text:
    Thomas M. Dunning v. John Bird.

      Bogs—Action for Damages for Killing—Justification.

    In an action to recover damages for killing a dog, it is held: That the killing was justifiable, the dog having been found late at night destroying the defendant’s property on his premises; and that as the dog was a trespasser, the owner can not complain that the plaintiff’s building was insecure.
    [Opinion filed October 5, 1887.]
    Appeal from the County Court of Pope County; the Hon. George A. Crow, Judge, presiding.
    Messrs. Rose & Sloan, for appellant.
    Messrs. W. S. Morris & Son, for appellee.
   Wilkin, J.

This was an action of trespass for killing a dog. The pleas are not guilty, justification in defense of property and in defense of person. A trial before a jury in the County Court resulted in a verdict and judgment for the plaintiff below for $20 and costs, and defendant appeals.

The dog killed was one of a pack of eleven fox hounds, this one and three others belonging to appellee and the others to a neighbor. The dogs passed to and from the respective places of their owners, staying sometimes at one place and sometimes at the other. There is no controversy as to the fact" that different ones of the pack had from time to time trespassed on the premises of appellee, this one with others having been driven out of his smoke-house. The only evidence found in the bill of exceptions as to the circumstances under which the killing took place, is the uncontradicted testimony of appellant. He says his wife woke him up about eleven or twelve o’clock at night; said dogs were in the smoke-house again. “I got up, took my gun, as dogs had been there before and one had jumped at me. As I went out I saw a man run away from back of house. I went back, got pistol and told wife to rattle on door of smoke-house. I went to back of smoke-house and found where dog had made hole into smoke-house. Wife rattled on door and dog came out and as he came out of hole turned toward me and growled and I shot at him—think I hit him. He still came on and I shot again—think I missed him. He kept on coming and I shot again with revolver and he fell dead.” He then states that he found pieces of bacon in the smoke-house partly eaten by dogs. The only other evidence tending to prove the killing, corroborates him as to the fact that the dog was shot on his premises, and that several shots were heard at the time. There is absolutely nothing in the record to contradict or impeach this statement, unless it be found in the unnaturalness of his conduct in not shooting the dog as he came out, and before he turned to attack him.

We have been unable from a careful inspection of the evidence to find any justification for discrediting the statements of appellant and giving credit thereto; we unhesitatingly hold that the killing was justifiable. A great deal of legal learning has been devoted to, and able opinions written on the law relating to the defense of person and property against the attacks of dogs and other animals of that class.

Most of the cases bearing on the subject may be found collated in Aldrich v. Wright, 53 N. H. 398, found in the American Reports, Vol. 16, page 339. See also the case of Anderson v. Smith, 7 Ill. App. 354.

It is unnecessary to enter into a discussion of that subject here. There is no authority holding a person liable for killing a dog under circumstances like those detailed by appellant, and if there was, it would be without binding force upon either individuals or courts, because of its unreasonableness. We do not ignore the right of property in dogs. We do not hold that they may be killed with impunity, nor for trivial causes. We are prepared to cheerfully follow the decisions of our Supreme Court in Brent v. Kimball, 60 Ill. 211, and Spray v. Ammerman, 66 Ill. 309; but they have no bearing upon this case. Here the dog was away from his master and the places at which it belonged, late at night, trespassing on appellant’s premises and destroying his property.

That appellant was bound to only use such force as was necessary to drive him away, taking chances on his immediate return, when he had again retired, and look to an unknown owner for compensation for damages sustained, can not be the law, and we hold that when he found him coming out of his building, where he had property which he knew the animal would, by instinct, destroy, it being at a late hour of night, having no means of knowing his owner, and knowing the disposition of such an animal under such circumstances to return to the place where he was found, he had a right to shoot him, in the reasonable necessary defense of his property. It is no answer to say that it was the duty of appellant to so construct his building that the dog could not get in it. The dog was a trespasser and it does not lie in the mouth of his owner to say that the building was insecure. There is no evidence tending to show that the animal was tempted to come upon appellant’s premises by his misconduct.

But on the plea of defense of person, under the evidence, the verdict should have been for the defendant below. Suppose the dog had been a person committing burglary and when surprised, instead of fleeing, turned upon the one discovering his crime, and when fired upon, continued to advance, manifesting a disposition to do violence, would not the one thus threatened be justified by the law in shooting him? Shall it be said that a stricter rule obtains where the life of a dog is taken?

However much pleasure or even profit there may he in the ownership of dogs, no one has a right to enjoy that pleasure or profit and so far disregard the rights of others as to permit them to go unrestrained and unattended at all hours of the day and night, preying upon the property of others. We think the verdict of the jury is so manifestly against the evidence as that it was an error in the court below not to set it aside and grant a new trial, and for that reason the judgment is reversed.

Jiidgment reversed.


source: Caselaw Access Project

author: Pillsbury, J.

license: Public Domain

text:
    Andrew Neatherly v. The People of the State of Illinois.

      Jurisdiction—Appeal from Justice to County Court in Criminal Cases —Statutes—Repeal—Assault and Battery.

    1. Under the Act of May 21,1877, the County Court has concurrent jurisdiction with the Circuit Court of appeals from Justices of the Peace in cases arising under the Criminal Code.
    2. Where two acts can stand together, the doctrine of repeal by implication has no application.
    [Opinion filed October 5, 1887.]
    Appeal from the County Court of Fayette County; the Hon. James I. Stillman, Judge, presiding.
    Complaint being made before a Justice of the Peace, charging Heatherly with the offense of assault and battery, he was arrested and upon trial was fined by the Justice $10 and costs; from which fine he appealed to the County Court.
    That court upon motion dismissed his appeal upon the ground alone that the said appeal should have been taken to the Circuit Court and that the County Court had no jurisdiction in such appeals, and from that order the case is brought by LTeatherly to this court, where the only question submitted is, was the appeal properly taken to the County Court.
    Messrs. Cratty Bros. & Aschcraft, for appellant.
    Mr. J. M. Albert, for appellee.
   Pillsbury, J.

It is not denied that the prosecution at bar falls within the definition of criminal cases within the meaning of said section, and it is insisted by the people that the remedy therein provided is exclusive, as that section is still in full force and unrepealed.

March 26, 1874, an act was approved to extend the jurisdiction of the County Courts, the seventh section of which declared that “the County Courts shall have concurrent jurisdiction with the Circuit Courts in all that class of cases wherein Justices of the Peace now have or may hereafter have jurisdiction, where the amount claimed or the value of property in controversy shall not exceed $500, and in all criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death, all of which shall be cognizable at the law terms hereinafter mentioned. Provided, no appeal shall be allowed from Justices of the Peace to the County Courts.” R. S. 1874, p. 339.

This was the state of the law until May 21, 1877, when the Legislature, by act on that day approved, enacted that section seven of the act of 1874 should be amended so as to read as follows: “Section 7. The County Courts shall have concurrent jurisdiction with the Circuit Court in all that class of cases wherein Justices of the Peace now have or may hereafter have jurisdiction, where the amount claimed or the value of property in controversy shall not exceed 81,000, concurrent jurisdiction in all cases of appeal from Justices of the Peace and Police Magistrate (provided, appeals from the County Judge when' sitting as Justice of the Peace, shall be taken to the Circuit Court as now), and in all criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death, all of which shall be cognizable at the law terms hereinafter mentioned.” Sess. Laws, 1877, p. 77.

It is seen from this act, concurrent jurisdiction with Circuit Courts was conferred upon County Courts in all cases of appeals from Justices of the Peace and Police Magistrates, with the exception that when the County Judge tries a cause sitting as a Justice the appeal from his judgment must be taken to the Circuit Court. This exception would include cases arising under the Criminal Code, Division 5, R. S. 1874, p. 398, and tried before such Judge as a conservator of the peace.

It is evident that in the view entertained by the Legislature, such exception was necessary to exclude appeals provided for in the Criminal Code from the County Judge when so acting, from the operation of the general terms of the act conferring such concurrent jurisdiction upon the County Court.

It was a complete change in the jurisdiction of those courts, respecting appeals, from that prescribed in the statute of 1874 above cited. In that no appeal was allowed to the County Court; in the latter concurrent jurisdiction with Circuit Courts was given.

It is not denied that the language of this act is broad enough in its ordinary signification to include the appeal in question in this case, but it is insisted that the words “in all cases of appeals from Justices of the Peace and Police Magistrates,’’ are to be limited to appeals in civil causes, and not as applying to any appeals that are allowed to be taken to the Circuit Court by virtue of -the section of the Criminal Code above noticed; and Ward v. People, 13 Ill. 635, Ham v. People 15 Ill. 302, and other eases, ai-e referred to as sustaining such view

As we understand those cases the court was giving a eon. strnction to that section of the statute relating to the jurisdiction of, and practice before Justices of the Peace in civil causes, and regulating the taking of appeals from their judgments, and held that the provision contained in that act, providing that “ appeals from Justices of the Peace to the Circuit Court shall be granted in all cases except upon judgments confessed,” only applied to civil cases tried before the Justice and was not intended to include criminal cases.

