author: Mr. Presiding Justice O’Connor

text:
    City of Chicago, Appellant, v. G. Crane, Appellee.
    Gen. No. 42,542.

      Opinion filed July 2, 1943.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal and Alphonse Cerza, Assistant Corporation Counsel, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

May 1, 1942, a quasi-criminal complaint, by leave of court, was filed, charging that defendant, G. Crane, on January 24, 1942, violated certain sections of the Municipal Code of Chicago. Then follow more than 70 different ordinances that defendant is said to have violated and concluding, “In violation of Chapter 27 Section 19-7 of the Municipal Code of Chicago.” On the same day a quasi-criminal warrant was issued for the arrest of Crane and he was taken into custody June 2, 1942, when an order was entered postponing the trial and a number of other similar orders were thereafter entered. One of the orders recited that defendant elected to waive a jury and by agreement, the cause was submitted to the court, July 2, 1942, an order was entered which recites that the cause came on for trial before the court and by agreement of parties, a jury was waived; that defendant entered a plea of not guilty, the court heard the evidence, found defendant not guilty, and he was discharged. Afterward, August 6, an order was entered denying plaintiff’s motion to vacate the order discharging defendant.

From the report of the proceedings of the trial it appears that defendant is a lawyer and represented himself. At the opening of the trial he stated that he wás appearing specially. “It is my contention that the court does not have jurisdiction over me and that sections 27-34.1 and 27-34.2 of the Municipal Code of Chicago are invalid.” Thereupon counsel for the City stated that defendant was charged with having violated § 27-19 (7) of the Municipal Code of Chicago. The ordinances above mentioned by defendant provide, 27-34.1: “Whenever any vehicle shall have been parked in violation of any of the provisions of this chapter prohibiting or restricting parking, the person in whose name such vehicle is registered shall be subject to the penalty for such violation.

“27-34.2. Whenever any vehicle is parked in violation of the provisions of this chapter prohibiting or restricting parking and there is no person in attendance upon such parked vehicle to be arrested or served immediately with a notice to appear in court to answer the charge of such violation, any police officer observing such violation may attach to the vehicle used in such violation, a notification or ticket, so that the person in whose name such vehicle is registered may appear in the Municipal Court of Chicago on a day certain and at a designated court room, to be named in such notice and answer to the charge of such violation.

“It shall be unlawful for any person, other than the driver of the vehicle to which said notice is attached, to remove the same from said vehicle.”

The other sections of the ordinances are (27-19 (7)): “It shall be unlawful for the operator of a vehicle to stop, stand or park such vehicle in any of the following places, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or official traffic sign or signal: . . .

“(7) At any curb within fifteen feet of a fire hydrant.”

After these ordinances were called to the attention of the court the parties stipulated that “on January 24, 1942 the defendant owned an automobile with Illinois license plates bearing number 172-951 and a Chicago vehicle tax emblem bearing number A608991; that on said day the said automobile was seen parked for thirty-five minutes five feet away from a fire hydrant located at the curb in front of the premises located at 408 N. Clark Street, in the City of Chicago. . . . That a police officer of the City of Chicago saw the defendant’s car parked at said time and place and attached to said motor vehicle a ticket stating that there had been a violation of section 27-19 (7) of the Municipal Code of Chicago and directing the owner to appear in the Municipal Court on January 26, 1942.” The stipulation further shows that defendant failed to appear and afterward a letter was sent to him (by a representative of the City) advising him that if he did not voluntarily appear within 48 hours a warrant would issue for his arrest.

At the conclusion of the stipulation defendant elected not to put in any evidence. The court, in rendering his decision said that the City had introduced no evidence against defendant that tended to prove he had violated the parking ordinance except that the license plates on the car showed it was owned by defendant [and defendant stipulated that he did own the car]. The court continuing said: “Counsel for the city stated no law or ordinance that could make the defendant liable for the act of illegal parking where the defendant had not committed it or directed, save a certain ordinance passed on April 3, 1940. This ordinance purports to make the owner of a car liable whenever the car is illegally parked. Such an ordinance, as I see it, is completely without basis in law. There is no power delegated by the State Legislature to the city that enables it to make a defendant liable for a parking violation which he did not commit or authorize.”

