in the particular complained of. The way the instructions read when presented to the court, the entire defense of satisfaction of the note by agreement between Alice and appellee was out off, provided appellant showed by a preponderance of the evidence that the note was actually indorsed by Alice to him and he retained the possession thereof; for then the legal title remained in him though the actual ownership might be in Alice, with whom the appellee had settled. It would have been error to have given the instruction as drawn. It follows, also, that the appellee’s instructions given by the court, based on the idea of equitable title in Alice, the payee, and settlement with her, were proper, and rightfully given.

The objection made that the court allowed the appellee to file a verification to the plea denying the execution of the indorsement after trial commenced, is not well taken. Under our present statute such amendments are allowable at any time before judgment; nor did the court err in refusing to strike special notice of defense from the files. Ho reason is suggested why such action was erroneous, and none occurs to us.

The objections to the admission of evidence for appellee are mostly answered and overruled in principle by the suggestions that we have already made, and we perceive no error in allowing appellee to testify to the supposed signature of Alice Ennor to the indorsements. A sufficient foundation was laid. lie testified that he was acquainted with her signature from seeing it attached to papers known to he signed by her.

The appellant’s counsel contend that the court erred in refusing to give the appellant’s sixth to sixteenth refused instructions. inclusivo; but no cause, is shown in their brief why it was error to refuse them, except as to the seventh to fourteenth inclusive. The theory of the eleventh instruction was that, if the note had been assigned by Alice Ennor to the appellant before it had become due, and had not been paid to him, then he must recover. The reason given for supposing this one good is that appellee was cut off from making his proposed defense, because it was attempting to show failure of consideration or want of consideration for the assignment, and that, it .is insisted, can not be done under the general issue, and must be specially pleaded, citing Sheldon v. Lewis, 97 Ill. 640.

It is claimed in appellant’s brief also that it was error to refuse the appellant’s seventh, eighth and eleventh refused instructions, for the further reason that the maker can not question, in a suit against him by the assignee, what consideration the

assignee paid for the note, as it does not concern the maker, citing Edwards on Bills and Promissory Notes, 250, and Burnap v. Cook, 32 Ill. loB. The law cited can not have any application when applied to facts in this case and to the defense set up. There appears to be a misapprehension as' to the nature of the defense relied on. It is not that there was no consideration, or that there was a failure of consideration for the assignment, or that the assignment was void for want of consideration, or that the assignment did not transfer the legal title so that suit could be brought in the name of the appellant. It is admitted that the assignment is valid, so that suit may be brought in the name of appellant, provided there was ah assignment in fact; but the defense is that the appellant ivas, and had been, a mere holder for collection, and not entitled to the same protection as to defenses against the note as an innocent purchaser before maturity for value. The conditions of his holding could be shown in order to Jet in the defense of. payment and settlement made to and with the payee, and the rules above cited are not violated by admitting evidence showing in what capacity appellant held the note in connection with and as a part of the chain of defense. The notice was amply broad to admit it.

It is insisted that the fifteenth refused instruction asked for by appellant should have been given. Thisholdsthat, “if appellee, with the intention of dividing up a large sum of money between himself and his brother and E. L. Bedford, made the payment to Alice Ennor, as claimed by said defendant, then such payment to Alice is no payment of said note,” etc.

This point seems to be much relied on, and a large part of the appellant’s argument is taken up in trying to show the bad faith, improper conduct and fraudulent intentions of appellee, his brother and Bedford, as regards the fund in controversy. It is also attempted to show that appellee has failed to pay all that he ought to have done to Alice in the settlement of the note; that he improperly retained §1,700. As we view the matter these considerations are wholly immaterial, provided in reality the money due on the §6,000 note was equitably due to Alice Ennor, and the appellant only held the note as her agent for collection. If Alice Ennor was defrauded by appellee it was no concern of his. She would be the proper person to bring him to account, and not the appellant. And it is presumable she will do so in some other proceeding, if she is not fully satisfied with the settlement. On the hypothesis that the note is hers, the appellant can not interfere. The evidence does not fully disclose and we need not inquire for what consideration appellee was allowed to retain the money he did. It follows, then, that instruction Ho. Id, offered by appellant, was properly refused.

As to the other refused instructions, as there is no error pointed out, we will not examine them, as we suppose if there had been any objection to refusing them it would have been shown what it was. It was not error to command and not advise the jury to find in favor of appellee on the hypothesis contained in his first and second instructions. We think that there was ample evidence on which to base appellee’s third instruction. The appellee had a clear receipt and quittance as against the note from Alice. It was paid partly in money and partly in a deed for eighty acres of land. It was partly paid and partly accorded and was receipted for in full; and if she was the equitable owner, that was good as to appellant, and neither in this instruction nor the fourth could the jury be misled because the instruction used the word “pay” Alice Ennor, as claimed by the defendant, instead of “ settled,” as set out in the fifth. The fifth instruction given for appellee is proper, as we view the law.

The last objection made by appellant’s counsel, that appellee can not set up the defense sought to be made for the reason that the will of Grace Ennor, mother of Alice, gave appellant “power and authority to control Alice Ennor’s property during his lifetime,” will be considered hereafter.

