author: Gary, J. Garnett, P. J.

text:
    Sumner C. Welch v. The People of The State of Illinois.

      Jurisdiction—Contempt—Common Law Proceedings—Denial by Affidavit —Parol Evidence—Practice—Concurring Opinions.

    1. Where the respondent in a common law proceeding, in answer to a rule to show cause why he should not be attached for contempt, denies the entire charge by affidavit, he is entitled to his discharge. It is improper to hear oral evidence to contradict such affidavit.
    2. It seems that the jurisdiction oE this court, in criminal contempts, is not limited to an examination oE the jurisdiction of the court below.

      [Opinion filed April 17, 1889.]
    In error to the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. C. W. Hardy and William J. Hynes, for plaintiff in error.
    The contempt charged was criminal and governed by the same rules of evidence as a criminal case. Pitt v. Davidson, 37 N. Y. 235 ; Rapalje on Contempts, p. 25, Sec. 21.
    The contempt charged was constructive, not direct. Stewart v. The People, 3 Scam. 395; Rapalje on Contempts, Sec. 22, p. 26. (See also note, foot of page 27.)
    The court had no power or jurisdiction to hear oral evidence.
    In the case of Jackson v. Smith, 5 Johns. 115, an attachment for contempt was issued against Brown, a tenant in ejectment, for not paying costs. Brown petitioned for and was discharged as an insolvent. Jackson then sued Smith, the sheriff, for an escape. The court held: “ The attachment, by virtue of which Brown had been arrested, was nothing more than a process to bring him into court to answer the interrogatories which, upon the return of it, were to be exhibited against him. This is necessary to be done in every case before a party can be convicted of a contempt. If the answers to the interrogatories show that no contempt has been committed, the party is entitled, at law, to his discharge.”
    In United States v. Dodge, 2 Gall. 312, which was an attachment for contempt for forcibly rescuing a person from the Hnited States marshal, the court said: “ We can not receive any collateral evidence as to the offense, but if the respondent by his affidavit and answers on oath to interrogatories proposed by the district attorney discharges himself of the contempt, no further proceedings can be had against him on the attachment. If from any collateral evidence it should appear that there is reason to believe the respondent has perjured himself, we will recognize him to answer at the next term of the court, to such matters as may be found against him.”
    “ If one brought in on contempt denies all upon oath, he is of course discharged of the contempt; but if he has forsworn himself he shall be prosecuted for the perjury.” Rex v. Sims, 12 Mod. 511. (A. D. 1701); Re Pitman, 1 Curtis, 186.
    The doctrine and practice as laid down in Blackstone, val nine 4, page 288, is this: In chancery, “ after the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party. Whereas, in the courts of law, the admission of the party to purge himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answer, the complaint is totally dismissed.” See Conover v. Wood, 5 Ab. Prac. 84; State v. Earl, 41 Ind. 464; Burke v. State, 47 Ind. 528.
    In Crook v. People, 16 Ill. 534, the doctrine is clearly laid down that “In Underwood’s case, 2 Humph. 48, the court lays down the proper distinction between the course of practice in courts of law and equity, and mere contempts and acts that are treated as contempts for the enforcement of orders and decrees, as part of the remedy sought. In cases of common law, the defendant will be discharged, if, by his answer to interrogatories filed, he makes such a statement as will free him from the imputed contempt, and that opposing testimony will not be heard;” and, “ in cases in chancery, the truth of the defendant’s statement in reply to interrogatories filed may be controverted on the other side, and the whole matter be inquired into and ascertained by the court.”
    An examination of Humphrey’s case will show that it fully bears out the text of the case of Crook v. The People, last cited. And again, in Buck v. Buck, 60 III. 105, the Supreme Court says: “This was a proceeding against the appellant, by attachment for contempt, in not complying with a decree of the Circuit Court of Kane county, in a suit for divorce, ordering him to support and educate an adopted child of the parties. **********
    In the court below, interrogatories had been filed, to which defendant had filed his answer. The court ruled that, notwithstanding the answer, the defendant must purge himself of the contempt in open court, whereupon the defendant was sworn and testified. This ruling of the court is assigned as error. A difference obtains between the practice, in this respect, in courts of law and in courts of equity. In the former, if the defendant clears himself by his answer, he will be discharged, and the complaint totally dismissed; whereas, in the courts of equity, after the party has answered the interrogatories, his answer may be contradicted and disproved by the adverse party.”
    Mr. Charles E. Pope, for defendant in error.
    That the sole question for this court to consider is as to whether the Superior Court had jurisdiction, we believe to be a correct statement of the law.
    It is held by many courts that at common law no appeal or writ of error can be taken from a commitment for contempt. Rapalje on Contempt, p. 198, Sec. 141, and many cases cited' in foot notes to section 141. What has been held by our Supreme Court?
    In Clark v. The People, Breese, 340 (Beecher’s Ed.), our Supreme Court decided that the power to punish for contempt is incident to all courts of justice, independent of statute ; and the exercise of this power, resting in the sound discretion of the court, can not be reviewed by the Supreme Court, and that the magistrate (a justice of the peace) having had jurisdiction to impose the fine, the Circuit Court properly refused to inquire into the nature of the contempt and very properly dismissed the appeal.
    In Stuart v. The People, 3 Scam. 395, the court held that “ it is.declared by our statute, in conformity with the common law principle, that in all criminal cases not capital, the writ of error is a writ of right, and must issue of course. This proceeding for a contempt is in the nature of a criminal proceeding, and has been so adjudged in the case of Clark v. The People, Breese, 340.”
    The court in the Stuart case further decided that the Clark case was not decisive, because the justice in the Clark case had not exceeded his jurisdiction, and that there was no law allowing such an appeal as was taken there (Opinion, p. 403), and continuing, said, “upon the authority of this case (Kearney
      ex parte, 7 Wheat. 88), which is relied on by the attorney-general, we are justified in concluding if the Cook Circuit Court had no jurisdiction the judgment should be reversed. Had it this jurisdiction ? ”
    After reviewing the facts in the case, the court concluded (p. 405):
    “ We are satisfied that no contempt was committed of which that court could take jurisdiction, and accordingly reverse the judgment.”
    Speaking of the right to appeal, or to a writ of error from a judgment for contempt, our Supreme Court, by Justice Scates, said, in Exparte Thatcher, 2 Gilm. 167, 170:
    “ It is indeed denied that any appeal or writ of error lies from its (the court’s) judgment for contempt by any court. I will not undertake to decide the general question, but the power has its limits. The court may not treat any and every act as a contempt, and I have no doubt that the Appellate Court may revise and reverse its judgment when it exceeds its jurisdiction by treating that as a contempt which in law is no contempt and can not be. The supervision will be to ascertain that fact.”
    In The People v. Neil, 74 Ill., pages 68, 69, our Supreme Court said, citing the Stuart case :
    “ The people are not allowed an appeal or writ of error in a criminal case. Besides, it is the general rule that the sole adjudication for contempt and the punishment thereof belong exclusively, and without interference, to each respective court.”
    Haines v. The People, 97 Ill. 161, was a writ of error taken on a commitment by the Probate Court for the neglect of an administrator to make distribution of an estate pursuant to the order of said Probate Court. The Supreme Court there decided that an essential element constituting the offense for which the commitment was made did not exist; in other words, that the court committed for contempt, when the offense was not a contempt of court. It was admitted by all parties that this element, being a demand upon the administrator for the moneys, had not been made. The Haines case merely held to the doctrine maintained in the Thatcher case viz., that it will reverse when a nisi prius court has exceeded its jurisdiction by treating as a contempt that which, in law, is no contempt, and can not be.
    Did the court err in holding that the affidavit of Welch did not purge him of contempt? Counsel claim that the court erred in not discharging Welch on his affidavit, and wrongly heard other evidence to dispute Welch’s sworn answer. As I have before said, the record clearly and decisively shows that no objection was raised to the introduction of such other evidence till the second day of the trial, viz., on March 8,1888, but the prosecution in effect was challenged to produce it, and not till after a mass of oral evidence was introduced, and till May 23, 1888, over two weeks after the trial had begun, did Mr. Hardy make his motion to discharge Welch, on the ground that Welch, by his affidavit, had purged himself of contempt, even after this respondent took oral evidence on his own behalf. This is a clear waiver of any right to object to the method of procedure allowed by Judge Hawes. Counsel can not successfully claim that any question of jurisdiction was involved in hearing oral evidence. In no event can anything but error be claimed in adopting one method of procedure or practice rather than another.
    Their own authorities show this, and the authorities cited by them show that where reversals were had because oral evidence was introduced, the motion to discharge was entered before the taking of the oral proof; a very different state of things from that shown in the case at bar.
    In Buck v. Buck, 60 Ill. 105, and in Crook v. People, 60 Ill. 534, both chancery cases, and both cited by respondents’ counsel, the question was whether in civil contempts it was the correct practice to hear oral evidence. The Supreme Court treated this question in both of - said cases as mei'ely a point involving possible error and not jurisdiction, and in neither case was it decided as to whether any error in this regard was sufficient to reverse, both cases being affirmed.
    But the hearing of oral evidence involved no error, even if objection had been made in ample time, a motion duly made for the discharge of We'ch, and even though respondent had not also taken oral evidence in his behalf. Attempting to corruptly approach a jury is direct contempt of court. The Superior Court could only punish for direct contempt. In direct contempt the sworn answer of a respondent can be controverted.
    Mr. Hardy, in his argument, page 3, claims that Stuart v. The People, 3 Scam. 395, decides that bribing a juror is constructive contempt and not direct contempt. I submit that this is a total misapprehension of the scope of the decision.
    In the Stuart case the Supreme Court decided that the statute then in force affirmed the power of the court to punish for contempts committed in the presence of the court, or for direct contempt, in this respect merely affirming a right inherent in all courts, that of self-preservation, of which the Legislature can not deprive the courts. That the act of the Legislature referred to took away the right to punish for all contempt except direct contempt. In other words, that the courts had no power to punish for constructive contempt. But that in the class of contempts for which the courts could inflict punishment were necessarily included all acts calculated to impede, embarrass or obstruct the court in the administration of justice. Such acts would be considered as done in the presence of the court.
    I wish to call your Honor’s particular attention to the point made in this decision, that within this class of direct contempts, over which the court had undoubted jurisdiction, the Supreme Court, evidently on the ground of self-preservation, included anything which directly tended to impede, embarrass or obstruct the court in the administration of justice, considering the act as done in the presence of the court, and, therefore, within the category of direct contempt, viz., “ such as one offered to the court while sitting as such, and in its presence.” Stuart v. People, on p. 404, 405.
    The court must have, if it continues to be a court, the power to investigate and punish as a direct contempt, in spite of the perjured denial of a respondent, anything which obstructs and prevents the proper administration of the business of the court. This principle was even extended to the publication of proceedings while a case was pending. Would the bribing of a juror be less disastrous to the administration of the court than a disturbance in court or discourteous words to the court’s face? Suppose one should stand within the court house, and without the door of the court room, and shoot down jurors with a revolver, or meet them in the corridors of the court house, and corruptly proffer gold; would such acts be less disastrous in effect than a disturbance in court o.r open disrespect to the judge on the bench'?
    How would it be possible to conduct the business of the court if the sworn denial of a jury briber, of whose guilt there conld be no possible doubt, should be a bar to the summary punishment and commitment of the offender, and only the circuitous, doubtful and difficult remedy of an indictment and conviction for perjury was left to the court?
    My position on this point is, that a juror is a part .of the machinery of the court, a part of the court itself, originally the court itself; that attempts to bribe a juror are acts done in the presence of the court, or, putting it in the language df our Supreme Court: “ Such acts would be considered as done in the presence of the court.”
    Jurors “ form a portion of the tribunals by which the law of the land is administered.” Reg. v. Martin, 5 Cox’s Criminal Cases, 356, 359.
    From motives of self-preservation our courts must consider the bribery of jurors as direct contempts, so far as the method of ascertaining and punishing offenders is concerned, and that a sworn denial of the offense can not be regarded as purging the offense, unless founded on truth and not perjury.
    I am well aware that courts differ widely in their definitions of what is direct and what constructive contempts; but I contend that the distinction and definition laid down by our Supreme Court is the only logical and satisfactory definition of direct contempt, viz.: acts committed in the presence of the court, or which so impede, embarrass or obstruct the court in the administration of justice that necessarily they must be considered, as a matter of self-preservation to the court, as done in the presence of the court. The distinction between direct and constructive contempts can not be based upon the point that in the one case the court saw the act and in the other did not. Many an act which would be admitted by all to be direct contempt the judge might not have seen in spite of its commission in open court, and evidence would have to be offered to convey information to the judge as to what was done. Direct contempt must be held to be that character of contempt in which the act, from the necessity of self-preservation, must be considered to have been done as in the presence of the court, so as to enable the court to punish without being barred from proceeding by the perjured answer of the culprit.
    The remarks of the Supreme Court in Crook v. The People, 16 Ill. 534, and Buck v. Buck, 60 Ill. 105, and in Underwood’s case, 2 Humph. 48, cited in the Crook case, are mere dicta, so far as indicating what the common law practice and procedure in contempt cases is. They were all chancery cases, and must also be held to refer to cases of pure constructive contempt. The reasons for requiring a court to regard the answer of a defendant, even though perjured, as discharging from contempt, never existed in Illinois. The causes not existing, the rule of law ceases to exist. In olden days the answer was held to purge from contempt, lest the liberty of the subject should depend on the decision of the appointee of the crown—the court. Our judiciary is elected from the body of the people, and is as much a part of the people as the jury. Story v. The People, 79 Ill. 45, 52.
    The practice on this point is far from uniform in the United States.
    In Hew Hampshire the rule is to take oral evidence.
    In State v. Mathews, 37 N. H. 450, 456, the court said: “ The better and more sensible rule, however, is apprehended to be, in accordance with the practice in this State, that proofs upon both sides, including the answers of the respondent himself, are taken, and the court thereupon determine, from a consideration of the whole evidence, the guilt or innocence of the accused.”
    To the same effect, see Bates’ case, 55 N. H. 325.

