author: Greek, P. J.

text:
    John J. Manion v. The People of the State of Illinois.

      Dram Shops—Sec. 9, Chap. 78, R. S„—Indictment—Motion to Quash— Selection of Grand Jurors—Evidence of—Finding of Bill—Assent of Jurors—Affidavits.

    1. The certificate of the county clerk to the clerk of the Circuit Court is competent evidence to show the selection of grand jurors by the county board, although the record of its proceedings do not show such selection.

      2. Upon appeal from a judgment finding the defendant guilty under an indictment charging a violation of the provisions of the dram-shop act, this court holds that certain affidavits of grand jurors and a bailiS, filed in support of a motion to quash the indictment on the ground that the required number did not vote for, nor concur in finding, the bill, are insufficient to establish the facts alleged.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Jefferson County; the Hon. C. C. Boggs, Judge, presiding.
    At the Hay term, 1887, of the Jefferson Circuit Court, an indictment charging appellant with violation of the provisions of the dram-shop act was returned in open court by the grand jury, with the indorsement thereon, “ A true bill. John B. Hoss, foreman of the grand jury;” and on Hay 26, 1887, was by the order of the Circuit Court duly certified to the County Court for process and trial in the latter court at the September term, 1887; and on the 20th day of September appellant entered his motion to quash the indictment, which was overruled by the court; and on September 22d appellant entered his motion to vacate the order overruling his motion to quash, which motion to vacate was also overruled, and upon the petition of appellant the venue was changed to the Circuit Court, and there, at the December term, 1887, appellant moved for leave to renew his motion to quash the indictment, and also moved to quash the same, for the reasons:
    1st. “ The grand jury which found the bill of indictment were not selected by the board of supervisors of Jefferson county, Illinois, as required by statute, and as appears by the records of said board.”
    2d. “Because twelve members of said grand jury which returned said bill did not vote for, nor concur in finding, said bill.”
    And in support of said motion offered the same affidavits as were used in the County Court, and the records of the county board. By stipulation of the parties, filed in the Circuit Court, it is admitted that before any other steps had been taken in the County Court defendant entered his same motion to quash the indictment, and read in support thereof the affidavits of six members of said grand jury, stating that the final vote upon said bill was taken upon the last day of the session of said grand jury at said May term, 1887; that before said action upon said bill, two members of the grand jury had been excused from further attendance and were not present at the time of taking said final vote, and only twenty-one grand jurors were then present; that on said final vote twelve of said grand jurors did not vote in favor of finding the indict- • ment to he a true bill; that no more than seven voted in favor of such finding, and that the remaining fourteen members either refrained from voting at all or voted against finding said hill a true bill; and also read the affidavit of the bailiff who attended the grand jury, stating he was present in the grand jury room when said indictment was finally voted upon, and his affidavit is substantially the same as the affidavits of the six grand jurors in respect of what there took place, except that this affiant states the remaining fourteen members voted against finding said indictment a true hill; and it is further admitted by said stipulation, that in the County Court, in support of said motion, defendant offered in evidence the record of the proceedings of said board of supervisors of Jefferson county at their special meeting on March 22,1887, and of all meetings at which they could have selected grand jurors for the May term, 1887, of the Circuit Court, and that said records show no action of said board selecting such grand jurors, and the state’s attorney introduced the certificate of the county clerk of said county, under his official seal, showing that said county board did select such grand jurors at its special meeting on March 22,1887, and he filed such certificate with the circuit clerk on March 24th, who issued the venire for said grand jury for said term, 1887, of said Circuit. Court, which certificate of the county clerk is set out in hceo verba in said stipulation, and shows that said board at said special meeting selected the persons as grand jurors for said May term, 1887, who were duly summoned, appeared, and were sworn by the County Court. Exception to this ruling of the Circuit Court was duly taken; the defendant pleaded not guilty; by agreement a jury was waived; the cause was submitted to the court for trial, which resulted in finding defendant guilty on the first count of said indictment; a motion for new trial, for the reasons that the court declined to consider his motion to quash the indictment, and refused to quash the same, was interposed on behalf of defendant, and overruled. A motion in arrest of judgment was also made and overruled. The court entered judgment on the finding for §20 fine and costs. Exceptions were duly taken to the ruling and judgment of the court, and the" record is brought here for review and to reverse said judgment.
    Messrs. Geo. B. Leonard and C. H. Patton for appellant.
    The proceedings to impanel a grand jury in a case is a part of the prosecution, and this jury should be selected as provided by statute. Clawson v. The United States, 114 U. S. 477. And where the grand jury is selected without authority the whole proceeding of forming the panel is void. Gale v. The United States, 109 U. S. 65. Every citizen is entitled to his liberty unless he shall be deprived thereof by due process of law. See Section 2, Article 2 of Constitution of the State of Illinois. In this case the defendant has been deprived of this right without such due process. On the contrary, the proceedings, from their inception, bring in plain violations of the constitution and laws of this State. The statute of May 7, 1873, provides that the county board of the county shall select the grand jury; and unless the grand jury that is claimed returned the indictment in this case were so selected they should have been discharged at once by the court and a special venire issued for a grand jury, “and this is the only mode to obtain one under such circumstances. ” Epson v. The People, 78 Ill. 248; Beasley v. People, 89 Ill. 575.
    The county clerk certifies the names of the "persons who sat upon this grand jury as being those selected by the county board of Jefferson county at its special meeting of March 22, 1887. This clerk keeps a record of the proceedings of this board, showing all it did at this special meeting; and he also keeps a record of the acts and proceedings of this board for each and every one of its meetings at which it could have selected these persons as grand jurors for this term of the Circuit Court. It is admitted that all of these records were offered in evidence in the County Court in support of this motion to quash this indictment, and that they show that no action was taken by this board in relation to the selection of persons to serve as grand jurors; and we do not think that the law will say that these records shall be set aside as untrue, nor can it be held that these are only partial or incomplete records in order that this certificate of the county clerk may stand. If there was no record a different case would be presented ; but when here the record will stand and the clerk’s certificate must fall and with it this entire ease.
    The clerk can certify only to what he finds upon the files and records remaining in his office. Augustine v. Doud, 1 Ill. App. 588.
    Where a record has been made, it must be tried by itself, and so stand or fall. Weis v. Tiernan, 91 Ill. 27; Young v. Thompson, 14 Ill. 380.
    In this case the appellee could as well have offered to prove by the oral evidence of this county clerk that this board of supervisors selected these grand jurors as to ask that he be allowed to certify to a matter in contradiction to this record, and this he could not do. See McIntyre v. The People, 103 Ill. 380.
    It is stipulated in this record that this grand jury was not summoned by order of the Circuit Court under its common law powers.
    If this grand jury was not lawfully assembled and organized that fact should be presented to the court by notice to quash or challenge to the array. Barron v. The People, 73 Ill. 258; Stone v. The People, 2 Scam. 332.
    This motion to quash should have been sustained because the indictment was not found or returned by this grand jury, but was presented to the court through fraud or mistake. This is abundantly shown by six affidavits of those men who sat in this body, and also by that of their bailiff; all of whom say that when the final vote was taken upon this bill which had been presented to them that “ twelve of their number did not concur in returning the same as a 1 true bill.’ That their affidavits should have been considered by the court in support of this motion, is sustained by Greenl. Ev., Sec. 252, which says that “a grand juror may be ashed whether twelve of their number actually concurred in the finding of a bill, the certificate of the foreman not being conclusive evidence of that fact.”
    And it was held in Granger v. Warrington that where grand jurors are not required to take an oath of secrecy they are competent witnesses to prove general facts which come to their knowledge while acting as grand jurors. Wharton’s Am. Crim. Law, Sec. 511; People v. Hulbut, 4 Den. (N. Y.) 133; State v. Oxford, 30 Tex. 428; State v. Squire, 10 N. H. 558; State v. Simmons, 36 Me. 128; Com. v. Craus, 3 Penn. Law Journal, 422; State v. Offut, 4 Blackf. 355; People v. Young, 31 Cal. 564; Crocker v. State, Meigs, 127; U. S. v. Charles, 2 C. C. C. 76; Commonwealth v. Hill, 11 Cush. 137; Jenley v. Rogers, 2 Halst. (N. J.) 347; Com. v. Mead, 12 Gray, 167; State v. McLeod, 1 Hawks, 341; State v. Beebe, 17 Minn. 241.
    All of which authorities show that these grand jurors (¡under the oath administered in this State) are competent witnesses to disclose to the court the error that has been perpetrated.
    Again, the courts have said, “It seems to be at variance with the constitutional right of the citizen, and the principles of the common law, with the general course of proceeding in criminal trials, with analogous cases, with the general power and duty of the court, that the court should be solemnly made known with the fact that through mistake of the law, ignorance of his duty, or malicious design, the foreman of the grand jury had certified and delivered into court as a true bill, one that in fact was not found by them.” Law’s Case, 4 Maine, 450; Commonwealth v. Smith, 9 Mass. 107; Ex parte Strong, 164 Cal. 526; Bernham v. Halfield, 5 Ind. 21.