We have now considered all the appellant’s objections concerning the giving, modifying and refusing instructions, and the admission of evidence, and it now remains to be con sidered whether the evidence justifies the verdict. To this question we will now address ourselves. It will be observed that the appellant did not offer himself as a witness, and the only evidence he has to rely on to show'that he was the owner of the note in his own right, is the fact that he deeded the land to appellee without any consideration being paid at the tizne, and that after the deed was made to appellee for the land, and the note given to Alice Ennor, he l'etained possession of the note and procured Alice to indorse the note to him, which last claim is hotly contested by appellee and Alice, and perhaps another fact, that about that time he was endeavoring to defeat the collection of the judgment owned by the Cleveland Iron Company. Out of these facts azzd circumstances appellant’s counsel infer that he deeded the land to Alice, for the purpose of defeating the collection of this judgment-Against these facts and circumstances we have the following evidence:

1. Alice Ennor testified: “On September 18, 1882, my father had everything in his own hands and did as he had a mind to with all the property my mother left me. This land was bought with znoney my mother left me. He came over and got me to sign the deed to Mr. Hodson; said it was better to sell it than to pay taxes. I paid the taxes that year, which was $49.50.”

2. M. Y. Johnson was produced as a witness on the part of appellee, and testified as follows: “I know plaintiff; was attorney for the Cleveland Iron Company against hizn. I recollect of his testifying in February, 1882, in regard to the lands in Wisconsin in controversy in this suit. It was in that proceeding where Mr. Ennor was praying to be discharged from arrest in an insolvency proceeding. He testified he was the agent of Alice Ennor; that she received some $8,000 from her mothez-’s will; that $4,000 of the money was in his hands as agent for Alice; that he had a mortgage on this land; that the interest was not paid and he foreclosed it; when it was sold by the sheriff he and some other gentlemen went out there and he bid it off for Alice Ennor, but the sheriff misunderstood and struck it off in his name, and the deed was made out to him, and he immediately transferred the deed to Alice Ennor; that is the substance of it,” etc.

3. In addition to this, the will of Grace Ennor, the mother, was introduced in evidence on the ¡'art of appellee, which showed that the testatrix gave “to Alice all personal property belonging to her, unconnected with her husband,” in trust to Wm. Ennor, her husband, in trust for her daughter, Alice, for the purpose hereafter named; also moneys due from her husband, as follows: “All my personal property I give to my only child alive, Alice Ennor; all the furniture in the house; also, my gold watch, with all my clothes; also, the policy of insurance in the Northwestern Insurance Company, at Milwaukee, on my husband’s life for ten years, if he lives,” which insurance was made for her sole benefit. The will further created Wm. Ennor sole trustee for her daughter, Alice, to act and transact all her affairs during his natural life, without control of her husband, etc. The will was duly probated.

The above seems to be the substance of all the evidence on the question of the ownership. We think there is abundance of evidence from which the jury might properly find for the appellee and this question of the ownership of the note.

It will be seen as above stated that appellant did not go upon the witness stand to support his theory of the case or claim under oath that the land was his; indeed, he could not have done so without convicting himself of perjury committed either at the one time or the other. Would the appeliant without his oath denying his former testimony, and on no more evidence than appears in the record now, have us be. lieve that he had committed perjury in such testimony?

But it is suggested that he can hold the note and collect it as the trustee of Alice. This seems to be the last resort to which appellant flies to make out a case. We think under the circumstances he should not be allowed to benefit by such claim as this. As to any trusteeship he may have had, we think he has placed himself in such antagonistic position to the trust that it must be regarded as having been repudiated. It is not shown that he has ever attempted to administer the property as Alice’s agent or trustee. He made the deed directly to her without reservation, and by that means placed the land entirely under her control, without regard to the trust? and he should not be allowed to reclaim it. He has also brought this suit in his own name without mention of any trust in the declaration, and claims the money as his own, and if it is collected will hold it as his own. Even in his brief here he strenuously insists that the note is his in his own right, thus repudiating his trusteeship; and in taking dn antagonistic attitude to it, we 'think he can not claim the benefit of it. Alice now has the money, or a greater portion of it, in her own hands, and the deed of the eighty acres in her own name, and the result would be, if appellant succeeds, she would be compelled, under her indemnifying bond to appellee, to surrender it all to appellee, and appellee be compelled to hand it over to him. Seeing that appellant is claiming this fund as his own, we think the law would not sanction such an injustice.

Seeing no error in the record the judgment of the court below is affirmed.

Judgment affirmed.

C. B. Smith, J.,

dissenting. This is a very remarkable case from the beginning to the ending, and justifies the truth of history, or poetry, or both, “ that truth is stranger than fiction.” I reluctantly dissent from the judgment of the majority of the court in this case, for whose judgment, learning and justice' I have great respect, and so feel that it is due to them as well as myself and the parties to the suit, to give the grounds of my dissent. I shall do so with as much brevity as possible consistent with a correct statement of the case, and enough of its facts to make myself understood. Anything like a full or . substantial statement of all the facts leading to, through and to the end of this suit would prolong this opinion far beyond what I intend or what is necessary to enable me to state intelligently the ground of my objection to the judgment. Appellant, William Ennor, is now an old man about eighty years of age and a widower. On August 20,1874, his wife, then living, was sick, and expecting soon to die, made this will, viz.:

