text:
    Chicago, Milwaukee & St.Paul Railroad Company v. Walter West, by next friend.

      Railroads—Personal Injury to Boy■—Conflict of Evidence—Rights of Trespasser—Violation by its Servant of Defendant's Rules.

    In an action against a railroad company to recover damages for a personal injury to the plaintiff, a boy about seven years of age, caused by an engineer of the defendant ordering the plaintiff to get off his engine while in motion, it is held: That the evidence being conflicting the verdict of the jury settles the facts; that, although the engineer violated his instructions in inviting the plaintiff upon his engine, and although the plaintiff was a trespasser, he had a right to be exempted from the gross carelessness of the defendant’s servant in removing him from the engine; that the violation of the rules of the defendant by its servant does not relieve it from liability for his subsequent wrongful acts while endeavoring to obey and enforce said rules; and that his act can not be regarded as wilful and unauthorized.
    [Opinion filed November 23, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Johh P. Altgeld, Judge, presiding.
    Mr. E. Walker, for appellant.
    Mr. Selden Fish, for appellee.
   Moran, P. J.

The evidence introduced in this case, on the trial in support of the plaintiff’s cause of action, tended to show that plaintiff, being at the time about seven years of age, was invited by the engineer to get upon the engine which was used for switching cars upon defendant’s tracks; that after riding up and down in the yard several times, and when the engine was moving, the engineer said to plaintiff that the “old man,” meaning the yard-master, was coming, and told him to get off; that in obedience to such command plaintiff climbed down the steps of the engine and in attempting to reach the ground his foot was caught under the wheels and crushed. That at the time the engineer told the plaintiff to get off, the engine was moving about as fast as the plaintiff could run, and it was not “slowed up” to enable the plaintiff to get off. The evidence introduced in behalf of defendant was in almost all particulars in conflict with that of plaintiff, and the verdict must be regarded as settling the issues of fact, and as the verdict is supported by the evidence the judgment must stand, unless there was some error of law committed by the trial court, which shall he found to require a reversal of the case.

It is contended by appellant’s counsel that the railroad company can not be held liable for an injury occurring in consequence of the act of its employe which was not done in the line of his duty, but was in fact in direct violation of the express rules of the company. It is shown that there were plain instructions hanging up in the cab, not to allow any one to ride on the engine "except employes, and the rule of the company was shown to be as follows: “Ho person will be allowed to ride upon the engines except road-masters on their own divisions, conductors or forward brakemen of the train, without permission from the superintendent or master mechanic. Every engineer will be held responsible for the strict enforcement of this rule.”

It is apparent that the engineer had no authority to invite the boy upon his engine, and that his doing so was a palpable violation of the rule which the company had laid down for the government of his conduct; but it is also manifest that the boy who got on in obedience to the invitation, could be in no worse position than if he had stolen on without the notice of the engineer, or jumped on as the engine was starting, against the direct order of the engineer that he should keep off. So far as the relation of the company is concerned, the boy, whether he got on at the engineer’s invitation, or against his command, was a trespasser, and it may be conceded that if, while riding upon the engine, even by the invitation and permission of the engineer, he had been injured by reason of some negligence in the management or operation of the engine or the road, the company would not be responsible. Being a trespasser, the company would owe him no duty of protection against the ordinary perils of the position which he voluntarily assumed. But when the injury results from the direct act of a servant of the company in endeavoring to enforce the rule of the company, a different question is presented.

The boy had no right to remain on the engine, but he had a right to be exempted from the peril of gross carelessness on the part of defendant’s servants in removing him therefrom, and they were bound to exercise toward him, in putting him off, care and prudence, so that in enforcing the rule of the company no injury should be inflicted, which, in view of all the circumstances, reasonable caution on their part could prevent.

It is sought to treat the act of inviting the boy on the engine, allowing him to ride thereon and the ordering him off, as one continuous act of the engineer, all without authority, and hence creating no liability against the company. We can not perceive that the fact that the servant of the company violates its rules, can relieve the company from liability for his wrongful acts, when he afterward un lertakes to obey and enforce them. That the rule of the company in evidence authorized the engineer to remove any person' wrongfully upon his engine, whether the entry there was in its inception by his invitation or against his will, there can be no doubt. In removing the intruder he was doing the will of the company and his act can not be regarded as wilful and unauthorized. When the act is authorized by the master, he is always liable for the negligent or improper execution of it by the servant.

So it was held that the company was liable where a baggage man forced a boy, who got on the rear platform of a baggage car which was being switched, to j nmp off while the car was in motion and at a dangerous place, the rule of the company posted up in the car being as follows: “Ho person will be allowed to ride on this baggage car, except the regular train men employed thereon. Conductors and baggage men must see this order strictly enforced.” Rounds v. D. & L. W. R. R. Co., 64 N. Y. 129.

In Holmes v. Wakefield, 12 Allen, 580, where the instruction of the company was, “ The conductors will not allow any person to ride in any freight car attached to their trains,” it was argued that this direction only authorized the conductor to prevent persons getting on the car but did not require him to remove them, especially after the car was in motion. The court said : “We do not think the effect of the instruction can be so limited. It plainly made it his duty to prevent any persons riding on a freight car. This he might do in any lawful and proper manner, by the use of reasonable force to prevent getting upon the car, or removing a person who had got upon the car in violation of the rule. The wrong, to the plaintiff, consisted in using force unreasonably; that is, at a time and under circumstances which made it dangerous to his life or limb.”

It is urged that there is no evidence in the record which shows that the engineer used or even threatened to use any force. The evidence is that he said to the boy, “cheese it, the old man is coming,” and told him to get off. Whether what was said and the manner of saying it to this boy of seven years was equivalent to actual force, was for the jury to say. As was said by the court in Lovett v. S. & S. D. R. R. Co., 9 Allen, 557, in answering a similar objection, “°His obedience would be naturally expected, without regard to the risk he might incur, and in respect to a child so young, the command would be equivalent to compulsion.”

It was, we'think, the plain duty of the engineer not to direct the boy to get off the engine till he had stopped it, or at least to have “slowed up” so that the descent from the engine would be rendered reasonably safe. Kline v. C. P. R. R. Co., 37 Cal. 400.

We have examined the instructions given for plaintiff, and find them in substantial accord with the views above expressed and quite as favorable to the defendant as it had a right to ask. We think also that the court was right in declining to give defendant’s instructions which were refused. We find no error in the record and the judgment of the Superior Court will therefore be affirmed.

Judgment affirmed,.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    The Pennsylvania Company v. George M. Sloan.

      Statute of Limitations—Misnomer of Defendant—Amendment, not the B ■ginning of Neto Suit—Railroads—Dersonal Injury.

    1. Where suit is brought against A by the name of B, and he appears and defends, and pending the suit the mistake in the name of the defendant is discovered and corrected by inserting in the record his proper name, such amendment does not constitute the bringing of a new suit against A. This rule applies where the defendant is a corporation.

      2. In an action to recover damages for a personal injury, brought against the “Pittsburg, Ft. Wayne & Chicago Railroad Company,” instead of the “ Pennsylvania Company," by the negligence of whose servants the plaintiff was injured, it is held: That the Pennsylvania Company was the real defendant in the original summons; that the evidence was sufficient to warrant the jury in finding that the plaintiff, in suing out the original summons, intended to bring suit and in fact brought suit against said Pennsylvania Company; that the amendment of the record by inserting the proper name of the defendant was not the commencement of a new suit; and that the action is not, therefore, barred by the Statute of Limitations.
    [Opinion filed November 23, 1887.]
    Appeal from tbe Circuit Court of Cook County; the Hon. Lorie C. Collies, Judge, presiding.
    Mr. George Driggs, for appellant.
    Mr. John Lyle King, for appellee.
   Bailey, J.

This was an action on tbe case to recover damages for a personal injury. Tbe injury complained of was received by tbe plaintiff July 5, 1872, and it appears without controversy, so far as this appeal is concerned, that said injury was caused by tbe negligence of the defendant’s servants in tbe management and operation of certain engines and cars upon a railway in tbe possession of and operated by tbe defendant. The only defense insisted upon here is that which is presented by tbe defendant’s plea of the Statute of Limitations.

It appears that the railway in question was built in 1853 or 1854, by a corporation known as the Pittsburg, Fort Wayne & Chicago Railroad Company, and that such corporation owned and operated said railway until about the year 1860, at which date it was sold under foreclosure proceedings, and became the property of a new corporation known as the Pitts-burg, Fort Wayne & Chicago Railway Company. At the time of the foreclosure, the original corporation ceased to do business, and since then it has owned and operated no railway, and is not shown to have maintained a corporate existence for any other purpose than that of adjusting such matters as remained after all its railway property had been swept away by the foreclosure.

The Pittsburg, Fort Wayne & Chicago Railway Company continued to own and operate said' railway until some time in the year 1869, when it leased the railway with the appurtenances to the defendant, the Pennsylvania Company, a corporation organized under the laws of Pennsylvania, and ever since that date said railway, together with its engines and ears, has been in the possession of and has been operated by the defendant. The evidence shows that during all the time the railway has been in existence, it has been usually called and known to the public as the Pittsburg, Fort Wayne & Chicago Railroad, or Railway, and the company operating it as the Pittsburg, Fort Wayne & Chicago Company.

On the 3d day of July, 1875, which was two days less than two years after the date of his injury, the plaintiff commenced a suit to recover damages therefor by suing out a summons, and in said summons the defendant was named “ The Pitts-burg, Fort Wayne & Chicago Railroad Company.’5, That summons was returned “non est inventus,” whereupon an alias summons was issued and returned served on R. C. kteldrum, an agent of said company.