      Even if the old rule of the common law should be found to still prevail in some courts, that would not be true in our State, as we have a statute defining what a grand juror may not disclose (see Sec. 472, Chap. 38, Starr & C. Ill. Stat.); and we submit that the affidavits here offered do not in any way conflict therewith. And this statute has been passed upon by our Supreme Court—where they go much farther than the defendant asks the court to do here in his humble endeavor, not to show what this grand jury did, but to show what they did not do—where they hold that the grand jurors may even disclose what the witnesses testified to before them. See Bressler v. The People, 117 Ill. 422, and the authorities there cited, to wit: Commonwealth v. Mead, 12 Gray, 167; State v. Broughton, 7 Ired. 96; Gordon v. Commonwealth, 92 Pa. St. 216; Little v. Com., 25 Gratt. 921; State v. Wood, 53 N. H. 484.
    Mr. William H. Gp.een, State’s Attorney, for appellees.
    The objection urged by appellant that the County Court should have sustained the motion to quash is not sustained by the weight of authorities.
    In this case, as shown by the record, the jurors composing the grand jury for the May term, A. D. 1887, of the Jefferson county Circuit Court, were duly selected by the board of supervisors at a special meeting of the board March 22, 1887. ,
    This is shown by the certificate of the county clerk, certifying that on that date “the following named persons were selected by the board of supervisors of said county, at its special, meeting on the 22d day of March, 1887, to serve as grand jurors at the May term of the Circuit Court of said county, as appears from the official record of said board.
    Upon receiving this certificate the circuit clerk issued his venire “for said grand jury for the May term of said court.” The persons named in the certificate of the county clerk were duly summoned, and with the exception of one, served on the grand jury. Ho objection was made in the court belowto the qualifications of any of the jurors thus selected.
    The only proof offered by appellant to show that the jurors, who served on the grand jury at the May term, 1887, were not selected by the board of supervisors as provided for by the statute, was the “record” of its proceedings at the special meeting in March, and the records of other meetings at which they could have been selected.
    The negative proof thus offered is certainly not sufficient to overcome the official act of the clerk, certifying that they were so chosen. The court will presume, until the contrary is shown, that the official acts of an officer are legal, and that the matters contained in his certificate are true. The mere clerical error in not embracing in the records the minutes of the proceedings of the board of supervisors, and the action of the board in selecting a grand jury, will not render its action invalid.
    Here the official act of the county clerk becomes a part of the record of the circuit clerk’s office, and can not be attacked by the mere fact that the minutes of the proceedings of the board of supervisors, as recorded by the county clerk, fails to show their action in selecting the grand jury. The official certificate of the county clerk shows the board of supervisors selected this grand jury, and other proof could have been easily obtained and introduced in evidence by the defendant at the trial courts, to prove this grand jury was never in fact so selected, had this been true. Appellant is satisfied to rely on such negative proof to overcome the official acts of the county clerk.
    All legal presumptions would be that the members of the board of supervisors and the county clerk under their respective oaths of office performed their duty as required by law, until the contrary is shown by clear and positive evidence. Mackin v. The People, 115 Ill. 312; Mapes v. The People, 69 Ill. 523.
    Mere irregularity in drawing or selecting the jury, where no positive injury is shown, to have been done the accused, is not sufficient cause to sustain a motion to quash or challenge to the array. Wilhelm v. The People, 72 Ill. 468; Davison v. The People, 90 Ill. 222; Beasley v. The People, 86 Ill. 575; Barron v. The People, 73 Ill. 256; Williams v. The People, 54 Ill. 422; Allen v. The People, 77 Ill. 484; White v. The People, 81 Ill. 333.

      Appellant urges that it was error on the part of the Circuit Court to refuse to entertain the motion to quash after it had been passed upon by the County Court.
    As the County Court has concurrent jurisdiction with the Circuit Court in all misdemeanors, to have entertained the motion to quash would have been to reverse the decisions of a court of equal jurisdiction.
    Courts will not entertain or encourage the practice of obtaining the judgment of one court upon a point involved in the case.
    The refusal of the County Court to sustain the motion to quash, supported by the affidavits of the several grand jurors, based upon the facts set forth in the affidavits that twelve jurors did not vote in favor of finding a true bill, was proper in the light of the weight of authorities.
    The better opinion prevails among the courts of the different States, as at common law, that it is against public policy to allow a grand juror, or an officer in charge of the grand jury, to state how he or any other grand juror voted. The policy of the law has always been to keep strictly secret everything that transpires in a grand jury room. In order to prevent any disclosure of the proceedings before the grand jury, it is provided in Sec. 472, Starr & C. Ill. Stat. 1885, that “lío grand juror or officer of the court or other person shall disclose that an indictment for felony is found or about to be found against any person not in custody or under recognizance, except by issuing process for his arrest, until he is arrested; nor shall any grand juror state how any member of the jury voted, or what opinion he expressed on any question before them; and the court in charging said jury shall impress upon their minds the provisions of this section. A violation of this section shall subject the offender to an attachment as for contempt of court, in which he may be fined not exceeding $500.”
    If, as insisted, a grand juror can be permitted to testify as to whether or not twelve voted to find “a true bill,” a curious defendant could easily find who voted for and who against him, and thus “ subject our grand juries to influences utterly destructive of our criminal laws.” The State v. Oxford, 30 Texas, 430.
   Greek, P. J.

The only question necessary to be considered and determined by this court is whether the Circuit Court erred in refusing to quash the indictment. Appellant contends such error was committed, because “ the grand jury which found the bill of indictment were not selected by the board of supervisors of Jefferson county, Illinois, as required by statute, as appears by the records of said board,” and because “twelve members of said grand jury, which returned said bill, did not vote for nor concur in finding said bill.”

Sec. 9 of Chap. 78, Starr & C. Ill. Stat., p. 1419, is the section providing for drawing grand jurors. It prescribes the duty of the county board to select twenty-three qualified persons to serve as grand jurors, and to cause their clerk to certify the names of those persons to the clerk of the court for which they are selected, who shall issue and deliver to the sheriff a summons commanding them to appear and serve as grand jurors, at the qourt and term named in said certificate.

By virtue of this section, the certificate of the county clerk is made something more than a mere paper in which the action of the board is recited. It is filed in the office of the circuit clerk, and is then evidence of record, and the only evidence furnished the circuit clerk of the fact that certain persons named therein have been selected by the county board to attend and act as grand jurors. It is not required that he should be informed by a transcript of the record of the proceedings of the board that such selection has been made, but the certificate itself informs him of the facts which make it his duty and give him authority to issue the summons for the persons therein named, to attend and serve as grand jurors. Entertaining this view of the character and effect given by the statute to such certificate, we can not hold, as requested on behalf of appellant, that the omission of the county clerk to record the act of selecting these grand jurors among the other proceedings of the board at its special meeting in March, 1887, has closed the door against proving that act, and establishes the fact, tlie persons who were impaneled, sworn, and as a grand jury returned the indictment against appellant were not selected by the board of supervisors of Jefferson county; but are of opinion the said certificate of the county clerk, delivered to and filed with the circuit clerk, was competent evidence, and by it the fact that said board, at its special meeting in March, 1887, did select the grand jury which found the indictment against appellant was fully proven, and hence the first reason suggested for quashing said -indictment is not tenable.

The Second and only other reason urged in support of said motion is, that the requisite number of grand jurors did not vote for nor concur in finding the bill, and upon this point we have been favored by the learned'counsel for appellant with a very able argument, fortified by numerous authorities, including decisions of our Supreme Court, to sustain the position that in support of a motion to quash an indictment for such reason, grand jurors are competent witnesses to prove the fact that twelve of their number did not concur in finding an indictment; but if we concede this to be the law, the affidavits in this record do not state facts, which, taken in connection with other facts disclosed by the record, would justify the court in quashing the indictment. The provision of the statute which it is claimed these affidavits show to have been violated, is correctly quoted in the brief for appellant and isas follows: “ In finding a bill of indictment at least sixteen of the grand jury shall be present, and at least twelve of .them shall agree to the finding.” Mo mode of signifying assent is here prescribed, no vote is required, and in the affidavit of the six grand jurors the affiants carefully refrain from stating that twelve of the grand jurors never did agree to the finding, but say that at one time when a final vote was taken in the grand jury room, and twenty-one of the grand jurors were present, only seven voted in favor of finding the indictment a true bill, and the remaining fourteen either refrained from voting at all or voted against such finding, and the affidavit of the bailiff states the same in substance, except that he deposes without qualification, the remaining fourteen voted against such finding. Waiving comment upon the contradictory statements thus appearing in these affidavits, and admitting that fourteen members of the grand jury voted against the finding at that time, it is not thereby made to appear this action terminated, the consideration of the question, or that twelve members did not afterward, and before the indictment was returned, agree to the finding and signify their assent thereto by some mode other than a formal vote. In addition to this, it is shown by the record the grand jury appeared in open court and returned this indictment indorsed a true bill, and no member thereof is shown to have manifested dissent or made objection. This action, though not conclusive evidence that at least twelve of the grand jurors then present had agreed, creates a presumption that they had done so much stronger than any inference to the contrary that can he fairly drawn from the statements in the affidavits, and we think appellant has failed to prove the material fact that twelve members of the grand jury did not agree in finding said indictment a true bill, and the court did not err in refusing to quash the same.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Gbeen, P. J".

license: Public Domain

text:
    William A. Trescott v. Albert Gross et al.

