text:
    John J. McLean v. The County of Montgomery.

      Clerks—Compensation of—Fees in Criminal Cases—Power of County Board—Estoppel—Evidence.

    1. Where a circuit clerk has actually collected as fees of his office a sum equal to or greater than his salary, but has out of such sum paid deputy hire and other necessary expenses of Ms office, so that the amount unexpended is not sufficient to pay his salary, the county board has no power under the statute to allow Mm fees in criminal cases sufficient to make up the balance of his salary.

      2. Where a county board has audited and allowed the payments made by a clerk for deputy hire and other expenses of the office, thereby reducing the sum actually collected by the cl^rk as fees below the amount necessary to pay his salary, and afterward, contrary to the statute, allowed him fees in criminal cases to make up the deficiency, the county is not estopped from recovering from the clerk such illegal allowance.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding
    This was an action in assumpsit brought by the county of Montgomery against John J. McLean to recover from him certain moneys paid to him from the county treasury of Montgomery county, Illinois, on county warrants, drawn on the treasurer of said county, by order of the board of supervisors.
    These orders were drawn on the treasurer in payment of fees in criminal cases during McLean’s term of office as circuit clerk, and were only for such fees as could not be collected from the defendants on their conviction, and where the defendants were acquitted and discharged without the payment of costs. In no case did the amount paid appellant exceed the amount that was due him.
    The case was tried by the court without the intervention of a jury. The declaration contained the common counts only. The plea of non-assumpsit was filed, and with it the stipulation that under it appellant might prove any matter of defense which he could offer and prove under any special plea or pleas which could be properly pleaded in the case.
    The court below entered judgment against appellant for $1,507.72, and this appeal was taken.
    Messrs. Lane & Cooper and Amos Miller, for appellant.
    The reports having been duly audited and approved by the county board, all the items charged in them for expense are proper items for which appellant took credit.
    These items were within the discretion of the county hoard to allow. Their action will not he reviewed. Boyle v. Levi, 73 Ill. 175; Thielmann v. Burg, 73 Ill. 293; Hull v. Supervisors, 19 Johns. 260. We insist that the determination of the hoard of supervisors in auditing and approving the reports of appellant and allowing the claims which this suit is brought to recover, is conclusive upon the county. It was paid voluntarily to appellant upon his claim that it was right. There was no mistake as to any fact about the claim. If there was a mistake it was a mistake of law and not of fact; and it is fully settled that proof of a mistake of law will not enable the party to recover back money which has been voluntarily paid under a claim of right. Supervisors of Chenango v. Birdsall, 4 Wend. 453; Supervisors of Onondago v. Briggs, 2 Denio, 26; Clarke v. Dutcher, 9 Cow. 674; Mowatt v. Wright, 1 Wend. 355; Bilbie v. Lumley, 2 East, 469; 1 Story’s Equity Jurisprudence, Sec. 111 et seq., notes; Broadwell v. Broadwell, 1 Gilm. 604; Shafer v. Davis, 13 Ill. 395; Campbell v. Carter, 14 Ill. 291; Sibert v. McAvoy, 15 Ill. 109; Falls v. Cairo, 58 Ill. 403.
    Messrs. J. M. Truitt and George Pepperdine, for appellee.
    Under the rule announced by the Appellate Court in the case of The County of Crawford v. Lindsay, 11 Ill. App. 261, and the Supreme Court in the case of The County of Marion v. Lear, 108 Ill. 343, there can be no question that this case presents such a state of facts as would have prevented appellant from collecting one dollar of the sum in question from the county had the county board performed its duty and refused to make the payments admitted by appellant to have been made by the county.
    Counsel say: “We insist that the determination of the board of supervisors in auditing and approving the reports of appellant and allowing the claims which this suit is brought to recover is conclusive upon the county.” That presents in a single sentence the question which is in issue here. They rely upon an estoppel. But whatever may be the rule in other States, the prevailing and better rule, and especially in this State, is that the unlawful act of the board of supervisors can not and does not bind the county. In all matters of judgment and discretion coming within the jurisdiction conferred upon the board by law, the action of the board of supervisors must be held binding; but whenever the board acts beyond the jurisdiction conferred upon it by law, its action is ultra vires and is null and void. See Cumberland County v. Edwards, 76 Ill. 544; Crawford County v. Lindsay, supra; Jennings v. Fayette County, 97 Ill. 419; Manley v. City of Atchison, 9 Kas. 358; People, etc., v. Fields, 58 N. Y. 491; U. S. v. Bartlett, Davies, 9; Stevenson v. Mortimer, Cowp. 805; Taylor v. Plumer, 3 M. & S. 562; The Board of Supervisors, etc., v. Ellis, 59 N. Y. 620; The People, etc., v. The Board of Supervisors, 67 N. Y. 109.
   Conger, J.

On the trial of this case it was agreed and stipulated by the parties that the defendant might, under the genera] issue, prove any matter of defense which he could offer and prove under any special plea which could be properly pleaded in the cause.

Appellant admitted he was circuit clerk and ex officio recorder from the first Monday in December, 1880, to first Monday in December, 1884, and was re-elected his own successor and held the office until first Monday in December, 1888.

It was further admitted by appellant that while he was such clerk he was paid from the county treasury of Montgomery county, Illinois, on county warrants or orders, duly drawn on the treasurer of said county by order of the board of supervisors, in amounts and at dates as follows, which amounts were for fees previously earned and reported by the defendant, as such clerk, in criminal cases where the costs could not be collected from the defendants on their conviction, and in cases in which the defendants were acquitted or otherwise legally discharged without payment of costs, to wit:

1881. December 8......................$151.92 1882. December 13..................... 389.45 1884. August 5........................ 742.80 1885. April 2........................... 371.60 1885. September 21.................... 53.35 1885. December 18..................... 101.10 1886. December 13..................... 145.00 1887. September 17.................... 152.90 1886. August 17........................ 228.30

It was then agreed by the parties that said sums were paid appellant at the said dates to make up a deficiency in his salary, deputy hire and other necessary expenses of his office which had not been fully paid at the time said sums were paid to him, the deficiency being equal to or greater than the amount then paid; and that at the time each of said payments was made, appellant, as such clerk, had collected, of fees earned by him as such clerk, a greater sum than was necessary to pay his salary up to date of each payment.

It was further admitted that in 1888 appellant was paid from the county treasury, on warrant drawn by order of the board of supervisors, $100, to pay William Burns to bring up certain records not completed by his predecessor, and that after said Burns had performed said services he was paid for the same by a county order drawn in his favor.

Resolution of board of supervisors fixing salary of appellant at $1,500 per annum for first term, and a second resolution fixing salary of appellant at same amount for second term; that subjoined to each of said resolutions is a further resolution providing that at the semi-annual settlement with appellant the county board will allow him such reasonable and necessary expenses as they may deem proper and actually paid for deputy hire in his office, other than what he can perform himself, and other necessary expenses contemplated by law, he to render an. account of same under oath, supported by vouchers, to be paid out of fees of his office actually collected. Each and every one of the semi-annual reports of appellant, during both terms of his office, was introduced in evidence.

It was agreed that said reports of appellant show that his earnings for his first term of office aggregate the sum of $15,533.43, and that of said earnings he collected the sum of $11,171.67. That his earnings for his second term (not including court fees of November term, 1888), aggregate the sum of $13,397.80, and that of said earnings he collected the sum of $10,860. It was agreed that said reports show that the expenses of the office during first term for clerk hire, stationery and other miscellaneous expenses aggregate the sum of $6,784.65, and for second term, for like expenses, $6,838.30.

It was further agreed that in the items of miscellaneous expenses set out in said reports, there were items for postage stamps, postal cards, towels, washing towels and soap, the larger amount thereof being for postage stamps and postal cards; for first term amount to $366, second term, $378.90.

It was then agreed that the appellant filed his semi-annual reports during said two terms at the times and dates required by law, and that each report was duly examined and approved by the county board of said county, as required by law, and that in the report of the appellant, of December, 1881, there was shown to be due appellant, for preceding half year, $151.92; and in report of December, 1882, there was shown to be due appellant, on settlement, the sum of $389.45; and in report of December, 1883, due appellant, on settlement, $271.30; report of June, 1884, due appellant, as shown in report, $471.50; in report of December, 1884, due appellant as shown in report, $526.07; and that in subsequent reports made by appellant, including report of December, 1887, said reports show there was due appellant on settlements with the county board, as follows:

1885. June............................$190.87 1885. December........................ 498.14 1886. June............................ 589.46 1886. December......................... 828.46 1887. June............................ 748.96 1887. December......................... 604.46

Appellant testified in his own behalf, as follows: “ I paid my deputies weekly, during both terms, out of the fees of the office that had been collected; when I did not collect enough fees to pay my deputies, I paid them out of my own money. The miscellaneous expenses were paid from time to time, just as the expenses were made. Whatever deficiency there was of fees collected to pay deputy hire and other necessary expenses and my salary, was always on my salary. All of the items of expense were necessary in running the office. I took receipts of my deputies for the money I paid them.

The deputies I had in the office were necessary to keep up the work of the office. The amounts I paid them, as shown in my reports, were reasonable for the services they rendered in the office.

