text:
    James P. Butler v. County of McLean.

      Criminal Lato—Bernards—Horse Thief—Powers of County Boards— Statutes.

    Under Sec. 15, Chap. 60, R. S., county boards have power to offer the reward therein named for the capture of a thief, where the property stolen is a horse of less value than $50.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
    This was an action brought by appellant against appellee to recover a reward of $100 each, for the capture of three horse thieves. A jury was waived and the case tried by the court.
    Dnder the authority given by Sec. 15, Chap. 60, K. S., the board of supervisors of the county of McLean passed the following resolution:
    “ Whereas, at the March meeting of this board the reward for the capture of horse thieves was raised from $50 to $100; therefore, be it resolved that the resolution be so changed as to read, the reward for the capture and conviction of any horse thief shall he $100, one-half of which shall he left in the hands of the chairman of this board to defray expenses of capture if necessary.”
    Under the inducement offered by this section and resolution, appellant captured three horse thieves, viz: Pearl Hosier, Benjamin Moore and Silas Buckles. All three were afterward convicted of horse stealing. Each of the first two stole a horse worth more than $50. The last one, Silas Buckles, stole a horse worth less than $50.
    The court below allowed appellant $100 each, less amounts that had previously been allowed him by the appellee, for the first two, and refused to allow him anything for the capture and conviction of the last named horse thief on the ground that the horse stolen by him was worth less than $50. To test this decision the appellant brings the case to this court.
    Mr. A. E. DeMange, for appellant.
    Messrs. E. H. Minor and E. O’Connell, for appellee.
   Wall, J.

It is provided by Sec. 15, Chap. 60, R. S., that, “the county boards of the respective counties may offer rewards not exceeding $1,000 each for the pursuit, arrest, detection or conviction of any person guilty of stealing any horse, mare, colt, mule, ass, or neat cattle, or any other property exceeding $50 in value.” And the question presented here is whether such reward can be offered where the property stolen is a horse not exceeding $50 in value. It was held by the Circuit Court that this qualification of value is to be applied to each of the different animals named so that no reward can be based upon the larceny of any unless of the stated valuation.

We are unable to agree with this construction. It is general knowledge that very few colts or cattle are worth $50. Yet such property is peculiarly exposed to theft, which is one—perhaps the controlling reason for affording it the special protection of this law. The larceny of a horse, mule or ass subjects the convicted offender to confinement in the penitentiary for the term of not less than three nor more than twenty years, regardless of value, while for other larcenies the term is less and it is necessary to aver and prove the special value of more than $15.

The well known policy of our legislation on this subject might properly be called in aid when construing the present enactment; but it is not necessary. Considering the language employed, with the punctuation as given, it is very clear that the qualification was intended to apply, not to the property named specially, but to other property having less need of peculiar protection, wherefore it was deemed necessary to add this limitation, as to such other property. Reading, however, without regard to punctuation, we reach the same conclusion. It is a familiar rule that every part of a statute is to be treated as having force, meaning and import. It is not to be supposed that the legislature purposely inserted superfluous words in an enactment. Rather it is to be presumed that every word had a proper significance. Here we find six different classes of animals specially enumerated, and the words, “or any other property exceeding $50 in value.”

If the construction contended for by appellee is correct, nothing was accomplished by such enumeration and the section means no more than it would if these classes had been omitted and the section had merely provided that in case of the larceny of any property worth so much the reward might be offered.

This is a remedial or an enabling statute intended to afford additional protection to property and to repress felony. It should not receive a construction so narrow as to render useless and unmeaning a substantive portion thereof, consisting of terms evidently selected with care and in view of some definite object and purpose.

The construction should be liberal rather than strict. We think there is little need of extrinsic aid in construing the language and that the plain import is that the limitation of value does not apply to the different animals specially designated, but only to other property not enumerated.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Conger, J.

license: Public Domain

text:
    City of Bloomington et al. v. William P. Brophy.

      Real Property—Forcible Retainer—Title—Evidence—Entry by Owner— Possession by Another.

    1. In a suit of forcible detainer, evidence as to title, introduced merely for the purpose of showing the character or extent of a possession, may properly be considered.
    2. The owner of land, having a present right of immediate possession, may enter the same in a peaceable manner, though occupied by another, without becoming by reason of such entry a trespasser.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
    Mr. A. E. DeMange, for appellants.
    Messrs. Kerrick, Lucas & Spencer, for appellee.
   Conger, J.

This was an action of forciUe entry by appellee against appellant and its street commissioner, for entering upon a strip of ground forming a part of Seminary avenue in the City of Bloomington.

In 1855 William T. Major laid out Major’s Seminary Addition to the City of Bloomington, and had it properly certified and recorded under the provisions of the statute of 1845. By the plat Seminary avenue was laid out sixty feet wide, from Center street to the C. & A. R. R.; Major owned all the land both on the north and south sides of Seminary avenue. He and his grantees sold the lots in Major’s Seminary addition fronting north on Seminary avenue as platted, and they are now owned by third parties who have built dwellings and other improvements thereon. Hntil the year 1887, the land north of Seminary avenue was used as a pasture by Major and his heirs, and an old board fence stood between it and a part of Seminary avenue. At Center street the fence stood south of a line fifty-five feet north of the south line of Seminary avenue and extended west in a direction a little north of west until, near the C. & A. R. R., it intersected a line sixty feet north of the south line of Seminary avenue as platted. Tn other words, at Center street the fence started south of the line claimed by plaintiff, then ran in a northwesterly direction till it crossed the line claimed by plaintiff, thence in the same direction till it intersected the sixty-foot line or true line of the street as platted. The city had located a street railway in Seminary avenue, with its center line on the center of the sixty-foot street as platted, and had erected electric light poles, and set water hydrants on the north side of the street, so that if five feet were taken off of the platted streets the poles and hydrants would stand in the sidewalk space on the north side, but not within the disputed five-foot strip. The water main and hydrants were laid and set in 1875, when one of the owners of the ground north of the old fence was mayor of the city.

In 1887 plaintiff, with others, purchased the pasture of .Major’s heirs and caused it to be platted into lots and streets and showing Seminary avenue by their plat to be only fifty-five feet wide. This plat was called Walnut Hill Addition. In some way the approval of the city council was secured for this plat and it was recorded with its certificates, thus attempting to take five feet of ground from the north side of Seminary avenue as platted in Major’s Seminary Addition, part of which had always been outside of the old fence and in the street as actually used, and causing to appear upon the deed records a second plat of Seminary avenue showing it only fifty-five feet wide, while the other, which had been of record for more than thirty years, showed it sixty feet wide.

The city council shortly afterward, upon petition of property owners on the south side of Seminary avenue, investigated the matter and adopted a report locating the true lines of Seminary avenue as platted in Major’s Seminary Addition, and directing its city engineer to see that no sidewalks were laid except on such lines. The plaintiff, some six or eight months prior to defendant’s entry, took down the old fence. Prior to the entry the city had passed an ordinance for a brick sidewalk on the north side of Seminary avenue, and under the authority of that ordinance the defendant Ives, as street commissioner, with the city engineer, located the north line of the street by measurements, set stakes and ran a line from stake to stake on the north line of the street, and peaceably, without force or violence of any kind, excavated, graded and laid a bed of cinders for the walk. Plaintiff then commenced this action; defendant pleaded the statutory plea of not guilty and introduced evidence of the city’s fee simple title to the street, the same as if justifying under a plea of liberum tenementum in trespass. Defendant’s evidence of title and of the location of the north line of Seminary avenue, as platted in Major’s Seminary Addition, was undisputed, but the court below refused to consider it, and held that the city’s peaceable entry upon its own ground, although without actual force or violence, was an unlawful entry and a forcible entry, “ within the legal meaning of that term.” The court’s ruling upon that point, and the judgment for plaintiff based thereon, is the error complained of.

We have appended to this opinion the statement of facts as presented in the brief of counsel for appellant, which will make the questions of law arising upon the record sufficiently clear.

It clearly appears from the record that the old fence upon the northern line of Seminary avenue did not stand exactly upon the northern line of the street, as contended for by either of the parties. At Center street it stood in the street if but fiftyffive feet wide, but in running west, it tended northward until it crossed the north line of the street if regarded as sixty feet wide, thus leaving a part of the ground which appellee obtained possession of in the court below, south of the fence and beyond any possession claimed by him or his grantors as adverse to the appellant. In thus holding we think the court below erred. But the real questions are : First, in a suit of forcible detainer, is it competent for the court to inquire into the title? It needs no citation of authorities to show that this can not be done, when the title as such is the issue, and both parties rely upon conflicting titles for success. But when introduced merely for the purpose of showing the character or extent of a possession, evidence of title may be shown.

As we said in Bloomington v. Graves, 28 Ill. App. 619, “Where the land is entirely vacant at the time of the alleged trespass or forcible entry, either party may introduce his title papers, because in such case title draws to it a constructive possession; and so, also, where it is actually occupied in part, the party so occupying may introduce them, because they fix by conclusive presumption the extent of his actual possession, which in either case is sufficient for all the purposes of this action.”

In the present case it was proper to investigate the title of the city to the strip of five feet on the northern side of Seminary avenue to determine whether it had such constructive possession by virtue of its ownership as would draw to it the right of entry. Had appellee, however, set up and relied upon a conflicting title, the examination and decision of such a question would not have been proper in this form of action. He did not do this, but relied upon the fact that the city had never been in the actual possession of such strip, and this presents the second question, which is :

Can the owner of land, having a present right of immediate possession, enter the same in a peaceable manner, though occupied by another, without becoming, by reason of such entry, a trespasser? The Supreme Court in the cases of Dearborn Lodge v. Klein, 115 Ill. 177 and Lee v. Town of Mound Station, 118 Ill. 316, have clearly answered this question in the affirmative. The prior decisions of that court upon this subject are reviewed, and the law is so clearly laid down that no doubt could be entertained as to the law of this State upon the subject were it not for certain expressions used by the court in the late case of Gage v. Hampton, 127 Ill. 87, which would seem difficult to reconcile with the former decisions, although it is said in the latter case that the Dear-born Lodge case has no bearing on that, and we therefore proceed upon the theory that the two former cases were not intended to be overruled or modified, and shall rest our conclusions upon them.