“I, Grace Ennor, wife of William Ennor, being sick and under the impression that I shall not recover, do this day assign over all personal property belonging to me unconnected with my said husband, in trust to Wm. Ennor, my said husband, in trust for my daughter, Alice Ennor, for the purpose hereinafter mentioned; also all moneys due me from my husband, which is as follows: All my personal property I give to my only child alive, Alice Ennor; all the furniture in the house; also my gold watch with all my clothes; also the policy of insurance in the Northwestern Insurance Company, at Milwaukee, Wisconsin, on my said husband’s life, or for ten years, if he lives, which insurance was made for my sole benefit. Now T appoint my husband, Wm. Ennor, my sole trustee for my daughter, Alice Ennor, wife of Martin Ennor, at Apple River, to act and transact all her affairs during his natural life, without the control of her said husband, he not to have nothing to do in her affairs. All to be managed by William Ennor, my said husband, as long as he lives.

“ Grace Ennor. [Seal.]”

This will is the source of all the property, both real and personal (including the note sued on), hereinafter mentioned.

This will makes Wm. Ennor the trustee, to have possession of and control the property in trust for his daughter as long as he lives.

In settling the estate of his wife, Wm. Ennor had judicial proceedings against certain parties to enforce the collection of debts due his wife, resulting in his buying at a judicial sale 160 acres of land in Wisconsin, on a foreclosure of a mortgage deeded to his wife, and taking the deed in his name, but without recital in the .deed that he held in trust for his daughter.

Wm. Ennor, some time after this deed was made to him, became involved in litigation with the Cleveland Iron Company, and pending this controversy, conveyed this land to his daughter, Alice Ennor, but without any consideration in fact being paid to him for the land. While the land was then in his daughter’s name, William Ennor proposed to Thomas H. Hodson to sell him the land and cut it up in ten acre lots and sell it separately, and thus be able to realize better prices. After some preliminary negotiations between Alice and her father and Hodson, it was determined to make the sale, and the deed was executed by Alice Ennor to Thos. H. Hodson, for the sum of §6,000, and Hodson, then a young man without any property, or at least but little, gave his note payable to Alice Ennor for the §6,000, but without any security of any kind. The land was divided and parts of it sold at a good price, and the money received by appellee _ Hodson. About this time The Cleveland Iron Company attached the land as the property of Wm. Ennor, but this attachment was finally defeated and needs no further notice.

Some time after the note of §6,000 was made and delivered William Ennor claims that his daughter assigned the note to him; also, without any consideration in fact passing for such assignment. After the note became due William Ennor frequently demanded payment of Hodson, but was put off with one pretext or another until • finally he flatly refused to pay the note, and told Ennor to sue on it, and that he would not get his money without suing.

After the land was conveyed to Thos. H. Hodson, he sold in one way or another, eighty acres, realizing the gross sum of §4,110, and still had eighty acres of the land left.

Apipellee refusing to pay the note, this suit was brought to enforce payment by William Ennór. The declaration declared on the note and its indorsement to the plaintiff in the usual manner. Defendant pleaded the general issue and a special plea denying the assignment, and gave notice that he would prove on the trial that plaintiff only held the note as ' agent for Alice Ennor, and that he paid and fully settled with Alice Ennor for the full amount of the note. On the trial William Ennor, plaintiff, and W. D. Ennor, son of Alice Ennor, both swear positively that Alice Ennor signed the indorsement with her own hand, and that they saw her sign it. Martin Ennor, the husband of Alice Ennor, swears that he thinks it is his wife’s signature.

Alice Ennor testifies that she never indorsed the note and that it was not her signature. Princess Ennor testifies that she knew her mother’s handwriting, and that the writing on the hack of the note was not in her mother's handwriting.

The defendant, Thos. H. Hodson, testifies that he does not think the indorsement genuine; thinks it a forgery. This was all the evidence upon the question of the genuineness of the assignment. 1 think the proof in this case entirely fails to overcome the positive testimony of the witnesses, who swear that this woman signed the indorsement. But it was a material and vital question in the case, and called for accurate and correct instructions from the court.

Conceding all the equitable claims of Alice Ennor to the land and its proceeds, the note, it is clear, under the will of her mother in evidence, that the father was the legal custodian of all her property of every kind derived from her mother during his life, and that she did not have the right to take it out of his hands for any purpose. If he was abusing his trust, or squandering or wasting the estate, so as to forfeit his right to have the custody and control of this property, then the proper and only remedy was to go into a court of equity and have another trustee appointed. There is not one word of credible evidence in this case to show that William Ennor was abusing his trust, or was wasting the estate of his daughter, but, on the contrary, he was trying to possess himself of the money due on this note in strict compliance with the terms of the will. Alice Ennor and her accomplice were seeking to divest appellant of his right to control this estate without a shadow of right or authority.

The evidence to my mind is clear and conclusive beyond all reasonable doubt, that this man, Thos. II. Hodson, aided by his brother, deliberately set about to cheat appellant entirely out of this note, and to cheat Alice Ennor out of as much of it as it was possib’e to get her to submit to.