The evidence is undisputed that Meldrnm, at the date of the service of said writ, was, and ever since the leasing of the railway to the Pennsylvania Company had been, the general western freight agent of that company, having his office in Chicago. The evidence also shows that, prior to said lease, Meldrum was in the service of the Pittsburg, Fort Wayne & Chicago Railway Company in a similar capacity, but there is no very satisfactory evidence that his agency for that company continued after the execution of the lease, and there is no evidence that he ever was the agent of the Pittsburg, Fort Wayne & Chicago Railroad Company, either before or after the railway passed from the possession of that company by means of the foreclosure proceedings.

The writ having been served as above stated, the plaintiff filed his declaration describing the defendant as the Pittsburg, Fort Wayne & Chicago Railroad Comj.’any. Afterward an attorney appeared for the defendant and in the same name filed a plea of not guilty. The attorney so appearing was the attorney having general charge for the Pennsylvania Company of all litigation in Chicago in which that company was interested, and receiving from said company a fixed annual salary for his services. It appears also that he had been the aitorney at Chicago of both the preceding companies from the time of their organization, and still had authority to appear in their behalf and defend any suits which might be' brought against them. It appears from the testimony of said attorney that, being in the employ of all of said companies, he deemed it his duty to appear and defend the suit, and if it turned out to be a suit against the Pennsylvania Company, to defend it under his retainer by that company; that he was not expressly employed by either company to defend; that he was never-paid for his services by the Pittsburg, Fort Wayne & Chicago Railroad Company and never presented a bill for his services to that company, but that all the compensation he ever-received or asked for was the salary paid him by the Pennsylvania Company.

Upon the issue formed by said plea two trials were had, each resulting in a verdict in favor of the plaintiff. On the 26th day of March, 1877, a third trial was entered upon, and after a portion of the evidence had been introduced, leave was given to the plaintiff, on his motion, to withdraw a juror, and to amend the papers and record in the cause by substituting the name of tire Pennsylvania Company as defendant in place of that of the Pittsburg, Fort Wayne & Chicago Railroad Company. The papers and record having been thus amended, a summons was issued March 27, 1877, to the Pennsylvania Company, which was afterward served on that company by delivering a copy to Meldrum, its agent.

The Pennsylvania Company thereupon appeared in its own name and pleaded—first, not guilty; second, that the causes of action did not accrue within two years next before the institution of the suit. Upon these pleas various issues were formed and a trial was had, resulting in a verdict and judgment in favor of the plaintiff. That judgment was reversed by this court on appeal for reasons stated' in the opinion then filed. Pennsylvania Company v. Sloan, 1 Ill. App. 364. After the cause was reinstated in the court below, all the replications to the plea of the Statute of Limitations previously filed were withdrawn and thereupon the plaintiff filed two replications to said plea, the first of which is substantially as follows: That prior to and at the time said cause of action accrued, the defendant was a corporation of the State of Pennsylvania, having its chief office and president in that State, but was possessed of and operating a certain railroad known as the Pitts-burg, Fort Wayne & Chicago Railroad, extending from the City of Chicago into the State of Pennsylvania, and all the cars, locomotives and rolling stock belonging thereto, and that all the agents, servants and employes operating said railroad were the agents, servants and employes of the defendant; that the causes of action in the declaration mentioned accrued to the plaintiff by reason of the negligence of the defendant’s servants and employes in the use and operation of said cars and locomotives; that prior to and at the time said causes of action accrued, one Meldrum was the agent of the defendant in Chicago; that the plaintiff, on the 3d day of July, 1875, sued out a writ of summons and impleaded the defendant in the name of the Pittsburg, Fort Wayne & Chicago Railroad Company, the said Pennsylvania Company then being reputed and known as the Pittsburg, Fort Wayne & Chicago Railroad Company, which summons was returned by the Shei-iff not served; that the plaintiff thereupon sued out an alias summons against the defendant, by its said reputed name, which alias summons was afterward returned served on said Meldrum, the defendant’s said agent; that said service of summons being had, the defendant, by its attorney, appeared in said action, and without objection or plea in abatement pleaded to the merits and joined issue in said cause; that, at the April term, 1876, of said court, said cause was tried before a jury and a verdict rendered for the plaintiff; that said verdict was set aside at the instance of the defendant and a second trial had at the October term, 1876, resulting in a verdict for the plaintiff, v?hich verdict was also set aside by the court at the instance of the defendant; that, at the March term of said court, 1877, such proceedings were had, that leave was granted by the court to the plaintiff to amend the record and proceedings by substituting the name of the Pennsylvania Company, whereupon the plaintiff caused a summons to issue against the defendant in that name, which was afterward, and on the §8th day of March, 1877, served on said Mel drum, then still the agent of the defendant; and so the plaintiff says, that this suit is the same suit commenced as aforesaid by summons against the defendant by the name of the Pittsburg, Fort Wayne & Chicago Railroad Company, and that the causes of action in the declaration mentioned, and each and every of them, accrued within two years before the commencement of this suit.

The second replication was substantially like the first, and closed with the same averment, that the causes of action in the declaration mentioned, and each and every of them, did accrue within two years next before this suit was commenced.

Issues were taken on said replication by rejoinders, and the cause again coming on to be tried before a jury, a verdict was rendered finding the issues for the plaintiff and assessing his damages at $5,000, and for that sum and costs the court gave judgment in his favor. This last judgment is the one brought here by this appeal.

The foregoing replications, when stripped of their verbiage, amount merely to a traverse of the plea of the Statute of Limitations. They aver that the causes of action in the declaration mentioned did accrue within two years next prior to the commencement of the suit, and also set out a number of facts and circumstances which are material only as evidence upon the issue raised by said traverse. The only question to be considered then is, whether the evidence sustains the finding of the jury in favor of the plaintiff upon that issue.

The original summons, which names as defendant the Pitts-burg, Fort Wayne & Chicago Railroad Company, was sued out within two years after the date of the plaintiff’s injury; while the summons, which names the Pennsylvania Company as defendant, was not issued until more than two years after that date. The case then turns upon the question as to which corporation was the real defendant in the original summons. Was that summons issued against the right defendant by a wrong name, or was it issued against the wrong defendant ? This is mainly a question of fact upon which the verdict is conclusive, unless it is obviously against the preponderance of the evidence, or is plainly the result of some misconstruction of the evidence by the jury.

It can not be doubted that it was the intention of the plaintiff to sue the corporation which at the time was operating the railway in question, and by the negligence of whose servants he was injured. Not only does he testify that such was his intention, but all the circumstances lead to the same conclusion. It further appears that said railway was very generally known to the public as the Pittsburg, Fort Wayne & Chicago Railroad, and that the corporation operating it was popularly known as the Pittsburg, Fort Wayne & Chicago Railroad Company. The summons when issued was actually served on an agent of the corporation liable for the injury, and against whom the plaintiff intended to bring his suit. The regularly retained attorney of that corporation appeared and conducted the defense. When the error in the name of the defendant was discovered, the record was amended by inserting the true name, and the suit was then prosecuted to judgment.

These facts are in our opinion sufficient to warrant the jury in finding that the plaintiff, in suing out the original summons, intended to bring suit and in fact brought suit against the defendant, the Pennsylvania Company.

If a plaintiff brings suit against A by the name of B, and summons is served on A, and he appears and defends, and judgment is rendered against the defendant in the suit, the judgment is against A and he is bound by it, nor is the case affected in the least by the fact that there is another person in being by the name of B. And in such case, if during the pendency of the suit, the mistake in the name of the defendant is discovered and corrected by inse rting the name of A in the record in the place of B, such amendment does not constitute the bringing of a new suit against A. Such suit, so far as the Statute of Limitation applies, must be deemed to have been instituted at the time of suing out the original summons. We can not see that any different rule applies where the defendant is a corporation. Service in such case, it is true, can not be made on the corporation itself but must be made on an officer or agent, but xvhen so made, the same legal con sequences folloxv as in case of a personal service of process on a natural person.

No question is, or can be made, that the service was on an agent of the Pennsylvania Company. There is some evidence, though of a very unsatisfactory character, that the same person xvas also an agent in some capacity of the Pittsburg, Fort Wayne & Chicago Bailxvay Company, the defendant’s lessor. But whether he xvas an agent of that corporation or not is wholly immaterial. That corporation is in no xvay in question in this suit. There is not, hoxvever, a scintilla of proof that said agent was or ever had been in any xvay the agent of the Pittsburg, Fort Wayne & Chicago jRailroad Company. That company had lost all its railroad property by a foreclosure proceeding fifteen years before the date of said service, and had long been out of business and practically extinct. It is clear then that the service xvas not and could not have been on that corporation.

Service having thus been had on the Pennsylvania Company and on that company alone, an attorney who claims to have had authority to appear for either or all of the three corporations above named, appeared in the case, and, without raising any question as to the style by which the defendant xvas sued, or as to which of said corporations was really in court, filed a plea of not guilty and represented the defendant at three trials of the cause before the amendment was made. As nothing appears to the contrary, he must be presumed to have appeared and defended for the one of his clients which had been sued, and such presumption is strongly corroborated by the testimony of said attorney above referred to, that, being in the employ of all of said corporations, he deemed it his duty to appear and defend the suit, and if it turned out to be a suit against the Pennsylvania Company, to defend it under his retainer by that company.

On consideration of all the evidence we are satisfied with the verdict. We find no substantial error in the instructions to the jury. There being no error in the record, the judgment will be affirmed.

Judgment affirmed.


author: Moran, P. J.

text:
    Seth F. Hanchett v. Charles Williams.

      Trover against Sheriff—Demand—Appeal from Justice—Insufficiency of Transcript-Waiver of Objection.