Upon the authority of these cases, we think the city, having the title to this strip of five feet, had a right to enter upon and take possession of it, provided it did so without force, and in a peaceable manner, and that the word “force” as here used means actual force, as contradistinguished from implied force, and that after Seminary avenue had been dedicated to the public to the width of sixty feet, any possession of such street or any part of it by appellee or his grantors, as against the public, “must have been in subordination to its rights. If lawful, it must have been in trust for the public, and to enable those representing the public to appropriate it to its distinct use at any moment they deemed advisable.” Lee v. Town of Mound Station, supra.

It follows, we think, if we are not mistaken as to the holding of the Supreme Court, that the Circuit Court proceeded upon an erroneous view of the law, and its judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


author: Wall, J.

text:
    Lemuel J. Anderson v. Walker Donaldson.

      Sales—Hogs—Disease—Express Warranty—Breach—Instructions— Damages—-Barden of Proof.

    1. From the evidence adduced, this court holds that defendant gave a warranty to plaintiff at the time of the sale in question.
    2. In the case presented this court holds that although an instruction given for thé plaintiff was defective, in that it left it to be inferred that a mere statement by the defendant that certain hogs were sound, regardless of the time at which it was made, or its object, would, if relied upon by the plaintiff, constitute a warranty, yet, as the evidence disclosed no such declarations except at the time of the sale, and other instructions were clear and positive to the effect that the statements should have been made for the purpose of assuring the buyer of the truth of the facts affirmed and thereby inducing a sale, such errors did no harm.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Menard County; the Hon. L. Lacey, Judge, presiding.
    Messrs. Beach & Hodnett, for appellant.
    Messrs. T. W. McNeely and N. W. Branson, for appellee.
   Wall, J.

Appellee recovered a judgment against appellant for $247.80 in an action on the ease.

The declaration contained seven counts, all of which except the last were based upon an alleged breach of warranty in the sale of hogs. The last count was for fraudulently concealing the diseased condition of the hogs, and averred that the plaintiff, being unaware of their said condition, turned them in with other hogs of his, whereby the latter became infected, etc.

The evidence in the case is quite voluminous and not harmonious. The argument of appellant is mainly devoted to a discussion of the question whether there was a warranty and a breach thereof, as there seems to be nothing to support the charge of deceit alleged in the last count. We are not impressed with the belief that the verdict is contrary to the evidence. The appellant undoubtedly used expressions to the appellee personally and to the crowd in general which might Avell imply a warranty, and it is not unreasonable to regard him as intending to be so understood. It is altogether probable the hogs were then infected, and it is certain the appellee sustained damages in consequence to the amount of the verdict. We should not feel at liberty to set aside the conclusion of the jury upon such a question of fact, in regard to which they were especially fitted to decide betAveen the parties. There is, no doubt, considerable conflict in the evidence, but there is nothing so remarkable in this respect as to require our interference.

The fourth instruction given for plaintiff was defective, in that it left it to be inferred that a mere statement by the defendant that the hogs were sound and all right, regardless of the time it was made or its object, would, if relied upon by the plaintiff, constitute a warranty. As to the time the statement was made, the evidence disclosed no such declarations except those on the occasion of the sale. Hence the looseness of the instruction in this respect did no harm. As to the necessity that the statement should have been made for the purpose of assuring "the buyer of the truth of the facts affirmed, and thereby inducing the sale, other instructions given, as well for plaintiff as defendant, were clear and positive. It was distinctly announced in the plaintiff’s third and fifth, and in the defendant’s fifth, eighth, ninth, tenth, eleventh and twelfth; while in the first, second and third for defendant the jury were plainly told that nothing less than an express warranty would suffice. When the two sets of instructions are all considered it is hardly possible—certainly not probable—that the jury were misled on this point. We can not properly reverse the judgment for this defect when we are so well justified in the view that it did not improperly affect the verdict. Willard v. Swansen, 126 Ill. 381.

It is urged the seventh instruction for the plaintiff gave the jury the utmost latitude as to the amount of the verdict.” The amount was, by the instruction, to be found from the evidence not to exceed the ad damnum., and it is apparent from the result that the reference to the amount claimed in the declaration had no effect upon the jury. It is also urged that by the modification of several instructions asked by the defendant the burden of proof was improperly shifted from plaintiff to defendant as to one of the necessary elements of a warranty. We think the criticism unsound, and that no error was committed in that respect.

Ho other points are urged in the printed argument. The main question in the case was whether there was a warranty. That was for the jury, and the controversy was one that a jury was peculiarly qualified to determine.

We think no error of law appears of such character as to warrant us in setting aside the judgment, and the same must therefore be affirmed.

Judgment affirmed.


text:
    Addie Rohn v. City of Beardstown.

      Ferries—Regulation of Rates—Reservation to City—Exercise of Right Must be Reasonable.

    1. A private statute granting a ferry privilege, and containing the provision that a certain city shall have the right to regulate and control the rates of toll, implies that such regulation shall be reasonable.
    2. In the case presented this court holds that, in view of the evidence, the judgment of the court below, upholding as reasonable the rates established by the city, which are herein complained of, should not be disturbed.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Cass County; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Morrison & Whitlock, for appellant.
    In the case at bar the ferry owners accepted the charier under the provision that the city should determine the rates of ferriage. But that would only mean such rates as were reasonable. The enforcement of this ordinance would destroy the business of appellant. Hence the ordinance is in restraint of trade, and therefore invalid. T., W. & W. R. R. Co. v. Jacksonville, 67 Ill. 37; Chicago v. Rumpff, 45 Ill. 90; Caldwell v. Alton, 33 Ill. 416; C., C. I. & P. R. R. Co. v. Joliet, 79 Ill. 44; Bloomington v. Wahl, 46 Ill. 489; Gridley v. Bloomington, 88 Ill. 554; see, also, Clinton v. Phillips, 58 Ill. 102; Trustees v. People, 87 Ill. 303; Ruleson v. Post, 79 Ill. 567; 1 Dillon on Municipal Corp., Sec. 319, p. 331, 3d Ed.; Robinson v. Mayor, etc., 1 Humph. 156, reported in 34 Am Dec. 625, with copious notes on page 633.
    Messrs. B. F. Thacker and A. A. Leeper, for appellee.
   Wall, J.

The General Assembly passed an act which was approved February 26,1867, granting to Luther A. Jones and Seth Thompson a ferry franchise on the Illinois river, at Beardstown, for the term of twenty-five years.

The privilege so conferred was subject to the payment of $200 per annum for a license to the city of Beardstown, and to the provision that the said city should “ have the right to regulate and control the rates of toll for crossing the said ferry.”

On the 6th of August, 1889, the city for the first time, so far as disclosed by the record, assumed to exercise the power to fix the rates, and passed an ordinance making them much lower than had previously been charged, and imposed a fine for non-compliance therewith.

Appellant, who claims to own the franchise by purchase from the original grantees, and who was operating the ferry when said ordinance was adopted, was sued by the city for charging in excess of the ordinance rates. The cause was tried by the court by consent, and there was judgment for the city, the propriety of which is now presented by the errors assigned.

The only question is whether said ordinance is a valid exercise of the power conferred by said act.

It is suggested on behalf of the city that the power reserved in the act to the city to fix the rates is without limitation, and rests upon the same ground as though it had been reserved to the legislature. We are of opinion that the city was vested with all the power which would have remained in the State had the reservation been generally to the legislature to fix said rates, and the inquiry would then be whether they might have been placed at any figure, or whether the limitation or condition that they should be reasonable was implied.

The object of granting the franchise was to benefit, not only the grantee, but the public, and it is not to be presumed that such a grant would have been desired if coupled with the condition that the property employed and the money invested might at any time be rendered worthless by a ruinous reduction of the rates, and where such power of control is reserved it is fairly implied that it should be exercised reasonably, otherwise not only the grantee but the public would suffer.

If this be not so the most unjust and unfortunate consequences might result, and we are not disposed to assume that the legislature so intended.

While the letter of the provision is that the city may regulate and control the rates,” the spirit thereof requires that such regulation and control must be so exercised as to preserve and not destroy the subject-matter, and by placing proper limits and restrictions upon the rates, carry out and accomplish the general purpose which led the legislature to confer the privilege, thus securing to the public the valuable and necessary service which the ferry would be able to render at rates that would be reasonable and fairly remunerative to the owner of the franchise. So the inquiry is narrowed down to the mere question of fact, were the rates fixed unreasonably low ?

Perhaps it is more accurate to regard this as a mixed question of law and fact, for it to some extent involves both. What items should be considered as a proper basis of the calculation ?

What are the necessary fixed charges? First, all necessary expenses; second, interest on the investment.

In the first item should be counted not only current and useful expenses but some per centum for annual repairs and depreciation in value, and in the second it would be important to know not merely what had been the cost of the outfit—the plant—but what it should be or should have been by good management and careful construction.