It being evident from the entire act that it was the intention of the Legislature in its enactment to simply provide for and regulate the practice before Justices of the Peace in civil matters, and that the act, as a whole, had no reference to criminal matters or procedure that might, under other acts, come before a Justice of the Peace, the court very properly limited the meaning of the word all ” in the section allowing appeals to the class of actions or proceedings provided for in the act as a whole. But the Act of 1877, extending the jurisdiction of County Courts, is not to be thus limited. There is nothing in the avowed object and purpose of the act, or in the title or context, that limits the ordinary and natural significance of the words used. If it be said that the act has for its object the conferring and prescribing the jurisdiction of the County Courts, and regulating the practice thereof in civil matters, it may be answered that the act relates to criminal matters as well as civil. Giving the County Court concurrent jurisdiction with the Circuit Court in all appeals from .Justices of the Peace, does not, as is suggested, repeal that provision of the Criminal Code allowing like appeals to the Circuit Court Both acts can well stand together, and in such case the doctrine of repeal by implication has no application. In our view the County Court erred in holding it had no jurisdiction, and its judgment dismissing the appeal will be reversed and the cause remanded, with directions to hear and determine the case upon the merits, notwithstanding its former action.

Judgment reversed.


author: Wilkin, J.

text:
    Louis Grannemann v. Ferdinand Kloepper.

      Master and Servant—Action for Wages—Abandonment of Contract— Settlement—■Excessive Judgment—Entry of Correct Judgment—Costs.

    In an action for wages, it is held: That the evidence shows that the contract was abandoned by mutual consent, and that there was a settlement between the parties; that the counter-claim of defendant was properly excluded; that there can be no recovery for the full term; that the judgment of the County Court was excessive; and that judgment may be entered in this court for the amount found due by the Justice, with costs before him and the County Court, appellant being allowed costs in this court.
    [Opinion filed October 5, 1887.]
    Appeal from the County Court of ¡Randolph County; the Hon. Wabben ÜST. Wilson, Judge, presiding.
    Messrs. William Hartzell and J. B. Simpson, for appellant.
    Mr. Ralph E. Sprigg, for appellee.
   Wilkin, J.

Appellee sued appellant for wages and, before a Justice of the Peace, obtained judgment for §68.50. Appellant appealed to the County Court and there the judgment was increased to §130, and he again appeals to this court.

It appears from the evidence that appellee began to work for appellant on the 12th day of April, 1886, under a contract to work for nine and one-half months for §140, and quit September 18, 1886. At the time he quit there was a quarrel between the parties.

The judgment before the Justice was for the time actually engaged, less §10 paid by appellant’s wife. The judgment before the County Court was for the full contract price for the term of nine and one-half months, §140, less the §10 paid.

The evidence clearly shows that the contract was abandoned by mutual consent, and we think it sufficiently appears that there was at the time a settlement between the parties and the amount due found to be $68.50. Appellee testified: “I then asked him if he wanted me to work for him any longer; asked for settlement but he did not pay me; he followed me to the barn lot. We then talked about a settlement; he figured up what he owed me and made a mistake of $5. I then figured it up, but don’t remember how much it was.”

Appellant says in his evidence: “ He then asked me for a settlement and, I then began to figure up how much I owed him and when I got through he looked at it and said that I had made a mistake of $5, which I had. He then figured it up making it $78.50, less $10, making me owe him at settlement $68.50,”

It is clear, under this state of facts there could be no recovery for the full term at the contract price. The authorities cited by counsel for appellee in support of the judgment of the County Court are inapplicable, for the reason that the evidence fails to show a wrongful discharge by appellant or an abandonment by appellee on account of the mistreatment of appellant. On the contrary he was willing to quit and called for a settlement. Appellant was willing that he should quit and they at least made an effort to settle for the work performed. Ho claim was then made for pay for the unexpired term. In fact the suit was begun before the Justice of the Peace before the expiration of the term.

Whether there was a final agreement between the parties as to the amount due or not, the judgment of the County Court can not be sustained. But we hold that there is sufficient evidence of a settlement to preclude the parties from bringing forward demands not then claimed, and insisting upon them, either under the contract of hiring, or by way of set-off, and for that, if no other reason, the counter-claim of appellant was properly excluded.

The judgment of the Justice of the Peace was clearly right, and a judgment will be entered in this court for the appellee against appellant for the sum of $68.50 and execution awarded therefor, and also for costs before the Justice of the Peace and in the County Court. The judgment of the County Court will be reversed and appellant allowed costs in this court.

Reversed.


text:
    East St. Louis Connecting Railway Company v. Wabash, St. Louis & Pacific Railway Company.

      Carriers of Cars—Extent of Liability—Delivery to Consignee—Loss— Declaration—Sufficiency of—Evidence, Prima Facie, of Existence of Consolidated Corporation.

    1. Everything is negligence in a carrier that the law does not excuse. A general allegation of negligence is, therefore, sufficient to sustain a recovery.
    2. A copy of the articles of consolidation between two or more corporations duly certified under the seal of the Secretary of State, is prima facie evidence of the existence of the consolidated corporation.
    8. Where a common carrier of cars receives loaded cars to be delivered to the consignee and returned when unloaded, its liability as a common carrier continues until their safe return.
    [Opinion filed October 5, 1887.]
    Appeal from the City Court of East St. Louis; the Hon. B. H. Caret, Judge, presiding.
    Mr. Charles W. Thomas, for appellant.
    The declaration alleges that the cars were delivered to appellant to be conveyed by it, as a common carrier, to the Glucose Works, “and after the said cars should be unloaded” to be safely returned by it to appellee, and that appellant undertook and promised to safely convey the cars over its road to said Glucose Works, “ and after the same should be unloaded,” to safely return them to appellee.
    The declaration fails to show in what manner the appellant carelessly and negligently conducted itself with respect to the cars. It makes no definite charge of any particular neglect or default of appellant which in any manner contributed to the loss of appellee’s property. A general charge in an action on the case for negligence, that the defendant, intending to injure plaintiff, so carelessly and negligently conducted himself with regard to plaintiff’s property that it was wholly lost to plaintiff, would scarcely be considered good pleading under the decisions of our courts. C., B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; McGanahan v. E. St. L. & C. R’y Co., 72 Ill. 557.
    In the case at bar the defendant can only be held liable for doing just what plaintiff told it to do. In the case in 109 Ill. the defendant was held liable because, instead of returning the cars after the consignee re-delivered them to it for that purpose, it used them without plaintiff’s knowledge, and lost them while so using them. It was because the defendant assumed the responsibility of using the cars instead of returning them that it was held liable.
    ETor is the position tenable that appellant can, under the circumstances, be held as an insurer. This liability only attaches while the carrier has charge and custody of the consigned goods in its capacity of common carrier. There is no such liability where the goods have reached their destination and are stored by the carrier for the consignee, although they may still be in the custody of the carrier.
    In the case of Missouri Pacific R. R. Co. v. Chicago, etc., R. R., 23 Am. & Eng. R. R. Cases, 718, it was held that where a railroad company receives loaded cars from another road for transportation it is liable as a common carrier in case they are destroyed en route by fire. If destroyed by fire after delivery to the consignee, or after they have been tendered to him, the company is not liable if not in fault.
    Mr. G. B. Burnett, for appellee.
    The charge is that through appellant’s fault the cars were destroyed, and it is immaterial, so far as the liability of appellant is concerned, whether they were destroyed before or after they were unloaded; being destroyed, appellant could not perform its contract to return them; and being destroyed through its fault, it is liable, whether the cars were loaded or unloaded at the time of their destruction. This is the theory of the declaration, and it rests upon familiar principles.
    The proof shows that appellant’s business was to take loaded cars from the different roads, convey them to the place where they were to be unloaded, and, when unloaded, to return the empty cars to the road from which it received them. It is also shown that snch was the usage and custom between appellant and appellee, and between appellant and the other roads terminating at East St. Louis. This being so, under the rule announced in P. & P. U. R’y Co. v. C., R. I. & P. R’y Co., 109 Ill. 135, appellant was a common carrier of the two cars in question, and could only excuse itself for the non-return of them by showing that it was prevented by the act of God or the public enemy.
   Wilkin, J.

Action on the case, the declaration averring that defendant below was a common carrier by its railroad from and to the termini of certain other railroads in East St. Louis. That plaintiff, on December 16, 1883, at its special instance and request, caused to be delivered to the defendant as such carrier two flat cars loaded with coal of the value of §300 each, to be taken care of and safely carried by defendant as such carrier to the East St. Louis Glucose Works in said city, and after the said cars should be unloaded to safely return the same to the plaintiff, and in consideration thereof and of a certain reward to the defendant in that behalf to be paid, the defendant undertook and promised plaintiff to take care of said cars and safely and securely convey the same over its said railroad to said Glucose Works, and after the same should be unloaded to safely return and deliver the same to the plaintiff. It is then averred that it did not take care of said cars or safely and securely convey the same to and from said Glucose Works nor safely and securely deliver the same to the plaintiff, but on the contrary, so carelessly and negligently behaved and conducted itself with respect to said cars that they were wholly lost to plaintiff, to its damage §600. The case was tried before the court without a jury, on a plea of the general issue and nul tiel corporation, the issues found for the plaintiff below, and judgment was rendered in its favor for §600, and the defendant appealed.

There was a motion below in arrest of judgment on the ground that the declaration was so fatally defective as to be insufficient to support a judgment. The first ground of objection to the declaration is that it is shown by its averments that the ears were only to be returned to plaintiff after they were unloaded, and that there is no allegation that they were unloaded, and therefore no breach of duty is shown. This objection goes to the merits of the case and will be considered hereafter.