    1. Where an officer levies on the goods of one person under an execution against another, and sells them, he is liable in an action of trover. Proof of the sale makes out the conversion, no demand being necessary.
    2. Upon appeal from a Justice, if the parties appear and go to trial in the Circuit Court on the merits without objection, the court will have jurisdiction although there is no transcript.
    [Opinion filed November 23, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. John G. Rogers, Judge, presiding.
    An action of replevin was commenced by appellee against appellant in Justice Court, and the goods not being found, the writ stood as a summons in trover. Judgment was entered against the appellant by the Justice. An appeal was perfected to the Circuit Court where the case was submitted to the court for trial without a jury, and there was a finding and judgment against appellant for $150, to review which judgment this appeal is brought.
    The evidence tended to show that appellee had four barrels of wine, in all about 220 gallons, in the store of a liquor dealer, named Howe. Howe had requested appellee to take it away as he could not sell it, but appellee failed to do so, and it remained in Howe’s- store at the time appellant, as Sheriff, took possession of the same and the stock of liquors'therein, by virtue of an execution against Howe. Appellant demanded the four casks of wine from Matson, appellant’s chief deputy, and was told by him that he had better bring a replevin suit to establish his title.
    The four casks of wine were in the store when the Sheriff took possession and remained there after he took possession. The levy was upon and included everything contained in the basement and store known as 206 East Jackson Street, and the testimony of the deputy Sheriff shows that all the goods levied on by him were sold and the proceeds turned over to the plaintiff in the execution.
    Messrs. Moses & Newman, for appellant.
    Messrs. Kraus, Mayer & Brackett, for appellee,
   Moran, P. J.

The court found that the four barrels or casks of wine belonging to the plaintiff were in the store of Howe, and levied upon by the Sheriff as the goods of Howe, and were sold by the Sheriff and the proceeds paid over on the execution. This finding is plainly supported by the evidence but it is contended by appellant’s counsel that there could be no recovery against the Sheriff in trover because there was no demand made upon him by appellee for the goods.

Demand and refusal are only evidence of conversion in an action of trover, and if it is shown by the evidence that the goods for which recovery is sought were sold or otherwise disposed of by the person who had the possession of them, then the conversion is proven and it is unnecessary to prove a demand. Howitt v. Estelle, 92 Ill. 218; Kime v. Dale, 14 Ill. App. 308. An officer who levies on the goods of one person under an execution against another and sells them or loses them, is liable in an action of trover, and no demand is necessary, as proof of the sale or loss makes out the conversion. Duncan v. Stone, 45 Vt. 118; Robinson v. McDonald, 2 Geo. 116; Burgin v. Burgin, 1 Ired. 453.

As no demand was necessary under the evidence, it is not worth while to consider whether the demand upon the deputy, Matson, would constitute a good demand upon the Sheriff.

As the appellant appeared and went to trial in the Circuit Court, he can not he heard now to object to the insufficiency of the transcript. Where the parties appear and try the case in the Circuit Court upon its merits, without objection, the. court will have jurisdiction without a transcript, and the evidence will be looked into to see what the demand was and what the defense.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Singer, Nimick & Company, Limited, et al., v. Henry T. Steele.

      Attorney and Client—Bill for Accounting—Collection of Accounts— Agency—Value of Services—Special Agreement—Practice.

      Upon a bill, against an attorney, for an accounting, it is held: That the decree dismissing the bill for want of equity was warranted by the evidence; that it was entirely proper for the defendant to employ his law partner to collect certain claims belonging to the complainant; that the failure of the defendant to preserve a memorandum from which he could give a detailed account of said claims upon demand, was not such negligence as should render him liable to account on the basis of a wilful default; that he was only chargeable with the actual amount collected by him or his agent; that he was properly allowed credit for the reasonable value of the services rendered by him or his agent in collecting or attempting to collect said claims, their collection not being within a certain special agreement to collect and remit the p'roceeds of certain notes, in lieu of which they were taken; and that, if the evidence did not fairly warrant the finding of the master as to the value of said services, the appellant could not first raise the objection here.

      [Opinion filed November 23, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Gardner, McFadon & Gardner, for appellants.
    Mr. John McGafeey, for appellee.
   Bailey, J.

This was a bill in chancery,-brought by Singer, Nimick & Company, Limited, a corporation, against Henry T. Steele, for an accounting. For some fifteen years prior to February, 1878, the defendant had been the attorney at Chicago of the firm of Singer, Nimick & Company, of Pittsburg, Pennsylvania. About that date said firm placed in his hands, for collection or settlement, a claim in their favor against N. S. Bouton, of Chicago, amounting to $15,720. After considerable negotiation, the defendant effected a settlement of said claim by taking certain real estate in Illinois, Kansas and Nebraska, valued at $7,500, about §1,120 in money, and about $7,100 in seven notes of the Chicago Plow Company, a corporation then in good credit. Of said notes, six were for $1,000 each, maturing respectively on the first day of April, June, August, October and December, 1878, and February 1, 1879. The seventh note was for $1,097.32, maturing April 1, 1879. As a part of the settlement it was agreed between the defendant and the plow company that said company might take up said notes, or any of them, at any time before maturity, by substituting in their place notes of said company’s customers for like amount and maturing within the same time. For convenience in making the collection or exchange, said notes were drawn payable to the defendant. Said settlement was reported by him to Singer, Nimick & Company, and by them approved.

In a letter written by the defendant to Singer, Nimick & Company, under date of February 25, 1878, communicating to them certain matters connected with the settlement, he expressed the opinion that every dollar was secured, and asked permission to retain $321.98 of the cash payment then in his hands on account of fees, saying: “Ho further charge or claim for services will be made for attending to the collection and remittance of the proceeds.” In another letter, dated March 29, 1878, he wrote: “ Hitherto I have made no mention of fees and charges for services in the settlement of the H. S. Bouton claim, except the retaining of the $321.98 cash on settlement to apply on same, as advised in mine of 25th ult. In this matter, inasmuch as no further charge is to be made for collecting and remitting as the paper falls due, it has seemed to me that the sum of $500 would be a fair and a proper charge in full for fees and services in this case, and if upon the coming - settlement of the Chebanse purchase you will allow me to retain the balance on making remittance, it will be very acceptable, being $178.”

Tinder the arrangement with the plow company, two of the notes, the first and seventh, were surrendered to said company in exchange for notes made by various of its customers, and said notes, with the exception of a small amount, were collected and remitted by the defendant. The second note not being paid at. maturity, the defendant induced the plow company to turn over to him as collateral four notes, of which he collected one and compromised the other three, and remitted the proceeds to Singer, Himick & Company. The total amount thus collected and remitted by the defendant was about $2,850. The remaining notes were not collected, so that there remained uncollected a small balance of the second note and the four remaining notes of $1,000 each.

Some time during the year 1878 the defendant entered into a copartnership with J. Blackburn Jones, a member of the Chicago bar, which partnership continued until 1882. In the summer of 1878, and after the formation of said partnership, Singer, Himick & Company employed Jones, at a time when the defendant was temporarily absent from Chicago, to go to Kansas to examine some lands for them, but in all subsequent matters they seem to have refused to recognize Jones as their attorney, and to have, insisted upon looking to the defendant alone for the transaction of all business connected with the plow company notes. On the 3d day of February, 1879, the plow company being badly pressed by its creditors, and being in a failing condition, the defendant induced said company to turn over to him such assets as they had in the form of dioses in action and claims against various parties, for the benefit of Singer, Elmick & Company. There is a dispute as to whether these assets were turned over to the defendant by the plow company in.payment of or as collateral to its said notes, but the court found that they were turned over to him as collateral and not as payment, and the evidence tends to support such finding. Said claims aggregated a large amount and were supposed to he sufficient to pay the entire indebtedness. A schedule of said claims was made out and delivered to the defendant, and an assignment thereof executed to the firm of Steele & Jones.

The task of looking up and collecting the claims thus assigned was committed by the defendant entirely to Jones, and he immediate1/ started on a trip through several of the western States, visiting the debtors so far as he could find them and addressing those whom he failed to see, by letter, being absent on such trip one week. Some months later he made another similar trip, the expenses of both trips being paid by the defendant. A large portion of said claims proved to be uncollectible, only about §730 in all being collected. It is claimed that the assignment of said claims was obtained by the defendant wholly without the knowledge or consent of Singer, FTimick & Company, and that the efforts made by the defendant, through his partner, Jones, to collect said claims, was without their knowledge, procurement or approval. Whether this be so or not, it does not appear that they in any way disaffirmed the defendant’s act in obtaining said assignment when they learned of it, but on the contrary, it appears that they frequently demanded of the defendant an account of the money collected, and in the bill the complainants claim the benefit of the assignment, and pray that the defendant be required to account for the moneys so collected.

In July, 1881, Singer, Himick & Company became incorporated under the name of Singer, Himick & Company, Limited, and assigned to said corporation their claim against the defendant. The agent of the firm before the incorporation, and the agent of the company afterward, on several occasions, applied to the defendant for a statement of the claims assigned as aforesaid, but as the schedule of said claims had been placed in Jones’ custody, together with -all other memoranda connected with the matter, the defendant referred the agent to him for information, but said agent refused to see Jones, but demanded an account of the defendant, who personally had nothing to do with said claims and knew nothing of the details in respect to them.

The cause being heard .on pleadings and proofs, the court found that the defendant was liable to account to the complainants for the moneys collected on said claims, and that he was entitled to credit for the reasonable value of Jones’ services in collecting and attempting to collect the same. The cause was thereupon referred to the master to state the account between the parties upon the principles thus laid down, and the master, in stating the account, charged the defendant with the sum of §730, the amount of the moneys collected, and found the value of Jones’ services to be §1,400, thus leaving a balance, in the defendant’s favor, of §670. Said report of the master was confirmed by the court, but as the defendant had filed no cross-bill, the court refused to render a decree in his favor for said balance thus appearing to be due him, but dismissed the bill at the complainants’ costs for want of equity.