The defendant knew appellant held this note and was pressing him for collection, and that he claimed to be the legal and rightful owner of it by assignment, and yet, with this knowledge, he goes to Alice, who he knew did not have the note, and enters into a marvelous contract with her, getting her to release him from all responsibility on the note on payment to her, as recited in the agreement, of a sum of $3,442.43 in full payment of this note, and the conveyance to her of the remain-. ing eighty acre tract of this land; and yet, in the face of this writing prepared by the defendant and his brother (who is described by defendant as his “ attorney ”), the defendant himself swears that Alice Ennor was only paid $2,410, leaving in the hands of the defendant and his “ attorney,” who was his law partner in the office, the sum of $1,700 for some purpose unexplained by the defendant in this record. If the note was in fact assig -ed to appellant, as he swears, then the fact that he was the legal and rightful custodian of it under the will was ample consideration for the assignment to him, and he could not be deprived of his right to recover on the note, by any defense setting up remote or ultimate equity in Alice En-nor to the note after the death of appellant. If he was entitled to the possession and control of the estate until his death, then there is no escaping the conclusion that he was entitled to possess himself of the proceeds of the land by note through the forms of law. On the trial below, there was no claim made in the evidence that William Ennor was acting as the agent of his daughter, but, on the contrary, he was charged with forgery in making the assignment on the" note. Alice Ennor refused to call him her father and repudiated any right to act for her on his part. Under this state of the proof the plaintiff asked the court below to give the jury this instruction, as it would read without the words included in parenthesis :

“The jury are instructed by the court, that if you believe from the evidence, that the plaintiff is (both) the (legal and equitable) owner of the note in question, and was such owner within about a month after its date by assignment from Alice Ennor, and if you further believe from the evidence that no part of said note has been paid to the plaintiff, then you should find a verdict in favor of the plaintiff and assess his damages at whatever sum may appear due, as shown on the face of said note, notwithstanding you may believe from the evidence that the defendant has paid and settled with Alice Ennor for wdiatever sum she may have demanded in payment of said note.”

But the court refused to give the instruction as asked, but modified the sense by inserting the words “both” and “legal and equitable,” included in the parenthesis, and then gave it-

This modification of the instruction not only made it positively erroneous, but, instead of it being an instruction for the plaintiff, became one for the defendant. The plaintiff had a right to have the instruction given if it contained a correct proposition of law, or, if not, to have it refused; or, if the court could so modify it as to state a correct rule of law in 'harmony with the plaintiff’s theory of the case, then to do so; hut it was unfair and unjust to the plaintiff to so modify his instruction as to make it directly in the teeth of what lie claimed to the jury, and then give it as for the plaintiff, thus turning it into a weapon against him. But, aside from this, I know of no rule of law which requires the legal holder of commercial paper to prove that he is also the equitable owner, before he can recover, nor do I believe any such case or authority can he found; and yet the above instruction told the jury in effect that, notwithstanding the plaintiff was in fact the lawful and legal holder of this note by assignment, and thus had the legal title, still that was not enough; he must go further and prove that he was also the equitable owner of the note.

In Burnap v. Cook, 32 Ill. 168, the Supreme Court say: “ In this case the legal title to the note vested in the plaintiff at the time this suit was instituted. It is not a question that effects the rights of these parties whether any or what consideration was paid for the note by plaintiff below. The equities between the defendant in error and his assignor do not concern the plaintiff in error.”

This case also holds that the legal title is sufficient to entitle the plaintiff to recover, and that the defendant can have no concern abo\it the equities as between the legal holder and his assignor. See also Mobley v. Ryan, 14 Ill. 51. Under the authority of these cases the modification of plaintiff’s instruction was erroneous. But the court proceeds on an entirely different theory when instructing for the defendant, and gives these two instructions:

“ The court instructs the jury that if they believe from the evidence that at the time the note in controversy in this suit was delivered to William Ennor he was acting as agent of Alice Ennor, and that the note in question was the property of Alice Ennor, and if they further believe from the evidence that at the time of the commencement of this suit said note was still in fact the property of Alice Ennor and subject to her control, and that, before the commencement of said suit, the defendant, Thomas H. Hodson, had settled with Alice Ennor to her satisfaction and paid her the full amount due on said note, then the jury should find the issues for the defendant.”
“The court further instructs the jury that if they believe from the evidence in this case that Alice Ennor is the owner of thei note in question, and that said William Ennor holds the same as her agent, and so held said note as such agent merely, and not in his own right, at the time the defendant paid said note to said Alice Ennor, if they believe from the evidence that the defendant did so pay the same to said Alice Ennor, as claimed by the defendant, that then the jury should find the issues for the defendant.”

Besides adopting a different rule from the one given to the jury for plaintiff, these instructions are bad, because there is no evidence to support the assumption that defendant paid Alice Ennor the full amount of this note, nor is there any evidence or any claim below that appellant was acting as her agent. Both parties disclaimed any such theory.

This instruction was asked by the plaintiff and refused by the court:

“The court instructs the jury that if you believe from the evidence in this case that the note in question was assigned by Alice Ennor to the plaintiff before it was due, and that said note has not been paid to the plaintiff, then you' should find your verdict in favor of the plaintiff, even though it should appear from the evidence that the defendant Hodson settled with said Alice Ennor, and paid her money upon the note after it became due.”