      Sales—Hickory Nuts—Failure to Ship—Evidence—Instructions—Damages—New Trial.

    1. In an action to recover damages for failure to ship a car load of hickory nuts according to contract, this court reverses the judgment in-behalf of defendants as "contrary to the evidence.
    2. An offer to enter into a new contract by a person euilty of a breach of a former one, does not absolve him from liability for such breach.
    3. It is error to give an instruction which has no basis in the evidence.

      [Opinion filed January 10, 1889.]
    In ebbob to the Circuit Court of Clinton County; the Hon. Amos Watts, Judge, presiding.
    Messrs. D. Kingsbuby and M. P. Mubbay, for plaintiff in error.
    Messrs. Yan Hoobbbeee & Fobd, for defendants in .error.
   Gbeen, P. J".

This suit was commenced by plaintiff in error to recover damages from defendants in error for breach of contract to deliver car load of hickory nuts bought of them by plaintiff. The amount, price and time of delivery was fixed by defendants, and agreed to by plaintiff. The jury, found a verdict-for defendants, plaintiff’s motion for a new trial was overruled and the court entered judgment on the verdict; plaintiff sued out this writ of error to reverse the judgment.

We have examined the record in this case carefully and are unable to find any evidence to sustain the verdict. Negotiations were entered into between the parties in the early part of November, 1886, the price was fixed at fifty-five cents per bushel, and the contract was finally consummated by correspondence, comprising letter of November 14, 1886, from defendants to plaintiff, stating they had obtained rates from the O. & M. direct to Fairport (the residence of plaintiff and ten miles from Rochester, N. Y.), making the cost per bushel there about seventy-one cents ; that they would order white lime car and fill in- not less than 760 bushels, adding, We can safely say one week from to-morrow we will ship them.” Also a letter in reply from plaintiff to defendants dated November 18tli, stating he did not want that car at Fairport but did want it at Rochester, and directing defendants to rush that car up quick as possible ; to which letter defendants replied by telegram of date November 21,1886, sent to plaintiff: “ Will ship to Rochester Tuesday.” After the contract had been thus concluded, defendants did not comply, or offer to comply with the terms on their part to be performed, but on November 26, 1886, shipped and sold a car load of nuts to parties in Gincinnati, and put it out of their power to fill the contract with plaintiff. Moreover, on the same day they wrote to plaintiff declining to perform the contract, for the reason (as stated) that wood-fires and heavy snows and rains had caused the stock to be dark and poor looking, and when plaintiff, on November 27th, in reply to this letter, advised them that relying on their promise to “ship to Rochester Tuesday,” he had sold to parties in Fairport and Rochester, and they must send the nuts, defendants on November 29th, wrote expressing surprise at receiving plaintiff’s telegram of November 27th, and reiterating as reason for breaking their contract, that the nuts are dark and black, and as an additional reason, say, “ These snows we had and are still having, checked the whole nut traffic, save the few people gathered during good weather. It will be impossible to gat. them even if we had to squeeze every farmer out of those few they have.” On the trial it xx’as not disputed the contract had been concluded, and that defendants had failed to perform on their part; but in addition to the reasons above mentioned for such default, they set up as a defense, they had received information xvhen they had partly loaded the car shipped to Gincinnati, that plaintiff xvas insolvent. This, it seems to ns. was a mere subterfuge. They had known plaintiff for several years and knexv his circumstances, and with such knowledge made the contract. They declined to perform, not because he xvas insolvent, and when informed he would hold them to the performance, again urged as an excuse the poor quality and scarcity of nuts, xvithout demanding-pay and giving plaintiff an opportunity to comply with such demand; and plaintiff testifies he was ready, willing and able to pay. It does not appear the nuts shipped to Cincinnati were of poor quality, but the returns indicate a larger price was received by defendants for them than the price which plaintiff was to pay. The defense set up xvas xvithout merit. It was error to give the second instruction for defendants, because by the terms of the contract the time was limited xvithin which defendants agreed to deliver, and it was also error to give the third instruction for defendants, as there was nothing in the evidence to warrant it. The offer by defendants to make a new contract with plaintiff on December 7th, he was under no obligation to accept, nor did .such offer absolve them from liability for the breach of the contract made by them. The verdict should have been set aside, and it was error to override plaintiff’s motion for a new trial. For the errors mentioned the judgment is reversed and cause remanded.

Reversed and remanded.


author: Green, P. J.

text:
    Fred W. Hapke, Adm’r, v. People of the State of Illinois, for use, etc.

      Administration—Questions of Law and Fact—Trial by Jury—Administrator’s Account—Payment after Two Tears—¡Statutory Bar.

    1. The question whether an amount paid by an administrator out of assets in his hands should be placed to his credit, is one of law and not of fact, and it should not be submitted to a jury.
    2. In proceedings to compel an administrator to settle his account wherein he claimed as a credit an amount paid by him out of assets belonging to the estate upon a claim which had never been filed or allowed against it, this court sustains the order of the court below, allowingsuch portion of the payment as was paid within two years after the issue of letters of administration.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Randolph County; the Hon. Amos Watts, Judge, presiding.
    Mr. John Miohan, for appellant.
    Mr. H. Clay Hobneb, for appellee.
    An administrator can not pay a claim after two years from grant of letters and get credit for it. Harris v. Willard, 17 Ill. App. 512; S. C., 119 Ill. 195.

      A jury can not be insisted upon as a matter of right in an accounting in Probate Court. It is 66 the court ” that must adjust these accounts, and it acts as does a court of equity in these matters of accounting. Sec. 113 R. S., Ch. 3; Mack v. Woodruff, 87 Ill. 574.
    In stating an account the Probate Court and the Circuit Court on appeal sit as courts of equity and a jury in stating such account would be as much out of place as in a partnership accounting. Mack v. Woodruff, 87 Ill. 574. The case cited by appellant from 52 Ill. 316 is governed by R. S. Ch. 3, Sec. 60; Heward v. Slagle, 52 Ill. 336.
    The administrator must make every defense and must at his jDeril insist upon statutes of limitations. McCoy v. Morrow, 18 Ill. 524; Langworthy v. Baker, 23 Ill. 491. The case of Harris v. Millard, 17 Ill. App. 513, seems to be decisive of this case. The case appears also in 119 Ill. 195. The County Court and Circuit Court in this case were guided by that ease, and allowed the administrator credit for all that was .paid within two years (S248) and refused all payments afterward made ($499.99). If the payment of a few cents on a large claim could save the limitation we will soon find creditors getting a small payment within two years and holding back their claims to get the contract rate of interest where a judgment would cut them down to the legal rate. No one will contend that the administrator can pay off a claim that is actually barred when he pays it off, and get credit for it. He can not revive a dead claim. For a like reason a payment of part within" two years will not enable him to save the bar as to the residue.
    The law requires more than simple notice to the administrator of the existence of the claim. This was the law prior to 1872. The act of 1859 (L. 1859, 93—4) was an abortive attempt to correct the delays growing out of the old law. See Wells v. Mills, 45 Ill. 35. The act of 1872 is imperative and bars all claims not “ exhibited to the court within two years,” etc. R. S. Ch. 3, Sec. 70. The object of this law is that there shall be an adjudication within two years or decisive steps taken by suing on the claim. See People v. Brooks, 22 Ill. App. 597. Notice to the administrator is no longer enough. His own claim is barred if he does not “ exhibit it to the court.” The language of Sec. 72, “ he shall tile his demands as other persons,” is very plain. See Harris v. Millard, 17 Ill. App. 512.
   Green, P. J.

On November 20, 1882, appellant was appointed administrator with the will annexed, of the estate of Hannebutt, deceased, and Louisa Bolling, sole legatee, having instituted proceedings against him in the County Court of Randolph county to compel him, as administrator, to make a settlement of said estate, he appeared and filed his report July 13, 1887, and among other items therein claimed and asked to be allowed as a credit §747.99, paid by him out of assets of said estate in his hands to the payees of a promissory' note for §600, dated August 8, 1882, payable one year after date, with eight per cent, interest, by said Hannebutt and himself,, which had never been tiled, or allowed as a claim against said estate. The County Court, by its order, allowed but §248 of the sum he so claimed as a credit, and he thereupon took an appeal to the Circuit Court, and there demanded a trial by jury, which was refused, and upon the hearing the court allowed him §248 as a credit, and disallowed the balance of the §747.99 so claimed.

But two errors are assigned, viz.: The refusal of the court to allow a trial by jury, and its refusal’ to allow appellant as a credit the whole sum of $747.99 paid by him on said note.

The County Court and Circuit Court, on appeal, determine cases of this character without a jury. The question here involved was one of law, not of fact; the amount paid by appellant out of assets in his hands as administrator was not in dispute, but it was denied he had a legal right to be allowed the whole amount as a credit. The Circuit Court did not err in refusing the demand for a jury trial. Heward v. Slagle, 52 Ill. 316; Mack v. Woodruff, 87 Ill. 574.