      In Dobbs v. State, 55 Ga. 272, the answer was traversed and evidence taken.
    In Crow v. State, 24 Tex. 12, 14, it was decided that “ the court is not confined to the answer, but may hear other evidence upon the question of contempt involved.”
    In Sinnott v. The State, 11 Lea (Tenn.), 281, 282, “ The plaintiff in error was attached for contempt of the court in each case. Heither of said acts for which he was attached were committed in the court house or in the actual presence of the court. The attorney-general filed specifications in each case. The plaintiff in error moved to quash the specifications filed, which motion was overruled by the court, and having filed his answer to said specifications the court proceeded to hear the case, and having heard the testimony-adjudged the defendant guilty as charged in the specifications.”
    The offense was packing a jury, but not in the court house or in the immediate presence of the court.
    In Henry v. Ellis, 49 Iowa, 206, oral evidence, it was decided, might be heard.
    The question involved in the discussion on this point is, not only whether the court below pursued the proper method of procedure, but how far such method of procedure is left to the discretion of the nisi prius court, and will not be reviewed.
    The Bates case, 55 N. H. 325, 326, cited by counsel for respondent, is directly in point. Foster, C. J., says:
    “The proceeding (for contempt) is, in all cases, summary before the judge without the intervention of a jury. * * * The procedure is various in different jurisdictions; and I apprehend that the discretion of the court is very broad, and will seldom be revised upon writ of error or appeal, so essential is it to the maintenance of the dignity of the court and supremacy of the law that the offense should be punished summarily and with little delay.”
   Gary, J.

The act entitled “An act to revise the law in relation to the common law,” approved March 5, 1884, and which provides that “ the common law of England, so far as the same is applicable and of a general nature, * * * shall be the rule of decision, and shall be considered as in full force until repealed by legislative authority,” is declaratory of what has been the law by which the inhabitants of the territory now constituting the State of Illinois have been governed, and of the rights, privileges and immunities to which they have been entitled ever since Anglo-Saxon civilization first obtained a foothold in it.

Upon the question of what the common law of England is upon any subject upon which they write, the concurring testimony of Blackstone and Hawkins, the first in his Commentaries, and the last in his Pleas of the Crown, is conclusive. Blackstone, writing of contempts, having described the preliminary proceedings and then referring to courts of equity, proceeds: “And thereafter the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party; whereas, in the courts of law, the admission of the party to purge himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed.”

Hawkins states the same, in somewhat similar language. The purging of which they speak is his answer to written interrogatories, taken by a master of the court. 3 Bl. Com. 288; 2 Hawk. P. C. 207, and notes; 3 Burr. 1329. Three different times, the first and last separated by an interval of over twenty years, the Supreme Court of this State have recognized the rule so laid down as correct. Crook v. The People, 16 Ill. 534; Buck v. Buck, 60 Ill. 105; Story v. The People, 79 Ill. 45. Except by statute, there is no legitimate mode by which the judge of a court of law or equity may be informed of facts upon which he is to act by the oral testimony of witnesses delivered in his presence. The authorities, or the dicta, upon which the counsel for the defendants in error ask this court to assume the functions of the Legislature and change this “rule of decision,” in the order cited are: State v. Mathews, 37 N. H. 450, a divorce case, and the contempt was in violating an injunction; Bates’ Case, 55 N. H. 325, in which the only thing decided is that exceptions by Bates to evidence which had been admitted against him were well taken, and they were sustained; Dobbs v. State, 55 Ga. 272; where the court below had heard testimony against Dobbs,, and the Supreme Court reversed the judgment, with no allusion to the propriety of so doing; Crow v. State, 24 Tex. 12, where there was a jury trial, and the Supreme Court said the proceedings were erroneous but that Crow had no appeal, and the ° appeal was dismissed; Sinnott v. State, 11 Lea (Tenn.), 281, in which no question touching the point in issue was made; and the last, Henry v. Ellis, 49 Iowa, 205, in which the court did have before them, and did decide, the point that witnesses might, as in a case of libel, be examined as to how an ambiguous newspaper publication, which Henry acknowledged to be his act, was understood by the readers. The court declines to say that, there was any contempt in -the case, as Henry, in his application for a certiorari, upon which application the decision was made and the writ refused, had not raised the question. There was no-discussion of the law or reference to authorities in the case.