An unreasonably expensive supply of boats or other appli, ancos, constructed and provided regardless of cost, ought not to furnish in whole or in part the basis for an interest charge. We do not find in this record such information on this point, as to the cost or real value of the property, as would be useful in forming a correct estimate in regard thereto. There is also a want of accurate and certain evidence in reference to the receipts and current expenses. It is probable that an increased and growing traffic induced by low rates will compensate partially if not wholly for the reduction, but this can not well be known until more time has elapsed. The ordinance had been in force but a brief period before the trial, and the testimony as to what the result had been, as well as the opinions of witnesses as to what it would be, was far from convincing on either side. The presumption is that the rates fixed by the ordinance are fair and reasonable, and the burden is upon appellant to show the contrary. All considered we are not prepared to say that the finding of the court is so manifestly against the rights of appellant as to require our interference. The judgment will be affirmed.

Judgment affirmed.


text:
    Thomas J. Bunn et al. v. The People, for use, etc.

      Principal and Surety—Debt—Board of Education—Treasurer of— Commissions—Voluntary Relinquishment of.

    Where a treasurer of a board of education has voluntarily paid to his successor in office the amount of money in his hands, including the amount he might be entitled to hold as commissions, under the statute, he cannot subsequently, having been again elected to the office, retain from his then successor, the commissions on the funds handled by him during the first period for which he held the office. Hi can only retain the commissions out of the funds of the current year.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
    Messrs. Stevenson & Ewing and Hamilton Spencer, for appellants.
    1. The appointment of an individual to an office for which a compensation is fixed by law is a contract to pay the officer such compensation, which the appointing power has no right or power to change. Patton’s Case, 7 Court Cl. 371; Adams v. U. S., 20 Court Cl. 115; U. S. v. Williamson, 23 Wall. 411; Dartmouth Coll. v. Woodward, 4 Wheat. 518, 694; Davis v. Gray, 16 Wall. 203-232; Bostarck v. Wisconsin, 103 U. S. 5.
    2. Even where an officer, upon receipt of part of his legal compensation, gives a receipt in full, he is not thereby estopped from claiming, nor does he waive his right to claim and collect the residue. Montague v. Massey, 76 Va. 307; Neal v. Allen, Ib. 437; Adams v. U. S., 20 Court Cl. 115; Fisher v. U. S., 15 Court Cl. 323-330; Mitchell v. U. S., 18 Court Cl. 281; Dyer v. U. S., 20 Court Cl. 166; Baldwin v. U. S., 15 Court Cl. 297; People v. Board of Police, 75 N. Y. 38; Kehn v. State, 93 N. Y. 291; State v. Steele, 59 Texas, 200; State v. Cooke, 57 Texas, 205; U. S. v. Langton, 118 U. S. 389.
    3. Even a positive contract made by an officer that he will not claim part or all of the compensation fixed by law is void, as being against public policy, and does not prevent him from claiming all such compensation. Much less does mere silence, or omission to make such claim, bar him. People v. Board of Police, 75 N. Y. 38; State v. Mayor of Nashville, 15 Lea, 697; Settle v. Sterling, 1 Idaho, 259 (cited in 13 U. S. Dig. N. S., 691, Sec. 35); Liverpool Corp. v. Wright, 1 John. (V. C. Rep.) 354, cited in Jacob Fisher’s Dig., Vol. VI, 9559; State v. Purdy, 36 Wis. 213; Alvord v. Collin, 20 Peck, 418; State v. Collier, 72 Mo. 13; Tucker v. Aiken, 6 N. H. 140; Carruthers v. Russell, 53 Iowa, 346; Bac. Ab., “Offices and Officers,” F, 299; Waterbury v. Lawton, 57 Conn. 173.
    4. The doctrine of waiver or estoppel has no place as regards the compensation of public officers. People v. Board of Police, 75 N. Y. 38; Goldsborough v. U. S., Taney, C. C. R. 80; Montague v. Massey, 76 Va. 307.
    5. There can be no estoppel in pais where positive contract could not produce the same result; nor can there be in any case without an element of fraud. Mueller v. Kassman, 84 Mo. 318; People v. Brown, 67 Ill. 435.
    6. Silence without knowledge works no estoppel. Even knowledge on the part of Bunn that no compensation was intended, and that no appropriation by the board of education was made, would not in any way affect his rights. Hill v. Epley, 31 Pa. Stat. 334; Boggs v. Mining Co., 14 Cal. 368; State v. Mayor of Nashville, 15 Lea, 697.
    Messrs. I. N. Phillips and Kerrick, Lucas & Spencer, for appellees.
    The two per centum of each year’s revenue could only have been deducted from the revenues of that particular year; the statute does not contemplate the confusing of the revenues of different years, thus making the taxpayers of one year assume the burdens belonging to taxpayers of former years. Denby v. Moore, 1 Barn. & Ald. 123.
    The yearly settlements of Bunn with the board have the quality and force of accounts stated, and can not be opened up except by showing fraud, accident, imposition, or mistake of fact, and then only in equity. Bankhead v. Alloway, 6 Gold. 75; McDoe v. Brown, 2 Rich. (S. C.) 95 (1870 and 1871).
    And this doctrine has been applied to accounts of an official nature, as between county treasurer and county board, town treasurer and town board, and to accounts of guardians, administrators, etc. Sexton v. Richland Co., 27 Wis. 349; Milwaukee Co. v. Hackett, 21 Wis. 613; Jefferson Co. v. Jones, 19 Wis. 51; Middletown v. Miles, 61 Pa. St. 290; Porter v. Cain, 2 McMullin Eq. (S. C.) 84; Murrel v. Murrel, 2 Strob. Eq. (S. C.) 148; Harding v. County of Montgomery, 55 Iowa, 41; Thomas v. Board of Supervisors, 45 Mich. 479; Cox v. City of New York, 9 N. E. Rep. 48; Supervisors, etc., v. Birdsall, 4 Wend. 455; The Commissioners of Scioto v. Gherky, Wright (Ohio), 493; Gilchrist v. Brooklyn Grocers, etc., 66 Barb. 401; Bruen v. Hone, 2 Barb. 586; Skying v. Greenwood, 4 Barn. & Cress. 282 (side); Cave v. Mills, 7 Hurls. & Norm. 913; Shaw v. Picton, 4 Barn. & Cress. 715 (side).
    An agreement by a treasurer, made before his appointment, that he will charge less compensation than the statute allows him, is so far binding upon such treasurer that he can not, after settling bis accounts in accordance with the agreement, recover the additional fees allowed by statute. Hobbs v. City of Yonkers, 32 Hun, 454.
   Conger, J.

This was an action of debt on the official bond of appellant as treasurer of the board of education of the city of Bloomington, and resulted in a judgment against appellant and his sureties for §14,687.28.

Appellant had acted as treasurer of such board of education from June 5, 1877, to the spring of 1886, having been elected from year to year during that period. He was again elected as such treasurer in the spring of 1887, and remained such until May, 1888, when his successor was elected, and on June 9, 1888, made a formal demand upon appellant for the balance claimed to be in his hands. Appellant replied in writing: “ I ref use to pay over the sum of §15,777.78 (the amount demanded) to the board of education until a settlement is made with said board for services rendered, claiming two per cent on all amounts passing through my hands as treasurer of said board.”

Appellant never made any claim to his commission of two per cent until the spring of 1888, and as he testifies, did not know that he was entitled by the law to such compensation until that time. From year to year he made his reports showing balances in his hands without any charge for this two per cent, and when he went out of office the first time, in the spring of 1886, he paid over to his successor the entire amount in his hands with no deduction for commissions. He now claims the right to deduct from the taxes in his hands, raised during the last year of his being in office, an amount equal to two per cent on all the amounts passing through his hands as treasurer during the entire time he held the office. The Circuit Court rejected this claim, allowed him his two per cent commission for the last year during which he was in office, and rendered judgment against him for the balance in his hands.

A great many questions are raised and elaborately argued by counsel. Such as, that appellant was a member of the board of education which elected him treasurer; that he was for a portion of the time postmaster and hence could not legally hold the office of treasurer. We do not deem it im portan t, however, to notice any of these.

We think the Circuit Court held correctly. All hut the last year’s commissions he had voluntarily paid in the spring of 1886 to his successor in office.

If he was ignorant of his right to retain his commission it was ignorance of the law, and not of fact, and from that he could not be relieved. Again the law says the treasurer “shall be permitted to retain two per centum,” and this means, out of the current year; not that a treasurer may continue from year to year to pay out all the revenues in his hands, including his own commission, whether as a gratuity or from ignorance of his rights in the premises, and then, upon changing his mind, or becoming better informed as to his rights, break in on the revenue raised for the support of the public schools of the current year for back salary, or commissions. We find no error in the record, and the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    David Lockman, Sr. v. The County of Morgan.

      Highways—Order of Board Establishing—County Not under Township Organization Laiv—Appeal—Entry of Order Nunc pro Tunc.
    1. There is no provision authorizing an appeal from an order establishing a public road (not a cartway) in the present road law relating to counties not under the township organization law, and the only appeal that is provided for in such cases is from the assessment of damages and the judgment thereon.
    2. Appeals depend wholly upon the statute and can be taken only where it provides for them.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.

      Mr. Oscar A. DeLeuw, for appellant.
    Messrs. Brown & Kirby, for appellee.
   Wall, J.

The county hoard of Morgan county, a county’ not under township organization, at’its September term, 1886, entertained a petition to establish a public road, which petition was signed by more than thirty-five voters residing within five miles of-'the proposed road, and appointed persons to examine the route and report at the next term. The viewers presented their report at the December term following, favoring the road, and the board then ordered that the same should be opened when the damages were all paid, provided also that Bader, one of the petitioners, should file his bond with approved security, in the penal sum of $2,000, to save the county from all costs and damages, which bond was afterward filed and accepted. By the neglect of the clerk of the board this order of the December term, 1886, was not entered of record.