The court did not err, either, in allowing no more than §248 as a credit upon appellant’s account as administrator. This sum was paid on said note within the period of two years next after he took out his letters of administration, at the expiration of which period said note, never having been exhibited as a claim against said estate, was barred except as by the statute; the balance of the' sum claimed and disallowed was paid after that period of two years had' elapsed and was then wrongfully paid by appellant out of assets of the estate in his hands; he should have resisted the payment of it and insisted on the bar of the statute as a defense if it had been presented as a claim after the two years had expired. McCoy v. Monow, 18 Ill. 524; Unknown Heirs of Langworthy v. Baker, Adm’r, 23 Ill. 491.

Had appellant p>aid the whole sum before the two years liad expired a different question would be presented; but he is not entitled under the facts proven to a credit for a larger sum than the court allowed him. Harris v. Millard, 17 Ill. App. 513; Same v. Same, 119 Ill. 195.

The order of the Circuit Court is affirmed.

Order affirmed.


text:
    St. Louis Bridge Company v. Henry Schaub.

      Master and Servant—Driving upon Highway—Negligenee of Servant— Injury to Team—Special Finding—Act of 1887 —Damages.

      1. It is negligenee in the driver of a team to endeavor to pass another team going in the same direction where the roadway is so narrow as to render such act dangerous.
    2. In the case presented, this court holds that a special finding by the jury was consistent with their verdict in behalf of plaintiff.
    [Opinion filed January 10, 1889.]
    Appeal from the City Court of East St. Louis; the Hon. B. H. Gabby, Judge, presiding.
    Messrs. Xoebbeb & Hobeee, for appellant.

      Messrs. Alexander Flannigen and E. A. Halbert, for appellee.
    The plaintiff was entitled to recover on the evidence of defendant’s own driver. It is clear from all the evidence that the omnibus overtook plaintiff on the bridge and tried to pass him. If the driver saw that plaintiff’s team was continually shying, he ought to have let plaintiff drive down the approach without trying to pass him; if defendant’s servant saw, as he says he did, that it was shying all the way down the bridge approach, he ought not to have attempted to pass. But, if the plaintiff had not been on the bridge approach the injury would not have occurred. If defendant had not attempted to pass him it would not have occurred.
    The jury did not specially find that the shying was the proximate cause of the accident, and they found generally that the negligence of. defendant’s servant was. - •
   Green, P. J.

This suit was brought by plaintiff below to recover damages for an injury to his mule, alleged to have been occasioned by the negligence of defendant’s servant. The jury found defendant guilty and assessed plaintiff’s damages at $150. Defendant’s motion for a new trial was overruled. Judgment was rendered on the verdict, and defendant took this appeal.

It appears from the evidence that on August 5,1887, about 9 o’clock in the morning, plaintiff was driving his mule team down the south side of the east approach of the St. Louis bridge, and defendant's driver was driving a team attached to its omnibus, down in the same direction on the approach, and the wheel of the omnibus struck the foreleg of the off mule in plaintiff’s team, tearing the flesh off the leg and crippling the animal. But two persons witnessed the occurrence—the plaintiff and the driver of the defendant’s team. Plaintiff testified that as he was driving down the approach as near the south side as he could drive, his team walking; the omnibus team came up behind him on a slow trot, and, in passing, the fore wheel of the omnibus struck the hind foot of his off mule, and the mule turned over toward the omnibus, and the hind wheel then struck the mule’s fore leg and injured it as above described.

The defendant's driver testified he was driving as close to the north side of the approach as he could, his team in a walk; that when his team and half the length of the omnibus had passed plaintiff’s team, the off mule crowded over in front off the hind wheel of the omnibus and was thus struck and injured. Three witnesses, employes of defendant, testified plaintiff stated, in conversation with them or in their presence, he could not hold his near mule; it would shy, and shoved the other mule over on to the omnibus. The driver testified also that while on the bridge he saw plaintiff’s team; it was crowding over all the way down the approach toward the omnibus; that he did not stop when he saw it crowding over, because he “did not want to get his omnibus busted up;” and it is quite probable from his testimony he was trying to pass plaintiff’s team on the approach before and up to the time the nude was struck. If he saw the team acting in the manner he describes, he was guilty of negligence in attempting to pass and risking a collision he could have avoided by keeping in the rear until plaintiff drove off the approach. Taking all the evidence into consideration we are satisfied with the verdict, and think it ought not to have been set aside.

It is further suggested as a reason for reversing the judgment that the finding of the jury in answer to the second interrogatory submitted to them at the request of appellant should control the general verdict, and that the general verdict can not be reconciled with it. The act of 1887 provided “when the special finding of fact is inconsistent with the general verdict, the former shall control the latter, and the court may render judgment accordingly.”

The second interrogatory and finding were as follows :

“Would the accident have occurred if the off mule of plaintiff’s team had not shied from the guard rail and pushed the mule that was injured against the wheel of the omnibus?” Answer, “ Ho.”

We see nothing inconsistent with the general verdict in this finding, notwithstanding the shying of the mule, no accident would have occurred if defendant’s servant had not been guilty of negligence in trying to pass plaintiff’s team as he did, thus putting the omnibus in a position where a collision would be probable, and injury to the mule by being pushed over, likely to result. No sufficient reason appears for reversing the judgment of the City Court, and it is affirmed.

Judgment affirmed.


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    Mary Price v. James M. Hay et al.

      Attorney and Client—Recovery of fees—Special Contract—Associate Com sel—Evidence—Instructions.

    1. An instruction authorizing the consideration of matters concerning which no evidence had been introduced, is erroneous.
    2. An instruction directing attention to specific parts of the evidence is improper.
    3. In an action brought by attorneys to recover for professional services, this court holds that the jury were improperly instructed, to the effect that the defendant is liable if she saw the plaintiffs engaged in work for her in a former litigation and did not forbid it but accepted such service. A-certain contract with another attorney for the employment of additional counsel, relied on by the defendant as a complete defense, should have been taken into account.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. G. & G. A. Koerner, for appellants.
    Mr. Franklin A. McConaughy, for appellee.
   Green, P. J.

This suit was brought by appellees to recover from appellant the amount due them for professional services alleged to have been rendered as her attorneys and solicitors. The cause was tried by a jury. A verdict was returned finding for plaintiffs and assessing their damages at 81,000. Defendant’s motion for a now trial was overruled, and a judgment rendered on the verdict, to reverse which judgment defendant took this appeal.

It was urged on behalf of appellant, in the court below, and is insisted upon here, that appellees were not employed by her, but were employed by Mr. Kase, under a written contract with appellant, whereby he was to receive 810,000 in case the will of her father was set aside, and was to associate with himself such counsel as he chose.

The litigation in which the services of appellees were rendered was tlie contesting of the will of appellant’s father, and resulted in setting aside said will. It is claimed that even if appellees were entitled to recover, the damages awarded are excessive; and lastly it is said the second and third instructions given on behalf of plaintiffs were erroneous, and were calculated to mislead the jury. We would not be inclined to reverse the judgment except for the error in giving the instructions complained of.

The second instruction is as follows: If they believe from the evidence, and the law as given them by the court in the other instructions in this case, that the plaintiffs should recover, they may, in fixing the amount of such recovery, take into consideration the nature and importance of the matter involved, the standing of the plaintiffs in their profession, the usual and customary charges for such services in this and other courts, the amount involved, and the consequent responsibility, the pains and labor bestowed, the time consumed, the loss of other business, and also the testimony of all other lawyers testifying as experts as to the value of such services.”

This instruction was vicious in this: that by it the jury were informed they might take into consideration certain matters in fixing the amount plaintiffs should recover, concerning some of which matters no evidence had been introduced, and which, if taken into consideration, might induce the jury to increase the amount of damages beyond the sum justified by the proof-

This was the third instruction: “That if they believe from the evidence that the defendant did not directly employ the plaintiffs as attorneys for her in the Foreman will case, yet if they further believe from the evidence that defendant saw plaintiffs doing work for her in that case, beneficial in its nature, and did not forbid it, but accepted the benefit of the work done by them, then the defendant is liable to pay for the value of the services rendered by the plaintiffs, and they must find such sum in favor of the plaintiffs as the evidence shows their services were worth.”

The jury were, by this instruction, informed it was a sufficient ground for recovery, if from the evidence it appeared appellant saw appellees doing work for her in the Foreman will case, beneficial in its nature, and did not forbid it bnt accepted the benefit of it. This was calculated to mislead the jury by withdrawing from their consideration or omitting to direct their attention to the matter of the contract with Mr. Ease, concerning which some evidence was introduced, and which was relied upon as a complete defense to the suit. If the jury understood the instruction literally, as written, they would be bound to give a verdict for plaintiffs notwithstanding they misrht have believed from the evidence that Ease had em-o ployed plaintiffs and associated them with himself under the contract with appellees. It is not denied, but admitted, that defendant saw Mr. Hay doing work for her in the will case; that such work was beneficial, and that she did not forbid it; but she claimed, and there was evidence tending to prove, she supposed and had reason to suppose Mr. Hay was so appearing for her in pursuance of an arrangement with Mr. Ease under said contract. This feature of the evidence is ignored in the third instruction, and the defect is not cured by any other instruction given. The jury might, from the language used in the third instruction, have concluded the law required them to find for plaintiffs, if they worked for defendant and she knew it and did not forbid it, although Mr. Ease employed them and they were to be paid for their services out of his fee named in said contract. For the error in giving instructions two and three for appellees, the judgment is reversed and cause remanded.