Without attempting to notice in detail the numerous criticisms of appellant’s counsel upon both the interlocutory and final decrees, we are of the opinion that the decree is fully warranted by the evidence. It was entirely proper, so far as we can see, for the defendant to employ Jones, his partner, to collect the claims turned over by the plow company. It is not pretended that Jones was not a lawyer of standing and ability, or that he was not entirely competent to perform the duties growing out of such employment, and it is not shown that he was not faithful and diligent in their performance. That he was not more successful was doubtless owing to the character of the claims'given him for collection. The evidence shows that all the moneys collected by Jones were accounted for, and that the defendant had in his hands at the hearing, ready to be delivered to the complainants, all of said claims not collected.

The contention of the complainants seems to be, that by giving over the entire charge of the collection of said claims to another and keeping in liis hands no memorandum from which he could give to the complainants, whenever they saw fit to call for it, a detailed account of the nature, description and condition of said claims, the defendant was guilty of such negligence as should render him liable to account on the basis of wilful default, that is, to be held liable to account for all such claims as he might not be able to show on the accounting could not have been collected by the exercise of ordinary diligence. "Without attempting to define or classify the cases where an accounting party may be charged on the basis of wilful default, it seems very clear that there are no facts shown here which can invoke an application of the principles which govern cases of that character. No such consequences can follow from the employment of another to collect the claims, so long at least as the agent employed was competent and performed the duties of his agency with faithfulness and diligence. Nor does the fact that the defendant placed in his agent’s hands all his memoranda in relation to the claims to be collected, make out a case of wilful default, especially as it is not shown that any prejudice resulted therefrom to the complainants. But even if this were otherwise, the bill is not framed upon the theory of a wilful default, and where that is the case, only ordinary relief can be given. We see no ground for charging the defendant anything beyond the actual amount of the moneys collected by him or his agent.

Was the defendant entitled to credit for the reasonable value of the services rendered by him or his agent in collecting or attempting to collect said claims ? The only ground u pon which it is suggested that he should have rendered such services without charge is, that at the time of settling the Bouton claim and taking the plow company’s notes, the defendant charged 8500 for 1ns services and agreed that there should be no further charge for collecting and remitting as said notes should fall due. At the time that agreement was made, the plow company was in good credit and solvent, and we may fairly conclude that the parties expected the notes to he paid by the maker at maturity, and that it was not within their contemplation that there should be any litigation in the premises. The collection and remittance stipulated for, it would seem, were the collection by mere presentment at maturity, and the remittance of the money as it should be thus paid. But however that may be, the agreement to collect the plow company notes without charge did not embrace within its terms the collection without charge of claims against a great number of parties scattered over a number of States, which the plow company might turn out as collateral to its notes. That service was clearly beyond and additional to what the contract called for.

We can not say that the amount, found by the master to be due the defendant for services, is too large. The evidence fairly warrants said finding, and besides, we are unable to ascertain from the record that the complainant filed any exceptions to the master’s report challenging the amount of credits allowed to the defendant. Having failed to except below, he can not be permitted to do so here. But if we were inclined to think that the master’s estimate was too large, or that' he had included items of services which should have been rejected, it would not follow that the decree is erroneous. The balance of $670 found due him has not been given him by the decree, and the reduction of the master’s finding by that sum eliminates all errors in that respect, which, under the evidence, can possibly be claimed.

Wé find no substantial error in the record. The decree will therefore be affirmed.

Decree affirmed.


text:
    Joshua Emery v. Mary Ginnan.

      Malicious Prosecution—Malicious Use arid Abuse of Process—Distinction —Term—Motion of Original Proceeding—Probable Cause—Compromise or Settlement—Waiver—Estoppel—Instructions.

    1. There is a distinction between an action for a malicious abuse and a malicious use of civil process, such distinction having reference to the termination of the action in which the process issued.
    2. Where there is a just claim in suit, and civil process is maliciously used to arrest the defendant, in order to recover for such malicious use of legal process, it is necessary to prove that it was malicious and without probable cause and that the suit or proceeding was finally determined before action was brought for the injury.
    8. The termination of the suit or proceeding must be such as does not admit a reasonable cause for prosecution. A termination by compromise or settlement between the parties is such an admission of probable cause by the defendant as will estop him from its subsequent denial.
    4. In the case presented, it is held: That an instruction, which attempts to enumerate all the elements necessary to sustain plaintiff's cause of action, is fatally defective, because it ignores and excludes from the consideration of the jury certain evidence tending to show a dismissal of the original proceeding as the result of a settlement between the parties; and that another instruction was improperly amended by the court so as to make one part conflict with the other.
    [Opinion filed November 23, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Jobs P. Altgeld, Judge, presiding.
    The declaration in this action was for maliciously, and without probable cause and by means of a false affidavit, procuring a writ of capias to be issued by Justice of the Peace, and the plaintiff to he arrested by a Constable, and while so under arrest by threats and imprisonment, extorting from plaintiff’s possession a certain warehouse receipt for certain goods, and wrongfully compelling plaintiff to indorse said warehouse receipt to the defendants, by means whereof defendants obtained and took possession of certain goods of plaintiff of the value of §285.
    That thereupon said Constable, at the instance of defendants, discharged and set at liberty the plaintiff, and afterward procured said writ of capias, and the suit in which the same was issued, to be dismissed at their costs. The affidavit, which was alleged to be false, was as follows:
    State oe Illinois) County oe Cook, j'
    Joshua Emery, being first duly sworn, says that he is about, on behalf of John J. Henry, George E. Hatch and himself, composing the firm of, Henry, Hatch & Emery, of Chicago, Cook County, Illinois, to commence an action of assumpsit before D. J. Lyon, Esq., Justice of the Peace in and for said Cook County, against Mrs. J. L. Ginnan of said county; that the said Mrs. J. L. Ginnan is justly indebted to said Henry, Hatch & Emery, composed as aforesaid, in the sum of $184.25, for boots and shoes heretofore sold by said Henry, Hatch & Emery to said Ginnan; thatheretofore, to-wit, on the 26th day of May, 1884, said Ginnan was running a store at Ho. Ill Blue Island Avenue, in said City of Chicago, and had therein a large stock of boots and shoes of large value, a portion of which was the same property so sold to her as above set forth; that on the said last mentioned date said Ginnan secretly removed said stock of goods to some place unknown to this affiant, and that the agents of said affiant had made diligent search for the same, but had been unable to find them. Affiant further states that said Ginnan has removed her residence to a house on School Street in said city, and that the clerk of affiant has called there and made effort to see said Ginnan, but she has concealed herself and refused to respond to requests to see her in reference to said account, as affiant is informed and believes. And affiant states that said Ginnan has concealed, removed, assigned and disposed of her said property with intent to defraud said firm and her other creditors. And this affiant further states that he fully believes the benefit of whatever judgment said Henry, Hatch & Emery may obtain in this behalf, will be in danger of being lost unless said Ginnan be held to bail.
    (Signed) Joshua Emery.
    It was admitted on the trial by plaintiff that at the time of the commencement of the suit before the Justice she was indebted to the plaintiffs in said suit in about the sum of §85, as near as she could tell, but she denied that she had in any manner concealed herself or removed or concealed her goods with intent to defraud said firm.
    Defendants offered evidence tending to show that after she was arrested on the capias by the Constable, she requested to be taken to the store of defendants, and that when brought there the Constable said to defendants in her presence that she wanted to settle with them; that thereupon there were some negotiations, and she presented a warehouse receipt and said it was all she had to show; that she had borrowed §50 on the goods; that thereupon plaintiff and a Mr. Duffield, the clerk of defendants, and the Constable, went with plaintiff to tire warehouse where the goods were stored, and that Duffield, acting for defendants, said that to avoid all trouble they would pay the money that had been borrowed on the goods, and take the goods if she would turn them over. That thereupon plaintiff signed the book and authorized the warehouseman to deliver the goods to defendants, and then plaintiff went home. Plaintiff claimed. she did not settle, but turned over the goods to defendants, and expected that when they sold them they would give her some account of them.
    Defendants claimed they took the goods in settlement of the claim for which they had brought suit, and after the settlement dismissed tire suit, and that the goods were not of sufficient value to pay the amount of their bill against plaintiff.
    There was a verdict and judgment against defendants for §1,500.
    Messrs. Weigley, Bulkley & Gray, for appellant.
    The plaintiff must prove both a want of probable cause and malice to recover; and if the defendant shows either probable cause or good faith, the action will not lie. Jacks v. Stimson, 13 Ill. 701; Barrett v. Spaids, 70 Ill. 408; Leidig v. Rawson, 1 Scam. 272; Splane v. Byrne, 9 Ill. App. 392; Commisky v. Breen, 7 Ill. App. 369.
    The plaintiff has admitted that there was probable canse by settling the demand. Cooley on Torts, 186; Hurd v. Shaw, 20 Ill. 354; Barrett v. Spaids, 70 Ill. 408; Sartwell v. Parker, 5 N. E. Rep. 807; Jones v. Given, Gilbert’s Cases, 185; Clark v. Everett, 2 Grant, 416; Mayer v. Walker, 64 Pa. St. 287.
    Messrs. George W. Brandt and Eli B. Felsenthal, for appellee.
   Moran, P. J.

There is a distinction recognized and established hy the authorities between an action for a malicious abuse of legal process, and a malicious use of legal process.

Where the action is for abuse of process it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause. Granger v. Hill, 4 Bing. (N. C.) 212.

But where there is just claim in suit, and civil process is maliciously used to arrest the defendant when no probable cause for such arrest exists, it is necessary in order to recover for such malicious use of legal process to prove that it was malicious and without probable cause, and also that the suit or proceeding was finally determined before action brought for the injury. Mayer v. Walter, 64 Pa. St. 283.

This case, while it is called by appellee’s counsel an action for abuse of legal process, is in the frame of the declaration, and in the theory on which it was tried in the court below, an action for malicious use of civil process. Appellee alleged in her declaration and sought to prove on the trial, that the capias was sued out maliciously and without probable cause, and that the prosecution was terminated before she commenced this action.