At the December term, 18S8, the same petitioner, Bader, applied to the board asking that the order be entered nunc fro fame. The motion was resisted by David Lockman, Sr., but after a hearing of evidence and argument it was allowed, and the order was entered then "as of December 23, 1886. Thereupon Lockman, as the record states, “ came and insisted on an assessment of damages pursuant to the statute, made and provided, and made his motion for that purpose, which motion was overruled, and the said David Lockman prayed an appeal to the Circuit Court of Morgan County, from an order of the court directing the clerk to enter the order of December 23, 1886, nunc ¡pro tunc, and from the order which is allowed,” etc.

Having perfected his appeal and the matter having reached the Circuit Court, a motion to dismiss the appeal was entered on behalf of the county and was sustained by the court, from which judgment Lockman has prosecuted an appeal to this court, and we are required to determine whether said appeal from the county board to the Circuit Court was properly dismissed.

In the case of Roosa v. Henderson County, 59 Ill. 446, it was held that an appeal from the order of the county board opening a new road, and before the damages were assessed and the final order thereon was entered, was premature. At the time that case was decided the mode of proceeding was somewhat different from the present. Then the assessment of damages was made by commissioners, whose award was reported directly to the county board, and thereupon the board, if it deemed the damages reasonable, and that the opening of the road was called for by the public interest and justified by the county finances, would approve the award and order the money paid, from which decision an appeal was allowed. It was very clear that the appeal was not in order until the final determination, after the damages were assessed.

As the law now stands under the present constitution, the damages must be assessed by jury, and it is provided by Par. 171, Chap. 121, Starr & Curtis’ Ill. Stats., that the proper road officer shall apply to a justice of the peace, who shall choose a jury to be empowered to assess the damages, and upon the verdict of the jury the justice shall enter judgment; and it is further provided that either party may appeal from such assessment and the judgment thereon to the Circuit Court, and that it shall be competent for the county board (or the petitioner in case of a cartway) to abandon the road after final judgment on such appeal if the award of damages is considered too high.

By Par. 164 it is provided that in the case of a cartway certain proceedings shall be had and that an appeal may be granted' to the Circuit Court from the order establishing such cartway. We have not been able to find any provision authorizing an appeal from the order establishing an ordinary public road (not a cartway) in the present road law relating to counties not under township organization, and the only appeal that seems to be provided for in such cases is from the assessment of damages and the judgment thereon.

By the last clause of Par. 163, it is provided that “no new road shall be considered located nor be opened until the cost of condemning the land for such road shall have been ascertained as provided in Sec. 23 (Par. 171) of this act and paid,” so that it is plain the matter is not final until then.

The petition in this case was not framed as the statute requires (Par. 164) in case of a cartway, but is in the form prescribed for the ordinary public highway. True, it specifies the width of the proposed road, thirty feet less than is provided for the main leading roads, but this is authorized by Par. 168; and while the width is less than required for the main roads, yet it is a public road in the ordinary sense of the term, as distinguished from a cartway.

We are not required to determine whether the provision for an appeal in case of a cartway found in Par. 164 will authorize the appeal before the final determination, after damages are assessed.

Holding this is not a cartway and finding no provision for appeal in case of the ordinary public road except from the assessment of damages, we must necessarily hold with the Circuit Court that this appeal was properly dismissed because it was improperly allowed. Neither are we required to determine whether, as the law now stands, it would be proper upon an appeal from the assessment of damages, to inquire into the regularity of the prior proceedings, as might have been done under the statute in force when Eoosa v. Henderson County was decided.

There is a further objection to this appeal; that it is from a mere order, requiring the clerk to make an entry nunc pro tunc, and not from the original judgment. The order appealed from did not establish the road. It merely provided for placing in proper form an order which was made for that purpose (establishing the road) at the December term, 1886. The board was thus exercising an inherent power it certainly possessed to cause its record to show its proceedings in the original matter, by merely furnishing in due and regular entries the unquestionable evidence of its judgment. No new rights were thereby acquired—no new liabilities were imposed. All that was done or could be done then was to make the record, as it should have been made at the time. People, etc., ex rel. v. Quick, 92 Ill. 580.

Appellant urges that on the occasion of making this order nunc pro tunc he sought to have his damages assessed, and that the board, in failing to take action upon this motion, did something from which he could appeal. The record, which we copy verbatim above, seems to show that this appeal was limited to the matter of granting the order nunc pro tunc, but assuming that it would bring up all that was then done or omitted, we are unable to perceive that any ground for complaint was thereby presented. The board could not assess his damages at any time and they were not assuming to do anything beyond the mere entry of the order, as it should have been, at the December term, 1886. But this point, whatever it may involve, must be ruled against appellant if there is no provision for the appeal, as we hold. Appeals depend wholly upon the statute, and can exist only where it provides for them. The judgment is affirmed.

Judgment affirmed.


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    The Chicago & Alton Railroad Company v. Julius J. Elmore.

      Railroads—Injury to Stock—Burning Grass—Instructions—Technical Objections—Failure of Jury to Specify under Which Count Verdict Was Rendered—Practice.

    1. Where the evidence upon a question of fact is conflicting the verdict of the jury thereon will not be disturbed.
    2. Assignments of error not called to the attention of the court below upon the motion for a new trial but first raised here, can not be considered.
    3. Technical objections to instructions will not be considered by this court where it appears that the jury could not reasonably have been misled.
    4. It is not error for the jury to fail to find and return in their verdict under what count of the declaration they find a defendant guilty.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Morgan County; the Hon. C. Epler, Judge, presiding.

      Messrs. Brown & Kirby, for appellant.
    A railroad company is not required to keep such a guard on its fence or gate as to know the instant a breach occurs and repair at the time. C. & N. W. R. R. Co. v. Harris, 54. Ill. 528-531; Ill. Central R. R. Co. v. Dickerson, 27 Ill. 55; C. & N. R. R. Co. v. Barrie, 55 Ill. 226.
    The evidence above cited shows that, if there was any defect in the fastening, it was not patent or discernible except upon a close examination, and that neither those using it and specially interested in its condition, nor any officer or agent of the company, had any knowledge or notice of any defect at the time of the accident.
    Where a railroad fence, apparently good, is defective, the company must have notice of the defect before it can be held liable for any injury to stock. C., B. & Q. R. R. Co. v. Seirer, 60 Ill. 295; Ind. & St. L. R. R. Co. v. Hall, 88 Ill. 368.
    A railroad company will not be liable for the temporary insufficient condition of its fence unless it has notice thereof and thereafter has neglected to repair. C. & A. R. R. Co. v. Umphenour, 69 Ill. 198.
    No lapse of time is of itself conclusive that the railroad company knew or ought to have known of the defect in the fence. Each case depends upon its own circumstances. The company is bound to repair only within a reasonable time after the defect becomes apparent, all the circumstances being taken into account. Cleveland, etc., R. R. Co. v. Brown, 45 Ind. 91; Perry v. Dubuque, etc., R. R. Co., 36 Iowa, 102.
    And a very different rule as to diligence should be applied where the defect is a broken hinge or a bent fastening or hook, from that which would be applicable where a fence is thrown down or a wide breach made therein.
    While it is the duty of a railroad company to use diligence in noting and repairing defects or breaches that may occur in its fences, it is also the duty of the adjacent owner to be vigilant and give notice to the company if any defects are found. C., B. & Q. R. R. Co. v. Seirer, 60 Ill. 295; Poler v. N. Y. Cent. R. R. Co., 16 N. Y. 476-481.

      We think the principles above laid down, when applied to the evidence .offered by appellee alone, distinctly show that he has no right to recover under the first count of his declaration.
    Messrs. Morrison & Whitlock, for appellee.
   Conger, J.

The appellee, Julius J. Elmore, is the owner of a farm on which he resides, situated in the northeastern part of Morgan county, Illinois. The railroad of the appellant runs through this farm. During the night of August 1, 1888, two horses belonging to appellee got upon the railroad track of appellant and were killed by the trains of appellant. These horses went upon the track through a gate leading from the pasture of appellee to a farm crossing over the railroad. On the 7th of February, 1889, an acre or two of grass was burned upon a pasture of appellee adjoining the right of way of appellant, by means of a fire originating upon the right of way. Appellee brought this action to recover from appellant damages alleged to have been sustained by him in the killing of said horses and the burning of the grass upon his pasture.

The declaration of appellee contains two counts. In the first count of his declaration, as amended, appellee charges that “it was the duty of said defendant to construct and maintain at farm crossings, gates or bars sufficient to prevent horses from getting on its railroad track, but that said defendant did not construct gates or bars at the farm crossings over its said road and thereafter maintain the same sufficient to prevent horses from getting on its said railroad, but neglected so to do, by means whereof two horses of the plaintiff, by reason of said gate not being constructed or maintained as aforesaid, on or about the 1st day of August, 1888, strayed from the1 pasture of the plaintiff in said county of Morgan contiguous to said defective gate onto the track of said railroad,” and were there struck and killed by the train of appellant.

In the second count of his declaration, appellee charges that it was the duty of appellant to keep its right of way free from dead grass, etc., etc.; that appellant failed to do so, by means whereof fire was communicated from a passing engine to such dry grass, etc., which was communicated to grass in a pasture of appellee, contiguous to said right of way, etc. This suit was instituted at the May term, 1889, of the Circuit Court of Morgan County, tried before a jury, who found a verdict fertile plaintiff, assessing his damages at 8396. A motion made by appellee to set aside the verdict and grant a new trial was overruled and judgment rendered on the verdict against the appellant, who brings this appeal to reverse said judgment.