1 have not searched for any additional support to the position of the defendants in error, but assume that the field has been exhausted by the industry of the counsel. Every case except the one from Iowa presents mere dicta, which certainly are no more authoritative than the thrice written dicta of the court whose decisions are paramount as to what the law of this State is. The claim that the loose case from Iowa overbalances the unbroken current of English authority, and the many cases in accord therewith in the United States, would be too preposterous for serious consideration. Jackson v. Smith, 5 Johns. 115; U. S. v. Dodge, 2 Gall. 312; In re Pitman, 1 Curtiss (U. S.), 186; Conover v. Wood, 5 Abb. Pr. 84; State v. Earl, 41 Ind. 464; Burke v. State, 47 Ind. 528.

The plaintiff in error, in answer to the rule to show cause why he should not be attached for contempt in attempting to influence a juror, by his affidavit explicitly, without evasion, denied the whole charge in detail. Without the corroborating affidavits which he presented that denial should have ended the inquiry; unless, indeed, the court called upon hinj to answer, under oath, specific written interrogatories, which would have heen, manifestly, of no practical effect.

The court had jurisdiction of the subject-matter and of the person of the plaintiff in error, but it had no jurisdiction of the mode of proceeding. This distinction is not easily defined (Lange v. Benedict, 73 N. Y. 12) but is easily illustrated. The criminal court, having before it a defendant indicted for an offense, however trivial, has no authority, without his consent, to try the issue of fact. If he pleads guilty, the court may fix the punishment. If he denies the charge against him, the court, unaided, can go no further. The sturdy principles of the common law exempt him from submitting an issue of fact to any other tribunal than a jury of his peers, with the right of challenge. People v. Hanchett, 16 Legal News, 320, is as instructive and almost as persuasive, as authority, as if the eminent judge who decided it had sat where he did when he delivered the opinion in People v. Whitson, 74 Ill. 20.

All the further proceedings, by examining witnesses, were without warrant of law. There is in the record no plausible foundation for the position that they were by consent. The j udgment should be reversed.

Judgment reversed.

Garnett, P. J.

I concur in reversing the order of the Superior Court, but, to guard against any inference that may be drawn as to the limit of the jurisdiction of this court in this class of cases, I think brief reference should be made to another feature presented by counsel for the people. It is ■denied that this court,in criminal contempts, can examine anything beyond the question of jurisdiction of the court below. Whether that rule obtains when the act constituting the contempt is committed in the actual presence of the court, we need not determine. That view was adopted in Clark v. The People, Breese (Beecher’s Ed.) 340, where the fine was imposed for an act in the presence of the justice. There is no present necessity for the expression of doubt concerning the authority of that case, as it was distinguished from a case of constructive contempt in Stuart v. The People, 3 Scam. 395, where the court recognized its duty of obedience to the statute which declared a writ of error a writ of right in' all criminal cases not capital, and where Breese, J., delivering the opinion of the. court, said:

“Perilous, indeed, would be the condition of the citizen if he had not the privilege in such a case to have it reviewed by another tribunal, and defective would be our jurisprudence if it afforded no means of relief.” It is true, as Bapalje, in his work on Contempts, Sec. 141, says, that the judgment of every superior court of record, in cases of contempt, is final and conclusive, and not reviewable by any appellate tribunal unless specially authorized by statute; but in Thompson on Trials, Sec. 124, the application of the rule is limited to cases of contempt committed in the presence of the court.

Foreseeing the difficulty of confining the inquiry in this case to the bare question of jurisdiction if the offense charged should be held to be a constructive contempt, an argument has been presented to prove that the act charged against Welch was a direct contempt, committed in tho. presence of the court.

There is no pretense that the attempt to bribe the juror was made in the actual presence of the judge, or while the court was actually in session. But for the purpose of • bringing this case within the class of direct contempts, reliance is placed upon an expression of the court in Stuart v. The People, to the effect that all acts calculated to impede, embarrass, or obstruct the court in the administration of justice would be considered, as done in the presence of the court. The opinion, however, does not say that every such act would be a direct contempt; and that the writer of the opinion meant that such offenses, not committed in the actual presence of the court, would nevertheless be constructively in its presence, is manifest from his definition, viz: “ Contempts are either direct, such as are offered to the court while sitting as such, and in its presence; or constructive, being offered, not in its presence, but tending, by their operation, to obstruct and embarrass, or prevent the due administration of justice.”

In commenting on this question, the text writers above referred to make no distinction between civil and criminal contempts. Both classes have been uniformly treated in the same manner by the Supreme Court of this State, as shown by the decisions cited in the opinion of Mr. Justice Gary, no case having yet arisen where the court has refused to review the action of the Circuit Court or Superior Courts, on questions other than that of jurisdiction, in cases of constructive contempt.

There is no such limitation as contended to the power of this court.

Moran, J. Upon full and careful consideration of the authorities, I am in complete accord with the opinion of Mr. Justice Gary herein as to the rule of procedure in contempts of a criminal nature. There can be no doubt that the rule and practice is as stated by him, nor can there be any question that it is error for a court to depart from the authorized and established practice in such a contempt proceeding. In this connection^ wish to say that on an occasion that will be remembered by the bar, for it excited general interest, I made the mistake of adopting the practice which was pursued in this case. I did it on but slight investigation as to the correct practice, but I am unwilling to condemn the error of a brother judge without at the same time acknowledging that I committed the like error myself, particularly as my action in that regard may have had some influence in leading him to follow the same practice.

While the rule of practice is as stated, and while the courts are undoubtedly bound by it as a rule of procedure, it is a rule of common law.practice which, in my opinion, does not in our day and generation tend to the promotion of public justice. It is notorious that attempts have been made, not unfrequently, to influence the result of jury trials in this country by corrupting juries. Many persons have an abiding conviction that certain classes of litigants rely for success more on their ability to corrupt jurors than on the merits of their particular cases. It is disclosed by the record that the investigation carried on in this case has exposed one person, at least, as being engaged in the nefarious business, and compelled him to seek safety in flight. There have been exposures from time to time of attempts to bribe j urors, and although there have been trials, so far as 1 can recall, there has never been a conviction in the Criminal Court for such an offense.

All criminal prosecutions have failed, and I believe that the chief restraining influence of jury bribers has been the fear of contempt proceedings for their punishment. It is essential to the pure administration of justice that attempts to corrupt jurors should be summarily and fully investigated, and the guilty persons exposed to public execration and subjected to prompt punishment. There is a plain distinction between acts which tend to corrupt the tribunal and those which merely obstruct its judgment by opposition, or embarrass the execution of its orders or decrees by circumvention or fraud. To impose on the court by false documents or perjured evidence is not so reprehensible in itself, nor so far-reaching or injuri ous in its consequences as to seduce the court or the jury to a false judgment by means of a bribe. In the one case, justice may be misled, to the wrong of a particular party, but in the other, she is herself debauched, to the wrong and injury of the community, and the dangerous weakening of the confidence of the people in one of the most cherished of our institutions. Therefore, contempts of this particular nature should be made exceptions, and the rule of procedure made the same by statute as that which governs in civil contempts in chancery.

Contempt proceedings against j ury-fixers under the common law rule by which the courts are now bound, are idle. A man who will bribe a juror, will, as a rule, purge his contempt by denying the fact in an affidavit, and take his chances in a trial for perjury in the Criminal Court, and will generally go unwhipped of justice. The courts can only declare the law as they find it, and follow it as it is. The Legislature alone can make new laws or change existing methods of trial and rules of procedure, and to the Legislature, those who would make contempt proceedings for jury-bribing effective, must look for a change of the common law rule.

The principles of the common law which guards the citizen against the exercise of uncontrolled judicial discretion, are unquestionably wise, and should be maintained; but, in my opinion, there is, under our system of elective judiciary, less danger to be apprehended from the tyranny of excesses of judges than from the practically unrestrained operations of jury-fixers. As for trial by jury, unless we are able to secure .and preserve it uncorrupted, it were better to abolish it altogether.

What I have said is without reference to the merits as presented by the record. The point on which we have been compelled to decide the case has rendered the examination of the evidence unnecessary.


source: Caselaw Access Project

author: C. B. Smith, J.

license: Public Domain

text:
    Second District
    December Term, 1888.
    City of Elgin v. Francis McCallum.

      Municipal Corporations—Streets—Change of Grade—Damages—Instructions.

    In an action brought to recover damages suffered by a property owner through the change in the grade of a street, bis buildings having been erected according to the grade given him by the city engineer, this court declines to interfere with the verdict for plaintiff, the evidence being sharply conflicting.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.
    Messrs. Frank Joslyn and Sherwood & Jones, for appellants.
    Messrs. Botsford & Wayne, for appellee.
   C. B. Smith, J.