To establish that the prosecution was so legally terminated as to permit the maintenance of this action, it was not necessary for appellee to show that the merits had been determined in her favor; it was sufficient to show the voluntary dismissal or abandonment of the prosecution by plaintiff in the action or proceeding. But wheie the proceeding is dismissed or abandoned by the procurement of the pavty prosecuted by settlement or compromise with the prosecutor or plaintiff in the action, it is not, it seems, such a termination of the proceeding as that a suit for malicious prosecution can be maintained.

The termination must be such as does not admit a reasonable cause for prosecution. If the prosecution should end with a judgment adverse to the party prosecuted criminally, or arrested in a civil suit, it would establish not only that there was probable cause but that there was actual cause for the proceeding, and where the termination of the case is brought about by a compromise or settling between the parties, understanding^ entered into, it is such an admission that there was probable cause that the plaintiff can not afterward retract it and try the question, which by settling he waived.

“ If he settled the demand understanding!;/ and voluntarily, he is estopped from denying that the defendant had probable cause for bringing the suit. If he would contest the claim, he should have protested against his liability. If a party is silent when self-interest commands him to speak, he will not be permitted to speak when public policy commands him to keep silent.” Morton v. Young, 55 Me. 27.

So in McCormick v. Sisson, 7 Cow. 715, where the plaintiff had been arrested on a charge of theft but during the examination before the Justice the matter was settled and the proceeding was dropped, the court held that the proceeding having ended in consequence of a settlement and not by an acquittal, was fatal to the action for malicious prosecution. And in Clark v. Everett, 2 Grant's Cases, 416, where one was arrested on a debt not due but compromised the matter and paid the money, and was discharged from the debt and the action, it was held that he was precluded from maintaining an action for maliciously bringing the suit before the debt was due. Judge Cooley in his work on Torts, 186, in discussing what is an end of the proceeding, says: “It is not enough that the parties in a case which they might lawfully settle, have effected a compromise and thereby terminated it.”

This is substantially the view taken in every case we have been able to find where the question has been presented Hamilburg v. Shepard, 119 Mass. 30; Marks v. Gray, 42 Me. 86; Rounds v. Humes, 7 R. I. 535; Brown v. Randall, 36 Conn. 56; Sartwell v. Parker, 141 Mass. 405.

There was in this case a conflict of evidence on the question as to whether there was a settlement between plaintiff and defendants. Plaintiff’s contention was that her goods were extorted from her by threats and duress, and that she did not settle, and defendants introduced evidence to show that there was a settlement and that the goods were turned over by plaintiff to them in payment of the debt, and thereupon plaintiff was discharged from arrest and the suit against her dismissed. In this condition of the evidence the court gave to the jury at the instance of plaintiff the following instruction:

“ Third. If the jury believe from the evidence that the defendant maliciously and without probable cause procured the plaintiff to be arrested and treated as charged in the declaration, and that the suit in which said plaintiff was arrested was dismissed, and the prosecution against the plaintiff ended before this suit was brought, then the jury are instructed that they should find the defendant guilty, and assess the plaintiff’s damages, and in such case the jury may give exemplary damages, and such as under all the circumstances appearing in evidence, the jury shall deem just.”

This instruction attempts to enumerate all the elements necessary to sustain plaintiff’s cause of action. It purports to cover the whole case, yet it ignores and excludes. from the consideration of the jury the evidence tending to show that the prosecution was dismissed because of the settlement between the parties. It was for the jury to determine whether the dismissal of the proceeding was brought about by a compromise or settlement between the parties, and it was error to instruct them that if they found the suit against plaintiff was dismissed and the prosecution ended before this suit was brought, they might find defendants guilty. The instruction would be correct if there was no evidence to show that the suit was settled, but there being evidence before the jury tending to prove a fact having an important bearing on the law of the case, the instruction was partial and incomplete without a hypothesis negativing the conclusion which such evidence tended to establish. Chicago Packing & Provision Co. v. Tilton, 87 Ill. 547.

The court modified one of defendants’ instructions so that as given to the jury it read as follows, the modification by the court being in italics:

“The court instructs the jury, that the plaintiff having dismissed her count in the declaration for conspiracy, the only issue remaining is that in relation to malicious prosecution, and the jury are instructed that in an action of malicious prosecution it is incumbent on the plaintiff to prove by the preponderance of evidence that the suing out of the writ complained of was procured by the defendant maliciously and without probable cause. Both of those elements must co-exist, otherwise the action can not be sustained. So if you believe from the evidence that the defendant had probable cause and instituted the proceedings against the plaintiff and caused said writ to be issued in good faith and without malice, then you must find defendant not guilty.”

The first part of the instruction states the law correctly, the latter part erroneously. One part is in conflict with the other. It is impossible to determine which part of the instruction the jury followed. The lack of harmony between the rules stated in the instruction tended to mislead, and in such case, unless we can clearly see that the error couid not have operated injuriously, we must reverse. C., B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; Quinn v. Donovan, 85 Ill. 194.

For the errors indicated, the judgment of the Superior Court will be reversed and the case remanded.

Reversed and remanded..


author: McAllister, J.

text:
    M. D. Brown v. The People of the State of Illinois.
    Scire Facias for Final Judgment upon Recognisance—Forfeiture—Default—Time to Appear in Justice Court—Jurisdiction.

    1. In order to maintain a proceeding by scire facias for final judgment upon a recognizance, a regular judgment of forfeiture, rendered prior to the commencement of such proceeding, must be shown.
    2. It is indispensable to a legal default and declaration of forfeiture of a recognizance, that the principal should have been regularly called, and upon such call failed to appear.
    3. By the common or unwritten law of this State, in proceedings before Justices of the Peace, which are notified to begin at a fixed hour, neither party is in default until the expiration of that hour and the commencement of the next.

      4. In the case presented, it is held: That the evidence failed to show that either the principal or surety was called by the Justice; and that the principal had all the time between the hour set and the commencement of the next in which to appear.
    5. It seems that, as in preliminary examinations a Justice of the Peace is an officer of general powers, jurisdictional facts need not be shown in a proceeding by scire facias for final judgment upon a recognizance.
    [Opinion filed November 23, 1887.]
    Appeal from the Criminal Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    This is an appeal from the judgment of the Criminal Court of Cook County against appellant, M. D. Brown, in a proceeding by scire facias upon a recognizance executed and taken before a Justice of the Peace, March 21,1885, by Samuel Gold-stein as principal and said Brown as surety, in the sum of $500, containing the following condition: “ Whereas, the above bounden Samuel Goldstein, on the 21st day of March, A. D. 1885, was brought before Edward A. Fisher, a Justice of the Peace in and for the county aforesaid, on a charge preferred against him for burglary, and the further examination of the said Samuel Goldstein having been continued to the 30th day of March, A. D. 1885, at 8 o’clock A. m., and the said Samuel Goldstein having been adjudged and required by the said Justice to give bonds required by the statute in such case made and provided for his appearance to answer said charge, now the condition of this recognizance is such that if the above bounden Samuel Goldstein shall personally be and appear before the undersigned at my court room, in the city of Chicago, in said county, on the 30th day of March, A. D. 1885, at 8 o’clock A. m., then and there to answer to the people of the State of Illinois on said charge, and abide the order and the judgment of said court, and not depart the same without leave, then and in that case this recognizance to become void, otherwise remain in full force and virtue.”
    The soire facias sets out the recognizance in words and figures; avers that on the 30th day of March, 1885, the said Justice of the Peace was holding court for the transaction of business at his said court room, and that the said Samuel Goldstein being then and there three times solemnly called to answer the charge preferred against him in said recognizance set forth, came not, nor any person for him, but therein failed and made default; and the said M. D. Brown being then and there three times solemnly demanded that he bring the body of the said Samuel Goldstein into court or that his recognizance be declared forfeited,- came not, nor did he produce the body of said Samuel Goldstein, but made default therein, which was duly taken and certified upon said recognizance and which was duly filed in the office of the clerk of the Criminal Court, on the 11th day of May, 1885, and then and there became matter of record; then followed the summons part in due form.
    The defendant, Brown, pleaded to that part of the soire facias setting out the judgments of default and forfeiture by the Justice court, the plea of nul tiel record, and to all the averments of the writ, nil debet; on which issue was joined.
    On the trial before the court, without a jury, the court permitted the State’s Attorney, against the objections of the defendant, Brown, to give in evidence in support of said averments as to said judgment of default and forfeiture, the following indorsements by the Justice on the back of said recognizance.,
    “The People of the State of Illinois v. Samuel Goldstein.
    “ Becognizance for further examination.
    “ Amount.............................$ 500.00
    “Justice’s costs......................... 2.30

      “ March 30, 1885. This recognizance is declared forfeited for want of appearance of Samuel Goldstein, the principal therein named, at the time mentioned therein viz., March 30, 1885, at 8 a. h.
    [seal] “Edward A. Fisher, J. P.”
    The State’s Attorney was also allowed by the court to give in evidence, against the objection of defendant, Brown, the transcript of said Justice’s docket, of all the proceedings in the case before said Justice; from which it appears that at 8 o’clock a. m., March 30, 1885, the said Justice declared the said recognizance forfeited, and from which transcript it nowhere appears that the said Justice waited any after that time, or that either the said Goldstein, the principal, or Brown, the surety, was called in any manner.
    There was no other evidence; and the court found the issues for the people, and gave judgment against Brown for the amount in said recognizance, from which he prosecutes this appeal, assigning for error, (1) that the recognizance was void for want of recital therein of facts showing that the Justice had jurisdiction; (2) that evidence of a proper judgment of forfeiture was wanting; (3) that there was a fatal variance between the averments in the scwe facias as to such judgment of forfeiture, and the proof.
    Mr. M. D. Brown, in person, appellant.
    No brief filed for appellee.
   McAllister, J.