The contention of defendant made at the opening of the trial (he had filed no brief in this court) seems to be that the court did not acquire jurisdiction over him because' the police officer attached a ticket to the parked automobile. This is clearly a misapprehension. The City does not claim it obtained jurisdiction in this manner but says that afterwards a complaint was filed, a warrant issued and he was taken on the warrant and appeared in the trial of the case. Obviously the court had jurisdiction over him.

Section 27-19 makes it unlawful for the “operator” of a vehicle to park it at any curb within 15 feet of a fire hydrant, while § 27-34.1 provides that when any vehicle shall have been parked in violation of § 27-19 (7) “the person in whose name such vehicle is registered shall be subject to the penalty for such violation.” We are of opinion that under the stipulated facts, defendant violated the ordinance and was liable, and the court erred in discharging him.

When it appeared from the stipulation of facts that defendant owned the car that was parked near the fire hydrant, the City made out a prima facie case against him. Howard v. Amerson, 236 Ill. App. 587; Kavale v. Morton Salt Co., 329 Ill. 445, affirming this court in the same case, 242 Ill. App. 205. Although these two cases were civil actions and the instant case is quasi-criminal, [City of Chicago v. Dickson, 221 Ill. App. 255] we think the rule is applicable.

In Commonwealth v. Ober, 286 Mass. 25, defendant was charged with parking or allowing to be parked, an automobile registered in her name contrary to the regulation adopted by the Boston Traffic Commission. She was found guilty on each of the two counts and sentenced to pay a fine of $5 on each count. The police officer who saw the parked car, attached a. tag to it on which appeared the registration number of the automobile, the day, time and place when and where the car was parked and tagged and also a printed statement that the automobile had been tagged for a violation of traffic regulations, that is, parking in a restricted space, and requested her to bring the tag to the police station within 48 hours. Notice of the tagging was sent by the traffic bureau of police to defendant at her address. The tags were never returned and nothing was heard from defendant. The Court said: “There was no evidence as to v who left or parked the defendant’s automobile at the times and places set forth in the complaints or who took it away.” At the close of the evidence defendant requested the court “to instruct himself” that “(3) ‘The burden is upon the Commonwealth to prove that the defendant parked her car in the premises alleged in the complaints. ’ . . . (7) ‘The court should rule as a matter of law that ownership of a motor vehicle is no evidence that the said motor vehicle was parked illegally by the defendant. ’ ” The court refused these and other requests. The court in refusing request numbered 7, in its opinion said: “he [the trial judge] had in mind that the rules alleged to have been violated do not in terms require that the parking shall be done by the defendant.”

And continuing: “There are many modern instances of acts which are made criminal by legislation where there is no intent or criminal knowledge by the offender. These offenses are commonly described as mala prohibita as distinguished from offences which are mala in se. . . .

“The legislation here under consideration belongs to the class of statutes where the General Court, legislating for the common welfare, has put the burden upon the individual of ascertaining at his peril whether his conduct is within the scope of the criminal prohibition. The moral turpitude, the motive which prompts the illegal act, and the knowledge or ignorance of its criminal character are immaterial on the question of guilt.” And the court there further said:

“In the instant cases the public mischief to be averted is obvious. The inconvenience of keeping watch over parked vehicles to ascertain who in fact operates them would be impracticable, if not impossible, at a time when many vehicles are parked. We think the rules ánd regulations of the Boston Traffic Commission . . . were framed and intended to cover and make punishable any violation of secs. 31 (5), 19 and 17 (4) by the owner of a registered vehicle, whether the particular violation or violations were by the owner or were by a person allowed, permitted of suffered by the owner of any vehicle registered in his name in any street, way, highway, road or parkway under the control of the city of Boston. In a wofd this case is one of the unusual instances where a person at his peril must see to it that the rules and regulations are not violated by his act or by the act of another. The reported evidence established a prima facie case which was not met by evidence offered by tliQ defendant.”