The items charged for miscellaneous expenses are made up of express charges, stationery, telegrams by order of court, postage stamps, towels, soap, washstand, and the sprinkling of street at the south front of the office. All these items were necessary expenses of the office. The washstand was bought after consulting with the member of the public buildings committee of the board of supervisors, who agreed I should buy it for use in the office. The washstand, soap and towels were used in the office after handling the books, which were usually covered with more or less dust and dirt, making it necessary to wash before writing on white paper, otherwise the books and papers would have been soiled. The sprinkling was paid for after consulting the same committee who agreed that it was a proper expense; in the summer season the prevailing winds are from the south, and blow and sweep dust up Main street into the office windows which front south on Main street, covering the books, papers and office furniture with dust. The sprinkling prevented much of the dust from blowing in on the books and office furniture.

The postage stamps were used in answering correspondence in connection with the business of the office; a great many letters of inquiry by witnesses, suitors, lawyers and others came to the office requiring answers and were answered, and a great many deeds and other instruments were tiled with the request when recorded to be returned by mail to the parties filing the same for record; this, of course, required a great many postage stamps and cards, which were bought by me or some one of my deputies, as needed, and charged up and paid for as expense of the office. Occasionally I might have used a stamp on my private correspondence; I, however, had but very little private correspondence, only an occasional letter to a friend. I had no private business while I was clerk that required any correspondence; ” which was all the evidence offered by either party.

From an examination of the facts which were agreed to, and which fully appear in the statement, it will appear that there are two questions of law arising upon this record.

First. Where a clerk has actually collected as fees of his office a sum equal to or greater than his salary, but has out of such sum paid deputy hire and other necessary expenses of his office so that the amount unexpended is not sufficient to pay his salary, can the county board legally allow him fees in criminal cases sufficient to make up the balance of his salary under Sec. 15 of Chap. 53, which is as follows:

“In all criminal cases, when the costs can not be collected from the defendants, on their conviction, or when the defendants shall be acquitted, such costs shall be paid from the county treasury; provided, that no such fees shall be paid to said clerk from the county treasury when the ,fees collected by him during .such years shall equal the compensation or salary allowed him by the board of supervisors; and provided further, that no more of such fees shall, in any case, be paid from the county treasury than shall be sufficient, with the fees collected, to make the compensation or salary of said clerk.”

We are clearly of opinion that under this section the county board has no legal right to make such an allowance. If the amount of fees actually collected equal or exceed the salary the board would be powerless to make the allowance contended for.

As said in Marion Co. v. Lear. 108 Ill. 351, “ He, (appellant) must show a deficiency in the payment of his “ salary,” i. e., personal compensation—after applying to the payment thereof all the fees collected by him from other sources, before he can require the county to pay those fees in criminal cases, and then it can only be required to do so to the extent of such deficiency.” Crawford Co. v. Lindsay, 11 Ill. App. 261.

It may be, as contended by appellant, that where the fees actually collected are in part used to pay the necessary and proper expenses of the office, thus leaving the salary unpaid in part, it would be but just that such deficiency should in some way be made up by the county, but in view of the plain and unequivocal language of the 15th section, and the construction given it by the Supreme Court, it can not be done as contended for by appellant.

Second. Where a county board has audited and allowed the payments made by a clerk for deputy hire and other expenses of the office, thereby reducing the sum actually collected by the clerk, as fees, below the amount necessary to pay his salary, and afterward in violation of the provisions of Sec. 15 allow him fees, in criminal cases, sufficient to make up his salary, is the county estopped from recovering from such clerk such illegal allowance ?

We think not. When a county board attempts to make an allowance not authorized by law, it is acting without jurisdiction, entirely beyond its power, and its acts are utterly void and do not bind the county. The board is the agent of the county, and when allowing a claim against it over which it has jurisdiction, and the amount to be paid is discretionary, the conclusion reached would no doubt be binding upon the county; but when the board seeks to appropriate funds in the treasury in direct contravention of the statute it exceeds its powers, and in no sense does it estop the county from ignoring and repudiating such action. Cumberland Co. v. Edwards, 76 Ill. 544; Jennings v. Fayette Co., 97 Ill. 419. The holding of the Circuit Court being in harmony with these views, we think the judgment was right and it will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Chicago, Burlington & Quincy Railroad Company v. S. S. Peterson.

      Master and Servant—Railroads—Personal Injuries—Wild Trains— Scetion Hand—Contributory Negligence—Rules—New Trial.

    In an action by a section land against the railroad company employing him, to recover for injuries alleged to have been caused through the negligent management of one of its trains, this court holds that the judgment of the trial court in behalf of the plaintiff is unsupported by the evidence.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of McDonough County; the Hon. William Marsh, Judge, presiding.
    Messrs. O. F. Price, Tunnicliff & Tunnicliff, and Sweeney & Walker, for appellant.
    Messrs. D. Chambers and Prentiss & Baily, for appellee.
   Wall, J.

In this case the plaintiff alleged that he was employed by the defendant as a section hand, and while engaged in the ordinary discharge of his duty, working with a handcar on defendant’s railroad, and while using due care and diligence, a locomotive engine, in charge of other servants of defendant, was so negligently and carelessly managed and handled that it was driven against the handcar and plaintiff was thereby injured. The plaintiff recovered and the record is brought here by the appeal of defendant.

The plaintiff at the time of the collision was with the other men of his gang on the handcar going home. It was between five and six o’clock in the afternoon. An extra or wild freight train was moving along the track in the opposite direction. Those in charge of the train did not know that the handcar was to be expected at the point in question, or elsewhere, nor did those on the handcar know that the train was to be expected. By reason of the peculiar conformation of the road the two parties were not more than one-fourth of a mile apart when the engineer saw the handcar. He had previously given the usual signal for the highway crossing, which he was then passing over, and he immediately gave the stock alarm and reversed his engine. The brakes were all set promptly, the whistle was sounded repeatedly, and the bell, operated by steam, was ringing continually. In short, every reasonable effort was made to stop the train, hut without succeeding in time to prevent the collision.

It would appear that the men on the handcar did not act as promptly as they might if they had seen the train as soon as the engineer saw them, hut they finally stopped the car and got it partly off the track, when, finding they could not save it, the foreman ordered the men to get out of the way. The plaintiff instead of stepping squarely to one side moved in an “ angling ” course to the right of the track and in front of the engine and was struck by a fragment of the handcar, receiving the injury complained of.

Under all the circumstances in proof it would be difficult to fix any such want of care on the plaintiff as to bar his recovery if the charge of negligence on the part of the train men can he sustained by the evidence. Had he stepped either to the right or left, or had he moved to the rear or either side, he probably would have escaped, and it is now quite plain the course he took was the most dangerous possible; but, under the excitement and in the confusion of the moment, it is not certain that any man of ordinary prudence would have done otherwise, and he is not to be charged with negligence because he had not time to reflect and determine which direction would be safest. There is more ground for saying that the foreman of the gang was negligent in not more promptly making the effort to stop the handcar; but in view of all the facts in evidence, we are not inclined to say there was negligence in this respect. Assuming then that those on the handcar were ordinarily careful when the circumstances are all considered, the vital question is whether the charge of negligence in the management of the train is sufficiently sustained by the evidence.

The trainmen had no reason to expect the handcar. It was a well known rule that section men were required to be on the lookout at all times for trains regular and extra; that they were not to he notified of the position of trains of either sort; hence the train men were not at fault in not knowing the handcar was on the track or in not running as though it might be expected. If, after it was discovered, all reasonable effort was made to prevent the collision, then there was no negligence on their part.

From what has been stated they did ail that was reasonably required to this end. There is no contradiction of their testimony in this respect, indeed it is rather sustained by the evidence of Hewes, the witness of plaintiff, who was driving along the highway and saw the whole occurrence. It is true that by some rather strained and forced arguments counsel urge us to the conclusion that the evidence of the train men is unworthy of belief, and that by the exercise of reasonable care and diligence on their part the collision might have been avoided. We shall not go into any analysis of these arguments or of the facts upon which they rest. It is enough to say that we find them wholly unsatisfactory. In our view of the facts, fairly to be deduced from all the evidence, there was a clear failure to establish the charge of negligence as alleged in the declaration. It was error to refuse the motion for new trial.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Robert McDonald v. Lemuel Moore et al.

      Master and Servant—Independent Contractor—Balance Due.

    In an action brought to recover a balance alleged to be due on a building contract, the errors being unimportant and immaterial, and substantial justice having been done, this court declines to interfere with verdict for plaintiffs.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Vermillion County; the Hon. E. P. Vail, Judge, presiding.
    Mr. R. D. McDonald, pro se.

      Messrs. F. Bookwalter and J. B. Mann, for appellees.
   Wall, J.

This was assumpsit to recover a balance alleged to be due for labor and materials in the building of a house.

The contract price was $4,100 upon which $3,500 had been paid. Certain extras had also been paid for. The defense was that the work had not been done and materials furnished according to the specifications and for default in this respect the jury made an allowance of $100.

The verdict was for $500 upon which judgment was rendered and the case comes here upon defendant’s appeal.