It is well settled law in this State that, in order to maintain a proceeding by sci/re facias for final judgment upon a recognizance, a regular judgment of forfeiture, rendered prior to the commencement of such proceeding, must be shown. Thomas v. People, 13 Ill. 696; Kennedy v. People, 15 Ill. 418; Cable v. People, 46 Ill. 467; Banta v. People, 53 Ill. 434; Farris v. People, 58 Ill. 26.

In conformity with that rule the soil's facias avers that on the day named in the reognizance, Goldstein (the principal) being then and there three times solemnly called to answer the charge preferred against him, came not, nor anybody for him, but therein made default; and that Brown (the surety) being then and there three times solemnly demanded that he bring the body of said Goldstein into court, or that his recognizance be declared forfeited, came not, nor did he produce the body of said Goldstein, but made default therein, which was duly taken and certified upon said recognizance. ■ These averments were properly denied by a plea of nul tiel record, on which issue was joined. The burden was, therefore, upon the plaintiffs to sustain their said averments by competent evidence. The only evidence offered in that behalf was the entry by the Justice upon the back of the recognizance set out in our statement of the case, and the transcript from the Justice’s dockets from neither of which did it appear that either principal or surety was called at the time in question.

We are of opinion that the evidence adduced not only failed to support said averments, but that it was indispensable to a legal default and declaration of forfeiture, that the principal in the recognizance should have been regularly called, and upon such call failed to appear. Dillingham v. United States, 2 Wash. 422; State v. Chesley, 4 N. H. 366; State v. Grigsby, 3 Yerg. 280; White v. State, 5 Yerg. 183; Park v. State, 4 Ga. 329; United States v. Rundlet, 2 Curtis, 41; Cable v. People, 46 Ill. 467; Banta v. People, 53 Ill. 434.

But there is another reason why there was no legal breach of the condition of the recognizance shown. That condition was that Goldstein should personally be and appear before said Justice on the 30th day of March, 1885, at 8 o’clock a. m., to answer, etc.

How, the evidence adduced by plaintiffs not only fails to show a call upon Goldstein, but it shows that the Justice did not wait the expiration of an hour from 8 o’clock, but declared a forfeiture at 8 o’clock a. m. of that day. By the common. or unwritten law of this State, it is the rule that in proceedings before Justices of the Peace, which are notified to begin at a fixed hour, neither party is in default until the expiration of that hour and the commencement of the next. This is a convenient rule, prevents surprise and exacts as much promptness as is safe and reasonable. That it prevails in this State is understood by the courts and the legal profession, as well as by the generality of the community. Therefore the legal effect of the condition of the recognizance in question was that the party had all the time between 8 o’clock and 9, in which to appear, and no default before the beginning of the latter hour could be legal. United States v. Rundlet, 2 Curtis, 41.

The views expressed render it unnecessary to discuss the other point made, viz.: That there was nothing in the case showing the facts necessary to give the Justice jurisdiction.

As an outcome of the doctrine that Justices’ courts are courts of statutory and limited jurisdiction, and that their jurisdiction must always be made to appear, it has been held, that in proceedings by scire facias, upon a recognizance taken before such magistrate, such jurisdictional facts must appear from the recognizance; and in an action upon one, they must appear by averments in the declaration. In the case of The People v. Koeber, 7 Hill. 39, that doctrine was enunciated and all the then reported cases were cited. But that case as to that point was overruled in the case of The People v. Kane, 4 Den. 530, and Champlain v. People, 2 N. Y. 81. Many cases follow the doctrine of those two latter cases and hold that a Justice of the Peace, as to preliminary examinations in criminal cases, is an officer of general powers in that behalf, and jurisdictional facts need not be shown. Adams v. The Governor, 22 Geo. 417; State v. Randolph, 22 Mo. 475; State v. Grant, 10 Minn. 39; U. S. v. George, 3 Dill. C. C. 431. And the case of McParlan v. People, 13 Ill. 9, following the decisions in Kentucky, adopts the same view.

But the objection, of a want of a regular judgment of forfeiture, is insuperable and fatal to any recovery, wherefore the judgment against 'appellant must be reversed.

Judgment reversed.


text:
    Olive Rhea v. George W. Powell.

      Attachment—Capital Stoch of Corporation.

    Shares of stock in a corporation are not subject to attachment under the statute of this State.
    [Opinion filed November 23, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Lincoln Brooke and E. Walker, for appellant.
    Mr. I. K. Boyesen, for appellee.
   McAllister, J.

This is an appeal by Rhea, the plaintiff below, in a suit by attachment against appellee, brought January 5, 1885, in which the defendant traversed by plea the facts of the affidavit for the attachment, and upon that issue the court, before whom the ease was tried without a jury, found for the defendant and gave judgment accordingly.

It is insisted, upon argument here for the appellant, that such finding was against the law and the clear preponderance of the evidence. The issue as tried was, whether the defendant had, or was about to, fraudulently dispose of property with the intent and so as to hinder, delay and defraud his creditors, of whom plaintiff was one. It appears that the attachment was levied upon 210 shares of stock in a manufacturing corporation, standing in the name of the defendant on the books of said company, and on no other property.

The theory of the plaintiff in support of said issue was, that a specific lien upon said shares having been acquired by such levy, the defendant had, soon after such levy, transferred ten shares of said stock of the face value of §100 each to one Kinsey to secure an antecedent debt which he owed to the latter; that this was a fraud $>er se, and the presumption must be that it was in pursuance of a prior intent and purpose to hinder and delay plaintiff in the collection of her debt, he having previously assigned or pledged all the other of such shares to Iona fide creditors, and it did not appear that he had any other property.

The counsel for appellant assume that a specific lien upon the shares of stock was acquired by the levy of the attachment. Were they correct in that assumption? After a careful examination of our statutes and due consideration of the principles of law applicable to such a case, we are of opinion that no lien was acquired thereby.

It is well settled that shares of stock in a corporation were not leviable at common law. Denton v. Livingston, 9 Johns. 96; Williamson v. Smoot, 7 Mart. O. S. (La.) 31. “But shares in a turnpike, or other incorporated company, are not chattels. They have more resemblance to dioses in action, being merely evidence or property. The sale of them upon execution not being justifiable at common law, the statute must be strictly pursued to give any property to the purchaser.” Barker, O. J., in Howe v. Starkweather, 17 Mass. 243.

It is equally well settled that a proceeding by attachment has no existence at common law, but is authorized solely by statute and is in derogation of the common law. Hence, the proceeding must, in all essential particulars, conform to the statute of its creation, or be invalid. Haywood v. Collins, 60 Ill. 328, and cases there cited; Waples on Attach. 24. On page 270 that author says: “It may be said that except so far as statutes expressly authorize the taking of promissory notes, bonds, certificates of stock, accounts, title deeds to lands, book accounts and other evidences of debt or property, such things are not attachable on general principles, because their presence in court is not the presence of the debts or property which they evidence or indicate.” And he cites numerous cases in support of the text, among them that of Prout v. Grout, 72 Ill. 456

The Attachment Act of this State does not expressly authorize a levy upon shares of stock, nor attempt to prescribe any method by which levy can be made. Such levy was therefore unauthorized. Foster v. Potter, 37 Mo. 526; Van Norman v. The Circuit Judge of Jackson County, 45 Mich. 204. In the last cited case, the statute authorizing the levy of an execution upon shares was precisely like that in this State; and the court held that it was insufficient to authorize the levying of the attachment.

But aside from the want of statutory authority to levy an attachment upon such shares of stock, we think the evidence failed to show, by any clear weight and preponderance, that the defendant did in fact make the transfer of ten shares to Kinsey after the beginning of the attachment suit. It tended strongly to show that defendant had agreed to do it before he had any notice or knowledge that the bringing such suit was contemplated and that it. was in good faith for a bona fide debt. The judgment below should be affirmed.

Affirmed.


author: Per Curiam.

text:
    Andrew Mattson v. Benedix G. Borgeson.

      Practice—Bill of Exceptions—Form of Verdict—Presumption of Regularity.

    In the absence of anything to the contrary appearing in the bill of exceptions, it will be presumed that the verdict as set out in the record was returned in open court and in proper form.
    [Opinion filed November 23, 1887.]
    Appeal from the County Court of Cook County; the Hon. Riohabd Pbendergast, Judge, presiding.
    Mr. H. H. Anderson, for appellant.
    Messrs. Blanke & Chytraus, for appellee.
   Per Curiam.

The ground of error alleged in this case is that the jury did not pronounce their verdict in open court, nor was the verdict reduced to writing and signed by the foreman of the jury. On examining the record we find a formal verdict set out in it, as returned by the jury in open court. The bill of exceptions contains no statement as to the form in which the verdict was rendered, and we must therefore presume the verdict, as set out in the record, to have been returned in open court in proper form.

The bill of exceptions shows no exception whatever to the manner of returning the verdict.

The judgment must be affirmed.

Judgment affirmed.


text:
    Mathew Johnson v. Anna Christine Johnson.

      Husband and Wife—Separate Maintenance—Evidence—Alimony and Solicitor's Fees.