The defect in the gate complained of, was an alleged defective fastening. The one used was called a “ standard fastening,” and consisted of a chain from nine to twelve inches in length fastened to the gate by a staple, and a hook driven into the gate post. The gate was fastened by slipping a link of the chain over the hook. This hook was constructed with a stem about four inches in length, that was driven into the post by means of a shoulder under the curved part. This curved part, or hook, was intended to stand up two, or two and one-lialf inches perpendicular to the stem, -when driven into the post. It was insisted by appellee that this hook pointed or leaned to the gate, instead of being perpendicular, so that any pressure on the gate would push the chain over the hook, and the gate would swing open. Appellants insist that the evidence was not such as to justify the jury in believing that this defect existed in the hook at the time the horses passed through the gate, and even if it was, it had not so existed for a sufficient length of time to hold the company responsible for the consequences that resulted. This was the principal controverted question of fact upon the trial, and after examining the testimony with care, we are not prepared to say that the jury were not authorized to find as they did upon it. The most that can be said is that the evidence upon this point is conflicting, and in such cases the verdict should not for that reason alone be disturbed.

The first assignment of error upon the record is: “ The court erred in admitting incompetent testimony for the appellee over the objection of the appellant,”—and the second is: “ The court erred in excluding competent evidence offered by the appellant.” As neither of these assignments of error were called to the attention of the court below in the motion for a new trial, and are for the first time raised in this court, they can not be considered.

The third assignment of error is that the court erred in giving to the jury improper instructions for the appellee. The objections pointed out are exceedingly technical. The first instruction was as follows:

“ The court instructs the jury, for the plaintiff, that it is the duty of railroad companies in this State, six months after the road has been opened and operated, to construct and maintain at farm openings, gates or bars sufficient to keep cattle and horses from getting on said road, and in this case if you find from the evidence that said gate was constructed with insufficient fastenings, so that said gate was not held close thereby and prevented from swinging open when shut, then in law such gate would not be a compliance with the law; and if you find from the evidence that the said gate swung open by reason of such defective fastenings, and that thereby the horses of the plaintiff got on the track of the defendant and were thereby killed, then in law the defendant would be liable in this case for whatever sum the evidence may show to have been the value of said horses, together with a reasonable attorney’s fee for suing for the same.” The objection is to the use of the word “ constructed.” It is insisted that this word referred to the condition of the gate and its fastenings when originally made, or constructed, and not to the time the horses passed through it.

The second instruction is criticized because not modified by a statement that apjiellant had notice of such defect, or that it had existed for such length of time prior to the accident as to authorize a presumption of notice. It is as follows:

“The duty of railroad companies to build and maintain gates or bars at farm crossings is not complied with by building a gate with a defective fastening, and in this case if the evidence shows that the fastening of said gate was so defective that when shut it would, on pressure of wind against it or other ordinary forces, swing open, then in law such gate so constructed would not be in compliance with the statutes of this State.” The controversy before the jury was as to the condition of the gate and its fastening at the- time of the accident. The attention of the jury was directed to that point, and not as to whether it had remained in a defective condition for any particular length of time. We think any reasonable jury would have understood both of these instructions as referring to the real condition of the gate and its fastening at the time of the accident, and, while they may be subject to verbal criticism, they could not have prejudiced the rights of appellant.

It is also urged there was error in the jury failing to find and return in their verdict under what count of the declaration they found appellant guilty. We do not think this point is well taken. If appellant desired the finding to be special as to any particular fact or facts, it could have submitted them under the statute; but nothing of the kind was attempted.

An instruction for appellant was given that the verdict might take the form of finding as to the first and second counts of the declaration, but they were not told it was obligatory upon them to do so, nor do we see how the jury could have been required to return what part of their verdict was based upon the value of the horses, and what upon the damages caused by the fire. If they had found against appellant upon one only of the counts, it is to be presumed they would •have followed the suggestion of the court, and returned the form of verdict insisted upon by appellant; but not having done so, it is reasonable to suppose that the amount of the verdict is based in part upon both counts.

We see no good reason for disturbing the judgment of the Circuit Court, and it will therefore be affirmed.

Judgment affirmed.


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    Jerome McGinnis et al. v. Thomas Fernandes.

      Replevin—Corn in Shook—Ejectment—Judgment for Plaintiff in— Lease during Pendency of Suit—Crops.

    A lessee of farm lands, the relation being entered into pending an appeal by his lessor from an adverse decision in an action of ejectment involving the land in question, can not hold the crops raised thereon, though severed from the soil, where the judgment in behalf of the plaintiff in such suit is affirmed in the higher court.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Sangamon County ; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. Gross & Broadwell and J. F. Barrow, for appellants.
    Messrs. Greene & Humphrey, for appellee.
   Wall, J.

The appellee recovered a judgment in an action of ejectment from which the defendant therein prosecuted an appeal to the Supreme Court, pending which appeal said defendant leased the land to the appellants in the present case. The appellants cultivated the land in corn, and the crops, being mature, were cut and shocked on the land. The judgment in ejectment was affirmed by the Supreme Court and a writ of possession was executed by the sheriff, and the land, with said corn in shocks, one thousand in number, being thereon, was delivered to the appellee.

The appellant brought replevin against the appellee for said shocks of corn, and the cause was submitted to the Circuit Court without a jury by consent. The finding and judgment of the court thereon was for the appellee, from which an appeal was taken to this court. The question is, to whom did the corn belong? We think it was correctly answered by the Circuit Court. By the judgment in the ejectment case it was conclusively determined that the land was owned by the appellee and that the possession of the lessor of the appellants was unlawful, and so was their possession. They could acquire no rights by such an unlawful possession as against the appellee in anything they might produce on the land.

Various authorities are cited by appellants as to the effect of a severance of the products of the soil. Were the question between debtor and creditor, executor and heir, vendor and vendee, different considerations would be involved. It is not to be doubted that in this State the rule is that growing crops would pass by the writ of possession. It was so held in Altes v. Hinckler, 36 Ill. 275, where the court, in speaking of such crops, remark: “For some purposes and between some parties they are so (personal property), but between the successful plaintiff in an action of ejectment and the evicted defendant, they are unquestionably a part of the realty

We are unable to see how a severance, unlawfully produced, could change the situation and give legal value and efficiency to the result of the unlawful act. In Simpkins v. Rogers, 15 Ill. 397, it was held that the owner of land could maintain trover for crops grown upon his land without his permission, and in Cratty v. Collins, 13 Ill. 567, it was held that one who, without right, makes a crop upon the land of another, can not maintain trespass against the owner of the land for appropriating the crop to his own use. See, also, Powell v. Rich, 41 Ill. 466, where it was said: “As between landlord and tenant, debtor and creditor, and under our statute between the executor and heir, growing crops are personal property. But as beíüveen a trespasser and owner of the soil and a vendor and a vendee, they are realty.” A tree, when growing upon the land, is realty; but when cut down and made into rails or posts or lumber, the character of personalty attaches to the product, and if the owner of the land were to sell it (the land), the rails or posts or lumber would not pass by the deed. Cook v. Whiting, 16 Ill. 480.

This is where the cutting down and manufacture is lawfully done—by the owner or by his consent. But if the tree were unlawfully cut down by a trespasser, and carried away after conversion into rails or boards, the right of the owner would in no wise be affected. He .could pursue and recover as long as he could identify. The change in the character of the property, making personalty of what was realty, could not help the wrongdoer.

If one wrongfully in possession of timber land is sued in ejectment, and the owner is awarded the possession in such action, it should not affect injuriously the rights of the latter, that the timber had been by the former unlawfully converted into rails or staves. It would be a strange proposition that the wrongdoer in such case could rightfully claim the proceeds of his own tortious act, and thereby deprive the land owner of the timber, which was its most valuable part. In the present case, the Circuit Court had held, in the ejectment proceeding, that appellee was entitled to possession before appellants took their lease. They were, of course, bound to take notice of the facts, and, as the proof shows, they had actual knowledge thereof. The mere appeal did not affect the validity of the judgment, but only suspended its operation. Curtis v. Root, 28 Ill. 367; Oakes v. Williams, 107 Ill. 158. The land was then the property of appellee, and had been from the beginning of that suit. Ho change of title resulted from that judgment. It merely adjudged that the land was the plaintiff’s, and therefore the defendant and those under him were unlawfully in possession.

It is unreasonable and illogical that on such facts the defendant or his' lessors could, by any act of his or theirs, reap a profit from their unlawful occupancy. In Adams on Ejectment, 367, it is said: “ When the sheriff declares the possession of the land under the writ'of habere facias possessionern, he thereby also delivers possession of the crops upon it, and such crops will pass to the lessor, although severed at the time of the execution of the writ, provided such severance has been made subsequent to the determination of the tenant’s interest, and of the day of the demise in the declaration. And the growing crops will also pass to the lessor by the execution of the writ of possession, although previously seized under a fieri facias against the tenant, if the day of demise be prior to the issuing of such fieri facias, inasmuch as they can not he said to belong to, the tenant, who is a trespasser from that day.” The following citations sustain the same position: McLain v. Boner, 24 Wis. 295; Kimball v. Lohmas, 31 Cal. 154; Rowell v. Klein, 44 Ind. 290; Am. and English Cy. of Law, Vol. 6, 245.

The case of Brothers v. Hurdle, 10 Ire. 490, which maintains the opposite view, is pressed upon us. There are probably other cases to the same effect, but we are not persuaded of their correctness.

We are of opinion that upon the facts the judgment of the Circuit Court was right, and have not deemed it necessary to specially consider the legal propositions held at the instance of appellee.

In substance, however, they accord with the general views we have stated and are approved. The judgment will be affirmed.

Judgment affirmed.