Reversed and rema/nded.


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    John Allen v. The People of the State of Illinois.

      Criminal Law—Concealed Weapons—Bail—■ Forfeiture — Proceedings against Surety—hidie'ment—Recognizance—Variance as to Name and Court—Evidence—Scire Facias.
    1. Upon a writ of scire facias issued upon a judgment of forfeiture against the principal and surety named in a recognizance, it is held: That the fact that the scire facias referred to said principal by his full name, while the recognizance gave his surname and the initial of his given name, the same being so signed by him, does not constitute a fatal variance; and that evidence was properly admitted to show that the person indicted and convicted was the person named in the recognizance.
    2. A recognizance is sufficient which sets forth before what tribunal the accused is required to appear with such correctness as to name as will enable him to know, beyond a reasonable doubt, where and when his presence is required.
    3. In the case presented, the recognizance requiring an appearance at the next term of the Circuit Court, while the scire facias averred that the appearance was required to be at the next term of the County Court, the variance was of no importance as it is clear that the accused was not misled and that the County Court was the proper tribunal.
    [Opinion filed January 10, 1889.]
    Appeal from the County Court of Pope County; the Hon. George A. Crow, Judge, presiding.
    Mr. W. S. Morris, for appellant.
    Mr. James A. Bose, for appellee.
   Green, P. J.

This writ of scire facias was issued upon a judgment of forfeiture against "William H. Durbin, principal in the recognizance, and appellant, his security; the latter alone appeared and pleaded to the scire facias, nul tiel record. A trial upon this issue was had. The court entered judgment against defendants for §100, the amount named in the recognizance, and Alien brings up the record by appeal, and asks to have said judgment reversed.

The first objection urged is that in the scire facias it is averred the condition of the recognizance required William H. Durbin, personally to be and appear, etc., and the court, over the objection of appellant, improperly admitted in evidence an instrument purporting to be a recognizance, signed W. H. Durbin, and conditioned for the appearance of said bounden W. H. Durbin, and that it nowhere appears by this record that the identical William H. Durbin, who was indicted in May, 1887, and was tried and defaulted after verdict and before judgment, in July, 1887, signed the recognizance in question by the name of W. H. Durbin. We do not perceive any good reason for sustaining this objection. It is averred in the scire facias that William H. Durbin was indicted at the May term, 1887, of the Circuit Court, for the same offense for which he was tried and convicted at the July term, 1887, of said County Court; that said William H. Durbin was ordered by the court to give bail, with approval and good security, in the sum of §100 for his appearance at the next term of the Pope County Court, to appear and answer said charge, and do and receive what might then and there be enjoined upon him; that afterward on June 30th, said William H. Durbin being lawfully in custody of James K. Floyd, sheriff of said county of Pope, personally came said William H. Durbin, by the name of W. JE. Durbin, as principal, and John Allen as security, and then and there entered into the recognizance by them duly signed, etc., which said recognizance was then and there taken by said' James K. Floyd, sheriff, having lawful authority, etc., and was afterward, on the 11th day of July, 1887, certified, approved and entered by said sheriff in the office of Pope County Court. The plain legal significance of these averments is that the same William H. Durbin who was indicted, was ordered to enter into recognizance, was arrested, and by the name of W. H. Durbin not only personally came before the sheriff but by the name of W. H. Durbin, as principal, signed and delivered said recogrtizance to the sheriff. The proof in support of these averments is the recognizance dated June 30, 1887, which recites that on that date personally appeared before J. K. Floyd, sheriff of said county, W, H. Durbin and John Allen, and jointly and severally acknowledged themselves to be indebted, etc., in the sum of $100, etc., conditioned, that whereas a true bill of indictment was found against the above bounden W. II. Durbin by the grand jury of said county, at the May term, 1887, of the Circuit Court, and it was adjudged and required by said court that W. II. Durbin give bonds, etc., and if the above bounden W. H. Durbin shall personally be and appear before the Circuit Court of said county of Pope, on the first day of the next term thereof, to be holden in the court house, in Golconda, in said county, on the lltli day of July, 1887, and from day to day and from term to term, etc., until the final sentence or order of the court, then and there to answer the people on the said indictment for carrying concealed weapon, and then and there to abide such final sentence or order of said court, and not depart the same without leave, then the recognizance to be void, etc. This instrument is under seal, and signed, “ W. H. Durbin,” “John Alien.” On the left hand lower corner of it is written: ■

“ Taken, entered into and approved before me this 20th day of June, 1887.”
“William Andebsoil
“ Jambs K. Floyd, Sheriff of Pope County.”
It is indorsed by the county clerk, “ Filed, Dec. 12, 1887.”

The indictment, with the certificate of circuit clerk attached, certifying the same by order of court to the County Court for process and trial, the capias issued from the County Court and return thereon of the arrest of the accused, were also read in evidence, and it further appears by other testimony, objected to by defendant but properly admitted, that W. II. Durbin was the same person who, as William II. Durbin, was indicted for carrying concealed weapon, and appeared in person and by attorney at the trial of said indictment, was convicted, and when called to receive sentence upon such conviction came not, but had fled and departed the court without leave and was defaulted. It was further shown the surety, John Allen, said if he had known he would have had so much trouble he would not have signed the bond with Mr. Durbin. It thus sufficiently appears by the record that the W. H. Durbin who entered into the recognizance was the identical William H. Durbin who was indicted in May, 1887, and was tried and defaulted after verdict, and who entered into and delivered said recognizance by the name of W. H. Durbin.

The question of variance in names, urged as an objection to the admission of evidence in like cases, has been passed upon quite often by our Supreme Court. In O’Brien v. People, 41 Ill. 456, the sci. fa. averred Sylvester Empie, as principal, was described in the body of the recognizance as John Empie by mistake of the one who drafted it, and the intent and meaning was to secure the appearance of Sylvester. The condition of the recognizance read in exddence was that John Empie was to appear. It was insisted on behalf of appellants, the sureties, that as the principal xvas described in the recognizance as John, and it was signed by Sylvester, the people could not recover; that Sylvester had -not entered into the recognizance to appear himself, but only that John Empie should appear, and as to him there had been no forfeiture, and it could not be averred and proved that Sylvester was the principal xvho executed the recognizance: The Supreme Court held it was not error to admit the instrument in evidence to be considered, under said averment, with' the other evidence that Sylvester Empie executed the recognizance and was described in the instrument by the name of John Empie.

In Lytle v. People, 47 Ill. 422, the objection xvas that in the body of the recognizance the name of principal was xvritten Little, and it was signed Lytle/ that there was no judgment of forfeiture against th& principal; hence, no execution could be awarded; that the recognizance xvas against Little and not against Lytle, and the process, orders and proceedings should have been against Little: Hél l, there was no force in the objection that the court must presume Lytle signed the recognizance by his true name, and the variance betxveen the two names is so slight as to indicate they were both designed to represent the same person, and the recognizance must be held binding on the parties executing it. Had the name in the body of the instrument been so different from that of the one signing it as to indicate the one executing it was not the same, but a different person, then the sci. fa. should have contained an averment that the person was described in the instrument by one name and executed it by another. The c >urt say also if such objections are permitted to avail the accused, instruments containing such variances might be imposed on careless and confiding officers to the obstruction of justice. Having obtained his liberty by the use of such instrument, the accused or his bail should not be permitted to escape the liability that was intended to be incurred, unless there should be some substantial defect. See also Mooney v. People, 81 Ill. 134.

The only other objection necessary to notice or discuss, is that the condition of the recognizance required the accused to appear at the next term of the Circuit Court, hence there was a variance between the condition thus written and the condition as averred in the sci. fa., which was that the accused was required to appear at the County Court on the first day of the next term thereof. This objection is similar to one made and overruled in the case of Petty v. People, 118 Ill. 148.