In Commonwealth v. Kroger, 276 Ky. 20, it was held that the ordinance of a city providing that violation of it with a motor vehicle shall be prima facie evidence that violation was committed by or with the owner’s authority or permission, was valid. In that case the car was parked in violation of law and a ticket was attached to it. Defendant elected not to testify. The coprt held the ordinance valid and said: “independently of the enacted presumption, the circumstances stipulated and agreed to are amply sufficient under the general law of evidence ... to support a conviction.”

And in People v. Kayne, 286 Mich. 571, the court held that an ordinance which provided that the license plates displayed on an automobile would constitute a prima facie presumption that the owner parked the vehicle, and said: “A reasonable assumption may be made that the person who owns an automobile operates and parks it. Of course, this is not a conclusive presumption; but in the great majority of cases, such is the fact. The provisions of the ordinance, therefore, that the owner of a motor vehicle is presumed to be prima facie the person who operates it and parks it in the public highway is not unreasonable.”

In People v. Marchetti, 276 N. Y. S. 708, defendant was convicted of violating a regulation of the police department of the city of New York respecting parking of motor vehicles and he appealed. The judgment of conviction was affirmed. In that case it was charged that defendant parked an automobile in violation of the directions on signs of the police department displayed on a public highway. Defendant was found guilty and a fine of $5 imposed. Defendant was the owner of the vehicle parked contrary to the traffic regulations. He contended that the trial court had not acquired jurisdiction of him but the court said he appeared in person and took part in the trial and therefore submitted himself to the jurisdiction of the court. The court there said: “If this judgment is to be sustained, it is necessary for us to hold that the proved fact of the ownership of the automobile by the appellant raises the presumption that the car was under the control of the appellant, and that therefore he is responsible for having violated the provision of the ordinance against illegal parking. Without this presumption no prima facie case has been made out.

“The prosecution contends that the ownership of the automobile is so closely connected with the operation and control thereof that the owner, in the absence of other evidence, may be presumed to be the operator. . . .

“Granting that the mere ownership of an automobile is not evidence of exclusive control, still it is well within the owner’s power to produce evidence as to who was or was not in control, evidence which the people are in most cases unable to present. . . . given evidence of ownership and illegal parking, the prosecution may rest their case upon a presumption of guilt, making it incumbent upon the defendant to produce evidence that would negative this presumption.”

In the instant case, § 27-34.1 provides that whenever any vehicle is parked in violation of the chapter of the ordinance, “the person in whose name such vehicle is registered shall be subject to the penalty for such violation.” We think the city made out a prima facie case. Moreover under the traffic regulations referred to in Commonwealth v. Ober, 286 Mass. 25, defendant would be liable even though he did not park or permit the car to be parked contrary to the traffic regulations. And as said in that case, the purpose of the ordinance is to prevent public mischief.

It is common knowledge that many thousands of automobiles are parked in the streets at all times and it would be inconvenient and impossible for a municipality such as Chicago to keep watch over parked vehicles to ascertain who in fact operated or parked them.

For the reasons stated, the judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

Matchett and Niemeyer, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    City National Bank and Trust Company of Chicago, Successor Trustee, Appellant, v. Harry Bairstow, Appellee.
    Gen. No. 42,325.

      Opinion filed July 2, 1943.
    Rehearing denied July 14, 1943.
    Defrees, Fiske, O’Brien & Thomson, of Chicago, for appellant; Vincent O’Brien and John Merrill Baker, both of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; Joseph H. Pleck, J. Benjamin Cleaver and Edward C. Caldwell, all of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This suit was brought April 1, 1937, to enforce the terms of a written guarantee made and delivered by defendant to the Chicago Trust Company, trustee, January 5, 1931. The complaint, three times amended, sets up verbatim the written agreement containing the guarantee and authority to enforce it. Defendant made a motion to strike under section 45 of the Civil Practice Act (Smith-Hurd’s Ann. Stats., ch. 110, par. 169 [Jones Ill. Stats. Ann. 104.045]). Before the motion was decided plaintiff made a motion to transfer the cause to the equity side of the court, which was denied. The complaint was stricken, the suit dismissed and judgment for costs entered against plaintiff, and it appeals. The question for decision is whether the complaint stated a cause of action.