A second objection is that it fails to show in what manner the defendant carelessly and negligently conducted itself with respect to the cars, and makes no definite charge of any particular neglect of duty or default, contributing to the loss of the. property. The action being against appellant as a common carrier, assumpsit or case could be adopted by the pleader as best shited his purposes. Hutchinson on Carriers, Sec. 740.

Everything being negligence in a carrier that the law does not excuse, it is unnecessary to allege the particular character or degree of negligence upon which the plaintiff relies for his recovery, but the allegation of negligence generally is sufficient. lb., Sec. 34,

It is again urged that on the issue made by the plea of nul tiel corporation, the proof failed to show the legal existence of appellee.

On the trial plaintiff introduced in evidence a copy of “The articles of consolidation between the Wabash Railway Company and the St. Louis, Kansas City and Northern Railway Company, forming the Wabash, St. Louis & Pacific Railway Company,” which is duly certified under the seal of the Secretary of State.

This, by Sec. 40, Chap. 14, R. S., is made prima facie evidence of the existence of the consolidated corporation. It was not, therefore, necessary to prove the legal existence of the companies entering into the articles of consolidation by evidence other than that of the certificate of the Secretary of State to the articles of consolidation. Prirnia facie proof of the corporate existence of the Wabash, St. Louis & Pacific Railway Company was made, and there being no proof to the contrary, that issue was properly found for the appellee.

The remaining question involved in the record is one going to the merits of the case, and forms the principal contention between the parties, namely, on the facts, can the appellant be held liable as a common carrier. This contention is not one of fact but of law.

Parties do not differ as to these substantial facts. Appellant was a common carrier of loaded cars between the termini of the several railroads coming into East St. Louis, and such elevators, mills and factories as were connected by rail with appellant’s track. The East St. Louis Glucose Works were connected with its track in such manner that all consignments of loaded cars made to it were delivered by appellant upon a switch running north and south, from which they were placed on a turn-table, where it received them from the turn-table and ran them into its own yards, and after they were unloaded returned them to the same turn-table, from which they were taken by appellant and re-delivered to the company from which they had been received.

On the-16th of December, 1883, appellee delivered two cars loaded with coal to appellant to deliver to these Glucose Works, the cars belonging to appellee, the coal to a consignee for whom appellee had transported it to East St. Louis. Appellant delivered them in the usual way to the Glucose Works and it took them, as was customary, and placed them on its switch in its yard. That night, before the cars were unloaded, standing on said switch, they were destroyed by fire. Under this state of the case appellant insists that, it appearing that the cars were only to be returned after they were unloaded, and being at the time of destruction in the possession of the Glucose Works by consent of appellant and not re-delivered, nor even in a condition to be re-delivered to it, by reason of still being rinloaded, it can not be held liable. Appellee on the contrary, relying upon the authority of P. & P. U. R’y Co. v. C. R. I. & P. R’y Co., 109 Ill. 135, maintains that upon the delivery of the cars by it to appellant the latter became liable as a common carrier, not only while transporting them to the Glucose Works but also for their safe return; that such liability continued until so returned, notwithstanding the agreement of the parties that they were to be delivered to a third party to unload and only then to be returned. Unless something shall be found in this record to distinguish the case in principle from the one above cited, it must control our decision. It is certainly clearly decided in that case that a railroad company like that of appellee engaged in a like business, receiving from other railroads, cars loaded with freight to be- transferred by it to a place directed by such other company, there to be unloaded, and afterward returned, is, as to such car, a common carrier, and in that capacity liable to the owner.

In that case the transfer company took a car belonging to the C., R. I. & P. R’y Co., loaded with freight, to the Monarch Mills or distillery to be there unloaded.

After the freight was discharged at the distillery the transfer company again took it and left it at the Peoria Sugar Pefinery, on an order from it, to be there re-loaded, then switched to the transfer track for shipment by the owner of the car. "While at the refinery it was burned, and the transfer company held liable for its value to the owners as a common carrier. It is insisted by appellant that the case is clearly distinguishable from this in the fact that there the car was taken to the Sugar Pefinery without the consent of the owner. It is true no such express consent was given, and it would seem from one expression used by the learned Judge who delivered the opinion that some stress was laid upon that fact, yet it is clear when the whole opinion is considered that the liability is placed upon the ground that the defendant, by its undertaking to take and return, became a common carrier as to the car. In other words, that decision holds the defendant liable, not as a wrongdoer in taking the car to an unauthorized place, or for negligently performing its duty in relation to the car, but because its undertaking to return it was such that nothing but the act of God or the public enemy could avail it as an excuse. It is ably argued by counsel for appellant that it is unreasonable to hold a party liable for the loss or destruction of property in no way under his control or management, but in the possession of another by consent of the owner. If, however, he contracts with the owner, or assumes the liability of an insurer, knowing that for a time the property will be in the possession and under the control of a third party, lie can not complain. Many cases of seeming hardship upon common carriers may be suggested. The hardship, however, must, and does usually result from the parties contracting either in ignorance of, or without reference to their strict liability. Whether it is wiser to hold a transfer company under the state of facts here presented as a common carrier than as mere bailees, is a question with which.we are neither at liberty, nor disposed to deal, the Supreme Court having settled that express question in the case referred to.

Nor is there any substantial ground for the position that the facts of this case should withdraw it from the binding force of that in any view of the law.

As before stated, it is true that there the car was taken to the Sugar Refinery without the express consent of its owner and there burned, but it does appear from the facts stated by Judge Scott in his opinion, that there was a common understanding, among the companies at that place that if other shippers desired cars, defendant (viz., the transfer company), without specific orders, was at liberty to place them at their place of business to be loaded and when loaded to be returned to the owner to be shipped, and he adds that “at all events it appears cars were so handled and the companies concerned seem to have acquiesced in that mode of doing business.” Therefore, by the custom and mode of doing business the car mentioned in the principal case was at the refinery by the consent of the owner as much as the two here sued for were at the Glucose Works by consent of their owner, Parson on Contracts, Vol. 2, Sec. 9, p. 535.

Enough has been said to indicate the view that appellant’s liability does not depend upon the unloading of the cars and their re-delivery to it by the Glucose Works, and therefore the declaration is not subject to the first objection made -to it.

Considering the whole case in the light of P. & P. U. R’y Co. v. C., R. I. & P. R’y Co., supra, we are satisfied with the judgment of the City Court and affirm it.

Judgment affirmed.


text:
    W. H. Gardiner v. Levi G. Mays.

      Malicious Prosecution—Want of Probable Cause—Burden of Proof— Evidence—Malice—Advice of Counsel.

    1. In an action for malicious prosecuf ion the burden of proof to show want of probable cause is on the plaintiff, and he must make such proof clear and satisfactory.
    2. To determine whether there is probable cause for instituting a criminal prosecution, the prosecutor is not required to verify each item of information. It is sufficient if he acts with reasonable prudence and caution.
    3. Malice may be inferred from want of probable cause, but such an inference is not always warranted.
    4. In the case presented, it is held: That the evidence fails to show want of probable cause; that the question of probable cause is not one of actual guilt, but of honest and reasonable belief of the party prosecuting; and that the evidence did not warrant the jury in finding malice.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of Jefferson County; the Hon. O. C. Bogus, Judge, presiding.
    Mr. C. H. Burton, for appellant.
    Messrs. Pollock & Pollock, for appellee.
    The question of probable cause and malice are questions for the jury, under the evidence. A party causing the arrest should use reasonable efforts to learn and know the true character of the person, and if he does not, this may be considered on the trial. Hirsch v. Feeney, 83 Ill. 548.
    Where a party communicates to counsel all the facts bearing upon the guilt of the accused of which he has knowledge, or could have ascertained by reasonable diligence, and in good faith acts upon the advice of counsel, he can not be held responsible; but it is a question for the jury. Anderson v. Friend, 71 Ill. 475.

      If a party either culpably or negligently withhold from counsel any material fact, the advice will not protect him. Brown v. Smith, 83 Ill. 291.
    The party must show that in perfect good faith he attained the advice of counsel upon a full and accurate statement of all the facts. Davie v. Wisher, 72 Ill. 262; Ames v. Snider, 69 Ill. 376.
    Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the person accused is guilty of the offense charged. Splane v. Byrne, 9 Ill. App. 392; Harpham v. Whitney, 77 Ill. 32.
    If a criminal prosecution is shown to be without probable cause the jury may infer malice. Splane v. Byrne, 9 Ill. App. 392; Krug v. Ward, 77 Ill. 603; Mitchinson v. Cross, 58 Ill. 366; Thompson v. Force, 65 Ill. 370; Montross v. Bradsby, 68 Ill. 185.
    Among the circumstances tending to show want of probable cause the good character of the accused stands out prominently. Ross v. Innis, 35 Ill. 487.
    In cases of torts verdicts are to' stand unless grossly erroneous. City of Ottawa v. Sweely, 65 Ill. 434.
    In actions ex delicto it is seldom that courts will interfere with the finding of the juries. Fish v. Roseberry, 22 Ill. 288.
    If the evidence tends to support the verdict it will not be disturbed. C., B. & Q. R. R. Co. v. Lee, 87 Ill. 454.
    A new trial will not be granted because it is contrary to the evidence, unless it is so strongly against the evidence as to be unsupported by it. Harbison v. Shook, 41 Ill. 141; First National Bank v. Mansfield, 48 Ill. 494.
   Wilkin, J.