There was considerable conflict in the evidence and as is not unusual there was a wide range in the estimates of the various witnesses as to the damages caused by the supposed imperfections in work and materials. Appellant was frequently present while the building was in progress and made some objections. Some of the matters thus objected to were corrected. Some of them, as the evidence tends to show, were waived and some of them appellant was not willing to have amended by the servants of the appellees.

Before the house was completed appellant occupied it and while not entirely satisfied with the job he appropriated it to his own use.

After a careful reading of the evidence we are impressed with the belief that the jury reached a very fair conclusion and that their verdict is substantially just to both parties.

The alleged errors in the admission of evidence are unimportant, and while the instructions may be subject to some criticism we are of opinion the appellant was not prejudiced by the matters complained of therein.

No useful purpose would be subserved by another trial and the judgment will be affirmed.

Judgment affirmed.


author: Pleasants, P. J.

text:
    Peter Dolan v. John Farrell.

      Mortgages—Foreclosure—Payment—Witnesses—Credibility.

    Upon a bill to foreclose a mortgage, it being contended that the note it was given to secure had been paid, the evidence being sharply conflicting and the credibility of the witnesses of prime importance in the consideration of the case, this court declines to interfere with decree for plaintiff.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Jersey County; the Hon. George W. Herdman, Judge, presiding.
    Mr. A. W. Hope, for appellant.
    Mr. D. D. Goodell, for appellee.
   Pleasants, P. J.

This was a bill to foreclose a mortgage executed by appellant to Martin B. Miner to secure a note for purchase money, dated August 27, 1869, for $125, at one year with interest, and assigned to appellee. The defense set up was payment in cash, specific articles and work by appellant’s wife for appellee agreed to be credited on said note. On replication filed there was a reference to the master, who, on the proofs taken and reported, found the amount remaining due and unpaid to be $153, on which a decree was entered for complainant in the usual form. A motion made to vacate it, as taken in violation of an alleged stipulation between the solicitors, we think was not supported by sufficient proof of that allegation, and therefore properly overruled.

It appears that neither of the parties could read or write. The note bore indorsements of several credits on account. As to others claimed there was evidence to support them and other evidence in denial and explanation thereof. There was also some tending to show offsets, a settlement and balance found, and some to impeach the general reputation of defendant and his wife for veracity. The case turned wholly upon the credibility of the evidence, of which the master and the chancellor were probably better able to judge correctly than are we.

Having no means of knowing what was credited or discredited, nor any special reason for supposing there was a misjudgment of any of it, we would have affirmed the decree as it stands; but since the cause was submitted, appellee has seen fit to enter a remittitur of $30, expressed to be in view of some possible error as to the amount found due but not admitting any in fact, and it will therefore be affirmed as for only $123, so found.

Decree affirmed.


author: Conger, J.

text:
    John L. Goff, Sheriff, etc., v. Douglas County.

      Sheriffs—Compensation for Keeping Jail—Assistant.

    Under the laws of this State it is a part of the official duty of the sheriff to keep the county jail. He is entitled to no compensation therefor in addition to his salary, except as it may be provided by the county board, and he can not maintain an action against the county for money paid by him to an assistant jailer.
    [Opinion filed November 23, 1889.]
    In error to the Circuit Court of Douglas County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Eckhart & Moore, for plaintiff in error.
    Messrs. John E. Eden and J. K. Breeden, for defendant in error.
   Conger, J.

The plaintiff in error is the present sheriff of Douglas county, having been elected in November, 1886.

Immediately after his election he appointed J. C. Cutler assistant jailer of said county, at a certain sum per diem. The amount was audited and paid by the county until the meeting of the board in May, 1888. At the March meeting, 1889, of the board of supervisors of the county, there was due plaintiff in error the sum of $348, being the aggregate of sums of money paid out to J. C. Cutler by said sheriff for his services as assistant jailer. This amount was for sums paid out covering different periods of time from May 5, 1888, to December 3, 1888, and from December 3, 1888, to March 4, 1889. Accounts for these various sums of money were presented to the board of supervisors of the county duly verified, as required by law. The board of supervisors refused to allow the claim.

At the April term, 1889, of the Circuit Court, plaintiff in error brought a suit against the county to recover the sums he had paid out to the assistant jailer. The suit was brought in assumpsit. The declaration contained the common counts only, with which there was filed a bill of particulars.

Defendant in error, by its counsel, filed a demurrer, which was overruled, and plaintiff in error then, by leave of court, filed a special count, and defendant in error again filed a demurrer, which was sustained, to the special count, and a nolle was entered as to the common counts. The plaintiff in this suit, abiding by his declaration, brings this case to this court, and assigns for error the ruling of ,the court below in sustaining the demurrer to the special count of plaintiff’s declaration.

The special count is as follows:

“Now comes said John L. Goff, sheriff of said county, plaintiff in the above cause, by Eckhart & Moore, his attorneys, and complains of the county of Douglas, a body politic and corporate, defendant in said cause, summoned of a plea of trespass "on the case on promises; for that whereas, heretofore, to wit, said plaintiff at various times from May 5, 1888, and to December 3, 1888, inclusive, at said county, said plaintiff paid to J. C. Cutler the sum of $212; and also at various times, from December 3, 1888, to March 4, 1889, inclusive, at said county, said plaintiff paid said J. C. Cutler the sum of $136.50, said sums having been paid as aforesaid to said Cutler for services rendered as assistant jailer of said county, fox-keeping said jail from May 5, 1888, to December 3, 1888, and from December 3, 1888, to March 4,1889. Plaintiff avers that said services were necessary, and that said plaintiff presented said claim, to wit, the total sum of $348.50, being the aggregate of said sums, to the board of supervisors of said county, as an account against said county, at their meeting held in March, 1889; and also said plaintiff, at the meeting of said board held in December, 1888, presented said claim, to wit, $212, as an account and claim against said county, and that said board of supervisors, at said meetings, respectively, and at other meetings of said board, refused to allow said claim, and then and there denied the same, to the damage of said plaintiff for said sum of $348.59, whereby an action has accrued to plaintiff against said defendant, at the county aforesaid, for said sum of $348.50, paid out as aforesaid, and therefore he bi-ings suit for said amount, $348.50.”

The facts by the demurrer are admitted, and the only-question is whether the county is liable at all for money paid out for keeping the jail, under the facts as presented by this special count, and admitted by the demurrer to be true.

The act relative to jail and jailers was passed in 1874, and this subject is treated in chapter 75 of the Revised Statutes. By Sec. 2 the sheriff is keeper of the jail, and by Sec. 3 he may appoint an assistant jailer and remove him at pleasure. By Sec. 24 “ the cost and expense of keeping, maintaining and furnishing the jail of each county, and of keeping and maintaining the prisoners thereof, except as otherwise provided by law, shall be paid from the county treasury, the account therefor being first settled by the county board.”

By the law, the keeping of the jail is made a part of the official duty of the sheriff, as much so as serving criminal and civil process, preserving the peace and the other varied and important duties of his office. It is true he may perform any of his duties by a deputy—but he is not entitled to be reimbursed, out of the county treasury, for money paid to him for such services, except as provided by law. It is usual for the county board, in fixing the salary and compensation of the sheriff, to make an allowance for deputy hire, but should they refuse to do so it is clear, we think, that the sheriff could recover nothing for amounts paid to his deputies.

It is urged by plaintiff in error that, while the sheriff has the legal custody and control of his jail, he could not give it his personal attention, without neglecting his other duties.

In some counties this would be true, while in others it would not be. In many of the counties of the State the sheriff is not only theoretically, but actually the keeper of the jail.

The law intends to give the county board the entire and absolute control of determining the amount of the compensation or salary to be paid the sheriff for his personal services, and also the amount he may be authorized to expend on account of the county for procuring assistance in executing the entire round of his official duties.

Because county boards may, and sometimes do fail to make a sufficient allowance for these purposes, it in no way detracts from their power over the whole subject, or authorizes an action to compel greater liberality in their dealings with county officers. It must be understood we are now speaking only of the work and labor required to perform the duties connected with the sheriff’s office, which,as we think, includes the custody and care of the jail and the prisoners confined in it.

By Sec. 19 the keeper of the jail is required to furnish bedding, clothing, fuel and medical aid for prisoners, and keep an accurate account of the same, and Secs. 20 and 21 provide for whitewashing and cleaning the jail and providing such conveniences for the prisoners as their health requires; and by Sec. 19 of Chap. 53, the sheriff is allowed, for dieting each prisoner in jail, such compensation to. cover the actual costs as may be fixed by the county board, but such compensation shall not be considered a part of the fees of his office.

These items of expense and all others, when the written law or humanity make it the duty of the sheriff to expend money to keep his prisoners safely and with proper regard to their comfort and health, are those intended to be included in the language of Sec. 24, of Chap. 75, and for which the county is liable. But for the duty of keeping the jail, whether by the sheriff in person or by deputy, the county makes legal compensation by the salary and deputy hire allowed, and in eases where such compensation is not adequate for the services performed, the county board can alone afford relief.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Christian Obrock v. Louisa Obrock.

      Husband and Wife—Separate Maintenance—Justifiable Abandonment —Evidence—Allowance—Costs.

    Upon a petition under the statute by a wife for separate maintenance, this court declines to interfere with decree for complainant.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Mr. J. C. Thompson, for appellant.
    Messrs. Berry & Epler, for appellee.
   Wall, J.