The facts stated in the complaint are as follows. January 20, 1927, Victor C. Carlson and wife made and delivered 723 bonds to the amount of $300,000, payable to the bearer, in denomination of $100, $500 and $1,000 each, maturing in from one to ten years after date. The bonds drew interest at the rate of 6% per cent per annum before maturity and 7 per cent thereafter. To secure payment of the indebtedness, the Carlsons conveyed to the Chicago Trust Company, an Illinois corporation, as trustee, a 99-year leasehold in the city of Chicago. Defendant Bairstow was the lessor, the Carlsons lessees of this estate. The deed of conveyance was to the . corporation, as trustee, and its successors in trust. Some of the bonds were paid. $17,500 of the principal amount became due and was not paid. Defendant Bairstow, lessor, was interested in the leasehold estate and the fee. He de'sired to have the bonds of this issue reduced in amount to $200,000. To that end the trustee, the Chicago Trust Company, caused $17,500 the principal amount of the bonds due and unpaid, to be subordinated to the lien of the other bonds and delivered the' subordinated bonds to defendant. The Chicago Trust Company also canceled and delivered to him other bonds of this issue in the principal amount of $17,500.

Defendant, on January 5, 1931, executed his writing unde'r seal of that date, reciting the foregoing and stating that in consideration thereof and for other considerations, good and valuable, not expressed, he guaranteed prompt payment of the bonds aggregating $200,000 in amount outstanding and unsubordinated. By the- same writing defendant also guaranteed the performance of each and every of the ‘1 obligations and conditions” stated in the bond and in the trust deed and agreed, in case of default, he would on demand make good any such default. The writing provided the guarantee should inure to the benefit of all persons then or thereafter owners or holders of the bonds and should bind representatives and assigns of the guarantor. Power to enforce the guarantee is in these words:

1 ‘ Chicago Trust Company, as Trustee under said trust deed, and/or as if express trustee in that behalf for the owners oi holders of said bonds, without necessity for possession of the bonds, shall have the right to enforce this guarantee and the' undersigned . . . agrees to recognize its authority so to do.”

The appeal in this court was argued orally. Attorneys have furnished a copy of the opinion of the trial judge. The gist of it is: “I am holding that since every plaintiff must sustain his case by virtue of his own title that the plaintiff here has no cause of action.” The theory of defendant supports this view. It is argued the instrument is a special guarantee whereby payment of the bonds is guaranteed to the Chicago Trust Company only; that it is not transferable, it is nonassignable and cannot be enforced either by any bondholder or any successor trustee. It is argued the power given the1 Chicago Trust Company, as trustee, t'o sue on the guarantee involved trust and confidence, which did not pass to the plaintiff City National Bank & Trust Company as successor in trust. Plaintiff is said to be a total stranger to the guarantee.

As already stated, the complaint sets up the entire writing verbatim. It also sets up at length proceedings by which Chicago Trust Company first consolidated with the Central Republic Trust Company, changed its name, became insolvent; the appointment of William L. O’Connel, as trustee, by the State Auditor; proceedings in the circuit court of Cook county in which his appointment was confirmed; his resignation in behalf of the insolvent corporation of this particular trust, and the conveyance by order of court to plaintiff, who was by the court appointed successor in trust of all the property, and the delivery to plaintiff by the receiver of the written guarantee and power to sue, the lease and the trust deed, both duly assigned to the plaintiff. Indeed, the allegations show a proceeding in conformity with section 11 of the Banking Act, similar to that had in City Nat. Bank & Trust Co. v. Burnham, 297 Ill. App. 211, where we held the proceeding passed title to the plaintiff as successor in trust, sufficient to maintain its suit. It is quite true, as defendant points out, that the written instrument here does not name a successor trustee. It is also true it does not purport to give express power to any other than the Chicago Trust Company to enforce the guarantee. Defendant says the guarantee is a special one for the benefit of the Chicago Trust Company alone; that the power to enforce it would not ordinarily be given to an unknown successor; that the omission to name such a successor manifestly was not by inadvertence, since the writing names a successor or assignee of the other party.