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    Penn Mutual Life Insurance Company v. Anna C. Keach.

      Life Insurance—Action on Policy—Premium—Non-payment of—Forfeiture— Waiver—Course of Dealing—Parties—Special Interrogatories.

    1. When the practice of an insurance company and its course of dealing have been such as to induce the belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief.
    2. An insurance company may permit its agent to waive a forfeiture notwithstanding provisions in its policies that agents shall have no such authority.

      3. In the case presented, this court holds that the evidence warranted the jury in the conclusion that the insured and the agent had an understanding binding upon both, in regard to a certain premium; that payment thereof was waived and postponed until a date which was later than the death of the assured, and that the acts of the agent were binding upon his company.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Greene County; the Hon. G. W. Herdhan, Judge, presiding.
    Messrs. James R. Ward and H. H. c. Miller, for appellant.
    The provision for the release of an insurance company from liability on a failure to pay the premium when due, is of the very essence and substance of the contract of life insurance. Klein v. Insurance Co., 104 U. S. 89; Knickerbocker Life Ins. Co. v. Pemberton, 112 U. S. 696.
    The result of the non-payment of the premium at the time stipulated in this policy was to forfeit the policy, unless the plaintiff established by a preponderance of the evidence that the company had legally waived the payment as it became due. The company was not bound to formally declare a forfeiture upon the non-payment of the premium as required by the policy; it is sufficient to set up the forfeiture by way of defense when sued. Catoir v. Am. Life Ins. & Trust Co., 33 N. J. 487; North v. N. A. Life Ins. Co., 5 Court Rev. 93, U. S. C. C.; North British Ins. Co. v. Steiger, 124 Ill. 87-88; Schimp v. Cedar Rapids Ins. Co., 124 Ill. 354.
    Usage on the part of the insurance company, even if shown, of giving notice of the day of payment, and the reliance of the assured upon having such notice, is no cause for non-payment.
    Usage of the insurers, not to demand punctual payment of a note, at the date of maturity, but to give days of grace, to-wit, “for thirty days thereafter,” is not, when shown, a waiver of the clause of forfeiture. Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 252; Morley v. New York Life Ins. Co., 2 Woods’ U. S. Cir. Ct. R. 661; Phelps v. I. C. R. R. Co., 63 Ill. 468.

      Did the company waive the payment in cash, of the premium payable May 5, 1888, by the terms of the policy issued to John B. Keach, and postpone the payment thereof to a time beyond the date of his death? This allegation of the declaration implies an agreement or contract something more than acquiescence. Furthermore, the well established rule, as we have seen, is that the fact that the company may have previously indulged the assured by accepting his notes or payments of premiums which were long due, and by giving him notice when his premiums would fall due, furnished no excuse for his not meeting the other premiums promptly, in accordance with the terms of his policy, and such usage, if it existed, did not render it obligatory upon the company to continue to accept the notes of the assured or the premiums after they were long due, or to continue, in the absence of an express agreement, to give such notice. Phelps v. I. C. R. R. Co., 63 Ill. 468; Morley v. New York Life Ins. Co., 2 Woods’ U. S. Cir. Ct. R. 661. Thompson v. Insurance Co., 104 U. S. 257; Insurance Co. v. Mowrv, 96 U. S. 544; Schimp v. Cedar Rapids Ins. Co., 124 Ill. 354.
    That the acceptance of notes for the quarterly premiums, accruing prior to May 5, 1888, upon the policies issued to John B. Keach and his wife, was a repetition of voluntary indulgences extended to Mr. and Mrs. Keach, at their request, by Mr. Hinman, solely upon his own responsibility and personal credit, and that Mr. and Mrs. Keach fully understood and participated in the transactions with that conviction, is clearly established by their own admissions contained in their letters given in evidence.
    Mr. Hinman did not propose to “ throw all payments over” to one time without knowing whether Mr. Keach was “likely” to obtain a loan, and when. His words are: “If yon let me know, I will arrange,” etc., but not without knowing. The proposition for postponement was qualified and conditional. The condition was not complied with. A contract, therefore, was not consummated; their minds never met unconditionally upon the two points that were most material to Mr. Hinman, to wit: Will you get a loan? If so, when? Corcoran v. White, 117 Ill. 118; Maclay v. Harvey, 90 Ill. 525; Olney v. Howe, 89 Ill. 556; Davidson v. Porter, 57 Ill. 300; Esmay v. Groton, 18 Ill. 483; Smith v. Wetherell, 4 Ill. App. 655; Fox v. Turner, 1 Ill. App. 153.
    Here all communication ceased. Mr. Hinman never answered Mr. Keach’s inquiries and never sent the note for one year for signature, and they never wrote him to inquire the cause. The time from February 28, 1888, to July 27, 1888 ? when Mr. Keach died — five months — elapsed without receiving a word from Mr. Hinman, when previously letters had passed monthly and oftener. This was too great a lapse of silence for them to reasonably expect that their notes would be accepted, or for them to be induced to believe that their insurance was safe. They abandoned it—dropped it.
    Messrs. Henry C. Withers and Palmer & Shutt, for appellee.
    Keach was notified at the commencement that he was to deal with B. P. Hinman, general agent at Chicago, “whose name was stamped on the policy.” And when Hinman, from time to time, forwarded notes for signature, and accepted notes instead of cash for premiums, and also disclosed to Keach that such notes, or some of them, had been forwarded to the home office of the company, Keach had the right to infer that Hinman had full authority to take such notes. Union Mutual Life Ins. Co. v. Slee, 110 Ill. 40.
    The company having adopted this course of business, should have continued it or given reasonable notice to the contrary. The company, in accordance with the course of business so adopted, should have forwarded a note for the amount of premiums falling due May 5, 1888. If it had done so a note would have been given. It was the fault of the company that such note was not given. The company could not suddenly and without notice change its course of business and then claim a forfeiture as a result of its own misconduct and neglect. Com. Ins. Co. v. Spankneble, 52 Ill. 53; Atlantic Ins. Co. v. Wright, 22 Ill. 463.
    “ If the practice of the company and its course of dealing with the insured have been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief. ” Chicago Life Ins. Co. v. Warner, 80 Ill. 413; May on Insurance, Sec. 381, et seq.

    A custom or mode of business once begun must be continued or notice given of a change. Forfeitures are odious, and there must be no case of management or trickery to entiap a party into a forfeiture. Insurance Co. v. Pottger, 33 Ohio, 489.
    In view of the company’s dealings with him, Keach had reasonable cause to expect and rely upon a note being sent him for signature and the usual postponement of cash payment, and the company is estopped from setting up a forfeiture of the policy for the non-payment of cash May 5, 1888. Insurance Co. v. Eggleston, 96 U. S. 572; Insurance Co. v. Norton, 96 U. S. 234.
    An insurance company may waive any condition of a policy inserted therein for its benefit, and evidence is admissible as to its practice in allowing its agents to extend the time of payment of premiums and premium notes, and the jury, upon such evidence, may find whether he was authorized to make the extension, and if so, whether the extension was, in fact, made. Insurance Co. v. Norton, 96 U. S. 234.
    In case of Phœnix Mut. Life Ins. Co. v. Doster et al., 106 U. S. Rep. 30, Mr. Justice Harlan has rendered a clear and able opinion approving the two cases above..
   Wall, J.

The appellee recovered a judgment against the appellant in an action of assumpsit upon a policy of insurance on the life of John B. Keach. The declaration sets out the policy, and is in the ordinary form except as to the following averments: “And the plaintiff avers that the said John B. Keach, during his lifetime, at all times complied on his part with all the covenants and conditions imposed upon him by the terms and provisions of said policy, and paid all premiums required to be paid by him except the premium of §82.90, becoming due May 5, A. D. 1888; and the plaintiff avers that the payment of said premium, in cash, on the 5th day of May, A. D. 1888, was waived by said company and postponed to a period of time beyond the date of the death of the said John B. Keach, and at the death of the said John B. Keach, the said policy was in full force.”

The death of the assured occurred July 27,1888, and unless the premium maturing May 5th of that year, which was not paid, was waived and postponed as above alleged, the company was not liable. The main and, indeed, the "only important question was as to such waiver and postponement. The policy was dated November 5,1885, for $5,000, and was conditioned, inter alia, upon:

“ The payment to the company, at its said home office, of the sum of $82.90, at the date hereof, and of the quarter annual premium of $82.90, at or before three o’clock p. m., on the 5th day of November, February, May and August, in every year during the continuance of this contract.”

At the same time another policy was issued for the same amount, and, excepting as to the rate of premium, on similar terms, upon the life of appellee, Anna C. Keach (wife of said John R. Keach), the beneficiary in the policy in suit. There were stringent conditions as to the payment of the premiums in cash at the appointed times, and for forfeiture in a case of failure therein, and to the effect that no agent should have power on behalf of the company to make or modify that or any contract of insurance, or to extend the time of payment of a premium. .The home office of the company was in Philadelphia, and its affairs in Illinois were under the management of its general agent, B. P. Hinman, whose office was in Chicago.