This record discloses this state of facts: In the year 1878 Francis McCallum, appellee, purchased .lot 11, block 21, Gifford addition to the city of Elgin, and that since buying the lot he graded it and built a residence and a blacksmith shop on it at a cost of about §2,500. Before making these improvements appellee went to the city engineer and informed him of his purpose to improve and build on his lots and to put up ¡permanent and valuable improvements, and asked the engineer to give him the correct grade of the street and sidewalk, so that appellee might conform thereto in his grade and in the erection of his buildings. In pursuance of this request the engineer went with him and gave him the grade. Thereupon appellee graded his lot and built his house and shop to the grade so given him, and the sidewalk was then brought up to a level with the entrance of his shop. In 1885 the city determined to raise the grade of the street and sidewalk in front of appellee’s property and notified him that- he must raise his sidewalk about eighteen inches above its former place and grade. The city notified appellee to raise his walk to the new grade. Appellee protested against the change on account of the inconvenience and damage that would result to him, and refused to comply with the request to raise the walk in front of his lot. The city thereupon raised the walk to the new grade, setting it on posts and stringers. The new sidewalk came about half way up the fence in front of plaintiff’s lot, cutting off all ingress and egress to the lot except to foot men, and also made it necessary for appellee to construct an incline approach from the street up to the top of the walk in front of his shop and then to construct a decline from the walk down into the shop. It is conceded by all the witnesses that the change in the grade has made it inconvenient to get on plaintiff’s premises or into his shop.

For this alleged injury this action is brought. The defendant pleaded the general issue. A trial was had, resulting in a verdict for appellee for the sum of §400. After overruling a motion by appellant for a'new trial, the court rendered judgment for appellee on the verdict, and appellant brings the case here upon appeal,and asks for a reversal on two grounds: First, because the verdict was against the evidence; and second, because the court erred in giving instructions for the appellee.

The case was tried once before, resulting in a verdict for appellee for about the same amount as the present verdict. The case was appealed to this court and reversed on account of an erroneous instruction given for appellee below.

On the last trial below quite a large number of witnesses were called by the respective parties, and, as is usual in such cases, there was a wide difference of opinion as to the effect of raising the grade upon the market value of appellee’s premises. Most of appellee’s witnesses estimated his damages from four to six hundred dollars, while appellant’s witnesses, as a rale, gave it as their opinion that he had suffered no damage, but that his property had rather been benefited by raising the walk. The jury had all these witnesses before them, and were far better qualified than we are to determine the value of their evidence. They had to choose between one or the other set of witnesses in giving credit. If they believed appellee’s witnesses, then there was abundant evidence upon which to base their verdict. It is the settled rule of the Supreme Court, as well as of this court, not to set verdicts aside because there is a conflict of the evidence. Before we can set aside verdicts for this cause it must appear that the verdict is clearly against the weight of the evidence, or that the jury have been governed by passions or prejudice, and that injustice has been the result of their finding. And this rule applies with double force after two juries have found the same way. We think the verdict is supported by the evidence.

Complaint is made that the court erred in giving plaintiff’s first instruction and in modifying appellant’s second instruction. We have carefully examined these instructions, and think there was no error in the court in giving the first one as asked, nor in modifying the second one before giving it. The objections to the instructions are exceedingly technical, and we think they are not open to the objections urged. The jury was correctly instructed.

Seeing no error in the record, the judgment will be affirmed. Judgmeiit affirmed.


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    City of Moline v. Patterson L. McKinnie.

      Master and Servant—Independent Contractors—Personal Injuries— Evidence—Instructions.

    1. The employer of a skillful and competent person, under contract to perform a certain labor, of which he will have exclusive control until completion, can not be made liable for injuries arising from the negligence of such contractor or his employes.
    2. The erection of buildings adjacent to a highway, with the usual and necessary excavations, and the consequent obstructions to sidewalk and street, is not within the exception to the above rule, which attaches liability to employers where the work in hand is inherently dangerous, or will necessarily create a nuisance.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Bock Island County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Henry Curtis and William A. Meese. for appellant.
    It is the settled law of this State that a municipal corporation, having the exclusive care and control of the streets, is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances that might prove dangerous; and if this plain duty is neglected and any one is injured it is liable for the damage sustained. The corporation has, however, a remedy over against the party in fault and who has brought about the injury, unless, indeed, when precluded by its own acts. Chicago City v. Robbins, 2 Black (U. S.) 422; Scammon v. City of Chicago, 25 Ill. 424; Fahey v. Town of Harvard, 62 Ill. 28; Dillon on M. Corp. (3d Ed.) Sec. 1027, at page 1055.
    Tina Bevitt did not, in her suit against the city, charge that her injuries were caused by any lack of plank covering to the sidewalk, but on the contrary, she predicated them, and her consequent right of recovery, solely upon the want of proper barriers and danger lights, and by her recovery it was judicially and necessarily found that her injuries proceeded from the causes alleged, and the sole inquiry here, now is, who was really in fault for those acts, whether of omission or commission, stated in the declaration and" constituting those causes. If, between the parties to the suit at bar, it was the duty of McKinnie to have provided and kept such barriers or lights (and we shall presently see it was), then he was the party really in fault for the lack of them, and consequently for the accident, for the accident is judicially found to have been caused by such lack. McKinnie had full notice and knowledge of Hevit't’s suit against the city and was called to defend it, and he is'hound by the record thereof, and will not be heard to urge anything against it. Chicago City v. Robbins, 2 Black (U. S.) pp. 422-3; Robbins v. Chicago City, 4 Wallace, pp. 672-5; Inhabitants of Milford v. Holbrook, 9 Allen, 17; Severin v. Eddy, 52 Ill. 191; Portland v. R. R., 54 Me. 46; Vezie v. R. R., 49 Me. 119; Mayer v. Troy, 19 N. Y. 657; City of Bloomington v. Roush, 13 Ill. App. 342.
    “If the owner of real estate suffer a nuisance to be created, or continued, by another, on or adjacent to his premises, in the prosecution of a business for his benefit, when he has the power to prevent or abate the nuisance, he is liable for an injury resulting therefrom to third persons.” Chicago v. Robbins, 2 Black, 426; Clark v. Fry, 8 Ohio St. 359; Ellis v. Sheffield, etc., 2 Ellis & Black. 75; Eng. C. L. p. 767; Barnes v. Ward, 9 C. B. 392; Hadley v. Taylor, 1 Com. Pleas, L. R. 53; Cornwall v. Com., 10 Ex. 771; Hardcastle v. S. Y. Ry., 4 H. & N. 67; Dillon on M. Corp. (3d Ed.) Sec. 1032; Norwich v. Breed, 30 Conn. 535; Hounsel v. Smythe, 7 C. B. N. S. 729; Ottumwa v. Parks, 43 Iowa, 119; Rowell v. Williams, 29 Iowa, 210; Fahey v. Town of Howard, 62 Ill. 28; Coupland v. Hardingham, 3 Camp. 398; Schwartz v. Gilmore, 45 Ill. 457.
    Messrs. W. J. Entrikin and William Jackson, for appellee.

      If any one is liable, other than the city, then it is the contractors, or some one of them, and not the appellee.
    “All liability for injury sustained is based upon the theory that the party liable has committed a wrong, or neglected some duty.” Scammon v. The City of Chicago, 25 Ill. 488.
    Appellee in this case did neither; the contractors dug the cellar into which Tina Hevitt fell; they put the “runway plank ” across the sidewalk space upon which she “ stepped, slipped or tripped,” and they failed to put up any guards along the north wall, around the dangerous excavation into ■which she fell.
    “ While a master is responsible for the injuries arising from the negligence of his servant, it is the doctrine that a party who has contracted for the doing of a certain work, for his use and benefit, is not liable for injuries arising in the performance of such work.” Scammon v. The City of Chicago, 25 Ill. 424; Pfau v. Williamson, 63 Ill. 16; The Prairie State Loan & Trust Co. v. Doig, 70 Ill. 52; Glickauf v. Maurer, 75 Ill. 289; Hale v. Johnson, 80 Ill. 185; Kepperly v. Ramsden, 83 Ind. 354; Wabash, St. L. & P. R. R. Co. v. Farver, 111 Ind. 195; Davie v. Levi, 2 So. Rep. 395 ; Wiltsie v. State Board Bridge Co., 30 N. W. Rep. 370; 2 Dill. Munic. Cor., Sec. 1030.
    “The rule is now firmly established, that where the owner of lands undertakes to do a work which, in the ordinary mode of doing it, is a nuisance, he is liable for any injuries which may result from it to third persons, though the work is done by a contractor exercising an independent employment and employing his own servants. But when the work is not in itself necessarily a nuisance, and the injury results from the negligence of such contractor or his servants in the execution of it, the contractor alone is liable, unless the owner is in default in employing an unskillful or improper person as the contractor.” Whar. Law of Neg., Sec. 818; City of Joliet v. Harwood, 86 Ill. 110.
    “While the contractor is in possession of that part of the premises upon which the excavation is to be made, with the exclusive control of the work, it becomes an incident to his undertaking to so do the work as to he reasonably safe for passers-by, observing due care for themselves, and that duty, it is declared, includes the erection and maintenance of suitable safeguards about all excavations; the owner of the premises is not responsible for his failure or neglect of duty in that regard. Nor does it change the rule, the owner may have some work to perform about the building, where it is wholly disconnected with that which causes the injury.” Kepperly v. Ramsden, 83 Ill. 354, and cases there cited.
    “ The specifications point out ■particularly how that part of the cellar under the sidewalk was to be completed. And we fail to find that appellant, at any time, gave appellee any directions as to the manner in which he should perform his work thereon,, or how it should be constructed, but, so far as the record discloses, appellee did the work under and according to the contract and its specifications. Nor did the fact that appellant reserved the right to go upon the premises, to see that the work was done according to the plans and specifications, change the relations of the parties. Appellee áid not thereby become the servant of appellant. He was still in possession, and was performing the work under his contract and not under the directions and control of appellant, because he had the right to inspect the work.” Pfau v. Williamson, 63 Ill. 16.
   C. B. Smith, J.