What the reason could be for refusing this instruction I am not able to comprehend. It was asked under the plaintiff's theory that he was the owner of the note by assignment, and there was ample evidence in the record to support his theory. I think it was error to refuse the instruction. Mobley v. Ryan, 14 Ill. 51, supra. There was no other instruction given for plaintiff to take its place, but, on the contrary, many other instructions asked by plaintiff of a similar character, and stating correct principles of law, as I think, were refused by the court. In no instruction in the record was the plaintiff’s theory of the case submitted to the jury, but, on the contrary, his own instructions were turned against him, and were thus made hostile to his position before the jury. Under the instructions the jury could only find for the defendant. I do not think the plaintiff has had a fair and just trial under the law in this case according to the due forms of law. I think the learned judge who tried the case has overlooked the rights of the plaintiff, and has unintentionally deprived him of the right of that trial by jury.

I think the judgment ought to be reversed and remanded.


author: Upton, J.

text:
    Robert Holloway v. Jacob Johnson.

      Contract — Trial—Improper Remarles by Counsel — Evidence—Instructions.

      1. Where a jury is improperly influenced by remarks, allusions, or comments outside of the evidence, made by counsel during the argument of a cause on trial, the verdict should be set aside.
    2. In an action to recover n. share of the earnings, and for the care of certain horses, this court declines to interfere with the verdict for the plaintiff, the evidence being sharply conflicting and there being no error in the instructions.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding.

      Messrs. Kirkpatrick & Alexander, for appellant.
    Messrs. Williams, Lawrence & Bancroft, for appellee.
   Upton, J.

This action of assumpsit was commenced by appellee against appellant for money claimed to be due for plaintiff’s share of the earnings of certain horses in the stud for the years 1883 and 1884, and the care for and feeding of the defendant’s horses after the season of each of those years. The declaration contained the common counts only.

Pleas of the general issue and set-off were interposed. The issues were submitted to a jury in the court below, and a verdict for the plaintiff was rendered for the sum of $1,000, to reverse which the case is brought to this court, and it is assigned for error:

1st. That the verdict is contrary to the evidence.

2d. Improper remarks of counsel in argument to the jury.

3d. The court refused to admit proper evidence.

4th. Plaintiff’s first and third instructions -were improper.

First. The evidence in this case is somewhat voluminous and sharply conflicting, and can not be reconciled. It -would serve no useful purpose to examine the evidence in detail, or endeavor therefrom to determine for ourselves the facts of this contention. This was the peculiar province of the jury before whom the witnesses appeared and testified, and whose especial duty it was to ascertain the facts and merits of this controversy. Two juries, as the records of this court disclose, wjio saw the parties and their witnesses face to face, who must have noted their appearance on the stand, their intelligence, fairness, candor and knowledge of the facts to which they testified, or the lack of it, and could far better determine the facts as to the truth of the respective claims of the parties after so hearing the case, than it is possible for us to do, have rendered a similar verdict and in nearly the same amount. In view of the evidence in this record we are satisfied that if the facts were submitted to another jury the result would not be different.

While we might be better satisfied if the verdict had been for a less sum, or indeed have been given for the adverse party, yet we can not say that this verdict upon the facts in the record before us is so manifestly against the evidence as to require or warrant a reversal of the judgment of the court below.

Second. The appellant complains of improper remarks by counsel for appellee made to the jury in the argument of the case below. The remark was: “Gol. Holloway did not get his title by any services rendered in the Union army during the late war.” Bemarks, allusions, or comments by counsel to the jury outside the evidence in the argument of a cause on trial before them, are wholly improper and eminently unprofessional. It is, however, too true, as all who have practiced our profession know from experience, that in forensic discussion upon hotly contested questions of fact before court or jury, zeal often outruns discretion, and duty and professional propriety are lost sight of, or are wholly disregarded. When this is clone and the jury are improperly influenced thereby» and this is apparent, the verdict will be at once set aside. It is apparent that no general rule can be announced of professional conduct, but each case must be determined upon its particular facts.

If the verdict rendered appears to be the result of passion or prejudice, by whatever cause produced, it will and ought to he set aside.

We do not think, in view of the evidence in this record, that the verdict of the jury was in whole or in part the result of passion or prejudice, or that the remark complained of, which was perhaps uncalled for and unprofessional, contributed to the result.

Third. As to the refusal of the court to admit proper evidence we find no error; we think the court ruled correctly, and even if erroneous it did not prejudice the defendant’s rights.

Fourth. It is said the first and third instructions given for the plaintiff were erroneous and several specific reasons are assigned in argument to establish that proposition.

We have carefully examined the instructions given in this case, and we are satisfied that the court below did not commit an error in giving to the jury the instructions complained of; that the instructions given on the part of the plaintiff in connection with those given on the part of the defendant as a series, were correct as to the law applicable to this case ; and finding no substantial error in this record, the judgment of the court below must be affirmed.

Judgment affirmed.


author: Upton, J. C. B. Smith, J.,

text:
    Alexander McArthur v. Isaac Artz.

      Criminal Law — Misdemeanor—Appeal—Costs—Dissenting Opinion.