Although the premiums were payable in cash by the express terms of the policy, there never was a cash payment made. All were made by notes, drawn at different times, and for amounts covering the sums next maturing, with interest. These notes were payable to Hinman, and were by him indorsed either to a bank in Chicago or to the local bank of the insured at Carrollton. It was the habit of Hinman to send the notes to the assured for their signatures, and when he received the notes so executed he would send them the “ renewal receipts,” so called, for the premiums. They evidently relied upon him to attend to this matter, and he was not only prompt but urgent in so doing. The notes were not all dated at the same time relatively as the receipts, but this was wholly controlled by him. It appears that while the assured had large landed interests from which, when crops were good, the income was very considerable,' yet they were always pressed for ready money, and that but for his urgency and solicitation they would not have continued to carry their policies. The record contains a great many letters which passed between the parties, bearing strongly upon the facts already stated, but all need not be here quoted. On the 6th day of February, 1888, Hinman wrote as follows:

“ J. R. Keach, Esq.
“Dear Sir—Will you kindly see if Mr. Pierson does really pay the note, and let me know as soon as yon can—by return mail, if possible. At the same time let me make a suggestion; suppose you make your premium payable annually; the rate is less, and I can accommodate you just as easily and with less frequent annoyance. See when you wish it payable and let me know. Mr. Pierson writes me that he thinks you will get your loan. Truly, etc.,
“ B. P. Hinman.”

On the 28th of February, 1888, he again wrote:

“ Mr. and Mrs. J. E. and A. C. Keach.
My Dear Sir and Mad,am—Would it not suit you better to pay but once a year ? Is there not a time when money is likely to come in ? If you let me know, I will arrange to throw all your payments over to that time. Write me. Truly, etc.,
“ B. P. Hinman.”

To which was this reply:

Keach’s Ranch, Ill., March 6, 1888.
“B. P. Hinman, Esq.
Dear Sir—Tour favor of the 28th ultimo, came to hand. Tour kind offer would suit us very much better than the present mode. Could you include the last note given, if not, make out the note for one year and send it for signature.
“We have decided to rent out our farm to several renters to keep out expenses and the chances of bad crops. Will have nearly 2,000 acres in cultivation to look after for our rent. Tours truly,
“John B. Keach.”

It does not appear that any further correspondence occurred, or that any further action was taken on either side, with reference to the premium maturing May 5, 1888, or to the giving of a note to cover the premiums for a year to come ; but we find that Hinman wrote to the local bank on the 26th of April, 1888, as follows:

“ Ornan Pierson, Esq.
“Dear Sir—Draw on me for $10 and take care of that Keach note on 29th; don’t let it come back. They give annual notes hereafter. Truly, etc.,
“ B. P. Hinman.”

And on the 1st of May, 1888, as follows :

“Friend Pierson :
“ I wrote you last week about the Keaches and their note, to draw on me for $10 as before, and not let the note come back. They propose to pay annually hereafter and not have this quarterly occurrence. Truly, etc.,
“ B. P. Hinman.”

The omission of the assured to followup the matter may be easily accounted for, as they were accustomed to depend upon Hinman to prepare and forward the notes to them for execution, and as they had indicated a willingness to change the mode of payment from quarterly to annual, and had requested him to “make out the note for one year, and send it for signature,” in case he did not wish to include the note he then held for the February premium. In view of the former course pursued and .the never failing disposition shown by him to keep the insurance alive by accepting their notes which, though slow,he considered good (and they were all paid, though some of them not until after the death of John B. Keach), and of the fact that he had proposed the plan of annual payment as far back as May 11, 1886, in a letter of that date, they were justified in expecting that he would, in due time, send them the note for the annual payment including the May premium, for their signature. It is clear that he intended to do so, as late as May 1st, only four days before that premium was due; and there is evidence tending to show that the note was not sent, because of mere neglect on his part. In his testimony he asserted that he did not intend to send it, as he had become weary of conducting the business in that way, though he gave them no notice of his change of purpose; and on cross-examination he could not remember saying to Mrs. Keach at her home in August, 1888, that he had forgotten it, and was himself to blame for not sending the note. Mrs. Keach and another witness, entirely credible, testified that he did so state, and this contradiction goes very strongly to prove that the omission was accidental rather than intentional. It appears from his letters, as well as from his testimony, that the home oflice was aware that he was taking notes for the premiums ; and on one or two occasions he sent the notes to the home office. He always avowed that in so taking notes he was acting on his own personal account, and was himself assuming the burden, but it is not probable this would have been done on his part or tolerated by the company unless he and the company found it worth while to do so ; and from the constant and regular course pursued it was to be presumed that the practice would be continued until notice to the contrary. When the practice of an insurance company and its course of dealing have been suchas to induce the belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to act upon such forfeiture as against one in whom their conduct has induced such belief. C. L. I. Co. v. Warner, 80 Ill. 410; May on Insurance, Sec. 361.

It is well settled that an insurance company may authorize its agent to waive forfeitures, and that it is not bound to act upon the declaration in the policy that agents have no such authority. Such provision is for the benefit of the company, and whatever may be contained in the policy as to the mode and time of payment, the company may waive it, and with-the consent of the assured, adopt an entirely different mode and time. E. L. I. Co. v. Fahrenkrug, 68 Ill. 463; Home, etc., Insurance Co. v. Myer, 93 Ill. 271; Insurance Co. v. Newton, 96 U. S. 234.

We are of the opinion that the jury were clearly warranted in the conclusion that the assured and the agent had an understanding binding upon them both, in regard to the premium due May 5th, that it was waived and postponed until a date which was later than the death of the assured; nor can th ere be any serious controversy that the conduct of the agent herein ought to bind the company. This disposes of thej chief point in the case. All others are minor and incidental.

It is urged that it was error to admit the letters written by Hinman to the local bank, dated April 26th and May 1st, because the assured knew nothing of them and did not act upon them. As we have shown, the assured had abundant reason for supposing Hinman could be relied on to forward the notes, and that no advantage would be taken, if he was so relied on. These.letters wei’e merely the declarations of Hinman to a third party, showing that he so understood and intended. They were declarations made while he was engaged in the business of the company, and were competent evidence. Mor is there anything in the objection that the notes were not all paid by the assured in his lifetime. They were taken as money, receipts were given on the faith of their value and obligation, and they were paid in the end. Counsel in their brief make a general objection to the action of the court in giving instructions three and four for the plaintiff, and in refusing instructions asked by the defendant. Mo particular grounds of objection are stated, and after reading the whole series given on both sides, we find nothing substantially wrong or wanting therein. The law appears to have been presented fairly and intelligently, and while there may be some occasion for verbal criticism, we discover no error of substance. Equally untenable is the objection that the court refused to submit to the jury five questions or special interrogatories. Those questions called for answers which would have settled nothing of themselves and would not have aided the court in rendering judgment. They were not as to the ultimate facts upon which rested the rights of the parties, but as to mere evidentiary facts, which, in connection with others, would have more or less value in determining the ultimate facts. The court properly refused to submit them. C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132; T. H. & I. Co. v. Voelker, 129 Ill. 540.

No other points are argued in the brief of appellant. The judgment will be affirmed.

Judgment affirmed.


text:
    Nathan C. Antle et al. v. William C. Sexton et al.

      Deceit—Woodland—Sale of—Written Contract—Fraudulent Representation s—Damages.

      1. An action may be maintained for false representations and deceit used to induce parties to enter into a contract whereby they have been damnified, although the parties may have entered into a written agreement and in such agreement there be a warranty or stipulation upon the point covered by the misrepresentations. The action will also lie if there is no reference in the contract to the subject of such misrepresentations.
    2. In the case presented, evidence tending to show that, notwithstanding the property sold did not correspond with the representations, the plaintiffs received their money’s worth, was properly refused. Plaintiffs were entitled to the benefit of their contract.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Sangamon County.; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Brown, Wheeler & Brown and Palmer & Shutt, for appellants.

      Messrs. Patton & Hamilton and Robert Matheny, for appellees.
   Wall, J.

This was an action on the case to recover damages for deceit in the sale of a certain, saw mill and a quantity of timber standing and growing on certain lands. The plaintiff recovered a judgment for $900 and the defendants bring the record here by appeal. The special ground of fraud alleged was the representation that the tract of timber known as the Jameson timber contained eighty acres when, in fact, it contained but thirty acres.

It appears that the parties were negotiating for several months and finally agreed upon the price of $3,000, which was paid. The defendants had represented that they had a contract for the timber on what was known as the Hadley tract for thirteen acres, and, as is alleged, that they had a contract for the timber on the Jameson tract for eighty acres. It appears thatplaintiffs were shown the latter tract and the boundaries were pointed out in a general way. When the parties had agreed upon the terms of the bargain they went to an attorney to have a written contract prepared. Defendants had failed to bring the Jameson contract, making some excuse for not doing so, and never did produce it; and the plaintiffs did not learn of the shortage until long afterward when Jamison showed them his copy of the contract. The evidence sufficiently supports the allegation of fraud and deceit in reference to the representations made by defendants in respect to the quantity of this tract. And as to the questions of fact generally it may be said that the verdict of the jury is responsive to the evidence. We consider it necessary to refer only to the questions of law presented by counsel for the appellants.

The written contract made by appellants recited that they, having sold and delivered to appellees for the sum of $3,000 a certain saw mill, etc., in consideration of said sum agreed, first, to turn over all saw-mill custom they might control; second, that they hereby assign and transfer to said Sexton & Bybee all interest which they have acquired in and to about eighty acres of saw timber in Gardner township, Sangamon county, Illinois, under a contract heretofore entered into by the said N. C. Antle & Bro., with one S. H. Jameson. Other provisions need not be stated.

On the trial the defendants (appellants) moved to exclude from the jury all the oral agreements and representations referring to the subject-matter of this second clause. The motion was overruled and the point was presented by instructions asked for defendants, which were refused. It is urged that in the action of the court herein there was error, the position of counsel being “that the writing was the best evidence of the contract; that it was the ultimate fact to be proved, and oral proof could not be substituted for the written evidence of any contract which the parties have put in writing; that the writing was tacitly agreed upon by the parties as the only repository and the appropriate evidence of their agreement.” The action was not brought upon the contract but upon false representations, and deceit used to induce the plaintiffs to enter into the contract whereby they have been damnified.