This is an action on the case for malicious prosecution. By the declaration, appellant is charged with prosecuting appellee for an assault on one Joshua D. Gardiner without any reasonable or probable cause therefor; plea of not guilty, and trial by jury, verdict and judgment for plaintiff below for $50, and defendant appeals. It appears from the evidence that on the 17th of October, 1885, Joshua D. Gardiner, the father of appellee, at his home in the Tillage of Jefferson City, about 9 o’clock in .the evening, was assaulted and knocked to the ground by a blow on the head and robbed. Appellant and. his wife found him soon after unconscious and seriously injured. He was unconscious of the presence of his assailant until struck, and therefore unable to give any information as to who struck him. Appellee was about moving his family to Union County. He had been living some five miles from Gardiner. The evening of the assault, he was seen about a half' mile from the place of the assault and at different places in the neighborhood made inquiries, which, he says, were made for the purpose of enabling him to find the place of one Marion Hill, where he expected to remain during the night. He did go to Hill’s house, and stayed there from about 9 o’clock until the next morning, when he left, going to Union County, where he joined his family and remained until he was arrested and brought back to Jefferson County for trial. On his preliminary trial he was represented by counsel, and the people were also represented by the County Attorney. Being bound over, and failing to give bond, he was committed to the county jail. At the next term of the Jefferson Circuit Court he was indicted for the offense charged and, on a trial, acquitted. On this trial appellee introduced as a witness on his behalf, one James B. Driver, who was originally joined with appellant as a defendant, and against whom the suit had been dismissed. His evidence is very unsatisfactory but he swears (and having introduced him, appellee must accept his statement as true) that appellant had previously seen Mrs. Marion Hill and that she had given him some facts, but he believed had not told him all she knew. The witness says he then went to see her and reported to appellant that she informed him that appellee came to her house the night of the assault, excited, muddy and tired, and said he had a hell of a racket with Henry Beads ; that afterward he showed his money and wanted her to run off with him and said he had knocked old man Gardiner in the head, or had done old man Gardiner up. He also says she told him that appellant had offered her $25, but just what the conditions of the offer were does not appear. This same witness swears that upon his reporting to appellant his information from Mrs. Hill he stated that Frank Camron had stated that appellee fold him the night of the assault that “he intended to raise hell in Jefferson City or with old man Gardiner,” or something to that effect. The father of appellant swears that Camron did so state to him, and that, he gave the information to his son, the appellant. Their information was all obtained before the warrant was sworn out by appellant. It is insisted by appellee that appellant had no right to rely upon the information from Mrs. Hill, because it appears that he, by offering her $25, had induced her to make the statements, nor upon the alleged information as to what Camron had said, because Camron shows by his evidence that he never made such statements. We find nothing in the evidence to show that appellant, by offer of money or otherwise, induced Mrs. Hill to make false statements as to the conduct of appellee or to show in the slightest degree that he knew, or had reason to know, that they were not true as she made them. If he believed the statements of his father he was warranted in relying upon the information as to what Camron would swear. In determining whether or not there is sufficient probable cause for instituting a criminal prosecution, it is not necessary to verify the correctness of each item of information, but it is sufficient to act with reasonable prudence and caution in that regard. It was not, therefore, necessary that appellant should have gone in person to Camron and interrogated him as to what he would swear before acting on what he had learn'ed, as to that fact. Hilliard on Torts, Vol. I, 417; Harpham v. Whitney, 77 Ill. 32; Anderson v. Friend, 71 Ill. 475. W. H. Green, the prosecuting attorney of Jefferson County, who appeared for the people on the preliminary trial of appellee, testified on behalf of appellant, that Mrs. Hill did swear on that trial that some time in the evening of the assault after her husband had retired, “ Green Mays came in and he seemed to be nearly out of breath. She noticed he had on boots and it appeared he had been splashed up with mud some way and he made some remark about his boots; that he stayed all night there and made a statement about having a hell of a time at Jefferson City. The next morning her husband wanted him to work for him, and he would go to the door and then comeback, and then go to .the door and look out again and before he left he said if any one asked for him not to tell them where he had gone.” He also says another witness, who was at Hill’s that night, testified to the condition of Mays when he came there saying, “he was as white as a sheet.” The Justice of the Peace who tried the case also testified that Mrs. Hill swore on the preliminary hearing that “ Green Mays came in about 9 o’clock, between 8 and 9, and that he seemed to be excited and that his clothing was bespattered with mud. He said to her that he had a hell of a racket with old man Gardiner. I forget whether he had a hell of a racket or a hell of a time with old man Gardiner.” Appellee also introduced evidence explaining his presence in the neighborhood of Gardiner the evening of the assault .and proved a good reputation. He admits, however, that on that evening he was intoxicated. He denies that he made the statements attributed to him by Mrs. Hill, except as to his request that she should not tell that he had been there that night, which he says was made because he did not want his wife to know it. He shows by Camron that he met him that evening and drank with him out of his bottle, and that he made no threats and Camron did not tell Gardiner that he did. He swears that he did not assault the old gentleman and that he was never at his place. The evidence all considered was not sufficient to satisfy a jury that he was guilty of the crime, and therefore he was acquitted of the charge; but is it sufficient to show a want of probable cause? It must be remembered that the burthen of proof to show want of probable cause is on plaintiff, and that he must make that proof clear and satisfactory. Hilliard on Torts, Vol. I, p. 417, 420; Davie v. Wisher, 72 Ill. 262; Angelo v. Faul, 85 Ill. 106.

That some one was guilty of the crime charged against appellee is not denied. There is not the slightest evidence in the case to raise even a suspicion that any one else committed it, or that appellant had reason to. suspect any one else. The evidence, we think, wholly fails to show a want of probable cause, but all considered, does show such a state of facts as would lead a man of ordinary caution and prudence to helieve or entertain an honest and strong suspicion that appellee was guilty, and this is probable cause in law. It is not a question of actual guilt, but of honest and reasonable belief of the party prosecuting. Harpham v. Whitney, 77 Ill. 32, and cases cited. ÜSTor are we satisfied from the whole record that the jury were warranted in finding malice, the other necessary element in this action. It is true, malice may be inferred from want of probable cause, but such an inference is not always warranted. “ If the defendant can not justify by proof of probable cause, he may still rebut the presumption of malice by showing facts and circumstances to produce at the time on the mind of a prudent and reasonable man a well grounded belief or suspicion of the parties’ guilt.” Hilliard on Torts, Vol. I, 486; Harpham v. Whitney, 77 Ill. 32. It is impossible for us to determine from the evidence whether or not appellant communicated to the prosecuting attorney all the facts known to him, or which he might have known by reasonable diligence, and we are not disposed to interfere with the verdict and judgment below on the ground that he acted under the advice of counsel, though we find no ground for believing that he wilfully withheld any information in his possession or stated to him more than he honestly believed he could prove. We feel compelled to reverse this case on the ground that want of prohable cause and malice have not been proved. To hold otherwise would require of every one instituting a criminal prosecution proof of guilt sufficient to convict. Here were circumstances and testimony of witnesses tending strongly to establish the truth of the charge. They were held sufficient by the Justice of the Peace to bind over, and by the grand jury to indict. The prosecution only failed when appellee was put upon his final trial and where the law gave him the benefit of all reasonable doubt. We do not say that his acquittal depended upon a mere doubt. The verdict should have been for the defendant and there was error in overruling his motion for anew trial and for that reason the judgment of the Circuit Court will be reversed.

Judgment reversed.


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    Joseph Penn v. Joseph Taylor.

      Mines—Removal of Supports—Action by Owner of Land for Damages— Instructions.

    In an action by the owner of certain lands to recover damages caused by the removal of supports in a coal mine, it is held: That the record contains evidence which tends to support the plaintiff’s declaration and which he is entitled to have passed upon by a jury under proper instructions; and that an instruction given for the defendant, touching the measure of damages and assuming a “general decrease in rents,” is fatally defective.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William. H. Snyder, Judge, presiding.
    Messrs. Dill & Schaefer and William Winkelmann, for appellant.
    Messrs. Wildermann & Hamill and J. B. Hay, for appellee.
   Wilkin, J.

This suit was commenced by appellant against appellee and the Gartside Coal, Company to recover damages for injuries to his land and certain buildings thereon by reason of the removal of stone coal underneath it without leaving sufficient supports for the surface. In March, 1859, one Me Far! an, then owning the land, sold the coa] under it to Joseph Gartside, who in 1873 sold it to the Gartside Coal Company, and in 1883 this company sold “all the coal contained in the pillars” to appellee. In 1878, the land was sold at master’s sale and purchased hy appellant. This action is for damages alleged to have been caused by appellee since he purchased the coal in the pillars hy so weakening and removing the supports to the surface as to cause the same to break, sink, etc. The verdict and judgment below being for appellee, the ease is brought here by appellant. On the trial appellee testified, “I offered to buy this land of Mr. Penn, offered him the same price he paid for it and even asked him what he would want for it.” There was also some evidence to the effect that the land had rented for as much since the alleged injury as before. At the instance of appellee the court instructed the jury that “If it appears from the evidence that the plaintiff since the injury complained of in the plaintiff’s declaration has rented his land and house for as much as he rented them before, considering the general decrease in rents, and that the plaintiff has been offered as much, and can or could sell it for as much, as he paid for it, since the supposed injuries occurred, then the plaintiff has not sustained any substantial damages.”