    Where the defendant prosecutes an appeal to the Circuit Court from a conviction before a justice in a prosecution for a misdemeanor, he can not be required to advance the fees of the clerk of the Circuit Court for docketing the cause.
    [Opinion filed December 13, 1888.]
    Appeal from the Circuit Court of Mercer County; the Hon. Abthue A. Smith, Judge, presiding..
    Mr. S. D. C. Hays, for appellant.
    The general principle on the subject of costs is that the party who requires an officer to perform services, for which compensation is allowed, is, in the first instance, liable therefor. In legal contemplation he pays costs as they accrue. He is liable to pay them to the officer unless our statute expressly excepts his case from the operation of the general rule, and in a criminal case, a defendant, even when successful, is liable to pay his costs to the proper officer, when the costs accrue^ by reason of an appeal taken by him. Neither does the ninth section of Article II of the Constitution exempt the defendant in a criminal prosecution from liability for costs. The People ex rel. v. Harlow, 29 Ill. 43; Carpenter v. The People, 3 Gilm. 147.
    “ A judgment before a justice of the peace is final unless the law gives an appeal. The Circuit Courts have no inherent power to try appeals from inferior tribunals, and can only entertain them by virtue of statutory power.” Skinner v. The Lake View Avenue Co., 57 Ill. 551.
    Messrs. Pepper & Scott, for appellee.
   Upton, J.

This was a criminal prosecution for misdemeanor, commenced by the people against appellee, before a justice of the peace of Mercer county, on two complaints, upon which two State warrants were issued, and upon which appellee was arrested. Upon one of which, on hearing before said justice, the appellee was convicted, and upon hearing on the other was adjudged to pay the costs; from both of which said judgments an appeal was taken to the Circuit Court of Mercer county, under the statute granting appeals in such cases.

The appellant, clerk of that court, refusing to enter on the docket of such court the proceedings so appealed, without the payment of the fees allowed by the statute to clerks of circuit courts in this State for the docketing of causes in civil cases on appeal, and the appellee refusing to pay in advance therefor, a rule was obtained, on motion of appellee, from the Mercer Circuit Court, requiring the clerk to enter such appealed cases upon the docket of that court without the payment of his fees therefor in advance; from which judgment and order of the court the clerk appealed to this court.

By the errors assigned upon this record the only question presented is the liability of the appellee to pay the clerk’s fees in advance, or as the same may accrue in proceedings of this character when brought by appeal from a justice’s court.

We think the Constitution and the legislative enactments pursuant thereto have exempted appellee from the payment of such costs in advance.

The 19th section of the Bill of Bights in the Constitution of 1870 declares “that every person ought to obtain by law right and justice freely, and without being obliged to purchase it,” etc.

In prosecutions of the character here in question, appeals by law are allowed from the justices’ judgments to the Circuit Court of the county in which such proceedings are had.

The evident design of the above provision of the Constitution was to secure to every person prosecuted for a criminal offense — who by law, before conviction, are presumed innocent of the act charged — every just facility for a fair trial, and that such person should have the means of making his defense to such charge, whether he was of a sufficient pecuniary ability to pay therefor or not.

To withhold from such person the means of making such defense in the method allowed by law, whether by refusing process to enforce the attendance of witnesses to repel charges of guilt, or in cases where proceedings are commenced before a justice of the peace, in refusing, on appeal, to place upon the docket of such appellate court such appeal — without which a re-trial of the charge could not be had — until the person so charged should pay the docket fees to the clerk of such appellate court therefor, would, in our judgment, be a manifest violation of the letter and spirit of the Constitution, before cited.

This becomes, in our judgment, the more apparent when it is considered that the judgment in the justice court, in cases of the character here in question, may subject the appellee to imprisonment -in the county jail not exceeding one’year. That by the appeal, as provided by law, the judgment in the justice court is vacated, and a trial de novo is given to the condemned party, appellant in the Circuit Court.

This is a substantial and iznportant right granted to such person by the law of the State. In this rightful endeavor to obtain justice in the matter of such prosecution, and before such person can be lawfully condemned or punished, whether in person or property, for an alleged violation of law, he should and ought to be allowed the right of tidal as to the truth and justice of the charges alleged against him, in the several courts of the State wherein, by law, the subject-matter thereof is cognizable, whether such courts are of original or appellate jurisdiction, and that, too, without the payment of fees in advance to the officers of such courts, or, in the language of the Constitution, “ without purchasing that justice.”

By the appeal the two causes so adjudged against appellee were in the Circuit Court, and he had the same right to prosecute his appeals in that court as he would have had in the case of an indictment in the Circuit Court, and, in our judgment, the appellant might as well require the payment of fees in advance of issuing subpoenas for appellee’s witnesses on the trial of said appeal after the same had been placed upon the docket of the Circuit Court, as to require docket fees in advance for the docketing of appellee’s appeal from the justice.

It was in consonance with the same spirit of justice which prompted the insertion of the provision of the Constitution before cited, that the Legislature saw fit to exempt innocent parties who are wrongfully prosecuted for criminal offenses, from the payment of all costs, and to throw the entire burden of the defense as well as the prosecution upon the several counties of the State wherein proceedings are commenced.

The 17th section of Chap. 33, Starr & Curtis, title, Costs, prescribes that if, in any case of the people, the charge is not made out, or proved, or when verdict is rendered against the plaintiff, the defendant shall recover no costs.

If the defendant can not recover costs when discharged or acquitted, and he compelled to advance or pay costs which he can in no event recover, would it not be manifestly a purchase of justice without consideration even?

Sec. 444 of Chap. 33, supra, also provides that the defendant, in proceedings of the character here in question before the justice of the peace, may have the truth of the charges against him tried by a jury in like manner as in civil cases, hut the defendant is not required to advance the fees therefor as in civil cases before justices of the peace.