In September, 1885, Tina Nevitt, while passing along a public sidewalk in the city of Moline, after dark, fell into an excavation which had been dug under the sidewalk in front of a building then in course of construction. The sidewalk at that point had been torn up to give room for the workmen then engaged in putting in the basement walls of the building. For the purpose of wheeling rock into the basement, a “ runway ” board was placed near the eastern line of excavation and, crossing the line of the sidewalk and crossing the cellar or basement wall, ran into the cellar. No lights or guards or protection of any kind had been placed around this pit by the owner of the building, the contractors and builders, or the city. On the evening of September 4, 1885, Tina Ucvitt and her father, both strangers in the city, were passing from one depot to another to take the train, and in passing along this sidewalk in the darkness, without any previous knowledge of its condition, Tina Uevitt cast her foot against this “ runway ” board and fell headlong into this pit and was injured. For this injury she brought suit against the city of Moline and recovered a judgment, which the city paid. Appellee McKinnie was the owner of the premises and was having the building erected by contractors at the time of the injury to Tina FTevitt. When the city was sued he was notified and requested to aid in the defense.

The city, having been compelled to pay this judgment, now brings this suit against appellee to recover over against him, and sets up the foregoing state of facts, substantially, in its declaration, and charges appellee with negligence and with being the author of the injury. A trial resulted in a verdict for the defendant, upon which the couj't, after overruling a motion for a new trial, gave judgment against the city for costs, and the city now brings the case here on appeal and asks to have the judgment reversed for the various errors assigned.

ISTo question is made in this record against the dangerous condition of the sidewalk and the criminal negligence of somebody in leaving it in that condition. It appears from the proof that Dr. McKinnie, the appellee, owned the corner, and was having the building erected, and that the building contract was let to careful and competent builders, who, after having completed their contracts, entered into possession of the place and took charge of the construction of the building. Dr. McKinnie had nothing further to do with the construction of the building except to see that the work was done in conformity with the terms of the contract, beyond an occasional suggestion to the contractors, and had nothing to do with the mere details or method of carrying on the work. Up to the time he left the State he was about the premises more or less every day, watching the progress of the work and taking such interest as was consistent with his ownership. His office was on the adjoining lot. About the 26th of August appellee left the State, and was in Colorado at the time the accident occurred, and did not return until some time in October. The case was tried below by the court on the theory that if appellee had let his building to competent, careful and reliable contractors, and given them possession, and that he himself exercised no control over their conduct or method of doing the work, nor exercised any supervision over their employes or servants, and that the injury occurred by and through the negligence of such contractors and their servants while so erecting the building, then appellee would not he liable, but that the liability would be against the contractors. The court proceeded on this theory in the admission of evidence and in its instruction to the jury. Appellant strenuously insists that this theory was erroneous, and contends that the contractors, under the circumstances in proof, must be regarded as the mere servants of appellee in doing the work, and that appellee is therefore liable for the negligence.

Counsel for appellant cite us to many cases decided in other States which support the theory of appellant and hold the owner of the building liable for the negligence of life contractors. , But the law in this State has been long and well settled the other way. Scammon v. The City of Chicago, 25 Ill. 424; Pfau v. Williamson, 63 Ill. 16; Kepperly v. Ramsden, S3 Ill. 354.

These three cases, decided by our Supreme Court, are all like the case at bar in the material facts, and the court held in such case that when the proof shows the owner of the premises employs a careful, skillful and competent builder or contractor to erect his building under a contract, and surrenders him the possession of the premises for that purpose, then in such case the owner is not liable for an injury occurring to a stranger for the negligence or default of the contractor or his immediate servants or employes engaged in doing the work. These authorities are conclusive against appellant, without any reference to the authorities in any other States. Tlie.rule announced in the foregoing cases has an exception, which seems to be recognized in all the cases, and that is, when the work or enteiprise entered upon by the owner of premises is inherently and necessarily dangerous, or when danger and hazard must necessarily accompany the work, or when the doing the work will necessarily create a nuisance, injurious or dangerous to person or property, then in all such cases the land owner can not escape personal liability by contracting with another to do the work.

This exception to the general rule is recognized in City of Joliet v. Harwood, 86 Ill. 110, and is also laid down as the rule governing such cases in Sec. 792, Dillon on Municipal Corporations. But building a house adjacent to a public street, with the usual and necessary excavations, and the consequent obstructions to sidewalks and streets, is not necessarily dangerous or hazardous, when done with reasonable and proper care; nor is such construction necessarily a nuisance. These obstructions in the public streets can not be avoided in the erection of buildings, and the temporary inconvenience to travel must be submitted to from necessity.

Complaint is also made that the court erred in refusing plaintiff’s instructions, and in giving defendant’s instructions. The instructions given for the defendant appear to be in harmony with the law, as herein stated, and they are correctly given.

The instructions asked by the plaintiff all proceeded upon the theory that the defendant was liable under the proof, notwithstanding he had contracted the work to another, which we have seen is not the law in this State, and the instructions were properly refused.

Finding no error in the decree, the judgment is affirmed.

Judgment affirmed.


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    Heman Edgerly et al. v. The First National Bank of Lyons, for use, etc.

      Creditor's Bill—Fraudulent Conveyance—Secret Trust—Husband and Wife.

      1. Only creditors having existing claims when it was executed can avoid a conveyance which is alleged to be fraudulent, unless it appears to have been made in anticipation of indebtedness to be incurred.
    2. Provisions for wife and children made by a husband and father will be upheld in equity, when no fraud is thereby perpetrated upon creditors.
    3. A conveyance by a husband to his wife through a third person with a view of securing a home for his family, will not he stamped as a secret trust so far as subsequent debtors are concerned, merely because he shares the home thus secured.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Carroll County; the Hon. James H. Cartwright, Judge, presiding.
    Messrs. Hunter & Eaton, for appellants.
    Provision, when made by the husband for the wife, will be sustained and upheld in ecpiity when the rights of creditors are not affected. Kellogg v. Hale, 108 Ill. 164.
    The deed from Edgerly and wife to Wilson, recorded in the land records of said Carroll county, was notice to all persons of the rights of the beneficiary, Emma J. Edgerly, in said premises. Such record was notice to the complainant and to all others that Heman Edgerly claimed no right or title to said premises, and as effectually protected the rights of Emma J. Edgerly as against all subsequent creditors of Heman Edgerly as though a conveyance in form had been made by James Wilson conveying said premises to Emma J. Edgerly, and the same had been placed on the public records of said county. St. John v. Conger, 40 Ill. 525; City of Chicago v. Wilt, 75 Ill. 211.
    There was a conveyance made in good faith by Edgerly and his wife to Wilson, then taken and conveyed by him to the wife of said Edgerly, after using sufficient of it to pay all the indebtedness of the said Edgerly, and for her sole use and benefit, without any interest or secret trust therein for the benefit of Edgerly or to avoid the payment of debts subsequently to be incurred. All the indebtedness of the said Edgerly was fully paid and satisfied, and the conveyance made voluntarily and without fraud, to provide for the support of his said wife, and would be good as against all subsequent indebtedness incurred by said Edgerly. Lucas v. Lucas, 103 Ill. 121.
    Messrs. James McCoy and James Shaw, for appellee.
    The rule is well settled that where the transfer of property is merely colorable, and a secret trust and confidence exists for the benefit of the grantor, the conveyance will be hold void, both as against preceding and subsequent creditors. Guffin v. First National Bank of Morrison, 74 Ill. 259: Hook v. Mower, 17 Iowa, 195; Jones v. King, 86 Ill. 225; Moore, Adm’r, v. Wood, 100 Ill. 451; Gordon v. Reynolds, 114 Ill. 118.
    The law does not allow a debtor in failing circumstances, either directly or indirectly, to transfer his property to his wife, and thus place it beyond the reach of his creditors : but, on the other hand, when it is apparent, as in this case, that the debtor retains the real ownership of the property, it is the province of a court of equity to subject the property to the payment of the debtor’s debts. New v. Aldfield, 110 Ill., page 141; Whipple v. Whipple, 109 Ill. 418; Lawson et al. v. Funk, 108 Ill. 507.
    “ A trust thus secretly created, whether so intended or not, is a fraud on creditors, because it places beyond their reach a valuable right * * * and gives to the debtor a beneficial enjoyment of what rightfully belongs to his creditors.” Lukins v. Aird, 6 Wall. 78.
    The general doctrine thus laid down is fully recognized in the numerous decisions of this court. Griffin v. First Nat’l Bank of Morrison, 74 Ill. 259; Power v. Alston, 93 Ill. 587; Annis v. Bonar, 86 Ill. 128; Jones v. King, 80 Ill. 225; Emerson v. Burns, 69 Ill. 537.
   C. B. Smith, J.