Defendant says (citing authorities) the guarantee should be strictly construed. This is true as to any condition or question of applicability if there is an ambiguity. We find no ambiguity here. The writing expressly states:

“This guarantee shall inure to the benefit of all persons now or hereafter owners or holders of said bonds aggregating $200,000 in principal amount and ... of other indebtedness to accrue under the provisions of said trust deed.”

The courts of this State in many cases have held that under promises such as these any holder or owner of any bond can sue on the guarantee. Oswianza v. Wengler & Mandell, Inc., 273 Ill. App. 239. It is quite impossible to hold this writing to be a special guarantee. Borker v. Bendix, 288 Ill. App. 260.

We also hold the fact that the writing does not name a successor trustee and does not preclude plaintiff, under the facts appearing, from suing as successor trustee. The clause in the writing giving the Chicago Trust Company power to enforce the guarantee is as follows:

“Chicago Trust Company, as Trustee under said trust deed, and ... as if express trustee in that behalf for the owners or holders of said bonds, without necessity for possession of the bonds, shall have the right to enforce this guarantee and the undersigned, for himself, his legal representatives and assigns, agrees to recognize its authority so to do.”

While it is conceded the provisions of the guarantee should be strictly construed, it by no means follows that that rule should be applied to this power to enforce the guarantee. The construction of the power in the last analysis depends upon the intention of the parties to the writing. Was the power of this trustee to enforce this guarantee intended to be personal and exclusive or only ministerial? Professor Scott has stated the general rule applicable in such cases in Scott on Trusts, Volume 2, Article 196, page 1060, and in the same volume, Article 177 at page 937. He says the intention of the settlor is decisive in the absence of some question of illegality. We quote:

“Where the original trustee is a corporation, the inference is that the settlor intended that the power should survive.”

The Chicago Trust Company, trustee here, was a corporation, and a grant of power like this to such a corporation has been held by our Supreme Court to be not personal but ministerial only. Chicago Title & Trust Co. v. Zinser, 264 Ill. 31. The selection of a corporation to exercise such a power clearly manifests an intention that the power to enforce a guarantee like this shall be purely ministerial. We hold that under the facts stated in the complaint plaintiff is properly and lawfully successor to the Chicago Trust Company with title to enforce the guarantee. City Nat. Bank & Trust Co. v. Burnham, 297 Ill. App. 211.

Defendant argues the complaint is further defective in failing to allege full performance on the part of plaintiff or its predecessors of the considerations upon which defendant made the promise of guarantee. There might be merit to this contention if the guarantee, as it appears in the written instrument, were a conditional one. It is not conditional; it is absolute in its nature.

It is said the complaint is also defective in failing to show that the original trust deed gave the Chicago Trust Company power to enter into the contract of guarantee. Defendant cites Williston' on Contracts, vol. 2, § 364A, p. 1061; Chicago Title & Trust Co. v. Robin, 361 Ill. 261, 198 N. E. 4; Tudor v. Firebaugh, 303 Ill. App. 452, 463, 25 N. E. (2d) 576; Austin v. Parker, 317 Ill. 348, 353, 148 N. E. 19. We hold it unnecessary to decide this question on this record, since the matter was decided on a motion to strike and the defense stated, if valid, is one which should be affirmatively pleaded.

We hold the complaint states a good cause of action; that the court erred in striking it, in dismissing the suit and in entering judgment against plaintiff. The judgment will be reversed and the cause remanded with directions to enter a rule on defendant-to answer.