This was a petition for a separate maintenance under the statute.

The cause was heard by the court upon oral evidence and the issues were found for the complainant. The case is brought here by appeal, and errors are assigned upon the finding and the decree.

The appellant urges that the evidence does not support the allegation that complainant was, without her fault, living apart from her husband.

The parties had been previously married and each had children by the former marriage. Appellant had seven children, the two oldest being daughters, aged twenty-five and twenty-two years, respectively. These daughters had kept his house since the death of their mother, and were averse to the introduction of a step-mother. From the beginning to the end there was trouble, mostly induced through the children. There is reason to believe that but for the children appellant and appellee might have lived together with comparative peace and satisfaction. Nor was the fault wholly with the children of appellant, though it was mainly so. In these controversies the husband took the part of his own children, and the result was that the appellee was not permitted to occupy the position in the household which, as a wife, she was entitled to. She states that there was a persistent purpose to drive her from the house, to which appellant finally became committed, and on three separate occasions he told her to go.

She was charged by appellant and his children with filthy habits and unfitness to beep the house in a proper condition, and the result of it all was that she could not abide there with peace or self-respect. The conduct of appellant and his children was such as to render her position miserable in the extreme, if not absolutely intolerable, and she was abundantly justified in quitting the appellant. Such is the fair conclusion to be drawn if her version of the case’is correct. There is much conflict and contradiction in the evidence, but this is more as to the extent and character of the difficulties than as to their origin, and there can be no doubt that the situation was an unhappy one for her and for all concerned.

The court, hearing this oral evidence, and having the parties and witnesses present, found the wife was living apart from her husband without her fault, and we are inclined to hold that if the wife’s evidence is to be credited, there was sufficient to justify the conclusion.

As to the weight to be given to the finding of the chancellor, and the grounds which will warrant a wife in withdrawing from her husband’s home, reference may be had to Johnson v. Johnson, 125 Ill. 510. It is also urged that the court erred in fixing the allowance at the sum of $150 for the period from September 4, 1887, to January 1, 1889, and at the rate of $15 per month from the latter date, and in allowing $100 for a solicitor’s fee as a part of the cost of the suit.

Upon consideration of the evidence we think there is no occasion for our interference in this respect. The decree will be affirmed.

Decree affirmed.


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    George Mentzer v. John L. Robinson.

      Partnership—Dissolution—Settlement—Construction of—Deceit.

    Upon the dissolution of a partnership between appellant and appellee, and the settlement of the partnership affairs, an agreement was signed, which provided that appellant should pay appellee $2,154.30 for his entire interest in the business and property of the firm, including all interest in the book accounts due said firm, and pay all unpaid debts or claims against it. There was present a book of accounts showing $1,975 due the firm, which appellee, who had been the book-keeper, said “was in the neighborhood of correct.” Appellant afterward learned that a considerable amount of these accounts had been paid to appellee. Upon action brought by appellee to recover the unpaid balance of the amount provided by the above agreement, in which the defense was partial failure of consideration, it is held: That appellant had purchased, not an interest in a definite amount of accounts, but appellee’s interest, whatever it was; and that the question whether appellee was guilty of deceit, was one of fact, and the judgment of the trial court would not be disturbed on that point.
    [Opinion filed November 23, 1889.]

      Appeal from the Circuit Court of Piatt County; the Hon. E. P. Vail, Judge, presiding.
    Messrs. S. R. Reed and H. H. Crea, for appellant.
    Under Sec. 9 of Chap. 98, Negotiable Instruments, Starr. & Curtis’ Stat., page 1661, either total or partial failure of consideration may be pleaded in defense of an action on an instrument in writing, and parol testimony may be introduced in support of such plea. This section has governed in many adjudicated cases in this State. Great Western Insurance Company v. Rees, 29 Ill. 272; Gage v. Lewis, 68 Ill. 604; Oertel v. Schroeder, 48 Ill. 133.
    A partner not well acquainted with the affairs of the firm purchased a portion of the partnership interest of the other partner, and gave his note, relying on the representations of the partner as to its value, which he subsequently ascertained to be fraudulent; the interest so purchased was worthless; the firm being insolvent these facts constituted a good defense to the note. Smith v. Smith, 30 Vt. 139.
    One partner may sue his co-partner in assumpsit after dissolution, to recover back money paid by mistake on an adjustment of the partnership concerns. Bond v. Hays, 12 Mass. 34; Beidler v. Shellenberger, 42 Iowa, 203.
    Messrs. Lodge & Hicks, for appellee.
   Pleasants, P. J.

From July, 1885, to May, 1888, the parties to this suit were equal partners in the business of making and selling tile and brick at Cerro Gordo. While appellant attended mainly to the manufacture, appellee made sales and undertook to keep the books. Having no knowledge of the art according to any system, his method of keeping them, if it might be so called, was very imperfect, and dissatisfaction having arisen between them, they proceeded to arrange terms of settlement and dissolution. Without difficulty they agreed upon the disposition of all the partnership matters except its outstanding credits. As to these appellant was unable to satisfy himself from the books. He could not undertake, with intelligence and confidence, to settle with anybody by them. A clerk was therefore employed to gather, sift, arrange and transcribe into a new book the scattered and tangled entries in the old. After a month’s labor, with frequent explanations, or attempts at explanation by appellee, he completed the transcript as well as he could, and notified the parties. They met on May 7,1888, appellant being attended by counsel, to learn the result and dispose of the accounts. The aggregate of the balances and accounts due the firm, as shown by the transcript, was a little less than $2,000. Appellant knew nothing about them. Appellee said they were in the main correct, but there were probably errors—he couldn’t be positive in regard to them, “ they were in the neighborhood of correct. ” His idea of them is shown by the clerk, who states that they looked through the book and read quite a number of the accounts, and that as he went over them “ Mr. Robinson would say ‘ that is about correct,’ and then he would say I do not think he owes, that much,’ and on one or two occasions ‘I think the man owes more than the book shows;’ and we conversed in that way through the different accounts.” After all this talk it was proposed that one set a price on them at which the other would either buy or sell, but appellant objected, and suggested instead that they be put up at auction, proposing to make the first bid. That being acceded to he bid $500, and, no more being offered, took them. His counsel thereupon wrote the agreement by which the partnership was dissolved and all its affairs settled as between the partners. It provided, among other things not necessary to be here noticed, that appellant should pay to appellee on or before the 27th of that month $2,154.30 “for his entire interest” in the business and property of the firm, “ including all interest in the book accounts due said firm,” and “ pay all unpaid debts or claims against it.” The $500 bid for the accounts was included in the amount above stated. In proceeding to collect the accounts and balances appearing by the transcript to be due, appellant learned that a considerable number of them had been settled and satisfied before the dissolution agreement was made, and therefore when called on for payment according to that agreement he refused, unless appellee would make them good to him.

Thereupon this suit was brought against him in assumpsit. He pleaded the general issue, and it was stipulated that he might introduce any matter of defense, and the plaintiff any in reply that would be admissible under any proper plea or replication. The cause was tried by the court without a jury, at the February term, 1889, and judgment rendered for the plaintiff for $1,017.95, being the full amount due by the terms of the agreement with interest, after crediting $1,200 paid in September.

It appears from the record and argument that the defense relied on was partial failure of consideration. Appellant insists that what he contracted to pay for was an aggregate of dues on book account amounting to $1,975, and what he received was considerably less, and that the entire amount of the deficiency should be deducted from the price agreed to be paid. But the agreement itself, which was in writing, and all the other evidence on the subject, shows that he contracted for only a half interest in the dues referred to; and therefore, in any view of the defense—whéther as partial failure of consideration, or by way of set-off or recoupment for breach of warranty, or for deceit as to the aggregate amount —he would be entitled to a deduction of no in.ore than one-half of the deficiency shown. For that reason alone the court might well have refused to hold the propositions of law set out in the abstract; for as to the half interest he already owned as partner, and therefore could not then buy, no warranty or deceit in relation to its amount or value could have been a legal injury or cause of damage, or a foundation for any legal claim by way of defense in this suit, since it could not have affected the actual amount or value of that interest, nor induced the purchase of the other. And if he did not contract for any certain amount of firm dues, but only for the interests of appellee therein, whatever they might be, and received all of that interest in all there were,' then there was no failure of consideration. The instructions referred to might have been refused in that view of the case. We think the evidence fairly sustains that view of it. The agreement states no amount, directly or indirectly, definitely or approximately. Appellee at the time stated no certain amount, nor any within certain limits. It is true a book was present which was contemplated as the book of the accounts intended, and that it showed a certain amount, and a. certain amount was then and there stated as being so shown. But as was well known to both the parties, that book purported to be only a transcript of entries from the original books of the firm, sifted and re-arranged. Ho time was taken by them to ascertain how just and accurate it was. Appellee stated—what appellant also otherwise knew-—that he had not kept the original in any systematic order, and all else that he said about them plainly showed his unwillingness to represent them as full and accurate, or to say with any definiteness how nearly accurate he believed them to be. Appellant bought the accounts actually due, relying doubtless upon the book as far as he might with his knowledge of the keeper and his, methods and statements; but he certainly did not contract for any certain amount or any within stated limits, and it would hardly be contended that if they had been found to exceed that appearing by the transcript he would have accounted or been bound to account to appellee for half the excess.