The sci. fa. averred the accused was recognized to appear before the Circuit Court of Adams county, while the condition of the recognizance read in evidence was that the accused personally be and appear before the Criminal Court of said Adams county, on the first day of the next term to be holden in the court house in Quincy, on the third Monday in January, 1885. In the opinion it is said : “ This court will take j ndicial notice there is no court in Quincy or in Adams county called or known as the Criminal Court.” “ The word criminal, therefore, must have been used in that connection to describe the court rather than to designate it by its supposed name, the word having reference to the character of the business, that is, criminal business, to be transacted at the term of the court at which the accused was required to appear. We do not doubt at all that a recognizance which does not in substance specify the court and the term of the court at which the accused is required to appear is inoperative and void for that reason, yet we think this may be done without giving the technical name of the court by which it is legally called or known.” “ The object of naming the court is obviously to enable the accused to know of a certainty before what tribunal he must appear. This would seem indispensable where two or more courts, exercising the same jurisdiction, are in session' at the same time and place; but after all, if in any case sufficient appears in the recognizance to enable the accused to know beyond a reasonable doubt the tribunal before which he is required to appear, the object of naming the court in express terms is fully answered, whether so named or not.” And after stating, the time and place are stated in the recognizance,” the court proceeds: “ And no other court recognized by law, having jurisdiction to hear and determine said criminal charge, could lawfully have been in session or entitled to convene at that time and place, except the Circuit Court of Adams county. We are satisfied the accused has not been misled by reason of the alleged defect in the recognizance, and to allow the objection to prevail would be, in our judgment, to defeat the ends of justice by a mere technicality; this ought not to be done.”

• Applying the rule and doctrine so announced to the case at bar, we have no difficulty in reaching the conclusion that the objection last insisted 'on by appellant is without merit. The time and place in the recognizance in question are both specifically named, viz.: In the court house in Golconda in said county of Pope, on the first day of a term of court to be there holden on the 11th day of July, 1887. We take judicial notice that no court, other than the County Court of said Pope county, then and there having jurisdiction to try said criminal charge against said William H. Durbin, could lawfully have been entitled to convene at that time and place. W e are satisfied the accused was not misled by reason of the alleged defect in the recognizance, but by the record it is shown he knew the court before whom he was to appear, and the time when and the place where he was required to appear, and acted upon such knowledge by appearing in person at said County Court, at the term, time and place recited in the recognizance, was tried upon said criminal charge and convicted, and violated the condition of his bond by not abiding the final sentence of the court, and by departing the same without leave. In this state of facts, to allow the objection to prevail and permit a convicted criminal and his surety to escape the liability incurred by his default, and intended to be incurred in case he did make such default, would be to defeat the ends of justice, and a plain, inexcusable dereliction of duty.

We find no sufficient ground for reversing the judgment appealed from, and the same is affirmed.

Judgment affirmed.


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    The Ohio & Mississippi Railway Company v. The People of the State of Illinois, ex rel.

      Railroads—Failure to Stop at Advertised Station—Statutory Penalty— Act of July 1, 1879—Action of Debt—Evidence—Instructions.

    1. In an action of debt brought to recover from a railroad company the statutory penalty for failing to stop one of its trains at its station at Carlyle, lh'; county seat of Clinton county, this court, declines to interfere with the judgment for the plaintiff, the train in question being a regular passenger train and the plaintiff being a person aggrieved within the meaning of the act.
    2. The unaccepted offer by the conductor to give the passenger a pass, if he would leave the train at an intervening point and take the next train to his destination, does not absolve the company from the performance of its duty in this regard.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Clinton County; the Hon. Jesse J. Jones, Judge, presiding.

      This action in debt was brought in the name of the people for the use of George Locey, to recover from appellant the statutory penalty for failing and omitting its duty to stop its regular passenger train, on which Locey was then a passenger, at the appellant’s railroad station at Carlyle, the county seat of Clinton county, in this State. The cause was tried by a jury; a verdict for plaintiff for §150 was returned; defendant entered a motion for a new trial, which the court overruled and rendered judgment on the verdict, and defendant took this appeal. The evidence is not voluminous, and is substantially as follows: Locey testified that on January 21, 1887, he was a resident of Carlyle, the county seat of Clinton county, and was in Sumner, a flag station on defendant’s road, and there got word to come home at once. On receipt of the message, he inquired of defendant’s agent at the station, what train he could take on defendant’s road to reach Carlyle at the earliest possible time, and in reply was informed he could sit up that night and flag train Ho. 3, and it would stop for him; that he had a ticket to Carlyle, and about half-past two o’clock in the morning he flagged the train Ho. 3, which stopped, and he got on. The conductor took up his ticket to Carlyle and punched it, and in reply to a question by Locey asking if that was the right train for Carlyle, the conductor said it was; that the train following did not stop at Sumner, but his train did not ahvaj's stop at Carlyle, and he would let him know at Sliattuck, and the train following did stop at Carlyle and he could take it. When Ho. 3 reached Sliattuck it was still dark. Ho one was in the railroad office there. The train ran by the station to a water tank. The train did not stop at Carlyle, but carried him to O’Fallen, thirty miles beyond, from which point he was compelled to purchase a ticket to Carlyle and return on another train; that the train Ho. 3 was a regular passenger train, running every day on a schedule of its own, having a conductor, engineer, fireman, brakeman, and carrying passenger cars and sleeping coaches just like any through passenger train, and was advertised as such by defendant and ran through from Cincinnati to St. Louis. For defendant, Ireland, the conductor on defendant’s train upon which Locey was a passenger, testified he took up Locey’s ticket but informed him his train did not stop at CarJyle and he would have to alight at some station between Sumner and Carlyle and take the train following his; that at Shattuck, east of Carlyle, when his train stopped for water, he sent his brakeman to notify Locey it was his last chance to change trains before reaching Carlyle, and went in person and requested him to make the change, offering him a pass for his transportation on the following train, but Locey refused and insisted the train on which he then was, was bound to stop at Carlyle; that be then started his train, did not stop at Carlyle, but ran through that place according to the regulations of the company; that his train was Ho. 3, running from Cincinnati to St. Louis, leaving Cincinnati at 7 o’clock p. m., followed by train Ho. 5, running between the same points and leaving Cincinnati at 8 o’clock p. m.; that Ho. 5 was the regular night express, and Ho. 3 but a section of that train, run to carry mail, express and baggage, which otherwise would have to be carried by Ho. 5; that Ho. 3 carried a passenger coach when the train was not too heavy. On cross-examination he testified he had been a passenger conductor on defendant’s railway for four years; that train Ho. 3 on which Locey was a passenger, was his regular train, with locomotive; three passenger coaches and sleeper, conductor, brakeman and engineer, just as all passenger trains have; as far as the public is concerned, it was like all regular passenger trains on defendant’s road, but the railroad men knew it as the section of the train following; that it was run on its own schedule time and made stops for passengers; that he considered Ho. 3 a regular passenger train.
    Ilorton, the brakeman, testified he requested Locey, by the conductor’s direction, to change at Shattuck; that Ho. 3 was forward section of Ho. 5 and was run for accommodation of dead freight and baggage and express; it did not always carry passengers; had been on it when no passenger coach was attached; it was equipped at the time in question like a regular passenger train, except it carried box cars with the same bind of engine and train as a regular passenger train. McMahon, defendant’s train dispatcher, testified, at one time but one through night train was run on defendant’s road from Cincinnati to St. Louis, and owing to a large amount of express matter sometimes to be carried, and the engines on the west division not being as heavy as those on the east, it became a custom to divide the train about half way between those points into two trains and run these over the west division, a safe distant apart. Finally, the "express business increasing, the sections were run as separate trains, giving the forward section or train all the dead freight, and the rear train most of the regular passenger business. The forward section was given a separate number, Ho. 3, and was run for safety on its own schedule time, carried baggage of passengers on rear train, mail matter, and all the express matter. Train Ho. 3 was run to lighten Ho. 5 and enable it to make its time. To do this, Ho. 3 took on the Louisville sleeper, and also carried a passenger whenever it could, and divided local stops with Ho. 5, until it reached Flora. Ho. 5 was considered the regular passenger train; it stopped at all county seats. On cross-examination he testified, Ho. 3 was equipped as any passenger train; it ran on its own schedule time; it had a number of its own; it was a distinct train from train Ho. 5. It was given its number and schedule time for accommodation and safety in running; it was advertised as one of the through passenger trains of the company; it was not a regular passenger train in the sense Ho. 5 was, and was, strictly speaking, but a section of that train. Plaintiff introduced in evidence defendant’s time table east and west, of four daily trains each way (including train Ho. 3) between Cincinnati and St. Louis, stopping at way points.
    Messrs. Pollabd & Webber, for appellant.
    Messrs. White & Lambe, and M. P. Mdbbav, for appellee.
   Green, P. J.

By the amendment to the act in relation to fencing and operating railroads, in force July 1, 1879, it is provided: “Every railroad corporation shall cause its trains to stop on their arrival at each station advertised by such corporation as a place for receiving and discharging passengers upon and from such trains, a sufficient length of time to receive and let off such passengers with safety: Provided, all regular passenger trains shall stop a sufficient length of time at the railroad station of county seats to receive and let off passengers with safety.” And for a violation of any of the foregoing provisions it is further provided: The railroad corporation guilty of such violation “shall be liable to the person aggrieved for all damages done to person or property by reason thereof, with costs of suit, and in addition thereto, said corporation shall forfeit the sum of not less than 8100, nor more than 8500, to be recovered in an action of debt, in the name of the poojde of the State of Illinois for the use of any person aggrieved, before any court of competent jurisdiction.” No question is made on behalf of appellant that the proof was not sufficient to establish its liability for a violation of one of the provisions of the foregoing act as alleged in the declaration, except it is claimed that it does not appear by the evidence the train on which Locey was a passenger was a regular passenger train within the meaning of the statute, and that he was not shown by the evidence to have been a person aggrieved.