Reversed and remanded with directions.

O’Connor, P. J., and Niemeyer, J., concur.


author: Justice Hebel.

text:
    People of the State of Illinois, Defendant in Error, v. R. Taylor, Plaintiff in Error.
    Gen. No. 42,160.
    opinion filed May 5, 1943.

      Lawrence E. Dowd, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    People of the State of Illinois, Defendant in Error, v. J. Jablonski, Plaintiff in Error.
    Gen. No. 42,161.
    opinion filed May 5, 1943.
    Lawrence E. Dowd, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.”


author: Presiding Justice Sullivan.

text:
    Ruth Walker Sewell, Appellee, v. Arthur Sewell, Defendant Below. Alva L. Bates, Appellant.
    Gen. No. 41,879.
    opinion filed June 16, 1943.
    Bates & Conner, for appellant; Alva L. Bates, of counsel; Henry C. Ferguson, for appellee.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. Robert DeSalvia, Appellee, v. Joseph P. Geary et al., Appellants.
    Gen. No. 42,030.
    opinion filed June 16, 1943.
    Barnet Hodes, Corporation Counsel, for appellants; James A. Velde, Carl H. Lundquist and L. Louis Karton, Assistant Corporation Counsel, of counsel; Michael F. Ryan, for appellee; Richard F. McPartlin, Jr., of counsel.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in full.’*


text:
    Habel, Armbruster and Larsen Company, Appellee, v. Louis Alleva and William Alleva, Copartners, Trading as Alleva Bros., et al. Appeal of Irving Bloom, Appellant.
    Gen. No. 42,105.
    opinion filed June 16, 1943;
    rehearing denied June 28, 1943.
    Luster & Luster, for appellants; Julian J. Luster, of counsel; Campbell, Clark & Miller, for appellee; J. Arthur Miller and Richard C. Blelach, of counsel.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in full.”


text:
    Florence M. Blumberg, Appellee, v. William M. Baird, Appellant.
    Gen. No. 42,485.
    opinion filed June 16, 1943.
    Burt A. Crowe, for appellant; Sidney J. & Arthur Wolf, for appellee; Sidney J. Wolf, of counsel.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in full.”


author: Justice Friend.

text:
    Guardian Electric Manufacturing Company, Appellee, v. National Mineral Company, Appellant. National Mineral Company, Appellant, v. Guardian Electric Manufacturing Company, Appellee.
    Gen. No. 42,380.

      opinion filed June 16, 1943;
    rehearing denied June 28, 1943.
    Adolph A. Bubinson, for appellant; Charles L. Barrett and John W. Bennett, for appellee.
   Opinion by

Justice Friend.

“Not to be published, in full.’’


text:
    A. Capetti et al., Appellants, v. Charlotte Allborg et al., Appellees.
    Gen. No. 42,550.
    opinion filed June 16, 1943.
    John C. DeWolfe, for appellants; J. Kent Greene, of counsel; Bullinger, Michels & Dicus, John W. Jedlan, Hopkins, Sutter, Halls & DeWolfe, Gann, Secord, Stead & McIntosh, Sidley, McPherson, Austin & Burgess, Adamowski, Sallemi & Crowley, John Taylor Booz, Samuel Koenigsberg and Edward J. Warren, for certain appellees; Frank Michels, of counsel.
   Opinion by

Justice Friend.

“Not to be published, in full”


text:
    Irving Bilton, Appellee, v. Pure Protection Insurance Association, Appellant.
    Gen. No. 42,575.
    opinion filed June 16, 1943.
    Meyer A. Ginsburg, for appellant; Edwin A. Halligan and Irving Bilton, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


author: Justice Scanlan.

text:
    Elaine Hogmire, Appellant, v. Dr. Joseph Voita, Appellee.
    Gen. No. 42,069.

      opinion filed June 16, 1943;
    rehearing denied June 28, 1943.
    Alex Meyerovitz, for appellant; Rawlins & Wright, for appellee; Don C. Wray, of counsel.
   Opinion by

Justice Scanlan.