This instruction is so flagrantly erroneous that asking and giving it must have been the result of inadvertence. The first clause is erroneous and misleading in assuming that there had been a general decrease vn rents; but the latter clause is still more objectionable and announces an unheard-of rule of law in actions of this kind. According to the rule here announced, if one should have entered lands at government prices, valuable for the minerals under it or timber on it, and a trespasser should remove all the mineral or timber and then offer to pay the owner the price for which he entered it, no substantial damages could be recovered. The proposition is absolutely defenseless and the learned counsel for appellee only attempt to do so indirectly. They say, “if the rental value of the land had not decreased and its selling value had not decreased and its uses for farming purposes had not been substantially injured, how was it damaged?” The instruction, it will be observed, ignores entirely the question as to whether the “selling value ” of the land has been decreased by the injury and takes away the right to substantial damages, if the selling price was as good as that paid for it by appellant. We are not dealing with the question of the competency of evidence or what certain evidence tends to prove and- need not therefore notice the authorities cited by appellee which bear on these questions, but in no manner sustain the legal proposition announced in the objectionable instruction. It is not claimed that the error in this instruction is cured by others given either on behalf of appellant or appellee. It is insisted, however, that, notwithstanding the error it may contain, there should be no reversal, because it appears from the whole record that the right is with the appellee. We recognize the rules contended for by appellee that a new trial should not be granted where substantial justice has been done, notwithstanding irregularities and errors committed on the trial, but we do not regard this case as falling within that rule. We do not assume to pronounce upon the merits of the case under the evidence, but hold that there is proof in the record tending to support plaintiff’s declaration, and which he has a right to have passed upon by a jury under fair instructions. By the instruction referred to the merits of the case were as effectually taken from the jury as if it had been instructed to find for the defendant. As the case must be reversed, any expression of opinion as to the weight of testimony would be improper and a review of it is therefore unnecessary.

Reversed and rema/nded.


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    Marie Schifferstein v. E. H. Allison.

      Mortgages—Foreclosures—Limitations—Sec. 11. Chap. S3, R. S.— Equity of Redemption—Rights of Purchaser—Payment of Note.

    1. The right to foreclose a mortgage continues until the debt which ic secures is barred. Whatever arrests the running of the Statute of Limitations against the debt, arrests its running against the mortgage. Whatever recognizes the debt as still subsisting, also recognizes the mortgage by which it is secured._
    2. Sec. 11, Chap. 83, R. S., is merely a legislative declaration of the rule previously established by the Supreme Court.
    3. A mortgage can be enforced against the purchaser of the mortgagor’s equity of redemption, at a sale made when the mortgage was upon its face in full force and effect, at any time within ten years from the last payment upon the note secured by such mortgage,
    [Opinion filed October 5, 1887.]
    In error to the Circuit Court of Jasper County; the non. William C. Jones, Judge, presiding.
    On the 23d day of October, 1874, Samuel ¡R, Sandefnr and his wife, Emily, executed their promissory note to Yalentine Krauss, for the sum of §300, payable in one year from date with interest at the rate of ten per cent., payable annually. On the same day they made their certain mortgage deed to secure the payment of said note upon the premises described in the bill At the February term, A. D. 1878, of the Jasper Circuit Court, plaintiff in error recovered a judgment against Samuel ¡R. Sandefnr and others for the sum of §2,441.16 and costs, and execution was issued thereon February 13, 1878, and returned “ no property found.” An alias execution was issued upon said judgment November 22, 1883, and levied upon the equity of redemption of said Samuel in the mortgaged premises, and the same were sold thereunder to plaintiff in error, and not being redeemed she obtained a deed from the Sheriff on June 13, 1885. On the 23d day of March, 1883. Krauss sold and assigned the note and mortgage to the defendant in error who filed this bill to foreclose said mortgage on the 19th day of November, 1886. Six annual payments of interest were made upon the note and later two partial payments, the last of which was made December 12, 1882. The defense to the foreclosure, relied upon, is that the Statute of Limitations bars the proceeding, as the bill was not filed within ten years after the maturity of the debt. The court decreed a foreclosure and the defendant below, Schifferstein, sued out this writ of error to reverse the decree.
    Messrs. Gibson & Johnson, for plaintiff in error.
    “No person shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale accrues.” Sec. 11, Chap. 83, R. S.

      Tlie note, which the mortgage secures, having been given October 23, 1874, payable one year after date, the right of action to foreclose the mortgage accrued October 27, 1875. The action to foreclose the mortgage in suit was commenced November 19, 1886,—over eleven years after the right of action accrued.
    The mere fact that payments of interest were made upon the note can not affect the rights of the parties to this suit; because, after the right of action had accrued, such payments did not suspend the right of action. Krauss, thepajme of the note, could have brought suit upon it at any time after October 26, 1875, or could have brought his bill to foreclose the mortgage, and his action in either proceeding could not have been defeated by showing payments of interest upon the note, whether a mortgage was & lien upon real estate or not, after the maturity of the -note or notes which it was given to secure; for the reason that a payment upon the note or notes by the payee perpetuated the right of action by removing the bar of the Statute of Limitation; and the right to foreclose the 'mortgage inured to the holder of the note until the note itself was barred by limitation. Under this doctrine a mortgage to secure a note, which by the public record would appear to have been barred a half century, might be a valid and subsisting lien upon real estate.
    . The statute under discussion obviates this manifest evil, and the inquirer can ascertain at a glance, from the record, whether the right of action to foreclose a mortgage 1ms' accrued, and whether ten years have elapsed since it accrued; and, if so, he can know that he is dealing with tlie real estate covered by it, discharged from the lien of such mortgage.
    There is no hardship in this. Ten years is certainly a sufficient time in which to bring foreclosure proceedings after the right of action accrues. A party who fails to do so is in no worse situation than is he who allows the lien of his judgment upon real estate to lapse by failing to sue out execution within a year from the time of the rendition of the judgment, or than any one else who allows a Statute of Limitations to run against him, and, by his own negligence, loses his right of action.

      Mr. John P. Heap, for defendant in error.
    Under our laws, the mortgagee’s right of foreclosure is not barred until the debt itself is barred by the Statute of Limitation. Hagan v. Parsons, 67 Ill. 170; Harris v. Mills, 28 Ill. 44; Brown v. Devine, 61 Ill. 260; Medley v. Eliott, 62 Ill. 532.
    The mortgage is an incident to the debt, and but a security, but it confers the right to reduce . the premises to possession as a means of obtaining satisfaction of the debt, and, to render the right effective, ejectment may be maintained against the mortgagor at any time that a recovery may be had on the debt. The mortgagee may resort to any of the various modes of foreclosure so long as his debt is capable of being enforced, but no longer. Pollock v. Maison, 41 Ill. 516.
    The Statute of Limitation which bars the debt, the principal, can alone bar the mortgage, the incident. Medley v. Eliott, 62 Ill. 532.
    By the payment of interest the payor made a new promise to pay, and gave the holder of the mortgage a new right to foreclose." Had the note been barred by" See. 16 of the Statute of Limitation, this payment would have revived the note, and necessarily the mortgage, and given the holder of the mortgage the right to bring an action to foreclose the same.
    The right, then, to foreclose the mortgage would have accrued at the time of such payment, and would have continued for ten years from that date. Every new payment, or promise to pay, gives the holder of the note a new right to collect the unpaid part of it, and a new right accrues to foreclose the mortgage to enforce such collection.
    Construing the two sections together, it cannot be said that the action to foreclose the mortgage must be brought within ten years from the time the right of action first accrues, but within ten years from the time the right last accrued.
    In the case at bar a partial payment was made on the note December 12, 1882. By that payment Sandefur, the payor of the note, acknowledged the debt and promised to pay the baUnce due, thereby giving the holder of the note the right to collect it and the right to foreclose the mortgage. As this suit is brought within ten years from the time the right accrued by virtue of such partial payment, there could be no error in decreeing a foreclosure of the mortgage.
    A new promise renews the obligation. Brockman v. Sieverling, 6 Ill. App. 512. An unconditional part payment takes the case out of the statute. Paris v. Hunter, 10 Ill. App. 230.
    Taking a case out of the statute, either by a new promise or partial payment, has the effect to fix a new date at which the statute begins to run.
   Pillsbury, J.

The holding of the courts in England, and in most of the States of the Union, that a mortgagee, notwithstanding the debt is barred by the statute, might still assert his right under the mortgage to enforce the lien in analogy to the Statute of Limitations respecting actions for the recovery of real estate, has not been recognized by our courts. Here it is the settled doctrine that the debt is the principal thing, and the mortgage security but a mere incident, and anything that discharges the debt will have the effect of destroying the lien created by the mortgage, and can be set up as a defense to any proceeding instituted upon the mortgage to obtain satisfaction of the debt, whether by ejectment, scire facias or bill in equity to foreclose. Harris v. Mills, 28 Ill. 44; Brown v. Devine, 61 Ill. 260; Medley v. Eliott, 62 Ill. 532; Emory v. Keighan, 88 Ill. 482.