Sec. 15 of Chap. 53, R. S., title, Fees and Salaries, provides, that in all criminal cases where the defendant shall be acquitted, all the costs (including clerk’s fees), shall be paid from the county treasury.

The intent of the Legislature doubtless was that an acquittal or other legal discharge absolved the defendant from any and all liability to pay costs, including clerk’s fees, but instead thereof the clerk’s fees were to be paid by the county, and to obtain such acquittal appellant was entitled of right to the consideration and judgment of all the courts of the State having jurisdiction of such proceedings, whether original or appellate, without the payment in advance of the costs therefor. Wells v. McCullock, 13 Ill. 606; Carpenter v. The People, 3 Gilm. 147.

It is the opinion of this court that the Circuit Court decided properly in sustaining appellee’s motion and in directing the appellant to enter upon the docket of such court the appeals in the record mentioned, without the payment to appellant of fees in advance therefor, and seeing no error in the record of proceedings below., the judgment is affirmed.

Judgment affirmed.

C. B. Smith, J.,

dissenting. I ain not able to concur with either the argument or the conclusion of the majority of the court in the foregoing opinion. If the principle involved was not of grave importance in the administration of .criminal jurisprudence, I should content myself with a simple dissent; but regarding the opinion and judgment of the majority of the court as fraught with the gravest consequences, and imposing burdens upon the people in criminal prosecutions never contemplated by either the Constitution or the law framed under it, I feel it my duty to give my reasons for disagreeing with the majority of the court.

The record in this case discloses the fact that Isaac Artz, appellee, had been duly convicted according to law, upon two charges of misdemeanors, before a justice of the peace, upon a trial had, and that final judgment had been entered against Artz before the justice.

The justice had jurisdiction of the offenses charged and nothing is suggested in the record that he did not proceed according to the forms of law, nor is anything suggested that the defendant did not have allowed to him all the privileges lie was entitled to under the law. In short, he had a trial on a criminal charge before a court having original jurisdiction and was duly convicted and judgment of conviction rendered against him.

From this final judgment he prayed an appeal to the Circuit Court, as he had the right to do, and when he requested the clerk to docket the transcript, the clerk demanded his fees before docketing, which appellee refused to pay, and a rule of court was entered compelling appellant to docket the cases without being paid his legal fees therefor, from which order the clerk appeals to this court.

I hold that, after appellee had been once convicted before a justice of the peace, he had then had his trial contemplated by the law, and that the judgment of the justice was just as final and binding on the defendant as it would be before the Circuit Court, until appealed from. So long as that judgment stood against him he was not in the attitude of an innocent person. He was already convicted of a criminal offense. The Constitution and all the statutes quoted in the opinion of the majority of the court, relating to the rights of persons charged with crime, to have justice “ freely ” administered to them, and to have counsel assigned them, and to have process free and the services of the officers free, relate to a time anterior to the judgment of conviction. It relates to the trial and to the proceedings leading to the trial. A trial in the first instance upon a criminal charge, to ascertain the guilt or innocence of the accused, is a very different thing from an effort to obtain an appeal from a judgment of conviction. After he has had a trial and been found guilty, his right to perfect an appeal at the expense of the officers of the court, or the people, ceases, and he must then pay his own way, certainly to the extent of perfecting his appeal to the Circuit Court, and other superior courts. What his rights might be on a trial d,e novo after he had perfected his appeal and got it in the Circuit Court, is not involved in this controversy, and'I express no opinion upon it. The Supreme Court has expressly recognized this distinction in the case of Carpenter v. The People, 3 Gilm. 147.

The facts in that case were only different from the one at bar in this, that here the appeal was from a justice of the peace to the Circuit Court, and in that case the appeal was from the Circuit to the Supreme Court.

Carpenter sued out a writ of error to the Circuit Court and made a bill of costs in prosecuting his suit, and in the Supreme Court procured a reversal of the judgment. The clerk of the Supreme Court issued a fee bill against Carpenter for the costs he had made, and Carpenter entered a motion to quash the fee bill, insisting that he was not liable for costs in a criminal case, and quoted to the attentive ears of the Supreme Court the language of the Constitution, and the various enactments of the Legislature supposed to relieve criminals or supposed criminals of this State from the burden of paying costs in the various courts of the State, in their efforts to elude the ends of justice and escape convictions had against them in the trial courts, but the court denied the motion and held Carpenter liable to pay the costs he himself had made. Judge Treat in his opinion uses this language: •“ The general principle on the subject of costs is that the party who requires an officer to perform services for which compensation is allowed, is in the first instance liable therefor. In legal contemplation he pays the costs as they accrue. On this ground the successful party in civil actions recovers a judgment for his costs. The only difference between a civil and criminal case is that the successful defendant in the latter is not entitled to a judgment against the State for his costs. He is nevertheless liable to pay them to the officer unless our statute excepts his case from the operation of the general rule. There are some special provisions of the statute relative to the fees of the clerks of the Circuit Courts and sheriffs in eases where the defendant is acquitted, but there are none which apply to the fees of the officers of this court in such cases.

“ The ninth section of the eighth article of the Constitution does not exempt the defendant in a criminal prosecution from liability for costs. It is the opinion of the court that Carpenter is liable for all the costs made by him in'the prosecution of his writ of error.”