The evidence introduced on behalf of appellee and appeltant leaves no doubt in our judgment as to the real character of the train in question. It was a through train, running daily between Cincinnati and St. Louis on defendant’s railway, with regular passenger train, engine, passenger coaches and sleeping car, equipped in all respects as a regular passenger train; it was provided with conductor, engineer, fireman and brakemen; it was given its number and was run on its own schedule time,,carried passengers and baggage, made stops for passengers, and was advertised by appellant as one of its regular through passenger trains, running daily. The public was notified apparently in every way possible that this train was a regular passenger train, and persons were thereby induced to so regard and use it. The appellant reaped all the benefit of patronage so invited, and must be required to perform the duty imposed upon it by the statute or forfeit the penalty to be paid for violating its provisions. In a case on all fours with this, C. & A. R. R. Co. v. The People, use, etc., 105 Ill. 657, it is said in the opinion: “The train in question was operated in the same manner as any other passenger train on the road. It carried passengers and baggage as did other trains. It ran upon the official time-tab'e ol the company as other trains did; indeed, the only difference between this'and the other passenger trains on the road was that the other two trains stopped at all stations, while this did not. On account of this difference, can the train, within the meaning of the statute, be regarded other than a regular passenger train? We think not.” Again it is there said, “ where a train was engaged in carrying passengers, running regularly every day upon an advertised time-card of the company, equipped as all other passenger trains are, we are satisfied such a train was designed by the Legislature to fall within the terms of the act, call regular passenger trains.’ ”

From all the evidence in this record, the train in question at the time Locey was a passenger thereon, was a regular passenger train, within the meaning of the act, and as defined by the Supreme Court in the case cited, and it is quite as clear that George Locey, for whose use this suit was brought, was a person aggrieved by the omission of duty on the part of appellant as averred in the declaration. He was anxious to go to his home in Carlyle at once, as requested in the message he received. He asked appellant’s agent at Sumner what train would carry him to Carlyle at the earliest possible time, and by direction of the agent waited for and got on board of train Ho. 3, as the proper train for him to take. The conductor also told him it was the right train for Carlyle, and took his ticket and informed him he might have to change trains to stop at Carlyle but he would let him know at Shattuek. On reaching that place he saw the railroad office was closed. The train did not stop at the station but passed to the water tank, and then he was in the dilemma of either walking back before daylight of a winter morning and wait outside of a closed office until the train following should arrive, or remain on train Ho. 3 and be carried past his destination thirty miles, and pay his fare ba.ck. He chose the latter alternative as perhaps the least dangerous, though more expensive; he was doubtless disappointed by being delayed in his arrival home, and suffered anxiety during the delay, and in addition thereto incurred extra expense, all in consequence of appellant’s omission to perforin its legal duty of transporting him to Carlyle and there stopping its train a sufficient time to let him off with safety. The offer of the conductor to furnish him with a pass to Carlyle on the train Ho. 5, which he declined to take, did not absolve the appellant from the performance of its duty. Locev had already paid for transportation to that place, and had the right to demand he should be taken there upon the train he then was a passenger. To hold he was not aggrieved by the omission of appellant to perform its duty would require us to utterly disregard the evidence, which establishes the fact he was a person seriously and illegally aggrieved by reason of such omission of duty.

It was not error for the court below to modify defendant’s first instruction and refuse to give the fourth and fifth instructions requested on its behalf. The modification of its seventh instruction was erroneous, and some of the instructions given on behalf of plaintiff were not strictly accurate, but taking the instructions as given, as a series, we apprehend the jury were not misled thereby as to the law, or that the verdict rendered was the result of misdirection in that regard by the court; but on the contrary it was fully sustained and warranted by the evidence. Perceiving no 'error in the record requiring the reversal of the judgment appealed from, it is affirmed.

Judgment affirmed.


text:
    Harrison Machine Works v. N. J. Miller.

      Replevin—Sale of Threshing Machine—Conditions Precedent—Unauthorized Delivery—Agency—Rescission of Contract.

      1. An action of replevin lies to recover a threshing machine, the sale of which has not been consummated because of a failure of the vendee to give the agreed security for the purchase money, the delivery of possession having been unauthorized.
    2. Where a contract of sale requires the vendee to give security as a condition precedent, the vendor may rescind the contract upon his failure to perform in this respect.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Perry County; the Hon. Amos Watts, Judge, presiding.
    Appellant brought replevin. to recover from appellee a threshing machine outfit. A trial was had; the jury found for defendant and a judgment on the verdict was entered, to reverse which this appeal was taken. It appears appellee desired to buy a threshing machine and informed one Bischof or Bishop, at'Du Quoin, about June 1, 1886, lie was about to telegraph to appellant at Belleville for a machine, but Bishop asked appellee to let him telegraph, so he could make a commission. Appel lee, consenting, Bishop sent telegram to appellant, in response to which appellant sent Sproul as its agent, who, as such agent, and known by Miller to be such, interviewed the latter concerning his property, and the latter stated he owned personal property of considerable value, among which were seventy acres of wheat; that this property was mortgaged to one Hearing to secure about $500, but the wheat would pay that debt, and agreed to give appellant a mortgage upon all the property described in the Hearing mortgages, and upon the threshing machine outfit to secure the purchase price of the latter, and pay off Hearing with the proceeds of the sale of the wluat, thus giving appellant a first lien on the other mortgaged property. Belying on these statements and promises of appellee, Sproul made out and sent to appellant on June 3d an order from Miller for the outfit, conditioned that a mortgage upon it and all the property, as above mentioned, should be given by appellee to secure the purchase money, and if the order was accepted the outfit was to be delivered to him at Hu Quoin on or about June 20, 1886, or as soon thereafter as transportation could be obtained. In the order the valuation of the property mortgaged to Bearing was stated to be §1,200. On June 5th appellant wrote Bishop that the order forwarded by Sproul had been received, and, after duly considering the points and particulars, was accepted, and hopingBishop would assist in getting the settlement in good shape, as appellant could not afford to accept doubtful paper; also stating Sproul made a mistake infilling out. notes for §100 less than the price of outfit. To this Bishop replied June 7th that the §100 would be all right and to send him the notes; he would see Miller next day, have the notes fixed up and the mortgage all right; that appellant should fill out notes and he, Bishop, would have mortgage fixed to suit, and requested appellant to have the outfit at Bu Quoin by Thursday, so that he could shoiv it on the streets Saturday, adding he would write again next day. On June 8th a reply to this from appellant was received by Bishop, stating the correction had been made in notes, that the mortgage had been filled out so far as describing the outfit, but that Bishop must get an accurate description of all the other property, include it, examine the mortgage closely and see that all is right; also stating the outfit would be shipped next day, so that Bishop could exhibit it on Saturday. On June 9fch the outfit was shipped to Bishop and arrived the evening of that day, and he claims to have delivered it on its arrival to appellee, but it remained in Bn Quoin until June 19th, on the premises of Bishop. On June 18th Spring, an agent for appellant, called on Bishop and notified him that investigation had shown the property mortgaged was not of the value represented, and that appellant could not accept Miller’s order, and that the outfit must not be delivered to Miller. On June 19th Bishop told Miller that he.was ordered on behalf of appellant not to deliver him the outfit; that they wanted better security ; but Miller on the same day took the property in controversy away, out to his farm, and on the 21st day of June Spring and Sproul, agents for appellant, went there and demanded of appellee the property he took, at the same time tendering him his notes, freight money advanced, money paid by him for lumber—in short, offering to place him in statu quo. Miller refused to deliver the property thus demanded but claimed it as the owner.
    Mr. B. W. S. Wheatley, for appellant.
    Messrs. B. B. Davis and T. T. Fountain, for appellee.
   Green, P. J.

Concerning the property in controversy in this case no rights of third persons as purchasers or creditors are involved, hut appellee claims said property as appellant’s vendee, and appellant denies that a sale and a delivery thereof was ever consummated, but insists appiellee failed to perforin certain conditions precedent, necessary to complete the coni tract of sale, by not giving security for the purchase money as by the terms of his order he had agreed to; that he also made false representations to Sproul, the agent of appellant, as to the value of the property he was to mortgage to secure the purchase money, and upon discovering these facts appellant at once caused appellee to be notified thereof, and that it forbade the delivery to him of the property in question, but nevertheless, afterward, appellee did take it and remove it, wrongfully and unlawfully, from the possession of Bishop, and refused to return it to appellant when return thereof was lawfully demanded.