Then the only real cause of complaint, if any, he had against appellee in the matter, was deceit, fraudulent misrepresentation or suppression of facts known to him in relation to the amount of actual dues. This was a pure question of fact. The charge rests mainly upon the magnitude of the difference between the aggregate amount actually due and that appearing so by the transcript, and certain statements said to have been made by appellee, after the dissolution, of the amount he supposed to be due, which was not far from the real amount. But he testified that he stated the same opinion to appellant before the dissolution, though this was denied, and to circumstances explaining, in part at least, how there came to be this difference, some having a general bearing and others relating only to particular accounts. The appearance on the books of quite a number of those said to have been settled or otherwise charged in error was accounted for by the parties charged, who were called to testify for the appellant. It would be useless, however, to consider these circumstances and explanations more particularly. They tended to rebut the evidence of fraudulent misrepresentation or concealment of facts by appellee, and were for the court below to consider and weigh. Upon the evidence as it appears in the record, we think the charge is not sustained, and if we were in greater doubt, would defer to the conclusion of the judge who had the advantage of seeing and hearing the witnesses.

Judgment affirmed.


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    Mary E. Butz, Administratrix, v. Jacob Schwartz.

      Negotiable Instruments—Promissory Note—Action by Administratrix of Iidorsee—Fraud and Circumvention in Procuring Signature—Evidence —Instructions.

    1. In an action on a promissory note by the administratrix of the indorsee, he having died after suit brought, where the defense relied on was fraud and circumvention on the part of agents of the payee in procuring the signature to the note, the maker of the note was a competent witness under Sec. 2, Chap 51, R. S., 3d exception, as to conversations or transactions with him testified to by said agents at plaintiff’s instance, said agents having a direct interest in the result of the suit.
    2. If payee’s agents did not have a direct interest in the result of the suit, then defendant was a competent witness as to conversations or admissions by him testified to by these agents at plaintiff’s instance, under the 4th exception. Under this exception all that was said and done on the occasion testified to, the res gestee, was admissible.
    3. In an instruction to the jury, the omission of the qualification that false testimony must be with regard to a material matter in issue in order to justify the jury in disregarding the whole testimony of a witness whose testimony is false in part, does not constitute reversible error, where it is apparent that all the supposed false testimony to which the instruction referred was upon material points. Minor exceptions to instructions overruled.

      [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. William McFadon and Emmons & Wells, for appellant.
    Messrs. Carter, Govert & Pape, for appellee.
   Wall, J.

For a statement of the controversy involved in this case, reference may be had to 15 Ill. App. 114. After the case was remanded, the original plaintiff died and the present appellant having been appointed administratrix of his personal estate became plaintiff in his stead. Three trials have since occurred, in one of which the jury were unable to agree, and in the other two verdicts were for the defendant. From the judgment on the last verdict the present appeal is prosecuted.

In the printed argument counsel for appellant say that the principal complaint they have to make is that the court erred in allowing the defendant to testify on his own motion and in his own behalf to conversations had by him with the agents of the payees of the note at the time it was executed, and to the action of the court in giving instructions for the defendant.

The defendant was of course incompetent to so testify as to any matters occurring before the death of the plaintiff’s intestate, unless within one or more of the. exceptions to Sec. 2, Ch. 51, R. S., relating to evidence. It appears that the persons with whom the conversations occurred, David W. Jennings and Marion Hughes, the agents of the payees of the note, were present at the time of its alleged execution, and had more or less to do with the transaction out of which this suit arose.

By the pleadings two questions of fact become prominent and controlling: 1st, did defendant sign the note. 2d, if so, was his signature procured by fraud and circumvention.

These witnesses, Jennings and Hughes, testified that they were present and saw defendant sign the note, that it was read over to him by F. C. Jennings, and that it was given in completion of the contract; that the consideration of the note was a quantity of lightning rods which defendant purchased, and that a credit of $8.02, which appears on the back of the note, was on account of a board bill of the defendant against these witnesses and F. G. Jennings, who was also an agent of the payees of the note. A part of this evidence was read in rebuttal, but it was all contained in the depositions of these witnesses taken on behalf of the plaintiff.

If the note was obtained by fraud and circumvention, it seems quite clear these" agents would be responsible to their principals for any loss or damage caused them by such an illegal transaction, and that they had a direct pecuniary interest in supporting the note, to avoid such responsibility, as well as to insist upon the payment of their bill to the defendant by means of the credit indorsed on the note. If they had a direct interest in the event of the suit, then defendant was competent to testify, under the third exception, to the conversations or transactions testified to by them. We think he was competent under that exception. Again, by the fourth exception it is provided that where any witness not a party 'to the record or not a party in interest or not an agent shall testify, at the instance of any party to the action, to any conversation or admission of any adverse party, occurring before the death of and in the absence of any such deceased person, such adverse party may testify as to the same admission or conversation.

If it could be held that the witnesses Jennings and Hughes were not interested in the result of the suit, then defendant was competent to testify to any admission or conversation testified to by them. It is urged, however, by appellant, that defendant under this exception was limited strictly to the conversation or admissions testified to by those witnesses, and that except as far as their evidence was read in rebuttal, they testified to a transaction merely, to wit, the mere signing of the note after the same was read over to defendant, and that in so doing they were not testifying to a conversation or admission as to which only could defendant testify.

The object of the second section of the act referred to, was to so limit the operation of the first section as to place parties upon an equal footing and not to allow the estate of a deceased person or of a person under the disabilities mentioned to be subjected to a disadvantage not possible if it were not for such death or disability, and the courts have always endeavored to construe the statute according to its spirit and not merely according to its letter. Whitmer v. Rucker, 71 Ill. 410.

It is the settled rule that where a conversation is testified to, the whole of it may be brought out, and very often this will involve what was done in the same transaction of which the conversation was part and parcel. In this instance it' would be difficult to separate the matters testified to in the part of the deposition which was read in chief,from those testified to in the part of the same deposition read in rebuttal, and it would be quite as difficult to separate the mere language used by the parties from what they were then doing on that occasion. Hughes and Jennings say the note was read over to the defendant and he then signed it. He says it was not so read to him, but was represented to be for the purpose of inducing and procuring the payees of the note to constitute his son Daniel an agent to sell the rods, which were then left there, upon certain terms which he states, as to the commissions, etc. The version of the conversation given by defendant naturally involves all that was said by both sides as well as what they did at the time, and so of the version given by Hughes and Jennings. Any fair construction of the exception in question must necessarily admit the entire conversation, and as necessarily, whatever was done on the occasion—the whole res gestee. Therefore it follows that whether Hughes and Jennings were or were not directly interested in the event of the suit, the defendant was competent as to the same matters to which they testified and there was no error in this ruling of the court.

It is urged the court erred in admitting the “yellow papers ” offered ' by defendant. They were blank orders or contracts, to be used when contracts were made to erect rods on buildings, and were left with defendant by the agents of the payees as a part of the transaction. There was no error in this respect. The appellant urges also that it was error to refuse the 14th and 15th instructions asked by appellant. All that was competent or proper in the 14th was contained in others given.

The 15th was wholly unnecessary and there was no error in refusing it.

As to the instructions given for appellee it is urged that the 11th, 14th and 15th are bad because they omit the qualification that the false testimony must be with regard to a material matter in issue, in order to justify the jury in disregarding the whole evidence of a witness whose testimony is false in part. On examining the evidence, however, it is not perceived how this omission in these three instructions-could have prejudiced the appellant, for it is apparent that all the supposed false testimony to which the instructions would be understood to refer, was upon material points. When this is so the error will not vitiate even in capital cases where life is at stake. Dacey v. The People, 116 Ill. 555. But a careful reading of the instructions will disclose that they are really not faulty in the respect urged, and when fairly considered they authorize the rejection of the testimony of a witness only to the extent it is found to be mistaken or untrue. As to the 15th, there is some ambiguity in the latter clause, and possibly it might be interpreted by a jury as counsel suggest, were it not for the 16th immediately following, in which the rule permitting the rejection of the entire testimony of a witness because false in part is fully and correctly given. The instructions when considered as a series are substantially good.

No other objections are pressed in the brief of appellant.

The judgment will be affirmed.

Judgment affirmed.


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    The Ohio & Mississippi Railway Company v. William H. Burrow.

      Railroads—Ejection of Passenger for Eon-Payment of Fare—Damages.