    Upon appeal from a decree allowing separate maintenance, it is held: That the finding of the court below, that the wife was living separate and apart from the defendant without her fault, is sustained by the evidence, which was conflicting; and that the allowance for alimony and solicitor’s fees, although “full liberal,” was not, in view of all the circumstances, so excessive as to require a reversal.
    [Opinion filed November 23, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Henry W. Magee and C. M. Hardy, for appellant.
    Messrs. Hutchinson & Partridge, for appellee.
    The amount allowed is f 81) per month. This amount was fixed by the court upon an agreement of parties that the defendant was worth §50,000 or more, and that his income above expenses was not less than §3,000 per annum.
    Defendant testifies that his income “ was between five and six thousand dollars a year.” The amount allowed by the court is therefore less than one-third of his income, and the income consisted principally of rents from his building on Chicago Avenue.
    The manner and style of Jiving, together with the income and property of the defendant, determine the amount of allowance, and any amount less than one-third of his income is reasonable.
    The amount of solicitor’s fees was submitted to the court without additional evidence. The several motions and the trial was had before the chancellor, and he was fully cognir zant of the services rendered. Many affidavits were taken, motion for temporary alimony was bitterly contested; the suit was pending more than eight months; negotiations for settfement were had; the trial occupied several days, and the amount fixed by the court was less than compensation for services rendered. §150 had been paid, and §350 more was allowed for services rendered prior to the appeal, and §225 was ordered to be paid as solicitor’s fees on the appeal to this court.
   Per Curiam.

This is an appeal from a decree finding that appellee was living separate and apart from appellant, her husband, without her fault, and ordering the payment of alimony and solicitor’s fees. The evidence of appellant and of appellee is in direct conflict as to the acts of cruelty alleged and as to the general treatment of appellee by appellant. We find that appellee’s account of their quarrels and of appellant’s conduct toward her derives support from the testimony of other witnesses, but if this were not so, as the witnesses testified orally before the chancellor, and he had the same means for judging of their credibility as a jury would have, we would not be authorized to reverse his finding of the facts unless such finding was clearly unauthorized by the evidence. It is clear that the trial court believed appellee and her witness, and taking her account as true we are unable to say that the decree, that she was living apart from her husband without her fault, is not supported by the evidence.

A woman’s life may be made miserable and cohabitation with her husband made unbearable by other means than the inflicting by him of blows upon her person; and while in this case there is not great violence often repeated shown by appellant toward appellee, there is evidence of coarse and brutal conduct and also instances of physical violence.

Appellant was jealous of appellee, and his conduct toward her implied a belief on his part that she waé not faithful to him, and the repeated efforts of the chancellor to bring the parties together and have them live as husband and wife was defeated by appellant’s alleged doubt of her chastity and his refusal to be reconciled until he had an opportunity to investigate as to rumors that had reached him. This condition of mind on his part gave color and sting to his conduct toward her, and might render actions and words, which would otherwise be indifferent, cruel in the extreme. We can not say, therefore, that the court erred in its conclusion, and while we think the allowances made for alimony and solicitor’s fees “full liberal,” we are not disposed, in view of all the circumstances, to regard the action of the chancellor in those respects as constituting ground of error. The decree will be affirmed.

Decree affirmed.


text:
    Charles Drabek et al. v. Grand Lodge of the Bohemian Slavonian Benevolent Society.

      Fraud—Action against Surety on Bond of the Secretary of a Secret Society-Evidence—Admissions of Principal, Since Deceased—Collateral Evidence—Letter— Fraud.

      1. It is fraud in law, if a party makes representations which he knows to be false, and injury ensues, although the motive from which the representations proceeded may not have been bad.
    2. Under the rule that the evidence must correspond with the allegations and be confined to the point in issue, all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact in dispute, is inadmissible.
    8. In an action against the sureties on the bond of the secretary of a secret society, it is held: That certain admissions by the principal on the bond, although made subsequently to the acts to which they relate, were properly admitted to charge the defendants, such admissions being against the interest of the principal and he having since died; that a letter of the principal containing collateral matters, written in extenuation of bis conduct, was improperly admitted; and that, if said principal on said bond was a defaulter at the close of his previous term of office, and the president of said society, with knowledge of such fact, falsely represented to the defendants that his accounts were correct, and thereby induced them to deliver the bond in question, it'is void and will not sustain the action.
    [Opinion filed November 23, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    This was debt by appellee, as plaintiff below, brought against appellants, as defendants, upon a bond made February 14, 1885, by one John A. Schleiss, as principal, who had been elected to the office of grand secretary of plaintiff for the term of one year, and by the defendants as sureties, in the penal sum of $8,000, conditioned for the faithful performance by said Schleiss of the duties of said office and that he would deliver all property, books, papers and money belonging to the plaintiff, which he might have in his possession, to his successor in office, or to such person or persons as the plaintiff or its authorized officers might at any time direct. The breach assigned was, that divers sums of money belonging to plaintiff, amounting to $8,000, came to his hands as such secretary5 which he, said Schleiss, converted and disposed of to his own use, and refused to pay over to plaintiff, or his successor in office, etc., although requested so to do.
    Schleiss having died before suit brought, the action was against the sureties alone, and they pleaded traversing the breach, non est factum, and several special pleas, one of which was the plea, in substance, that said Sehleiss had held said office for the next preceding term of one year; that before the making and delivering of said bond the plaintiff by its officers falsely and fraudulently represented to defendants that said Sehleiss had faithfully performed his duties as such secretary during his previous term of office, and had fully accounted for and paid over all moneys of plaintiff which had come to his hand during said year, as such secretary; averring that such representations were false at the time they were made, and known to the plaintiffs and its officers to be false and untrue when made; the said plaintiff and its officers well knowing that said Sehleiss had converted to his own use and embezzled divers sums of money of plaintiff during said previous term of office; that defendants confiding in such representations and believing" them to be true were induced to make and deliver said bond.
    Issue was taken upon the averments of said plea by common traverse, and the case tried by jury, resulting in a verdict and judgment against the defendant, in the sum of $8,000 debt and $5,053.15 damages, and they appeal to this court.
    On the trial the plaintiff gave in evidence the bond, and upon the question of breach assigned, the court allowed plaintiff under objection and exception of defendants to introduce in evidence a conversation had with Sehleiss in August, 1885, after he had, by the action of the plaintiff, ceased to be in the service of the latter in any capacity, in which Sehleiss admitted having received $583 during his former terms and not accounted for; and also a letter written by him to the Lodge. August 18, 1885, after he had ceased to be in any wise in the services of plaintiff, which letter was read to the jury, and-is as follows:
    “J. A. Sohleiss,
    “ Notary Public amd Conveyancer,

    “ 729 South Halsted St.
    “ Chicago, 18th day of Aug., 1885.

      “ Hon. Grand Lodge Illinois, O. S. P. S.
    (in place.)

      “ The following I submit to you as a statement of my obligation to the Grand Lodge:
    Y. Misek.......................... § 750.00
    J. Karasek............ ............. 750.00
    Jos. Zak............................. 750.00
    Jan. Sebek......................... 750.00
    J. Wanzl, (Hanzl).................. 750.00
    L. Havratil........................ 750.00
    F. Weingartl....................... 213.90
    K. Chobot . ) In settlement Fr. Berounsky j with Wocel 285.35
    Upon ass’t from 1st July received by me........................... 691.50
    Makes a total.................. §5,720.75
    Carried over....................... §5,720.75
    PAID OUT BY ME OB. WHAT IS TO MY CBEDIT.
    Y. Seyk, funeral of Misek.......... § 167.65
    J. Wanzl.......................... 377.65
    Y. Straka, on account of death Ho. 31. 50.00
    Half year’s salary.................. 50.00
    Expenditure for stamps, etc.......... 4.50
    From Lodge Ill. Ho. 91, debt for ass’t of 1st day of July............ 17.80 § 667.60
    Bemaining for G. L. §5,053.15
    “ On this occasion I can not omit to remark that this unfortunate affair happened by reason of great financial losses, but mainly on account of my serious illness, for I was unable to go among the people and thus the money lost itself from circulation. Had I been well, I guarantee that it would not have come to this, in spite of all the efforts of some of the brothers, who, knowing that a sick man can not defend himself, tried to ruin him in an assassin-like manner.
    “Well, they were successful this time; not only have they brought me to the greatest want, but they have deprived my family of sustenance. Let them remember this well. The times change and as the saying is: “ God deals out requitals! ”
    “To my honorable sureties I promise and assure them that each and every one will be promptly paid. I think, that already in May I will be able to apportion something, for by that time I hope to have together about §3,000.00. Schleiss may be besmirched, but his character will show that he has a different heart than those who have been publicly proclaiming me a bankrupt a year ago already.
    “Here was an opportunity to sue for §10,000, but Schleiss did not do it. Let cowardice, gossip and Jesuitism flourish along. The world demands it!
    “With all respect, “[Signed] J. A. Schleiss.”
    The court excluded much evidence offered by the defendants in support of their defense of fraud, but notwithstanding such ruling, there was evidence tending to prove the knowingly making of the false representations -set out in the plea deemed sufficient to go to the jury. At the instance of the plaintiff, the court instructed the j ary upon the issue of fraud as follows: “ But upon the question of the defendants’ liability the court further instructs you, that if you believe from the evidence that before the bond in question was delivered, the defendants or any person acting for them and in their behalf appointed for that purpose, applied to the president of the society at a meeting of the Lodge for information concerning the financial affairs of the secretary, Schleiss (Abs. 87), and whether his accounts with the society were all right; and further find from the evidence that in reply to such inquiry (if made) the president of the Lodge, then and there intending to deceive, wilfully and falsely replied that the accounts of said secretary Schleiss were all right and correct, and the defendants or the person acting for them, were reasonably deceived and misled thereby, and thereby induced to deliver the bond; and if the jury further find from the evidence that at the time such statements were made (if you find they were made) they were false and untrue, and that the said Schleiss was then a defaulter, and the president of said society had full knowledge of such fact (if you find such was the fact), but wilfully stated the contrary for the purpose of deceiving the defendants, and to induce them to deliver the bond, then and in such case the defendants would not he liable on said bond.”
    Messrs. Kraus, Mayer & Brackett, for appellants.
    When persons about to become sureties on a bond seek information from the party for whose benefit the bond is to he given, as to the previous honesty of the principal in the bond, it is the duty of the beneficiary to impart truthful information, if any. A concealment or false statement as to the previous conduct of the principal, under such circumstances, will discharge the sureties from all liability. Brandt on Suretyship and Guaranty, Sec. 348; Booth v. Storrs, 75 Ill. 438; Roper v. Sangamon Lodge, 91 Ill. 518; Ham v. Grove, 34 Ind. 18; Atlas Bank v. Bronnell, 9 R. I. 168; Franklin Bank v. Stevens, 39 Me. 532; Bank v. Haskell, 51 N. H. 116; Graves v. Bank, 10 Bush, (Ky.) 23; Best v. Brown, 3 Gifford, 450; Wayne v. Bank, 52 Pa. St. 343, and cases cited.
    The court below erred in admitting in evidence as against these sureties the personal letter of Schleiss, dated August 18, 1885, admitting his defaults, the same being written and sent along after the res gestae, and after his removal or suspension from office. It was pure hearsay as against appellants; was obtained solely for use on this trial, and was the only evidence of Schleiss’ defaults introduced in the whole case. Better evidence of Schleiss’ affairs and transactions existed in his books of account in the hands of appellee. 1 Greenl., Ev., Sec. 187; Hatch v. Elkins, 65 N. Y. 489; Stetson v. City Bank, 2 Ohio St. 167, 175; Hotchkiss v. Lyon, 2 Blackf. 222; Shelby v. Governor, 2 Blackf. 289; Chelmsford Co. v. Demarest, 7 Gray, 1; Pollard v. R. R. Co., 7 Bush., 597; State v. Bird, 22 Mo. 470; Association v. Edwards, 47 Mo. 445.
    The objections by appellants to this letter in the court below were:
    1. Because it covered a defalcation not covered by the bond in suit.
    2. It is not admissible against these sureties because made by a third party and being also an admission not a part of the res gestes.