This was a bill in chancery, in the nature of a creditor’s bill, brought by appellee for use of MacMahon against appellants for the purpose of setting aside certain deeds of conveyance and to subject the lands described in the bill to the payment of a judgment held by appellee against Heman Edgerly, one of the appellants, and one Dan. E. Win-gate fur the use of MacMahon. The facts, as disclosed by the record, appear to be substantially about as follows: In the year 1856, Heman Edgerly was the owner of the lands now in controversy. In that year he executed a mortgage for $5,000 on all these lands to the Racine and Mississippi Railroad Company. This mortgage was, soon after its execution, claimed by Heman Edgerly to have been obtained from him by fraud and deceit. In afterward resisting the payment of this mortgage, and in trying to rid himself and his land of it, Edgerly involved himself in long and expensive litigation, the costs alone which he was compelled to piay amounting to over $2,300 dollars. He became otherwise involved in debt, and it became apparent to him that he could not pay his debts, and that all his property would be, sacrificed, and he and his family left destitute un'ess he could obtain some assistance. Finding himself in this unfortunate condition, he consulte'd with his wife as to the best means to be adopted to escape the pending ruin. It was agreed between them that they should call on James Wilson, a brother of Mrs. Emma Edgerly, and ask him for assistance. After consulting with Wilson about the matter, it was agreed between Edgerly and his wife and Wilson that Edgerly and his wife should deed their lands to Wilson by an absolute deed, to enable him to raise money to pay all of Edgerly’s debts, and it was also then agreed that after Wilson had paid, settled and discharged all of Heman Edgerly’s debts that he, Wilson, should then deed the land to Emma Edgerly, the wife of Heman Edgerly, for a home for her. In pursuance of this agreement, Edgerly and his wife conveyed these lands to Wilson by two deeds, the first bear-" ing date December 5, 1858, and recorded December 22, 1858, anl the second being a quit-claim deed dated March 27,1867, which last deed was recorded the 5th day of August, 1870.

Wilson, by these deeds, became the absolute owner of the land. He entered upon his trust and proceeded to raise money and settle and pay off Edgerly’s debts and procure acquittances from his creditors, and so continued his efforts, until all of Edgerly’s creditors were paid or satisfied, and Edgerly again a free man, entirely out of debt.

In what manner Wilson procured money or secured the satisfaction of Edgerly’s creditors, whether by himself or through Edgerly, does not very clearly appear from this record, nor is it important how it was done nor through whom it was done, nor to what use the land was jnit in order to accomplish the end desired—to pay the debts. The important fact is that the debts were paid and the land saved after Wilson took control of the matter. It can in no wise concern this appellant what favorable arrangements Wilson or Edgerly made with the creditors.

After the settlement or payment of all of Edgerly’s debts, on the 22d day of December, 1876, Wilson, in pursuance of his original agreement, conveyed all the land he had received back to his sister, Mrs. Emma Edgerly, by two deeds, both bearing the same date, in the form they had been conveyed to him. These last deeds to Mrs. Edgerly were not recorded until the 3d day of October, 1882, but Mrs. Emma Edgerly and her husband had continually resided on and occupied the lands in dispute from the time they were deeded to Wilson in 1858 and in 1867.

After the conveyance of the lands to Wilson, and after Wilson conveyed to Emma J. Edgerly, Heman Edgerly continued in business for many years, was the owner and possessor of considerable personal property in his own right and to a much larger amount than would have been necessary to have satisfied appellant’s debt.

The proof in the case shows that appellee had no claim of any kind against Heman Edgerly until 1879, twelve years after the last deed was made to Wilson and nine years after the same was recorded, and notice to all the world that Wilson and not Edgerly owned the land. But the note on which appellant took its judgment was dated January 7, 1882, for §600, and was executed by Heman Edgerly and Dan. E. Win-gate. The original loan, however, was made in 1879 by one Williams, Wingate and Edgerly, and the loan, or others to take its place, were continually made and renewed until the last note of January, 1882. Heman Edgerly appears to have been originally only a security on the note.

This last note not being paid, was put in j ndgment against Wingate and Edgerly on the 22d day of September, 1882. Execution was issued on this judgment and returned nulla bona, and this bill is now filed for the purpose of setting aside these conveyances made by Wilson to Mrs. Edgerly, and to subject the land to the payment of the judgment of §630. The bill charges that they were fraudulent and intended to hinder and delay creditors, and alleges that Heman Edgerly is the equitable owner of the lands and prays for a cancellation of the deeds. The defendants answered the bill denying all fraud charged, and setting up the facts substantially as we have recited them, and denying that any secret trust was reserved in said conveyance to Wilson for the benefit of Heman Edgerly, and alleging that the conveyance to Wilson was for a lawful and valid purpose and upon a valuable and sufficient consideration, and that the trust reserved was for the benefit of his wife and family after all his just debts were paid.

-Replication was filed and the cause heard upon bill, answer, replication, exhibits and evidence heard on the trial. The court found the issues for the complainant, and decreed the conveyance fraudulent and void as .against complainant, and directed Heman Edgerly or Emma J. Edgerly to pay the amount of the judgment, interest and costs in sixty days, and in default of their doing so that the land be sold to satisfy the judgment.

We think this decree was erroneous. Wo have carefully and attentively studied this evidence, and entirely fail to find any evidence of fraud in fact or law as to complainant in any of the conveyances or transactions mentioned in this bill. On the contrary, the evidence satisfies us that the conveyances made to James Wilson by Heman Edgerly and Emma Edgerly were made for an honest and a laudable purpose. Heman Edgerly had become seriously and deeply involved in debt and litigation. His land was then under a heavy mortgage. He became satisfied that he could not pay his debts without assistance and time. His brother-in-law seems to have been a man of business character and able to aid him in his misfortune. The consideration upon which the land was conveyed to Wilson was that Wilson should pay all his debts and use the land to aid him in so doing, and that when that purpose was accomplished and no creditor had any claim against Heman Edgerly, then the land should be deeded to his wife to secure her and his family and make them a “sure living thereafter.” In all this transaction, from beginning to end, there was no shadow of actual or intended fraud against any existing creditor, nor is there a scintilla of evidence to show that the conveyance was made in anticipation of defrauding future creditors. Fully twelve years elapsed after the second conveyance to Wilson, and after every foot of the land had passed by valid deeds to Wilson, before Heman Edgerly had any dealings with the b.mb. It is utterly incredible to suppose that he then looked forward through these long years to secure credit of the bank, or any one else, and defeat their claim by this conveyance. It has been long settled in this State that only creditors having existing claims when the alleged fraud was committed can avoid such conveyance, unless it be shown the deeds were made in anticipation of incurring debts to avoid which che conveyances are made. Tunison v. Chamblin, 88 Ill. 378; Mixell v. Lutz, 34 Ill. 382; Moritz v. Hoffman, 35 Ill. 553; Gridley v. Watson, 53 Ill. 186.

It is the settled law of this State that men may do what they please with their property so long as they do not hinder or delay their creditors by such conveyances, and provision for wife and children made by a husband or parent will be upheld in equity when no fraud is perpetrated upon creditors by such provision. Kellogg v. Hale, 108 Ill. 164; Gridley v. Watson, 53 Ill. 186. Indeed, such provision, when it can be made without prejudice to creditors, is most commendable and should be encouraged and upheld by the courts. Counsel for appellee cite us to a great array of authorities holding that when a conveyance is made absolute, but with a secret trust reserved for the benefit of the grantor, then and in all such cases the conveyance will be held void, both as to existing and subsequent creditors. These authorities would be applicable to this case if the proof showed any such secret trust or reservation on the part of Edgerly for his benefit. But the complainant fails to furnish satisfactory proof that any such secret trust was reserved for the benefit of the grantor.

The only evidence in the record tending to establish a secret trust for the benefit of the grantor is a statement made by James Wilson in his testimony, as follows: “The land was transferred from me, after those liabilities were paid, to his wife. He (Heman Edgerly) said he wanted it transferred to her after he got straightened up, so as to make them a sure living.” The provision here made for his wife, with whom he had a right to live, would necessarily be enjoyed by him as her husband. This right of enjoyment of the wife’s property must always be one of the necessary incidents to all conveyances made by a husband to his wife so long as they live together.

Considering the relation of the parties and the right of a husband to live with his wife upon her property, the remark made by Heman Edgerly to Wilson is not sufficient to establish a secret trust in favor of himself. The great and primary object of these deeds was to provide, or rather, if possible, save a home for his wife and family after all his just debts were paid, and we do not think the fact that he also would share the benefits of the home with his wife and family would have the effect of stamping a secret trust upon it nor of branding the whole transaction as fraudulent and void, when the whole transactions, from beginning to end, show exactly the reverse to be true. The éntire record shows an honest purpose on the part of Heman Edgerly, first, to use his property to raise money to pay all his debts, and then to place it in the hands of his wife by proper deeds of conveyance, when it would be secure against the misfortunes of the future.

We think the court erred in granting the relief prayed in the bill, and the decree is reversed and the cause remanded, with directions to the court to dismiss the bill for want of equity, at the costs of the complainant.

Reversed and remandad.


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    Michael Keating v. Michael Hayden.

      Trespass—Private Right of Way—Fence.

    In an action of trespass, brought to recover damages for throwing down a fence and leaving down bars across a private right of way, this court declines to interfere with the verdict for the defendant.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of McHenry County; the Hon. Citarles Kellum, Judge, presiding.
    Mr. John B. Lyon, for appellant.
    Messrs. A. W. Young and O. H. Gillmore, for appellee.
   C. B. Smith, J.