    Where a passenger is ejected from a railway car for non-payment of fare at a place other than a station, he can not recover, as part of his damages, for injuries received from unnecessarily walking to his home, several miles distant, he being in poor health, when the station at which he boarded the train was within five or ten minutes walk of the point of ejectment.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Shelby County; the Hon. Jacob Folks, Judge, presiding.
    Messrs. Pollard & Werner, for appellant.
    The court gave the following erroneous instruction to the jury, to which defendant excepted:
    “If the jury believe from the evidence that defendant was forced off the train of defendant at a place other than a regular station, and received injury therefrom, and this was done by servants of defendant, that then the defendant is liable for any damage sustained by the plaintiff, even though lie may not have paid his fare.”
    This instruction was too broad, and authorized the jury to allow the plaintiff damages for walking home after the ejection, and any illness that was brought on by that indiscretion. C., B. & Q. v. Parks, 18 Ill. 460; C. & A. R. Co. v. Roberts, 40 Ill. 503; C., B. & Q. R. R. Co. v. Wilson, 23 Ill. App. 63.
    Mr. H. J. Hamlin, for appellee.
    The liability is conceded, as is now admitted by the argument of appellant in this cause filed, although the principal question in the court below was as to the right to put a passenger off at a point within the “switch limits,” or within the limits of the town. This question has been recently settled, both by this court and the Supreme Court. Illinois Central Railroad v. Latimer, decided by the Supreme Court April 5, 1889.
    They were exactly like those approved in Kidd v. I., St. L. & K. C. R. R. Co., decided recently by this court. There was no error in showing plaintiff’s condition at the time of his ejection or as to the route he took in going home, nor was there any error as to the question of nominal damages. These questions have all been settled against the appellant. Chicago & Alton R. R. Co. v. Flagg, 43 Ill. 387; C. & N. Railway Co. v. Chisholm, Jr., 79 Ill. 584.
   Conger, J.

This was an action brought by appellee against appellant for the recovery of damages occasioned by the servants of appellant ejecting appellee from appellant’s car at a place other than a station for non-payment of fare.

The facts as shown by the record, are, that about 2 o’clock in the afternoon of February 2, 1888, appellee went upon a regular passenger train at Holiday to go to the next station, Cowden, a distance of three miles. The regular ticket fare between these stations was nine cents; the cash fare ten cents additional. According to the evidence and the special findings of the jury, the ticket office at Holiday was open for a reasonable time prior to the departure of the train, but appellee failed to provide himself with a ticket, but after the train had started tendered the nine cents for his fare, which was refused by the conductor, who demanded nineteen cents in accordance with the rules of the company. Appellee at first refused to pay more than nine cents, and then agreed to pay nineteen if the conductor would give him a receipt, which the conductor refusing to do, appellee refused to pay the fare, and he was ejected from the train by the conductor without violence, and in the language of the special finding of the jury, the conductor in ejecting plaintiff (appellee) from the train acted in a reasonable, prudent, careful and discreet manner.” The point where the appellee left the train was less than a fourth of a mile from the station at Holiday. Ho violence was used nor indignity offered to appellee by the servants of appellant. After leaving the train he followed it on foot to his home in Cowden, and evidence was offered and permitted to go to the jury tending to show that at the time appellee was unwell, had been ruptured, and that the walk home had made him worse, and that he remained so for some weeks. The jury found a verdict for §100, upon which judgment was rendered.

The only question raised by appellant is as to the amount of damages allowed by the jury. The conductor had no legal right to eject him at the point where he did, and hence appellant is liable; but what should be the measure of damages? Vindictive damages are not asked, it being conceded by appellee’s counsel “that no such case was made as would raise such a question.” It follows, then, that only such actual damages as would be the natural and proximate result of the unlawful ejectment can be allowed. Counsel for appellant insists that the damages should be such only as would compensate appellee for returning to the station, while appellee’s counsel urge that appellee had a right to go home if he chose to walk instead of returning to the station. That he had the right to do so, no one would question; but we are inclined to think he should not hold appellant liable for any evil consequences that might result to himself. His walking that distance in the condition he was in, was calculated to aggravate liis disease. He was practically at the station of Holiday; five or ten minutes walk would have taken him there. Had the conductor backed his train to the station and then ejected appellee, the latter would have no reason to complain. We are inclined to think the evidence in reference to his walking home and its results were improperly admitted to the jury. Reference is made to the Latimer case, but there is a wide distinction between the circumstances of that case and this. There a little girl about six years old, with a heavy bundle, was put off the train and left alone on the track, frightened and crying, to get back to the depot across an open culvert, and a wild train expected in a few moments to pass the point. If appellee had been ejected such a distance from Holiday as to have made it a debatable question in his mind, acting as a reasonable and prudent person, whether it were better for his health and safety to return to Holiday or proceed to Cowden, he would probably have had a right to adopt either course^ and the bad results, if any, to his health, might with propriety be charged to his expulsion from the cars.

For the error indicated the judgment of the Circuit Court will be reversed, and the cause remanded.

Reversed and remanded.


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    The People ex rel. Joseph Stickel v. Commissioners of Highways.

      Mandamus—Duty of Highway Commissioners to Build Bridges—Discretion.

    1. Commissioners of highways in towns organized under the township organization law can not be compelled by mandamus to build a bridge in place of one that has been entirely destroyed.
    2. Whether or not a bridge should be built at a given time and place is a matter of opinion. The duty of building is a matter of discretion with the commissioners, and such discretion is not to be controlled by the courts.
    [Opinion filed November 23, 1889.]
    In error to the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Lane & Cooper and George Pepperdine, for plaintiff in error.
    The construction put on the statute in question by the Supreme Court (Commissioners v. Newell, 80 Ill. 587) is that the commissioners are expressly charged with the duty of making and repairing the roads and bridges in their townships, and are expressly required annually to levy and return to the county clerk a tax for that purpose, the very things that we are insisting that they should do in this case, and if they are expressly required to do this, then they have no discretion in the matter and mandamus will lie. It is averred in the petition that the road in question is a public highway, and as such has been used for more than thirty years; that for thirty years the public had kept a bridge over the creek at the point where said highway crosses the same, and that about six years ago the old bridge washed away, since which time the defendants have refused to build a bridge, though repeatedly requested so to do, although their township is abundantly able to build said bridge and the same is a public necessity.
    A provision in a municipal charter that the council shall “cause the streets to be kept in repair” has been held not to confer a discretionary power, but to enforce a duty, the performance of which may be compelled by mandamus. 2 Dillon on Municipal Corporations, Sec. 673; Hammar v. City of Covington, 3 Met. (Ky.) 494; Uniontown v. Commonwealth, 34 Pa. St. 293.
    These authorities fully sustain this doctrine, and the provisions of our statute being that “ the commissioners of highways shall have charge of the roads and bridges of their respective towns and it shall be their duty to keep the same in repair,” does not confer discretionary power, but enjoins a duty, the performance of which may be compelled by mandamus. 1 Dillon Mun. Corp. Sec. 62. Coke on Litt. 227, says that “discretion is to discern by the right line of law and not by the crooked cord of private opinion.” See Watson v. Rodwell, 3 Ch. 380; King v. Archbishop, 15 East. 117; Hull v. Supervisors, 19 John. 260.
    A mandamus will be issued commanding the performance of an act involving discretion but it will not be issued to control the discretion. In a proper case the suit will command action, but not to control discretion. People v. Lay, 78 N. Y. 43; McCreary v. Rogers, 35 Ark. 293; People v. Auditors, 82 N. Y. 80; People v. Supervisors, 45 N. Y. 196; Appling v. Daily, 44 Ala. 333; Commonwealth v. Henry, 49 Pa. 530; People v. Commissioners, 7 Wend. 474.
    It is held by Moses on Mandamus that a railroad company can be compelled by mandamus to build a bridge.when the law charges them with that duty. (Pages 176 and 177.) He says on page 176: “It, has been said that no better general rule can be. laid down .upon this .subject than that where the charter of a- corporation or the .general statute in force and applicable to the subject imposes a specific duty either in terms or.by fair and-reasonable construction and implication, and there is no other specific or adequate remedy, the suit of mandamus will be available. But if the statute or the general law of the State -affords any other specific and adequate remedy it must be refused.”
    This seems to he the law, and if so, how does the case at bar stand? The law clearly charges the commissioners of highways with the building of bridges and the.repairing of the roads. The petition charges that they have ample means for this purpose at their command, and still they refuse to do anything after the public have waited for over five years. Is there any other remedy ? If so, we hope the court will point it out to ns, as we have been unable to find it. The general public want this bridge built, and are willing to pay for. it in the way provided by law; hut the defendants refuse to do anything, and now counsel talks to us of discretion when the plain. letter of the law demands that the work shall be done. See Boggs v. The C., B. & Q. R. R. Co., 54 Iowa, 435; Weeden v. Town Council, 98 Am. Dec. 375, note.
    In the case at bar the writ may issue to compel the defendants to act, but we. do not seek to interfere with their discretion as to the manner of their acting. See also Arberry v. Beames, 55 Am. Dec. 791 and note; and People v. Jameson, 40 Ill. 93 (89 Am. Dec. 337), and note; Mobile and Texas R. R. v. State, 112 U. S. 83.
    Mr. James M. Truitt, for defendant in error.
   Pleasants, P. J.

This was a petition for a writ of mandamus, to compel the commissioners to levy .a tax and build a bridge on the Taylorville road, over the. middle fork of Shoal creek. It averred that this road had been a public highway, in use as such for thirty years;. that a bridge had been built and kept in repair and use thereon over said creek during all that time, until about six years before the filing of the petition, when it was entirely washed out and destroyed; that since that event the road at that point has been impassable, the travel being compelled to.cross the creek at a ford about sixty yards west of the bridge site, which, in times of high water, is from -four to six feet deep, and is therefore worthless as a highway for at least four weeks in every year; that a suitable-bridge would need to be of forty-eight feet span, with an approach of seventeen feet at each end, which would cost $576.81; that the taxable property of the township, as assessed for the year 1886, was over $400,000, and the levy for road and bridge purposes only fifteen cents per $100 thereof; that the bridge is necessary, and the town abundantly able to build it, and that the commissioners .have-.been requested to levy the requisite tax and build it, but refused to do so.