    3. It is secondary evidence of the contents of Sehleiss? books then in possession of said grand lodge.
    Schleiss was absolutely suspended from office and all his functions as financial secretary were delegated to three other men before this letter of August 18, 1885, was written by him. See Greenl., Ev., Sec. 187.
    The declaration or admission of the principal to hind the surety must in all cases be part of the res gestes in reference to which the surety has covenanted, and that the principal’s subsequent admissions, not a part of the res gestes, do not bind, and are not competent as against the surety. Hatch v. Elkins, 65 N. Y. 489. See also Whitmarsh v. George, 8 B. & C. 556; Goss v. Watlington, 6 Moore, 355; Middleton v. Melton, 10 B. & C. 317; Hotchkiss v. Lyon, 2 Blackf. 222.
    Messrs. Jones & Lusk, for appellee.
    The record shows that the lodge did not suspend Schleiss but designated certain persons to perform his duties pro tem.

    Schleiss was still in office and the preparation of the letter or report was clearly within the line of his duty. Whitmarsh v. George, 8 B. & C. 556; Middleton v. Melton, 10 B. & C. 317; U. S. v. Ganson, 19 Wall. 213; Pendleton v. Bk. of Ky., 1 T. B. Mon. 181.
    It was an official act and binding upon the sureties. City of Chicago v. Gage, 95 Ill. 629; Bartlett v. Board of Education, 59 Ill. 369.
    It was of the res gestes. City of Chicago v. Gage, 95 Ill. 593, 628;U. S. v. Cutter, 2 Curtis, 629; Parker v. State, 8 Blackf. 295.
    In none of the cases upon which appellants rely was the principal dead, whose admissions were sought to he proven, and in almost all of them that fact was alluded to in such a way as to make them good authorities for us in this case. See Stetson v. City Bank, 2 Ohio St. 179; Chelmsford v. Demarest, 7 Gray, 1; Smith v. Whittingham, 6 Car. & P. 78.
    This class of declarations embraces not only entries in books but all other declarations or statements of facts, whether verbal or in writing, and whether they were made at the time of the. fact declared, or at a subsequent day. 1 Greenl., Ev., Sec. 147; Watkin v. Pierce, 21 Gratt. 722; White v. Choteau, 10 Barb. 202.
    “ Eor does it seem necessary that the declaration should have been made by persons in the course of any business or employment, or that declarations against interest should be contemporaneous with the facts to which they relate.” 1 Phil., Ev., 248-277.
   McAllister, J.

If Schleiss, the principal in the bond, was, at the close of his first term as secretary, a defaulter in his capacity as such officer, as respected a material amount of the funds of plaintiff below, as seems to have been the fact, and if such fact was known to plaintiff’s president before, and at the time of the delivery by the defendants of the bond in suit, but unknown to the defendants, or any of them, and the latter, before they would deliver said bond, made or caused to be made inquiries of said president, or in open lodge, in his presence and hearing, for information respecting the condition of the accounts or financial relations with the plaintiff of said Schleiss as such officer, and if the fact of such defalcation was fraudulently concealed from them by the said president, or other agent of plaintiff, acting within the scope of his apparent authority, and having knowledge of such defalcation, or they falsely represented to the defendants that said accounts of said Schleiss were all right and correct, and thereby induced them to deliver said bond to plaintiff, then the same would be void and no recovery could be had upon it. Smith v. The Bank of Scotland, 1 Dow. 272, 292 et seq.; Railton v. Matthews, 10 Cl. & Fin. 934; Lee v. Jones, 17 C. B. N. S. 482; Wayne v. Commercial Nat. Bank, 52 Pa. St. 250; Franklin Bank v. Cooper, 36 Me. 180; S. C., 39 Me. 542; Sovy ads. The State, 39 N. J. L. 132; Roper v. Sangamon Lodge, etc., 91 Ill. 518.

Eow, by the instruction to the jury upon.the issue of fraud, given at the instance of the plaintiff below, the court augmerited the burden of proof to which the defendants were subject under that issue, beyond what the law required, by directing them that it was incumbent upon defendants to show, in addition to the knowingly false representations, that they were made with the intention to deceive the defendants, and with the purpose of deceiving them and inducing them to deliver the bond.

The instruction was erroneous and misleading. It is fraud in law, if a party makes representations which he knows to be false, and injury ensues, although the motive from which the representations proceeded may have not been bad. Fraud will be inferred. Case v. Ayers, 65 Ill. 142; McBean v. Fox, 1 Ill. App. 177; Gough v. St. John, 16 Wend. 645; Railton v. Matthews, 10 Cl. & Fin. supra.

The error of that instruction clearly requires a reversal of the judgment. But there is another important question which will arise upon another trial, and which we can not, with propriety, avoid passing upon, viz.: The admission in evidence under the objection and exception of the defendants, of a conversation with Schleiss, and the letter written by him August 18, 1885, set out in our statement of the case, after he had been dismissed and ceased to be in the service of the plaintiff in any capacity. The statements made by him in neither the conversation nor the letter can be considered as part of any res gestee¡ and the question being considered independently of the circumstance of his being dead, we think it clear, upon principle and authority, that the evidence was incompetent as being mere hearsay.

In speaking of the admissions of a principal as evidence against a surety upon his collateral undertaking, Greenleaf says: “In the cases on this subject, the main inquiry has been whether the declarations of the principal were made during the transaction of the business for which the surety was bound so as to become part of the res gestae. If so, they have been held admissible; otherwise not. The surety is considered as bound only for the actual conduct of the party, and not for whatever he might say he had done, and therefore is entitled to proof of his conduct by original evidence where it can be had, excludingall declarations of the principal made subsequent to the act to which they relate, and out of the course of his official duty.” 1 Greenleaf on Evidence, Sec. 187.

The correctness of the rules, with their qualifications as embodied in the above quotation, has been recognized and illustrated by some of the ablest courts in the country. Stetson v. City Bank, 2 Ohio St. 167, opinion by Ranney, J.; Hatch v. Elkins, 65 N. Y. 489; Union Savings Association v. Edwards, 47 Mo. 445 ; Chelmsford Co. v. Demarest, 7 Gray, 1.

But it is insisted in argument on behalf of plaintiff below that the admissions and declarations of Schleiss were receivable in evidence under the rule as to the declarations and entries of persons since deceased, made against their interest, being competent evidence; and the cases of Whitmarsh v. George, 8 Barn. & C. 556, and Middleton v. Melton, 10 Barn. & C. 316, are cited in support of the doctrine.

We are inclined to the opinion that the admission of Schleiss in conversation, of having received a specific sum during the business of his office, and he having since died, was competent. 1 Greenleaf on Ev. (May’s Ed.) Secs. 151, 152, and authorities cited in notes; but that the admission of his letter of August 18, 18-85, was not competent. The letter contains statements of amounts received by him; and then several statements of matters not relevant to any point in issue. The whole letter was given in evidence by the plaintiff under objections and exception by defendants. One of the rules as to the production of evidence is, that it must correspond with the allegations and be confined to the point in issue. “ This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute ; and the reason is, that such evidence tends to draw away the minds of the persons from the point in issue, and to excite prejudice and mislead them.” 1 Greenleaf on Ev., Sec. 52.

Tiie assurance in the letter that his sureties would not suffer on his account, was well calculated to mislead the minds of the jurors. The plaintiff could, under no rule of law we are aware of, have given original evidence tending to prove that there was a probability that the defendants might reimburse themselves if they had to pay the amount in question. Leach v. Nichols, 55 Ill. 273.

Besides, it is clear from reading the letter, that all the collateral matters adverted to and embraced in it, and which were received in evidence, are to be put upon the same footing of irrelevancy, and proceeded from motives of self-interest on the part of the writer. They were written in extenuation of his conduct, and not against his interest. We are well aware that some courts have held that where part of the entries or declarations are against the pecuniary or proprietary interest of the declarant, that would carry the whole. But we have been cited to and we can find no authority, which would authorize the introduction of such collateral matters when the party producing them would not be authorized to give original evidence of the same on account of their irrelevancy and mischievous tendency.

The judgment below should be reversed and the cause remanded.

Reversed and remanded.