This was an action in trespass, brought before a justice of the peace by appellant against appellee, to recover damages for throwing down a fence and leaving down bars on appellant’s premises, through which openings, thus wrongfully made, appellant’s cattle went on various occasions and injured his crops. A trial was had before the justice, resulting in a verdict for the defendant, and an appeal was then taken to the Circuit Court. A trial was had there, again resulting in a verdict for the defendant. The plaintiff now brings the case here on appeal, and asks for a reversal because the verdict was against the evidence, and because the court erred in refusing plaintiff’s second, sixth, and seventh to seventeenth (inclusive) instructions.

This controversy grows out of the use of private right of way through a forty-acre lot belonging to appellant and used by appellee.

As far back as 1846 Thomas Keating and Edward Loughlin owned land adjacent; one forty owned by Loughlin had no means of access to the public road except across a forty-acre lot owned by Thomas Keating. From 1846 to about 1866 Loughlin had crossed this forty to reach the public highway under a parol license.

In 1886 Thomas Keating and Edward Loughlin entered into a written contract, or lease, for the right, on the part of Longhlin and his heirs or assigns, to use this right of way across the land described, in consideration of the payment to Thomas Keating of §10. The lease appears to be a perpetual one, subject only to the power of Loughlin to put an end to it by selling the forty acres in question separate and apart from the balance of his farm.

The lease described the lino of the road as beginning at a certain point and passing along the north side of the fence as near as convenient to a point on the road named in the lease.

Loughlin and his tenants used this road without interruption until 1886, not always following the same line precisely, but the deviations were not important, and were with the knowledge of the plaintiff’s grantor as well as the plaintiff himself after he owned the land, an!, so far as the evidence shows, without objection from plaintiff or his grantor. Plaintiff desired to make some changes in his fields and to change the line named in the lease, and some considerable length of time before this dispute arose plaintiff had cut open another line of travel through this forty for the defendant a little way north of the original line of travel, which was accepted by defendant, and this new route used for some time.

In 1886 plaintiff desired to inclose a portion of this forty under a different fence, and so-change the boundary of some of his fields, and for that purpose built a new fence across the new road, and closed it up, leaving the original line of travel again open for defendant. Defendant refused to abandon the new road and return to the old one, and on several occasions tore down the fence where it crossed the road.

Plaintiff erected a pair of bars fourteen feet wide for the use of appellee, using heavy poles, fourteen feet long, three to five inches thick at the butts, for bars, in order to protect his crops from the trespass of his cattle. The defendant refused to replace these bars after going through, and frequently left them down, and on one occasion broke down one panel of sixteen feet of ience adjoining the road, and on another occasion broke down two panels of fence, alleging as a reason that there was not room enough for him to pass through the gate and that a tree had been cut across the road, preventing him from reaching the gate. A majority of the court are of opinion the defendant was justified in refusing to use the old road which had been first used; that he was justified in leaving the bars dowm which had been made for his use, because the bars were too heavy to handle ; and that he was justified in cutting down the fence, because a fourteen-foot gate or bars was not wide enough for him to pass through with loaded wagons.

The majority of the court also hold there was no error in giving or refusing instructions, and that the sixth instruction asked for plaintiff was covered by the second of plaintiff’s instructions, and that all of plaintiff’s instructions from the seventh to the seventeenth, inclusive, were properly refused as not containing correct propositions of law, and the judgment is affirmed by a majority of the court.

Judgment affirmed.


text:
    Clara L. Patterson v. H. D. & E. D. Folsom.

      Garnishment—Exemptions—Interpleader—Presumptions—Bill of Exceptions.

    1. The presumption o£ law is in favor of the regularity and correctness of the proceedings of courts of general jurisdiction.
    2. In a garnishee proceeding, involving the right of the judgment debtor ^o claim certain money and property as exempt, the question at issue being one of fact, this court declines to interfere with the judgment, as the bill of exceptions does not purport to contain all the evidence.

      [Opinion filed January 10, 1889.]
    In ekbob to the Circuit Court of Rock Island County; the Hon. Aethttb A. Smith, Judge, presiding.
    Messrs Guyer & Sweeny, for plaintiff in error.
    Mr. J. T. Kenworthy, for defendants in error.
    This case was tried by the court below without a jury, and, as the bill of exceptions in this case does not purport to “ contain all the evidence,” and as all the errors assigned involve an examination of the testimony, it follows this court can not, as the transcript now stands, determine the questions urged by the plaintiffs in error; and the judgment below must be affirmed.
    Miss Patterson came in before the justice of the peace, and in the Circuit Court, as she had the right to do under the garnishment act, Secs. 11 and 12, and set up her exemption. She could do this, or the garnishee could do it for her. Winslow v. Benedict, 70 Ill. 120; Fanning v. Hat. B’k, Jacksonville, 76 Ill. 53; C., R. I. & P. Ry. v. Mason, 11 Ill. App. 525.
   C. B. Smith, J.

This was a writ of error to Rock Island county. The controversy was and is as to the liability of H. D. and E. Folsom to garnishee process as to the debtor of Clara L. Patterson. Knight & Company recovered a judgment against Clara L. Patterson, and, failing to make the judgment out of Miss Patterson, sued out garnishee process and had it served upon the Folsoms as debtors of Miss Patterson. They answered that they were indebted in the sum of about $37 to Miss Patterson and also that they had certain property belonging to her in their possession, which they turned over to the officer.

On the trial of the garnishee proceedings, Miss Patterson interpleaded and claimed that both money and the property were exempt from the process of execution or garnishment.

She claimed that the money and property had been set off to her as exempt from execution and garnishment in a previous 'proceeding between herself and another execution creditor. This claim was resisted by Knight & Company.

Atrial was held, resulting in judgment against Knight & Company, the court holding the property exempt. Knight & Company bring the record here and ask for a reversal of this judgment, and assign various errors. The question as to whether this property and money were exempt was a question of fact and involved the ascertainment of a number of facts.

Upon examining the record we find the bill of exceptions does not purport to contain all the evidence; nor does the certificate of the judge so state. Without all the evidence before us we can not pass upon the questions raised by counsel. The presumption of law is in favor of the regularity and correctness of the proceedings of courts of general jurisdiction. If the bill of exceptions contained all the evidence it might show a proper schedule, and that the property and money was held on special deposit, or upon some kind of a trust, for Miss Patterson.

In the absence of anything shown to the contrary, we must therefore presume the court had sufficient evidence before it to warrant the judgment.

Judgment affirmed.


text:
    Chicago & Iowa Railroad Company v. Elliott Lane, a Minor, etc.

      Railroads—Personal Injury—Crossing—Obstructions—Rate of Speed, —City Ordinance—Minor—Prosecution by Rext Friend as Poor Person —Instructions—-Excessive Rum her.

    1. It is proper to permit a person to prosecute on behalf of a minor as a poor person, and it is within the discretion of the trial court to grant or refuse such privilege.
    2. This court will not set aside a verdict as against the weight of evidence, unless it clearly appears that it is unsupported by the evidence; that the jury has been governed by prejudice or passion, or that it will result in injustice.

      3. In an action against a railroad company to recover damages for injuries received in a collision at a railroad-crossing, it is held: That the evidence supports the verdict for the plaintiff; that the question whether a flagman was reasonably necessary, was for the jury; and that the failure of the city to require a flagman to be placed at the crossing in question is no excuse to the defendant, if reasonable care for the safety of the public required it to be done.
    4. This court strongly protests against the practice of giving an unreasonable number of instructions.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Ogle County; the Hon. William Brown, Judge, presiding.
    Messrs. M. D. Hathway & William Lathrop, for appellants.
    Messrs. O’Brien & O’Brien, for appellee.
   C. B. Smith, J.

This was an action in case brought by Elliott Lane, a minor, by his next friend, Gilbert Lane, against appellant. The injury complained of resulted from a collision between a passenger train on appellant’s road and a team and wagon driven by appellee in the city of Bochelle, at a street-crossing, on the 29th day of July, 1887. Bartholomew street runs north and south through Bochelle, and appellant’s road runs through the city in an easterly and westerly direction, crossing Bartholomew street. At the crossing of this street and the railroad the collision occurred, resulting in the loss of an arm to appellee.

It appears from the evidence that the train which collided with the wagon was going east and the wagon was going south on Bartholomew street. On the north side of the railroad track, and just west of the line of the street, there was, on the day of the accident, and had been for a longtime before, various and serious obstructions. On the north side of the railroad right of way there was a coal chute, and. west of that a tressel work ten feet higher than the track. There was a thick hedge fence on the line of defendant’s right of way, about fifteen feet high, just north of defendant’s track, coming up to the sidewalk, and west of that there was a high board fence. Just north of the coal chute there were some trees and a brick house and barn. These obstructions all lay so as to obstruct to a greater or less degree the fine of vision of appellee as he came near the railroad-crossing going south.

The first count of the declaration charges that these obstructions were permitted to be on the defendant’s right of way, and were of such character as to prevent persons approaching the track from the north from seeing approaching trains from the west, and that defendant was guilty of negligence in so allowing such obstructions on its right of way; and also charges that it ran its train at a high and dangerous rate of speed, and that it neglected to ring a bell or sound a whistle, as required by statute.