The real character of this contract of sale is quite apparent. Miller wished to buy the threshing machine outfit entirely on credit. Appellant was willing to give the credit, but demanded security, and on something besides the outfit. Appellee was to furnish this security, and, from the terms of the written order, the letters of appellant to Bishop and the other facts and circumstances proven, it appears to us that as a condition precedent to the completion of the sale appellee was to secure the purchase price of said property by giving a mortgage which should become a first lien not only on the outfit but also on all the property described in the Dearing mortgages except the wheat, and the fact is undisputed that he had failed to comply with this condition at the time he took the property in question, and up to and at the time he refused to return the same to the agent of appellant, and never offered to perform it, and a delivery of the possession of said property to appellee by Bishop on the 9th of June, before the conditions of the sale were complied with on the part of appellee, was wholly unauthorized by appellant. The property was sent to Bishop at his request to be exhibited and not for delivery. He was directed to get an accurate description of the property intended by the parties to be mortgaged, and include it in the mortgage to be executed by appellee, and agreed to have the mortgage all right. Appellee did not deal with Bishop as the agent of appellant, but with Spronl; and if he chose to accept the property from Bishop without having complied with the conditions of the sale and without informing himself what authority Bishop had from appellant to deliver the property, he did so at his peril and acquired no right or title by such unlawful possession in or to said property. We are of opinion that appellant had the right to rescind the contract of sale, because appellee did not pay off the mortgage debt to Bearing and thereby enable himself to furnish appellant with a first lien on the other mortgaged property, and did not include all the property described in the Bearing mortgages in the mortgage he gave appellant, and did not comply with his agreement by giving or offering to give the required security. The rules of law applicable to the facts disclosed by this record sustain appellant’s right to recover the property in question. Ordinarily where the contract requires successive steps to be taken by the respective parties, if, when a step becomes due, the party to take it, either in words or by their equivalent in acts, declines to take it, or is unable, while the other is ready and willing to do his part, the latter may rescind the contract. Bishop on Contracts, Ed. 1887, Sec. 826, et seq. The appellant had the right to rescind the contract if appellee failed to perform the condition of sale. Allen v. Eord, 19 Pick. 217; Doane v. Lockwood, 115 Ill. 490, and cases there cited; Pitt’s Sons Mfg. Co. v. Poor, 7 Ill. App. 24.

The verdict should have been set aside by the court below, and it was error to overrule appellant’s motion for a new trial and render judgment for appellee. The judgment is reversed and cause remanded.

Reversed and remanded.


author: Reeves, J.

text:
    John Brown v. Board of Education.

      Master and Servant—Lotoest Bid—Board of Education—Janitor of Schools—Contract—Breach—Offer to Perform—Burden of Proof—Evidence—In st 1 -wet ions.

    1. Where no services are performed under a contract of hiring because of the fault of the employer, the employe may maintain an action for breach of contract, the measure of damages being the wages agreed upon, less any sum earned or which could have been earned by him through the exercise of reasonable diligence in seeking of her employment,
    2. The burden of proving that other work was, or could have been, obtained, is upon the employer.
    3. Where the employer puts it out of the power of the other to perform, no offer to perform is necessary.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Clinton County"; the Hon. Jesse Jones, Judge, presiding.
    Messrs. White & Lambe, for appellant.
    Messrs. Van Hoobebeke & Fobd and M. P. Mubbay, for appellee.
   Reeves, J.

June 26, 1886, the Carlyle board of education adopted a motion to the effect that John Brown be employed as janitor for the next school term at a salary of $20 per month.

July 29, 1886, at a meeting of the same board, a motion prevailed “ to reconsider the vote taken at a previous meeting whereby John Brown (colored) was elected janitor for the Carlyle public school for next school year.”

At a subsequent meeting of the board, held August 20, 1886, H. C. Franklin was employed as janitor at a salary of §22 per month. It seems that previous to the meeting of June 26, .1886, the board bad advertised for bids for the janitorship, and Brown’s was the lowest bid. Brown was notified of the fact that the board had reconsidered its action electing him janitor, and he was subsequently notified that the board had elected Franklin as janitor, but he protested against such action to this extent, that he told the member of the board who informed him of the action of the board that be did not see how they conld do snch a thing.

Brown testified that he was ready and willing to enter upon the duties of janitor, but did not apply to the board for the keys of the school building, and did not go to the school bouse when the schools opened, in September, and ask to be put in charge as janitor. The testimony offered by appellee shows that bad Brown offered his services when'the school opened they would have been rejected, and that when school did open Franklin was put in charge as janitor. The testimony in the case, adduced on the trial, disclosed the reasons that induced the board to reconsider its action in electing Brown janitor, but we do not consider the reasons so shown sufficient to justify the appellee in refusing to carry out its contract Avitli appellant. The case was tried by jury, and resulted in a verdict for appellant for §50. A motion by plaintiff for a iibav trial was denied, and judgment entered on the verdict for appellant, who brings the case to this court by appeal.

This suit was brought for a breach of the contract of hiring, and not to recover Avages under the contract. Where no services are performed under a contract of hiring, the true rule is that the action must be for a breach of the contract, and the measure of recovery would be the wages to be paid, less any sum actually earned, or which might have been earned by the exercise of reasonable diligence in seeking other similar employment. Prima facie, the measure of recovery where the servant has not been allowed to enter upon the performance of the contract, in a suit for a breach of the contract of hiring, is the wages agreed to be paid by the contract, and the burden, in such case, of showing what the plaintiff did earn, or could by reasonable diligence have earned in other similar employment, is thrown upon the defendant. The defendant may reduce the recovery made out by plaintiff's prima facie case by proof showing what plaintiff did earn, or could have earned by the exercise of reasonable diligence in seeking other similar employment. Howard v. Daly, 61 N. Y. 362; Polk v. Daly, 14 Abb. Pr. N. S. (N. Y.) 156; Costigan v. Mohawk R. R. Co., 2 Den. 609; Wood’s Master and Servant, p. 238.

The fourth instruction given for appellee was as follows: “ The court instructs the jury that before the- plaintiff can recover in this case an amount of damages commensurate or equal to the wages agreed upon, the plaintiff must prove that he tried to, obtain work during the period of hiring and failed to do so after making reasonable effort.”

It will be seen that this instruction states the law to be exactly the opposite of what it is, and was not only calculated to mislead the jury hut actually did mislead them.

The defendant offered no evidence as to what appellant earned, or could have earned by reasonable effort to secure other employment, and by this instruction the jury were, in effect, told that the appellee was not called upon to make any proof on this point, hut that the burden of proof on this branch of the case was on appellant.

Under the evidence in the case, the first instruction should not have been given without a modification. Where one of the contracting parties, by his own act, puts it out of the power of the other party to perform his part of the contract, no offer of performance is necessary.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Beeves, J.

text:
    Mary E. Younkin v. W. W. Essick.

      Husband and. Wife—Family Expenses—Medical Attendance—Statute —Existence of Property to be Charged.

    Medical services rendered to a husband and minor child are “ family expenses” and chargeable upon the property of husband and wife, or either of them.
    [Opinion filed January 10, 1889.]
    Appeal from the County Court of Jackson County; the Hon. W. W. Bake, Judge, presiding.
    Messrs. Geo. WV Smith and Johst Herbert, for appellants.
    Mr. J. B. Mayham, for appellee.
   Beeves, J.

This suit was brought by appellee to recover from appellant the amount of a bill for medical services rendered the appellant’s husband and minor child, under the statute which provides that “ The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

It is contended that medical services rendered to the husband are not a family expense within the meaning of this statute. This question is settled adversely to appellant as far as this court can settle it, in the ease of Hudson v. King Brothers, 23 Ill. App. 118, and in the case of Sarah Glaubensklee v. Lyman. W. Low (ante p. 408).

In the latter case the demand against the wife was for medical services rendered the husband in his lifetime, the same as in this case.

It appears in this case that the wife has property; which meets what the writer of this opinion has been inclined to hold should be shown, to entitle a plaintiff to recover against the wife as for a family expense—namely, that she has property to be charged. It should, however, be stated that this view is not shared by the other members of the court, nor is it advanced as the confirmed view of the writer.

The judgment of the County Court is affirmed.

Judgment affirmed.


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    Frederick Kaemmerer v. Elizabeth Hauser.

      Executions—Trial of Right of Property—Sale of Graving Crop.

    This court reverses a judgment against the claimant of certain wheat in shock, levied on under execution, as against the clear weight of the evidence.
    [Opinion filed January 10, 1889.]
    Ik error to the Circuit Court of St. Clair County; the Hon. B. H. Cakby, Judge, presiding.
    Mr. William Wikkelmakk, for plaintiff in error.
    Mr. James M. Hay, for defendant in error.
   Beeves, J.

Elizabeth Hauser, having recovered judgment against one Werner, had an execution issued on the judgment and levied on wheat in the shock. Appellant claimed the wheat and upon his notice there was a trial of the right of property. The wheat was sown by Werner. In March or April he sold the growing wheat to appellant for the sum of $200, which appellant paid. The execution was issued 'and placed in the. hands, of Constable Ward.

We think the clear weight of the evidence in the case supports appellant’s claim to the wheat, and we are unable to discover upon what ground the verdict could have been against him.

There is no testimony that the sale hy Werner to appellant was not made, and nothing of substance was shown that the sale was not bona fide. There are other questions raised in the case, but, as we think, the judgment of the court below must be reversed because against the clear weight of the evidence. It is not necessary to notice the other points made by appellant.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed, and, remanded.