It was said in Medley v. Eliott, supra,that the mortgage is but an incident attached to the debt, and in reason and propriety it can not and ought not to be detached from its principal. The mortgage interest, as distinct from the debt, is not a fit subject of assignment. It has no determinate value. If it should be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the land.” And again, “ that when recovery upon the note is barred, the right of foreclosure is also barred. The converse must be equally true.” Emory v. Keighan, supra, was an- action of ejectment, wherein the plaintiff, Emory, showed & prima facie right to recover, and Keighan defended his possession under a sale made by virtue of the power of sale contained in a mortgage; but it appearing that the sale had been made more than, sixteen years after condition broken in non-payment of the debt, if it ever was broken, it was held that the Statute of Limitation barred the debt, as nothing appeared to take the case out of the statute, and that taking possession under the mortgage sale, after the right of entry was tolled by lapse of time, could not revive the debt nor the power of sale so as to confer upon the defendant any title. From these decisions it is manifest that the courts, whether of law or equity, had fixed as determinate a time when the right of entry under the mortgage should be tolled by lapse of time, as though it had been declared by legislative enactment. That time was determined to be that fixed by the statute for the barring a recovery upon the debt secured by the mortgage, and not the time prescribed for the recovery of real property. When the bar of the statute became complete as to the debt, it was equally so as to tlxo mortgage, regardless of tiro character of the proceeding taken to enforce it. The vitality of the mortgage lien depended upon the continued existence of the debt, and, when the debt fell, the lien went with it. We are, then, to inquire whether the party seeking to enforce the lien of his mortgage, after the expiration of the time limited by the statute for the commencement of an action to recover the debt, could show that such lien was still subsisting by proving any of the grounds known to the law for arresting the running of the statute against the debt; whether, keeping the debt alive, the mortgage lien, as such incident, was so closely connected with and attached to the debt as to still continue a substantial right in the mortgagee for the collection of the debt. Speaking of the presumption of payment arising from the lapse of time, it is said in Jones on Mortgages, Sec. 1196, that this presumption is not conclusive but may be controlled by evidence of part payment of the principal or interest, or other admissions or circumstances from which it may be found that the debt is still unpaid, but parol evidence, to control this presumption, should clearly show some positive act of unequivocal recognition of the debt within that time; and again, Sec. 1198, “ that a payment of interest or part of the principal renews the mortgage so that an action may be brought to enforce it within twenty years after such last payment. This is a rule universally recognized.”

Hough v. Bailey, 32 Conn. 288, was a case where a bill was filed to foreclose a mortgage after the expiration of fifteen years, the time limited in that State for barring such action where the mortgagor has been in possession, and to overcome the bar of the statute it was proved that the mortgagor, within the fifteen years, had acknowledged the existence of the debt and promised to pay it. As to the effect of such promise upon the mortgage, Hinman, C. J., said: “ This recognition of the .debt as still subsisting against him was, in effect, a recognition of the mortgage as a security for it, and prevented the time then elapsed from being counted or considered as any part of the fifteen years’ uninterrupted possession necessary in order to bar the mortgagee’s right to bring ejectment or to foreclose the mortgage.” Emory v. Keighan, 94 Ill. 543, is the same case reported in the 88th Ill., above cited, being taken to the Supreme Court a second time. On a new trial at the circuit, the defendant, in order to avoid the effect of the statute declared in the former opinion, proved that the mortgagor under whom he claimed had been out of the State a sufiic'ent length' of time to prevent the statute barring the note at the time the sale was made under the mortgage at which he became the purchaser. It was urged that the statute only permits the deduction of time the debtor was out of the State in actions on the note, and could not be used to uphold the power of sale in the mortgage, but the point was not considered tenable, the court saying: “ The power of 'sale inserted in the mortgage was for the purpose of subjecting the mortgaged property to the payment of the debt so long as it remained in force. Its legal effect was to authorize a sale after the debt matured, so long as it remained in existence and binding on the mortgagor. The mortgage was but a mere incident of the debt, and inhered to it as long as the debt remained in force against the mortgagor, as nothing was done to release or separate it from the debt.” Our present act concerning limitation of actions was enacted in 1872, and in the general revision became chapter 83 of the Eevised Statutes of 1874, and by it the time for bringing an action upon notes, bonds, etc., was reduced from sixteen to ten years, and in the same act the time for bringing an action or making a sale to foreclose a mortgage was fixed at the same period. This last provision was in legal effect but a legislative declaration of the existing rule. As we have seen, that was applied by both courts of law and equity in this State under the prior statute relating to actions upon the mortgage or mortgage debt; i. e., the time limited for the enforcement of the debt was also applied to the mortgage, and when a recovery was barred upon the former the latter was likewise barred, regardless of the forum wherein it was sought to enforce it; and there can be no doubt that, under the decisions of our Supreme Court in a former part hereof referred to, without this section of the statute especially referring to mortgages, they would have been held subject to the limitation prescribed for the principal thing, the debt, and be barred in the same time as now fixed by the statute, the period of ten years. We do not think that it was the intention of the Legislature to entirely separate the incident, the mortgage, from its principal, the debt, for the payment of which it was pledged, thereby discharging the lien created by it when, under another provision of the same act equally authoritative and positive, and fixing the same limitation, the debt might still be subsisting; but we consider it rather the adoption into the written law of a rule theretofore enforced by the courts in analogy to the existing limitation prescribed by the statute for the recovery of the same debt, the statute now applying whether the debt be evidenced by note, bond, or by the mortgage. We treat this section 11, relating to mortgages, as what, in relation to the debt, has ever been considered a mere Statute of Limitation, to be construed, not as discharging the debt, but as taking away the remedy for the enforcement of its collection, by creating a presumption- of its payment and consequent discharge of the lien, unless rebutted by proof of some act of the debtor or mortgagor, unequivocal in its nature, recognizing the continued existence of the mortgage Hen as security for the debt. Any act of the debtor, sufficient to take the debt out of the operation of the statute by suspending it for a given time, or by fixing a new date from which the ten years’ limitation must again commence to run, is such a clear and distinct recognition" of the mortgage as a security for such debt as alike to operate upon it and, by the same act, the bar of the statute, so far as it has run, is removed from both. Whatever recognizes the debt as still subsisting, also recognizes the mortgage as security for it, as it is hut the mere incident, and can not, without express agreement, he separated from it. This seems to be the holding in Hough v. Bailey, supra, and of our courts so far as the question has been presented, as it is likewise in other States having limitation laws relating to the right of entry under mortgages. The rule seems to be founded in reason and supported by authority, and we see no cause for not following it. The appellant here purchased the equity of redemption of the mortgagor while the mortgage was upon its face in full force and effect, ten years from the maturity of the note not yet having elapsed, and it is but reasonable to suppose that she purchased with a full understanding that the premises were pledged for the debt secured by it, and made her hid accordingly. She stands in the place of the mortgagor, and, as in our view the mortgage could be enforced against him at any time within ten years from the time he made the last payment upon the note, while still the owner of the equity of redemption, she is bound by this act of the revival by him of the time from which the limitation is to commence running anew, and still holds the land charged with the payment of this debt. The decree of the court below, being in accordance with the views above expressed, will he affirmed.

Decree affirmed.


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    John Gaunt v. Henry Froelich et al.

      Mistake in Levy of Attachment, Special Execution and Certificate of Purchase—Bill to Correct—Subsequent Purchaser—Trust Fund with which to Redeem—Demurrer.
    Upon a bill to correct a mistake in the levy of a writ of attachment, in a special execution and in a certificate of purchase, so as to include all of certain lots intended, to be included, or to require a subsequent purchaser to pay over a part of the purchase money left with him for the redemption from the sale, it is held: That the court below improperly sustained a general demurrer; that the complainant was at least entitled to the alternative relief prayed; that said subsequent, purchaser holds the money so left in his hands as trustee for the complainant; and that he can claim no exemption in the execution of his trust by reason of his own violation of duly in failing to apply said fund while the right to redeem existed.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of Madison County; the Hon. Amos Watts, Judge, presiding.
    This was a bill in equity filed in the Madison Circuit Court by the appellant against the appellees, substantially averring that he sued out of said Circuit Court a writ of attachment against said Froelich, for an indebtedness then due and owing, and that, at said time, said Froelich was the owner of lots two, twenty-six and twenty-seven in Meeker and Krafft’s addition to Edwardsville, in said county; that the first above described lot by itself was of but little value, but the other two were well improved, the improvements alone being worth above $3,000; avers that the Sheriff, not being well advised as to the description of said lots, levied the writ upon lot two only, when it was intended by his attorneys, as well as said Sheriff, to make said levy upon the three lots; avers that at the March term of said Circuit Court he recovered a judgment in said attachment proceeding for $689 and cost of suit, and, upon special execution issued thereon, the said lot two was sold for the whole amount of the debt, interest and costs to complainant, but at said time it was supposed by the Sheriff and the complainant that the sale included the three lots instead of the one only; that the certificate of sale contained the same mistaken description. Further, that while complainant still held said certificate of purchase, said Froelich sold and by warranty deed'conveyed to appellee, John Keller, the said three lots for the sum of $2,856.50, and that said Keller, before his purchase, had the title examined and, having notice of the mistake before recited and with" the consent of said Froelich, reserved from said consideration a sum sufficient to redeem said lot two from the sale to the complainant, and that the money was left with Keller by Froelich for the purpose and to be so used by him in making such redemption. The prayer of the bill is in the alternative, either that the mistake in the levy of the writ of attachment, as well as under the execution and in the certificate of sale be corrected so as to include the said three lots, or, if this can not be done, that said Keller he decreed to pay over to complainant the said sum of money for the redemption from said sale loft with him by Froelich to be so applied and thereby make said redemption effectual. A general demurrer was interposed to the bill by defendants, and being sustained by the court, the bill was dismissed and complainant below appealed to this court.
    Messrs. Happy & Travous, for appellant.
    The relief sought by the bill, as amended, is two-fold:
    First—The correction of the levy of the writ of attachment, special execution and certificate of purchase.
    Second—The enforcement of a trust.
    If either of these claims for relief is proper for the jurisdiction of a court of equity, the demurrer should have been overruled, and the bill retained. Gooch v. Green, 102 Ill. 507; Pool v. Docker, 92 Ill. 501.
    It appears that the entire property was -conveyed to defendant Keller, by warranty deed, and to make the warranty good an arrangement was entered into between Froelich and Keller by which the latter reserved from the purchase price a certain sum for the express purpose of redeeming from the Sheriff’s sale by appellant and clearing the title; and now in violation of this agreement and the confidence reposed in him, he retains the money and refuses to perform the trust. Under this arrangement with his vendor he took the property, not merely as owner but as trustee, clothed with a duty to perform in respect thereto, and a court of equity will not hesitate to enforce its performance. Doolittle v. Jenkins, 55 Ill. 400; Freer v. Lake, 115 Ill. 662; Rodney v. Shankland, 12 Am. Dec. 70; 2 Story’s Eq. Jur., Secs. 1041, 1213; Stockard v. Stockard, 46 Am. Dec. 79; Cooper v. McClun, 16 Ill. 435; Coates v. Woodworth, 13 Ill. 654.
    Messrs. Dale & Bradshaw, for John and Sarah Keller, appellees.
    The sale of the lot and the bidding of it in by appellant, under the special execution, for the full amount of his judgment and costs, operated as a complete payment, discharge and satisfaction of his judgment.
    Unless it be where a fraud is practiced upon the purchaser, the doctrine of caveat emptor applies in all judicial sales; the officer selling has no power to warrant title or impose terms or conditions on the sale beyond those required by law; the purchaser is presumed to have examined the title and to know what he is acquiring. Bishop v. O’Conner, 69 Ill. 431; England v. Clark, 4 Scam. 486.
    It is said the lot was not worth what appellant bid it in for. The law is, if loss ensues the purchaser must bear it. Roberts v. Hughes, 81 Ill. 130.