It is well settled that s,uch an action will lie though the parties may have entered into a written agreement, and though in such agreement there be a warranty or stipulation upon the point covered by the misrepresentations. Addison on Torts, Vol. 2, p. 1004; Hilliard on Torts, Vol. 1, Secs. 4, 5 and 12; 1 Chitty on Pl. 137, note 4; Ward v. Winian, 17 Wendell, 193; Eames v. Morgan, 37 Ill. 260. And so it will lie if, in the written contract, there is no reference to the subject of the deceitful statements.

In the present instance it is difficulPto say what is the significance of the descriptive language used in the second clause as to the quantity of acres in the Jameson tract. It reads that they assign all interest which they have acquired in and to about eighty acres of sold timber, etc. The phrase is rather ambiguous. We are not required to determine whether it amounts to a warranty that the contract they held covered eighty acres, for, as we understand the law, it is immaterial whether the written contract omits any reference to the subject of misrepresentation or whether it contains a provision of warranty in that • respect. The theory of the action is that, for the fraudulent and deceitful representation of the defendant, inducing plaintiff to make a contract which he would not have made otherwise, and by which he has been damaged, he should have his remedy, and this regardless of any remedy the law might afford upon the contract itself.

As remarked by Nelson, C. J., in Ward v. Winian, supra: “The fraud is not merged nor extinguished by the covenant, but affords an additional and more complete remedy to the party.” We are of opinion the ruling of the Circuit Court upon this point was correct.

The only other point requiring specific notice is as to the measure of damages. The rule adopted was the difference in value between the saw timber obtained and what would have been obtained if there had been eighty acres of it—-that is, calculate a shortage of fifty acres, at the price per acre which it was shown to be worth—-and the verdict was $100, less than under the evidence might have been allowed.

In Field on Damages, Sec. 706, the rule is stated thus: “In cases of fraudulent representations of the quality or quantity of property sold, the general rule of damages is the difference between the value of the property as it is and what it would be worth if the representations had been true.” To the same effect see Sedgwick on Damages, marginal page 559, where, after a similar statement of the rule with regard to personal property, the author adds: “The same rule, I apprehend, holds upon the sale of real estate where the action is for deceit.” Citing Whitney v. Allaire, 1 Comstock, 305. So it was laid down in Drew v. Beall, 62 Ill. 164, where the deceit was in regard to quality.

Counsel for appellant urge that there was error in refusing evidence tending to show that, notwithstanding the shortage, plaintiffs got the worth of their money in the whole trade, but we are unable to agree with this position. The plaintiffs were entitled to the benefit of their bargain, as was said in Drew v. Beall, supra. There was no contract price on specific items. It was a general price for all, and they had a right to expect everything as represented.

An expression in Hiner v. Richter, 51 Ill. 299, is quoted as supporting counsel’s position, when it is said that the plaintiff would be entitled to the purchase money on the deficient quantity, and interest thereon. It does not appear precisely what were the facts alleged, but from the language of the court it would seem there was a contract price per acre, fixed by the parties, and if so, the agreed rate would naturally furnish the basis of damages.

Such was not the case here. We think there is no sound distinction between quality and quantity in this respect. We find no substantial error in the record, and the judgment will be affirmed.

Judgment affirmed.


author: Pleasants, P. J.

text:
    R. W. Burney, for use, etc. v. John B. Hunter et al.

      Judgments—Unauthorized Satisfaction of—Power to Correct Entry— Jurisdiction.

    The Circuit Court o£ one county has no power, upon a bill filed for that purpose, to cancel or annul an unauthorized satisfaction of a judgment entered in the judgment and execution docket kept by the clerk of the Circuit Court of another county.
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. Beach & Hodnett and W. B. Jones, for plaintiff in error.
    Messrs. Brown, Wheeler & Brown, for defendant in error.
   Pleasants, P. J.

Id September, 1878, the Circuit Court of Logan County, ih an action by Burney against Hunter and others in which Hunter alone was served with process, rendered a judgment against him by default for $7,101.43 and costs. Plaintiff resided in southwestern Texas. His attorneys were Randolph & Leutz of Logan county. Their partnership was dissolved in January, 1880. Leutz removed to Missouri. Thence he opened negotiations with Hunter, who resided in Sangamon county, Illinois, for a compromise and settlement of said judgment, falsely claiming that he had authority from Burney; and in consummation thereof, on October % 1880, received $1,500 in notes, which were discounted by a Springfield bank for $1,350, and on the 6th wrote below the entry of the judgment on the judgment and execution docket as follows: “I hereby enter satisfaction in full of this judgment, October 6, 1880. R. H. Burney, by E. R. Leutz, Att’y for plaintiff.” For this he had no authority whatever, in fact or law. Burney had no knowledge or information of it until 1884, Leutz having meanwhile written to him, or rather to his attorney in Texas, from time to time, of his efforts to collect the judgment and prospects of success. Hpon discovery of the fraud Burney took such steps as he was advised to right himself, and among other measures was the proceeding now under review.

This was a bill in equity, filed April 16, 1885, to obtain a decree of the Sangamon Circuit Court which should somehow operate to annul the entry quoted. It sets forth with much circumstantial detail the facts above stated, and avers that his said judgment remains in full force and wholly unsatisfied; that he has never ratified said pretended compromise and settlement nor any of the acts of Leutz in that behalf; that it was all done by fraudulent collusion between Leutz and Hunter, or at least that Hunter was grossly negligent in not requiring the production of proper evidence of authority in Leutz, and that the pretended settlement was void and said entry a cloud upon his said judgment. Leutz was defaulted upon proof of service by publication. Hunter filed an answer denying all fraud or collusion on his part, and alleging, upon information and belief, that Leutz had authority from complainant, or an interest in the judgment, which empowered him to make the settlement; that respondent had a good defense (not particularly stated) to the action in which the judgment was rendered, and employed an attorney who was instructed, but neglected to interpose it. Issue was made up and proof taken and reported by the master; and on final hearing the court made a short decree simply dismissing the bill at complainant’s costs. The errors assigned are, the denial of the relief sought and the dismissal of the bill.

We think it unnecessary to refer to the evidence further than to say that in our judgment it fails to show any fraudulent collusion on the part of Hunter, but clearly establishes the charge that the compromise and settlement attempted were wholly unauthorized and fraudulent on the part of Leutz, and therefore void as against Burney. Upon the facts shown, the entry of satisfaction in question was a cloud upon the judgment, so that if the Circuit Court of Sangamon County had power to remove %. upon this bill, the errors are well assigned. We see no other question in the case. The scope of the bill is sufficiently shown by the foregoing statement, and the prayer is as follows: “Tour orator prays that upon the trial and hearing of this cause the court render a judgment and decree that said compromise of said judgment, made between the defendants E.’B. Leutz and John B. Hunter, was on the part of said Leutz made without any power or authority to make it, was made in fraud of your orator’s rights, and to cheat, defraud and swindle your orator out of the benefit of his said judgment; that said entry of satisfaction of said judgment was also made without any right, power or authority of said Leutz to make it; that said compromise and the amount paid therefor (if anythingwas paid) by defendant Hunter, was not any legal or lawful compromise, settlement, payment or satisfaction of said judgment; that said entry of satisfaction was not the act and deed of your orator, and that said compromise and said entry of satisfaction were both made in fraud of your orator’s rights, and for the fraud in making them, and the want of authority on the part of said Leutz to make them, and because your orator has never ratified them, are both null, void .and of no force or effect as against your orator; by decree remove the cloud that they cast upon the present validity of said judgment; by decree remove the hindrance that by virtue of said entry of satisfaction is presented to hinder and prevent your orator enforcing his said judgment ; by decree order and direct that said entry of satisfaction be annulled, erased, expunged, or such decree as would be tantamount to the same things. Also decree that the said defendant Hunter, because of the trickery and fraud by which- said compromise was procured and said entry of satisfaction made, and the lack of authority on the part of said Leutz to make them, acquired and can maintain no rights as against your orator by virtue of them, or either of them, and that said act shall not be considered as in any wise or to any extent impairing, diminishing or satisfying.said judgment;. And decree your orator’s full restoration to his rights in regard to said judgment, as they would be, had no such pretended compromise or entry of satisfaction been made or attempted. And grant all rules and orders necessary to enable your orator to be 'replaced in possession of all his rights, and all relief, general or special, which to equity belongs and the nature of his case demands,” etc.

What the nature of his case demanded, and all it demanded, was the effectual cancellation of the entry complained of; which could be accomplished only by its erasure or by-some other matter of like record, which should be notice of its cancellation to all who would see said entry.

But.had the Circuit Court of Sangamon County any power or jurisdiction to grant such relief upon this bill? By what officer, agency or machinery under its control could it lawfully and effectually so deal with a book which the statute required to be kept by the clerk of the Circuit Court of Logan County for the purpose therein stated (R. S. 1887, Chap. 25, Sec. 16, No. 4)? Yet this is all the practical relief asked.

The clerk is not made a party. It is not claimed that the bill seeks, or that the prayer embraces, an injunction against the defendants named, or either of them; nor would it, if awarded, have removed the cloud which impaired the market value of the judgment or restrained the action of the clerk or of any sheriff. The decree asked could not execute itself, nor did it contemplate the intervention of any executive officer. Excepting the relief by actual cancellation of the entry, on the book in which it is made, it would be but a naked declaration of complainant’s rights upon facts found. Courts are authorized to find facts and declare rights only in connection with, and with a view to, the exercise of their power to enforce them. We therefore think the bill was properly dismissed1— not for want of equity in the case, as stated and proved, but of power in that court to grant the relief required. Complainant was not without remedy, but should have sought it elsewhere.

Decree affirmed.