On demurrer thereto the court - below held it insufficient and dismissed it.

This petition made as good a, case as could be shown by affirmative averments for the allowance of the writ, if it should ever be allowed for the purpose stated. It may, therefore, he considered that the record fairly presents the question whether, in any ease, commissioners of highways can lawfully be compelled, by mandamus, to build a new bridge in place of one that has been entirely destroyed.

The office of that writ is to enforce the performance of only such duties, as .are clearly, specifically and imperatively enjoined by law.. Such duties are ministerial. Where the doing of the thing demanded is discretionary with the respondent, mandamus will not lie to compel it; and where it is an end which may be attained in different ways, by different means not specifically prescribed by law, it will not lie as to the ways and means, but only as to the end. So when the duty enjoined is simply to act or decide upon a particular ease arising, it will lie to compel action or decision, but not its character or effect—how they shall act or wliat they shall do, their decision being discretionary; and where the duty claimed arises only upon a condition of fact to be found, and no other person, officer or tribunal is designated to find it, the authority to determine the question of its existence rests with the one charged with the duty so conditioned, and until the condition is so found, the duty prescribed. can not be compelled. The character of the act or duty in question, tested by these elementary rules, will determine whether or how far its performance maybe enforced by mandamus. The People ex rel. v. Dental Examiners, 110 Ill. 185-6.

Montgomery county is under township organization. The powers and duties of the commissioners are defined by positive law, and all the provisions bearing, or claimed to bear upon the question here, so far as we are advised, are to be found in sections 2, 5, 13, 14,19 and 20 of chapter 121 of the Revised Statutes.

Section 2 gives them the “'charge of the roads and bridges of their respective towns” and makes it their duty “to keep the same in repair and improve them so far as practicable”; also, “whenever the available means at their disposal will permit, to construct permanent roads, beginning where most needed.”

By section 5 they are “to exercise such care and superintendence over roads and bridges as the public good may require.”

Section 13 provides that annually, at a stated meeting, they shall “ determine what per cent of tax shall be levied on the property of the town for road and bridge purposes, not exceeding sixty cents on each one hundred dollars;” and-that “if, in the opinion of the commissioners, a greater levy is needed in view of some contingency, they may certify the same to the board of town auditors and the assessor, a majority of whom shall be a quorum, and with the consent of a majority of this entire board given in writing, an additional levy may be made of any sum not exceeding forty cents on the one hundred dollars of the taxable property of the town.”

Section 19 enables them to obtain county aid “ when it is necessary to construct or repair a bridge,” and the conditions as to its cost and the means of the township are as therein, expressed; provided, that “when it is determined by them to ask” it, they shall, before any contract for work or material or any other expense shall have been entered into, present their petition as therein prescribed.

And section 20 provides that “ when the commissioners Desire to expend on any bridge or other distinct and expensive work on the road a greater sum of money than is available to them by other means,” they may have a town meeting called to vote on the proposition to issue its bonds to raise it.

From these provisions it is clear that commissioners have authority to build bridges on the lines of the public roads of their respective towns in the first instance and to rebuild them when destroyed, if, in their judgment, the public good demands it and they have in hand or can lawfully obtain the requisite means; and it follows that an intelligent sense of duty would require them in such cases to exercise it. But it does not necessarily follow that they may be compelled, in any case, to do so against their actual or declared judgment, by the extraordinary writ of mandamus. What other liabilities they may incur, if any, to be enforced in other proceedings, for a wilful neglect of duty or abuse of discretion, we are not now inquiring nor called upon to decide; but unless the performance demanded is absolutely and imperatively enjoined, leaving no discretion to be abused, this particular proceeding has no place. Then, does the statute expressly or by clear implication make the building of a bridge in any case imperative upon the commissioners?

The duty enjoined by the first clause of section 2, whether imperative or not, is limited in terms to “keeping in repair and improving” both roads and bridges. Applied to a bridge, as a distinct and independent subject, this must necessarily mean an existing bridge, and the repairs and improvements intended must be only such changes or additions as are designed to remedy its defects or increase its utility or convenience.

But it is claimed that a bridge on the line of a road is a part of the road, so that when it is destroyed the road thereby becomes, out of repair, and therefore to keep it in. repair, a bridge must be built in place of the.one destroyed.

We do not concede, this minor premise, nor think the conclusion.drawn -would- certainly follow if we. did. While it is true that in one sense a bridge is part of the -road, in the common understanding and in contemplation o.f the law it is quite distinct, being a wholly artificial structure, bearing a-different name, wearing a- different-form, made of different materials, and subject, as a road proper is not, to- decay by time and to destruction by accident, by wind -or water or fire. It is rather to ,be regarded as. a means of connecting different roads, or parts.of the same naturally separated; and though operating in a manner different from that o.f some others, as a ferry, .or, conceivably, a balloon, in that it avoids the necessity of a stop or change in the transit, and . therefore more, like a continuation of the- road, .yet we know that.in common speech the two terms signify different things,- notwithstanding they serve the same purpose and in like, manner.. .The statute also uses both, as though neither, included the other, and treats the. two subjects separately;- and in section ,20 expressly recognizes a bridge as- a. “distinct * * * work on the road.” But. if a bridge destroyed, liar! been a part .of it in every sense, it would not follow-in -every case.that the building of another.would..;be the. necessary, or the best way to repair it. That would depend .on the natural .condition.of the locality or other circumstances.

• Possibly a .causeway or fill (in case of a pond or dry chasm), a ferry, a ford, a change in the line of connection, .would answer as,-well; or the vacation .or abandonment of the road, in view qf another,-as. fully accommodating the ■ same travel would he the. better policy.

. We might, however, have omitted this, bit of. essay .or.criticism and dispr sed . of the point- upon. authority, .which has expressly decided that the rebuilding of a bridge substantially destroyed is not among. “ the ..repairs contemplated by that section.” The People ex rel. Brokaw v. Commissioners of Highways, 118 Ill. 243. So much further notice, has been taken of it, because the argument for appellant seems to rely mainly on that provision.

The duty "to construct,” imposed by the second clause of the same section, is in-terms- limited to “roads” and upon condition that they are “ needed ” to be found by the commissioners, since no other tribunal is indicated which is matter of opinion, and so involving the exercise of judgment and discretion.

Section 5 is of the same character, enjoining in general terms only “such care and superintendence of roads and bridges as the public good may require,” they being judges.

Section 13 leaves the per cent of tax to be levied for road and bridge purposes to be determined by them in their discretion, limited only by the maximum thereby fixed. Of course they must determine the particular purposes also, if any there may be, to be accomplished by means of this power; and unless in their judgment bridge-building should be included among them they are not required to estimate and levy for it.

• That the duty to exercise the power given by section 14-to levy in certain cases an additional amount, and that given by section 19 to apply for county aid to build a bridge, are not imperative, but discretionary, and not to be compelled-by mandamus, was directly decided in the Brokaw case, supra, 118 Ill. 244-5. And that this,is true of the.authority -to apply for the issue of town bonds- conferred by. Sec. 20, the only remaining one of those referred to, is,sufficiently manifest from the language employed—“ When the commissioners desire,” etc.

It is not claimed that the statute in terms makes the duty in question imperative .in. any case; nor that any other provisions than those referred to contain an-implication to that effect.- On the contrary, all the powers expressly given to obtain the means required for its performance are discretionary. The obvious and sufficient reason for this,, and which would remove any doubt that might otherwise remain, is to be found in the character of the duty itself.

Whether a road is obstructed or a bridge out of repair, is one of pure fact 'that any court or jury can determine upon evidence of an actual, visible condition, which may be clearly seen and accurately described. The finding of the fact determines the duty absolutely. A road or bridge in public use, certainly ought to be kept in a condition that is reasonably safe and convenient for such use. A mere obstruction or defect, impairing its safety or convenience, ought to be removed or repaired, if practicable. A doubt about that can not exist in reason, and does not in law. The duty is therefore ministerial, and hence the statute imperatively enjoins it, and the courts will enforce its performance by mcmdamus, though the ways and means of performance, being various and depending on the character of the obstruction or defect, may be left to the choice of those who are charged with the duty.

But whether a bridge shall be built is always primarily and necessarily a question whether it ought to be built; whether, under the circumstances, it would be discreet to build it. That is not a matter of fact, but of opinion. Courts and juries are not organized nor competent to decide for anybody else, any such matter. Opinion is free, and from its nature can not be bound. This duty, then, being discretionary, and the propriety of its performance in every case necessarily matter of opinion and judgment, it would certainly be unreasonable to make its performance, in any, imperative. If it were so made, then the citizen least qualified to form a sound judgment in the matter, could compel its performance against the unanimous judgment of all the others—judges and jurors included—each one of whom has at least an equal claim to all the benefits of wise and proper action in the premises.