The question again came before the court in the People ex rel. Mans v. Harlow, 29 Ill. 13. In that case Mr. Chief Justice Catón said: “ So far as we are advised it has been uniformly held both by the Supreme and Circuit Courts that the clerks may insist on their fees as their services are performed, and this we have no doubt is the law.”

These two cases seem to me to be conclusive upon the point involved in favor of appellant. I have been unable to find any subsequent decision which in the slightest degree militates against the full force of these cases.

There is not only no statute relieving the appellee from the payment of these fees, but on the contrary there is a positive statute requiring him to do so.

Sec. 389, Chap. 38, R. S. 1887, provides: “ The defendant may appeal from the judgment of the justice of the peace, in criminal cases, to the Circuit Court of the county, the appeal to be taken in the same time and manner and upon the same conditions and with like effect and like proceedings had thereon as in civil cases, except that no damage shall be allowed.”

How there can be, and is no claim, that if the case had been a civil one the defendant would have been compelled to pay all costs as they accrued, and the above section declares that defendants in criminal cases shall do the same thing.

Sec. 19 of the Bill of Eights of our Constitution, which provides that “ Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain bylaw, right and justice freely, and without being obliged to purchase -it, completely and without denial, promptly and without delay,” which is relied on in the opinion of the majority of the court as justifying the defendant in prosecuting, his appeal without costs to himself, I insist has no relation to the cases and can have none. The section of the Constitution quoted is broad and sweeping in its terms, and applies as well to civil as criminal proceedings, making no reference to either; and it is just as applicable in its florid and flamboyant provisions to civil as to criminal proceedings, and yet no one ever dreamed that he could go into a court with a civil case, and have justice “freely” administered to him, even under the broad mantle of the above clause of our Constitution.

If the defendant in this case had the legal right to have the clerk docket these cases for him without charge, then that right must be placed on the broad ground that it is placed upon by the majority of the court, under the provisions of the Constitution above quoted, that he shall obtain justice “freely,’’ ^and the same rule of exemption will exempt not only him, but every person ever convicted of high or low crimes in this State; and he may prosecute his appeals and writs of error from the lowest to the highest court in this State at the expense of the State and the officers of the courts. Suppose he is convicted in the Circuit Court; the judgment is no more final than it was before the justice, and no more effective to punish him. He has a right to a wiitof error from the Supreme Court and to have the record transferred to that court.

If he has the right to the services of the clerk to docket 1ns transcript, at a cost of perhaps fifty cents, free, he has precisely the same right to demand of the clerk a transcript of the record free with which to go to the Supreme Court, without reference to the size of the record or the amount it would cost the clerk to prepare it, and by the same right compel th 3 clerk of the Supreme Court to docket his case and issue the necessary process free of charge, notwithstanding the rule of the Supreme Court requiring a docket fee.

But this claim has been expressly denied in Carpenter v. The People, 3 Gilm. 147, supra. Such a rule or such a claim of right to the services of the clerks of courts free, by convicted criminals in search of appeals and writs of error, after conviction, would involve, in many important criminal cases, most serious and .ruinous consequences upon clerks. The convicted anarchists of Chicago might have said with the same propriety and the same legal right, to the clerk of the Criminal Court of Cook County, that they required the record of their trial, containing many thousand pjages, transcribed free of all expense to them, which the defendant in this case required of the clerk below — that his services must be rendered free. The difference is only in the magnitude of the work, and not in the principle involved.

Nor does the fact that the trial and conviction was had in different courts make any difference in principle, for the incredible logic of the contention of the defendant is, that he is exempt everywhere from liability for costs in a criminal proceeding against him. The mere circumstance that he is in one court or the other has no significance, nor does the constitutional provision above quoted and relied on by the majority of the court, make any distinction as to time, place or circumstances, to which the “free” administration of justice shall be limited.

There is no provision in the Constitution or any of- the statutes, that a person convicted of a criminal charge shall have the services of officers free in one court, but that he shall pay for them in another. If he is protected in one court, then in all, and if not in all, then in none, except in cases before conviction, where positive and affirmative enactments relieve him from costs; but this case is not within that exception.

The case of Wells v. McCullough, 13 Ill. 606, cited by the majority of the court in support of the judgment, I hold, has no reference to the case at bar, either in its facts or legal application, and does not support the judgment of the court.

The trial in that case was had on an original indictment, and the costs accrued in the progress of the trial before conviction, and the defendant was acquitted. The clerk of the court, after the trial was over, and after defendant was discharged, issued a fee bill against the defendant for costs made during the progress of the trial and in its preparation.

A motion was made to quash the fee bill, which was allowed. This ruling was held correct under the eighth section of Chap. 41, R. S., in which is this provision: “ And in all criminal cases where the defendant shall be acquitted, or otherwise legally discharged without payment of costs, the clerk shall receive such compensation as the County Commissioners shall order, not exceeding $30 per annum.”

And in this same case the court refer to Carpenter v. The People, 3 Gilm. 147, and say there is no conflict between the cases, and re-affirmed the Carpenter case.

Had Wells been convicted, as was Artz in this case, and a final judgment passed against him, then the case would have been like the one at bar, and the opinion of the court the same as it was in Carpenter’s case, supra.

For these reasons I am unable to concur with the majority of the court and think the judgment ought to he reversed.