The second count alleges the existence of the same obstructions as in the first, and avers that by reason of its dangerous character it was the duty of defendant to beep a flagman at that crossing, and that it was guilty of negligence in not doing so.

Other counts charge negligence, in that the defendant ran its train on the day of the accident at a high and dangerous rate of speed, and in violation of an ordinance of the city of Rochelle prohibiting trains from running faster than ten miles an hour within its corporate limits.

The defendant pleaded the general issue. A trial was had, resulting in a verdict for the plaintiff, and assessing his damages at $2,500. After overruling a motion for a new trial, made by defendant, the court rendered judgment in favor of the plaintiff.

The defendant now appeals to this court and asks for a reversal of the judgment, because the verdict is contrary to the evidence, and because the court erred in giving and refusing instructions, and in the admission of evidence.

It is first assigned for error that the court refused to dismiss the suit below because no cost bond was filed, and in permitting the next friend to prosecute as a poor person. A bond was tiled by the next friend, but it was held not sufficient by the court; thereupon the next friend entered a cross-motion for leave to prosecute on behalf of the minor as a poor person, and upon proper proof made of his poverty arid inability to give bond, the court allowed the cross-motion. In this there was no error. Our statute is broad enough to include all classes of resident suitors in its benefits. It would be a very harsh and most unreasonable construction to give to the statute to say that adult poor persons might prosecute for injuries done without bond, but that minors, compelled to come into court by their next friend, must find securities. A minor himself could give no bond which would be binding on him, except at his own pleasure, and if he could not procure bondmen, then he could not be heard in a court of justice.

The statute does not, in terms, limit the right to prosecute as a poor person to adults, and we know of. no reason why we should interpolate that word into the statute. We might, with the same propriety, limit it to males or females.

Granting or refusing the privilege to prosecute as a poor person rests in the discretion of the court, by the express terms of the statute, and is not subject to review except where the discretion has been abused. Rockford v. Russell, 9 Ill. App. 229. There is nothing in the record to show that the court abused its discretion, but, on the contrary, sufficient grounds were shpwn to justify the action of the court.

Appellee was about eighteen years old when the accident occurred. He was engaged in hauling grain for Anderson, his employer, to the elevator at Rochelle. lie had just unloaded a load of grain, and started to return home about the time the east-bound train was due. He was driving a two-horse wagon, and he swears that he was approaching the track in a slow “jog” trot, and that he went slower as he approached the track; that he was standing up in his wagon; that he looked both ways for trains, three or four times, just within a few rods before he reached the track, and that he looked again when within less than sixty feet of the track for cars but saw none; that he also listened for cars while he was looking; that though both watching and listening as he approached the track, he neither heard nor saw any train, nor heard any bell or whistle, until he had passed the line of the hedge fence (which was only about thirty-five feet from the rails), and that he then saw and heard the train for the first time, when it was but a rod or so from him and his team—within a few feet of the track. He also swears that his hearing and sight were good. As soon as the horses saw the train they became unmanageable, ran across .the track in front of the locomotive, and the collision occurred, resulting in the loss of an arm to appellee. Aside from the plaintiff’s own testimony, a great many other witnesses were examined on both sides touching the question of negligence, or want of negligence, of both appellee and appellant. There was no dispute on the part of appellant as to the obstructions along the north line of its track up to the line of Bartholomew street. The proof tends strongly.to prove that this hedge fence, some fifteen feet high, grew either on the right of way or on the line of the right of way of appellant, and that it came up to within six or eight feet of the sidewalk along the west line of Bartholomew street, and less than fifty feet from the track. This hedge was in full leaf, close and compact, and seems to have been of itself a sufficient obstruction to prevent the seeing of a train of cars through it, except upon a very close examination. The track of defendant’s road was also some three feet below the level of the ground on which the hedge fence grew. A large number of witnesses testified on behalf of the plaintiff that the train was running from twelve to fifteen miles an hour at the time of the collision, and also that they heard no whistle or bell until just at the time of the collision.

For the defense, many witnesses testified that they heard the bell ring and heard the whistle sound for a considerable distance before the crossing was reached. The testimony on behalf of the defendant also tended to show that the rate of speed the train was going when the accident occurred was not to exceed seven to nine miles an hour. Several witnesses also testified on behalf of the defendant that the obstructions were not of such a character as to prevent seeing the approaching train from the west if plaintiff had been looking, and a number of photographic views were introduced for the same purpose, but the photographs were taken in January, when there was no foliage on the trees or the hedge fence. The same conflict of testimony applied to the rate of speed and the care used by the plaintiff in approaching the crossing.

All these questions involved only matters of fact, for the jury. As is usual in such cases, the testimony was very conflicting. The court and jury who tried the case saw and heard the witnesses, and occupied a position very much better than ours to weigh the evidence and decide where the preponderance lay. It is the settled rule of the Supreme and of this court not to set aside verdicts of juries under the charge that they are against the weight of the evidence, unless we can clearly see that the evidence does not support the verdict, or that the jury has been governed by prejudice or passion, or that injustice or wrong must result from the verdict. C., B. & Q. R. R. Co. v. Lee, 87 Ill. 457. If the plaintiff’s witnesses were believed by the jury, then there is ample evidence to support the verdict.

If the plaintiff was exercising ordinary care in approaching the crossing (and the verdict necessarily finds that he was), then the verdict may be supported on any one of the alleged acts of negligence set out in the declaration as to, first, the failure to ring a bell or sound a whistle; second, the high and dangerous rate of speed of the train; third, the failure to beep a flagman at the crossing; fourth, the running at a higher rate of speed than allowed through the city limits; and fifth, allowing the obstructions so near their track at a public crossing as to hide approaching trains from view. If the proof showed negligence on the part of defendant under any one of these charges, resulting in the 'injury to the plaintiff when he was using reasonable care, then the defendant would be liable and the verdict supported, no matter how much care defendant may have exercised in other regards. The company would not be liable for obstructions not on their right of way and over which they had no control, but where such obstructions, in fact, hide the approach to street-crossings in a city or town, where people are liable to cross at any moment, then reasonable prudence and care require that the crossing must be approached with a higher degree of care than if the view were open. In the case of I. & St. L. R. R. Co. v. Stables, 62 Ill. 313, the Supreme Court say that " a mere comp] lance with the' statutory requirements does not authorize the omission of other reasonable and necessary precautions.”

Appellant assigns for error the action of the court in admitting proof to show that no flagman was stationed at the crossing in question. There was no error in this. Whether a flagman was there was a part of the res gestee. But it was also competent, under the issue joined, charging negligence in the omission to place a flagman at that crossing. As a matter of law, we can not say that it was the duty of defendant to place a flagman at the crossing, but it was proper to go to the jury as a fact in the case, in order to enable them to determine whether, under all the circumstances, the defendant had used all reasonable and proper means under its control, to prevent accidents occurring at the street-crossing. If, from the nature of the crossing, the rate of speed defendant desired to run its trains, the hidde i condition of its track and trains, and the amount of travel of the street, made it reasonably necessary to place a flagman at the crossing to prevent accidents, then it was as much the duty of defendant to have a flagman there as it would be to have a brakeman at his post to stop the train to prevent a collision. The failure of the city to require a flagman to be placed at the crossing would be no excuse for the defendant not doing it without compulsion, if reasonable care for the safety of the lives of people required it to be done.

Appellant assigns for error that the court erred in giving all of plaintiff’s instructions from one to eleven, inclusive. Thirteen instructions in all were given for plaintiff and fifteen given for appellant, and five refused for appellant. The objections appellant makes to all of the instructions given for appellee are exceedingly technical and hypercritical; To notice all the objections made would prolong this opinion to an unreasonable length, and serve no useful purpose. We have carefully examined all the objections urged against the instructions, and are unable to find any substantial objections to any of them. Even if trifling and unimportant errors can be found in plaintiffVinstruetions, they were most abundantly cured and obviated by the elaborate and skillfully drawn instructions given for the defense.

We desire again to enter our protest against the practice of deluging the jury with an unreasonable and unnecessary amount of instructions. Every principle of law involved in this case could have been clearly and correctly stated to the jury in three or four instructions at the outside for each party. A rule of law once clearly stated to the jury is enough, and it ought not to be repeated. Courts have ample power to protect themselves against this abuse, and they should not hesitate to use it. The fewer and briefer the instructions the less liability there is for error to intervene. The court should see to it that all and only such legal propositions as are applicable to the case in hand should be given to the jury, and if these propositions can be couched in two or three short instructions, then there is no necessity of confusing" the jury and incumbering the record with a dozen or twenty artfully written instructions intended by the party submitting them for an argument from the court.

Perceiving no substantial error in the record, the judgment is affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    Samuel Parson v. James L. Haskell.

      Practice—Failure to File Briefs.

    This court will reverse for failure of the appellee to file briefs.
    [Opinion filed January 10, 1889.]

      Appeal from the Circuit Court of Ogle County; the Hon. William Brown, Judge, presiding.
    Messrs. O’Brien & O’Brien, for appellant.
    Ho appearance for appellee.
   Per Curiam.

In this case the appellee has failed to file briefs, as required by rule number twenty-six of this court.

The appellee having failed to file his briefs as required by said rule, the judgment of the court below is reversed, as provided for by rule number twenty-seven of this court, and the cause is remanded to the court below.