      Caveat emptor is universally applied in judicial sales. Owings v. Thompson, 3 Scam. 502 ; McManus v. Keith, 49 Ill. 388 ; Walbridge v. Day, 31 Ill. 379.
    In the absence of all fraud, a court of equity can not relieve a purchaser at a judicial sale on the ground that the title fails. The maxim caveat emptor is the same in equity as in law in respect to such sales. Holmes v. Shaver, 78 Ill. 578; Bassett v. Lockard, 60 Ill. 164.

      It is said that when Froelich sold to Keller, he (Keller) reserved out of the purchase price a sum sufficient to redeem from appellant’s sale. Suppose he did? It was a matter purely between Froelich and Keller. Appellant was no party to this arrangement. Neither Froelich nor Keller owed appellant a dollar. Keller may have thought at the time that he might redeem lot two, and as appellant would not be willing to take less than his bid and interest, Keller and Froelich had a perfect right to make that arrangement, and Keller could redeem or not, as he liked. Appellant could have no remedy even against Froelich; could he have any against his grantee? Froelich, had he continued to own the property, would have been under no legal or moral obligation to redeem from appellant’s sale. Neither Froelich, his attorney nor his agents, made any representation to induce appellant to make the purchase he did. Appellant purchased—had his levy and sale made—with the records open before him, and he acquired all he had a right to expect without any redemption, and if he has sustained any loss it has been purely by his own laches and a court of equity has no power to compel any one else to help him sustain it.
   Pillsbury, J.

"Without, at this time, discussing the question whether a court of equity would grant the relief upon the ground first stated in the bill by correcting the mistake in the levy of the writ of attachment, the levy of the special execution and in the certificate of purchase, we have no doubt that a general demurrer would not lie to the bill, as under the second ground set up for relief the complainant, by his bill, has shown himself entitled to the alternative re'ief prayed.

"When Froelich conveyed the premises to Keller, according to the averments of the bill, they had notice of the alleged mistake, as well as of-the state of the title, and Froelich conveyed by warranty deed the whole three lots for a consideration considered adequate for a perfect title. Knowing of complainant’s claim by virtue of his certificate of purchase, and to protect his covenants in his deed, he left sufficient money in the hands of Keller, the purchaser, to be applied by him in discharge of said incumbrance, and Keller in accepting the money undertook to discharge the trust thus imposed upon him and voluntarily assumed by him.

No one will doubt that the grantor had the right to direct the payment of enough of the purchase money to complainant to clear the title, and Keller having accepted the money to be thus applied, can not now be heard to say he is willing to lose the title to lot 2, as it is far less in value than the money left with him to pay off the incumbrance. The money was left with him for a specified purpose, and by accepting he undertook to apply it as requested. It is true that it does not appear from the bill that he bought subject to the incumbrance and promised to discharge it as part consideration of the purchase, thus creating an assumpsit upon which complainant could maintain an action at law under our decisions, but this only goes to show in a clearer light, that he accepted the money as a trustee for the complainant, to be paid to him in discharge of his incumbrance.

It was the duty of Keller to thus apply the money at once while the right to redeem existed, but he can claim no exemption in the execution of such trust occasioned by his own violation of duty, so long as the complainant insists upon its performance.

We think these principles are too elementary to require the citation of authorities to support them.

The very fact that complainant has come into a court of equity asking for a decree compelling Keller to apply the money left with him for the purpose of making the redemption to that purpose, is a sufficient allegation that the complainant is willing and ready and offers to have such redemption made and perfected.

Upon this ground in the bill if no other, the complainant was entitled to relief, and the court should have so decreed, and, as it did not, its decree dismissing the bill will be.reversed and the cause remanded to the end that a hearing may be had upon the merits.

Decree reversed.


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    John W. Mitchell v. S. W. Hughes.

      Mutual Accounts—Conflict of Evidence—Question for Jury—Wife as Witness—Competency of—Sill of Exceptions.

    1. Where the evidence is conflicting and the record discloses no error in the instructions, admission of improper evidence, nor misconduct or prejudice of the jury, this court will not interfere with the verdict.
    2. In an action involving an account for board, it is held: That the testimony of the plaintiff’s wife, to the effect that her husband was absent most of the time and that in his absence she managed the hotel for him, is sufficient proof of her agency to render her a competent witness.
    3. This court declines to consider an objection, first raised in the brief for t appellant, that the bill of exceptions which appears in the record is not marked filed by the clerk of the court below.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of Saline County; the Hon. David J. Baker, Judge, presiding.
    Messrs. Christy & Lewis and Parish & Parish, for appellant.
    Messrs. W. H. Boyer and W. V. Choisser, for appellee.
   Wilkin, J.

The point is made by counsel for appellee that the bill of exceptions in this record does not appear to have been filed in the office of the clerk of the Circuit Court of Saline County, and should therefore he disregarded. It seems to have been duly signed by the Circuit Judge who tried the case, within the time fixed by his order upon overruling the motion for a new trial. It appears- in the complete record certified by the clerk. The objection that it is not marked filed is first raised by appellees in the brief and argument filed in the case, and for the purposes of the argument on the merits both sides treat it as a bill of exceptions in the case, and we shall so consider it in this decision.

The action grows out of a dispute between the parties as tc the state of accounts between them, running over a term of several years. Appellee had judgment below for §314.18, and for costs. He claimed a much larger amount, and appellant contended he owed him nothing. In this court appellant urges but two grounds of reversal, and they may be very briefly disposed of.

One item in the account of appellee was a charge of §300 for boarding railroad hands for appellant in 1872. On the trial he introduced as a witness to prove that item, Haney P. Hughes, his wife, who was objected to by appellant on the ground that, being the wife of appellee, she was incompetent. The objection was overruled. Before the objection was made she had testified: “I am the wife of the plaintiff; S. W. Hughes was running a hotel that year. He was absent almost all the time. 1 run the hotel for him” This is sufficient proof of her agency in the conduct of her husband’s business to make her a competent witness in his behalf as to that particular business, and on that branch of the case the ruling of the court below was right. Sec. 5, Chap. 51, R. S.

The remaining ground of reversal insisted upon and argued at great length is, that the verdict of the jury is contrary to the evidence. It is not contended that there is no evidence to support the finding, but it is claimed that the verdict is manifestly contrary to the weight of the evidence, and for that reason the judgment should be reversed.

We have carefully considered the elaborate review of the evidence by counsel on both sides, and in connection therewith examined the testimony. We do "not find it easy to arrive at a satisfactory conclusion as to the true state of account between the parties. We have experienced the disadvantage at which a court of review is always placed in settling disputed questions of fact, by being deprived of the privilege of seeing the witnesses and hearing them testify.

Hothing, however, appearing in the record to show the slightest misdirection to the j ury in instructions, nor the improper admission or rejection of testimony, nor misconduct or prejudice of the jury, we are unauthorized by the evidence to substitute our conclusion for theirs, and especiahyas it has the indorsement of the trial Judge, who, with them, had the better opportunity to weigh and give credit to the evidence of the various witnesses. The judgment of the Circuit Court is affirmed.

Judgment affirmed.


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    Henry Binger v. The People of the State of Illinois.

      Criminal Laio—Elections—Alteration of Ballots—Indictment—Election of Town Officers—Application of General Laws.