Without a clear expression on their part it is not to be presumed that the legislature intended to make it imperative. We find in the statute no such expression, and are of opinion they have not so made it. Mandamus, therefore, will not lie to compel its performance. St. Clair County v. The People, 85 Ill. 396.

Judgment affirmed.


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    Charles O. McFarland v. Thomas Ford.

      Evidence—Testimony of Witness Contradicted by Party Offering Him— Character Can Not Be Directly Assailed—Instructions.

    1. While a party may not impeach the character of his own witness, he is not bound by his testimony and may contradict him by other witnesses, even though the evidence so offered may collaterally have the effect of showing the witness is unworthy of belief.
    2. A clause in an instruction saying that the party producing a witness “ is not permitted afterward to deny that such witness is worthy of belief,” is ambiguous and erroneous, and in the circumstances of the case presented, tended to mislead the jury.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Vermillion County; the Hon. E. P. Vail, Judge, presiding.
    Mr. J. B. Mann, for appellant.
    Messrs. E. Winter and F. Bookwalter, for appellee.
    The appellant complains of appellee’s third instruction,but, we think, without cause. We understand the rule to be, that where a party puts a witness on the stand, that he does thereby represent that he is worthy of belief, and can not impeach his general reputation for truth and veracity ; nor can he, by his attorney, in the argument of the case to the jury, denounce the witness as unworthy of belief, as was done in this case. He may show the fact to be otherwise than as stated by the witness, by other testimony. The instruction complained of did not deny the right of appellant to do that, and in support of our position, we would cite the following authorities: Waller v. Carter, 8 Ill. App. 511; Toben v. Chicago City R. R. Co., 17 Ill. App. 82; Hill v. Ward, 2 Gilm. 296; Bates v. Bulkley, 2 Gilm. 394.
   Wall, J.

In this case the evidence was very conflicting, and it might be said with propriety that a finding either way would not be disturbed if there was no error of law in the record. One of the witnesses called for the plaintiff failed to testify as plaintiff evidently expected he would, and though not very definite, his testimony on the whole was favorable to the defendant. At the instance of the defendant the court gave the following instruction:

“ When a party to a suit puts a witness on the stand he thereby vouches for said witness, and that said witness is worthy of belief, and the party placing said witness on the stand is not permitted afterward to deny that such witness is worthy of belief.”

The rule on the subject is laid down by Greenleaf, as follows: “ When a party offers a witness in proof of his cause he thereby in general represents him as worthy of belief. lie is presumed to know the character of the witnesses he adduces, and having thus presented them to the court the law will not permit the party afterward to impeach their general reputation for truth, or impugn their credibility by general evidence tending to show them to be unworthy of belief.” Sec. 442. ‘‘But it is exceedingly clear that the party calling the witness is not precluded from proving the truth of any particular fact, by any other competent testimony in direct contradiction to what said witness may have testified, and this not only where.it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally unworthy of belief.” Sec. 443. And so the rule is understood in this State. Rockwood v. Poundstone, 38 Ill. 199; Tobin v. C. C. Ry. Co., 17 Ill. App. 82. While a party may not impeach the character of his own witness, he is not bound by his testimony, and may contradict him by other witnesses, even though the evidence so offered may collaterally have the effect of showing the witness is unworthy of credit.

This rule of law is rather for the guidance of the court in determining what evidence is admissible than for the information of the jury. Indeed it is difficult to see what occasion there would be to thus advise the jury in such a case as this, if in any case. No impeaching testimony was before the jury, but there was testimony in contradiction of the witness referred to, and the jury, when seeking to apply this instruction to the evidence, would naturally assume it was applicable to such contradictory proof. It must have had this effect if it had any. The last clause is at best somewhat ambiguous and inaccurate in saying that the party producing the witness is not permitted afterward to deny that such witness is worthy of belief.” In one way ho may, in a certain sense, deny the credibility of the witness, that is, by producing such an array of contradictory proof as to overwhelm and extinguish him.

It was error to give the instruction and we are of opinion that it manifestly tended to mislead the jury. The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


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    John W. Garber v. Keziah Myers, Administratrix, etc.

      Power of Attorney—Revocation by Death.

    The recital in a power of attorney of the specific purpose for which it was given, to wit, to collect a debt due the constituent, and with the proceeds pay an obligation of his, does not affect its character as a naked power, nor presently divest or invest an interest in the fund; and the collection of the debt by the attorney, after the death of the constituent, and the application of the proceeds to the payment of the specified obligation of deceased, does not release deceased’s debtor from subsequently paying the administrator.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Tazewell County; the Hon. N. W. Green, Judge, presiding.
    Mr. J. W. Dougherty, for appellant.

      Mr. B. S. Prettyman, for appellee.
   Pleasants, P. J.

Appellant was to pay appellee’s decedent, for a lease of certain land assigned to him, $40 on September 1, 1887, and $150 annually thereafter for four years. On the 22d of May, 1887,in contemplation of a trip west, the deceased executed to John W. Dougherty a formal power of attorney to collect this money or any other that might be due to him, to prosecute and defend suits, and generally to attend to any business in which he might be interested, in Tazewell county or elsewhere. On the 24th he borrowed of Denhart & Company $225 on his note, signed also by G. B. Hornish, at thirty months, with interest; and on the same day signed a paper, witnessed by Dougherty, reciting the suretyship of Hornish on said note, his own desire “to secure and indemnify him against loss in case he should have to pay it,” and the indebtedness of appellant to him as above stated, and authorizing his “ agent,” said Dougherty, “ to collect said rents and apply the same to the payment of said notes when due.” The lease, with the assignment thereunder written, was left with Dougherty, and on it when offered in evidence there appeared receipts of $40 as of August 29, 1887, and of $150 as of August 11, 1888. Myers died intestate while on a visit at the residence of his son, in Iowa, on the 10th of August, 1887, and letters of administration were issued to his widow, the appellee, on the 8th of August, 1888. Soon after, she exhibited them to appellant, and as administratrix made demand of what had become due for the lease assigned to him, which he refused, claiming that he had paid it to Dougherty at the time specified in the receipt referred to, and denying her right to collect them if he had not. Thereupon on November 10, 1888, she brought this suit before a justice of the peace, which, on appeal from his judgment, was tried by a court without a jury, and resulted in a judgment in her favor for $190.

The only question is, whether the payment so made to Dougherty after the death of Myers extinguished the claim of his estate pro tanto. It involves nothing but the construetion of these two instruments, and in our opinion there is but little room for it in either. The first was a power of attorney in the usual form, for and in the name, place and stead of the constituent, to attend to his business generally, and including specificalh7 the collection of this indebtedness coming due from the appellant. Hot being coupled with any interest in the attorney it was revoked by the death of Myers. The other also was but a naked power of attorney, though not in the usual form, and limited to the collection and application of this indebtedness. Its recital of the specific purpose for which it was given did not affect its character as a naked power in Dougherty, nor presently divest or invest any existing interest in the fund. It was a simple declaration of an intention, then entertained, not even amounting to a promise to pay a certain note out of that fund ; and while the execution of the power would inure to the benefit of the surety thereon and of the holder, it was none the less to be for and on behalf of Myers and in his name, place and stead. This was not such an assignment or appropriation of the fund as would give them, or either of them, a specific lien upon it, at law or in equity. They could not have collected it rightfully in their own name or otherwise, by virtue of anything contained in that paper. Authority to do so was thereby given to Dougherty alone, on the ground of personal confidence, and as the mere agent of the giver. It also was therefore revocable at his pleasure, during life, and was revoked by his death.

This view of it, in reference to the rights of Hornish and of Denhart & Company, seems to us to be in accord with the law as now well settled. Rogers v. Hosack’s Exec’r, 18 Wend. 319; Christmas v. Russell, 14 Wall. 70; Hunt v. Rosmier, 8 Wheat. 174, 201; Nevil v. Jackson, 5 Pet. 580.

We hold, then, that the two payments in question—the first of which was made nineteen days after the death of Myers —did not bind his estate nor bar the claim here made; nor is the case changed by the fact, if it be a fact, that the sum last paid was applied on the note before this suit was brought.

Judgment affirmed.


author: Per Curiam.

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    Henry Allphin v. Adam M. Working.

      Master and Servant—Recovery of Wages.

    Judgment of the court below, in an action on an account for labor performed, is affirmed, without review in the opinion, of the several items.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Hancock County; the Hon. C. J. Scofield, Judge, presiding.
    Messrs. Mack & Son, for appellant.
    Messrs. O’Hara & Scofield and W. H. Mead, for appellee.
   Per Curiam.

This action was in assumpsit to recover, by appellee against appellant, for work done for him at Leoti, Kansas, in the construction of several buildings at that point, and for failure on the part of appellant to pay the amount claimed to be due under the contracts and arrangements entered into between the parties. The record is quite voluminous and involves considerable labor to investigate the various items of account and payment. This we have done and feel satisfied that the remittitur entered, of $400, cured the error of the verdict, and that the judgment of $1,062.39 is a fair and legal adjustment of the matters in dispute between the parties.

It would serve no useful purpose to review the evidence, and the various questions suggested by counsel upon the matters of account between the parties.

Believing as we do that the judgment is right, and that no substantial error was committed by the court below, the judgment of the Circuit Court will be affirmed.

Judgment affirmed.