    1. An indictment charging the defendant with having altered and defaced a ballot legally voted at an election for township officers, after it was put into the ballot box, is sufficient to sustain a conviction.
    2. The general laws of the State in regard to elections apply to elections for town officers at elections held under the Township Organization Act.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of Madison County; the Hon. Amos Watts, Judge, presiding.
    Messrs. Dale & Bradshaw, for appellant.
    Mr. George F. McNulty, State’s Attorney, for appellees.
   Pillsbury, J.

At a former term of this court we reversed a conviction of the plaintiff in error, had upon an indictment charging him with the offense of ’changing a ballot when acting as a judge of an election, and remanded the cause. 21 Ill. App. 367. He was then indicted for the same offense but not as such judge, and waiving a jury, was tried by the court and found guilty and fined §50, and he again brings the case here-

The point is again made that an annual town meeting for the election of township officers is not such an election as comes within the election law relative to offenses of this character.

In our former opinion we gave our reasons for holding otherwise and have no desire to restate them. Again it is urged that the indictment is not sufficient to support a conviction, as it is uncertain therefrom, whether the ballot -was changed before or after it was voted. We have carefully examined the indictment and are of the opinion that the first count does sufficiently charge the offense to be the changing of the ballot after it had been put in the ballot box. The evidence shows a clear violation of the law and one deserving much greater punishment than was inflicted.

The plaintiff in error has no cause of complaint, and no other point materially affecting the merits being made, judgment will be affirmed.

Judgment affirmed.


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    Aaron Baer et al., Late Partners, v. Louis Lichten.

      Agency—Transfer of Note—-Unauthorized Indorsement—Ratification— What Necessary to Charge Indorser—Insolvency of Maher—Barden of Proof.

    1. Where a principal accepts and retains the proceeds of a note, knowing that it was transferred by his agent upon an unauthorized indorsement, he thereby ratifies such indorsement.
    2. In order to charge the indorser of a promissory note the holder must use due diligence.
    8. Where a note is assigned after maturity, to charge the indorser, the assignee must bring suit against the maker at the first term of court, unless he can show that such suit would be unavailing or that the maker had absconded when the note was assigned.
    4. Where the plaintiff in a suit against the indorser relies upon the insolvency of the maker, the burden is upon him to show that such insolvency continued until the commencement of the suit.
    [Opinion filed October 5, 1887.]

      Appeal from the Circuit Court of St. Clair County; the lion. William H. Snyder, Judge, presiding.
    Mr. William Winkelmann, for appellants.
    Appellee kñew'that he had not requested nor had appellants agreed to indorse the note, yet with this knowledge, when the note is presented to him as agreed on, and the exchange about to be made, he urges and persuades the servant of appellants, and unknown to them, to make another contract, to wit, the indorsement in question, which is not merely a transfer of the note, but is a fresh, independent and substantive contract, embodying all the terms of the instrument indorsed. 1 Daniel on Neg. Instruments, page 533 to 538.
    In the case of Gerrish v. Maher, 70 Ill. 470, the court say: “ When an agent is employed mainly to carry out and perform a contract already made by his principal, he is not authorized to change the contract or to make a new one.”
    In Garrity v. Bells, 20 Ill. App. 327, the court say: “ If at the time a promissory note falls due, proceedings against the maker wquld be unavailing, the holder may proceed immediately against the indorser; but if he will not do this he must bo prepared, in order to fix the liability of the indorser, to show that the insolvency of the maker continued down to the time of the commencement of his suit against the indorser.” Bledsoe v. Graves, 4 Scam. 382; Phillips v. Webster, 85 Ill. 146.
    Messrs. Wildermann, Hamill & Rickert, for appellee.
    The mules, together with the §3,300 note of Lichten, were delivered by Reifschneider to the firm of Baer Bros. & Wohlgemuth, together with the information in what manner he had indorsed the Fults note to Lichten. They made no effort to rescind the "unauthorized acts (as claimed) of their agent in any part of this transaction, but on the contrary appropriated the property to their own use, and by their open and appro ved acts affirmed and ratified his conduct as agent in the whole proceedings. Ward v. Williams, 26 Ill. 447; Johnston v. Berry, 3 Ill. App. 256; Meister v. Cleveland Dryer Co., 11 Ill. App. 227.

      A principal can not enjoy the benefits arising from the act of his agent without adopting the instrumentality by which it was accomplished. McBean v. Fox, 1 Ill. App. 177; Elwell v. Chamberlain, 31 N. Y. 611; Smith v. Tracy, 36 N. Y. 79.
    An agent empowered by his principal to do a particular act must necessarily be invested with the unlimited authority and means to perform and execute the act. Noble v. Nugent, 89 Ill. 522.
   Wilkin, J.

This is an action of assumpsit brought by appellee against appellants as indorsers to him of a promissory note made by Valentine Sigerte and Jacob C. Fults, June 5, 1883, for $115, due twelve months after date, payable to Loewenstein, Baer & Bro., and by them assigned to appellants.

The assignment upon which this suit is brought is “ Baer Bros. & Wolilgemuth, S. Beifschneider; agent,” and was made August 25, 1885. On the trial in the Circuit Court appellee obtained judgment for the amount due on the note and appellants bring the case up by appeal.

It is insisted, first, that there is no proof of the agency of S. Beifschneider and that therefore appellants can not be held liable as indorsers.

It appears that appellee got the note in payment for a span of mules, the price of which was $300, he giving his note to appellants for $33, the amount then due on the assigned note above the price of the mules. Appellee testified that he made the trade with Aaron Baer, one of the appellants, who could not come after the mules himself but said “ I will send my agent, Beifschneider, and he will do as well as I will.” In this he is corroborated by James Matthews and Wm. Fults. Beifschneider did call for the mules and deliver the note, taking the $33 note in appellant’s name, and at the request of appellee made the assignment above mentioned. He testifies, however, that he had no authority for so doing, as does Amson and Aaron Baer. They claim that one George Schab was sent with the note and to return the mules, and that Beifschneider was not in their employ but went at the request of Schab. There is unquestionably a sharp conflict in the evidence on this question and if it depended upon the express agreement of the parties as to who should transact the business, it might well be doubted whether there is sufficient authority shown in the agent to bind appellants, but it does clearly appear that they accepted the mules and the small note, and, with full knowledge of the fact that the note was indorsed by Reifschneider as their agent, have retained both, and at no time offered to return them. In fact, they transferred the $33 note and it was collected off of appellee.

There need be no citation of authorities in support of the position that if the property obtained by the indorsement of the note was retained by appellants with a full knowledge of the facts, such conduct would amount to a ratification of the act of the agent, although unauthorized at the time it was done. It is contended by appellants that, inasmuch as one of their firm told appellee that he wanted it distinctly understood that they were not liable for the note, that they thereby repudiated the act of the agent. It is shown, however, that in the same conversation this member of the firm inquired of appellee why he was so particular as to make Reifschneider indorse' the note, saying, “We always indorse without recourse,” thereby showing a knowledge of the fact that appellee had required the indorsement before surrendering the property and giving his note. Clearly, he could not then repudiate the agency by which the indorsement was made and the property obtained, and, at the same time, keep the proceeds. We find no warrant in the evidence for the position that the trade was completed between appellee and Amson Baer, an 1 that, by its terms, appellee was bound to take the note unindorsed. There is nothing to show any such understanding.

The second ground of reversal urged is, that appellee has failed to prove due diligence on his part in attempting to collect the note from the makers. He got the note on the 25tli day of August, 1885, and it was then past due.

In order to show due diligence by suit, it was necessary that he should bring his action to the next term of the court having jurisdiction, and to have prosecuted it to judgment at the earliest period within his power, had execution issued, etc. Robinson v. Olcoff, 27 Ill. 181.

The next term of court in that county, to which he could have sued on the note, began on the fourth Monday of September, A. D. 1885, and no reason whatever is shown for not so doing. Suit was delayed until the January term, A. D. 1886, of the County Court.

Diligence by snit has not, therefore, been shown. It then devolved upon appellee, under the other allegations of his declaration, to show that the maker, Sigerte, had absconded and left the State when the note was assigned to him, or to show that both the makers were insolvent. Pierce v. Short, 14 Ill. 144. Whatever may be said as to the proof of Sigerte’s absence from the State or his insolvency, we think there is an absence of proof that a suit against Jacob Pults at the September term, A. D. 1885, would have been unavailing. Appellee swears that at the time he got the note he thought him good; that it turned out lie was insolvent, “had nothing when the suit was brought against him.” When he became insolvent he does not pretend to state. The attempt to supply the omission in his testimony in chief by showing on his reexamination by parol that Jacob Fults had conveyed his interest in certain real estate prior to 1885, is unavailing for two reasons: First, the evidence was incompetent, and, second, it nowhere appears that between the time appellee got the note, and the suit, in January, 1886, he did not have other property than the real estate out of which the debt could have been collected.

Again, there is no proof whatever of Fults’ insolvency from April 25, 1886, to the date of bringing this suit, a period of about one year. Having failed to show diligence by suit to the first term after he got the note, the burthen of proof is upon appellee to show that the insolvency of the makers continued down to the time of the commencement of this suit. Bledsoe v. Graves, 4 Scam. 382. This is not done by showing a return of execution nulla l>ona a year before. For want of proof of due diligence by suit and of the insolvency of Jacob C. Fults, one of the makers of the note, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.