‘‘Not to be published in full.”


text:
    Frank Slenis, Appellee, v. Joseph Wm. Zolpe and Petronele Zolpe, His Wife, et al., Appellants.
    Gen. No. 42,320.
    opinion filed June 16, 1943.
    A. Robert Pakulaz, for appellants; Joseph Barbera, for appellee.
   Opinion by

Justice Scanlan.

‘ ‘Not to be published in full.”


author: Presiding Justice O’Connor.

text:
    Virginia K. Howie, Appellee, v. James H. Dobbins and Pauline M. Dobbins, Appellants.
    Gen. No. 42,574.

      opinion filed July 2, 1943.
    Lawrence B. Jacobs and Marcellus W. Meek, for appellants; Bernard Roseneranz, for appellee.
   Opinion by

Presiding Justice O’Connor.

“Not to he published in full.”


text:
    David Stein, Appellee, v. Walter J. Cummings and Daniel C. Green, Receivers, et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,587.
    opinion filed July 2, 1943.
    Frank L. Kriete, Charles C. Cunningham and Arthur J. Donovan, for appellants; William J. Flaherty, of counsel; Sher & Karlin, for appellee; Leo S. Karlin, of counsel.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


author: Conger, J.

text:
    Third District
    May Term, 1889.
    Christian Linck v. Walter Scheffel, by Next Friend, etc.

      Dogs—Personal Injury—Action for Damages—Measure of—Instructions, When Error in Immaterial—Alleged Negligence of Inf ant—Evidence.

    1. On appeal from judgment for plaintiff in an action to recover damages for injury to minor from bite of a'dog, it is held: That whether or not an instruction on the measure of damages was incorrect is immaterial on either of two grounds: 1st. That no point was made in the court below on motion for a new trial that the damages were excessive. 2d. That the damages were not excessive, hence the defendant was not injured by the instruction, even if erroneous.
    2. Instructions which placed plaintiff, a child of seven years, virtually upon the same plane of care and diligence as an adult, should be refused. It is for the jury to determine from the age and intelligence of the child whether he used due care or not.
    3. Evidence tending to show that defendant’s dog, at other times and to other persons than those referred to by plaintiff’s witnesses, was quiet and had never offered to bite, should be refused.
    4. Evidence tending to show that plaintiff at other_times and places had teased and worried the dog is inadmissible.
    [Opinion filed November 23, 1889.]

      Appeal from the Circuit Court of Montgomery County; the Hon. J. Fouke, Judge, presiding.
    Messrs. Lane & Cooper, A. N. Kingsbury and George Pepperdine, for appellant.
    Messrs. George L. Zink and James M. Truitt, for appellee.
    In the case of Buckley v. Leonard, 4 Denio, 500, it was held that when the owner of a dog which had bitten other persons had notice of the fact, and afterward suffered him to be at large, when he bit the plaintiff, it was no answer to the action for the injury to the plaintiff to show that the dog was generally inoffensive. The court say such evidence is immaterial.
    That case was followed and fully approved by the case of Mann v. Weiand, 81 Pa. St. 243.
    As early as 1861 our Supreme Court, in the case of C., B. & Q. R. R. Co. v. Dewey, 26 Ill. 258, announced the doctrine that a child could not be required to exercise the same degree of caution and care as one of mature years. That case has been followed by a number of cases. See C. & A. R. R. Co. v. Gregory, 58 Ill. 226; C. & A. R. R. Co. v. Murray, 71 Ill. 601; Railroad Co. v. Gladman, 15 Wall. 408; Chicago v. Hesing, 83 Ill. 204; Kerr v. Forgue, 54 Ill. 482; Weick v. Lander, 75 Ill. 93; C. & A. R. R. Co. v. Becker, 76 Ill. 25; R. R. I. & St. I. R. R. Co. v. Delaney, 82 Ill. 198; Meibus v. Dodge, 38 Wis. 300; Plumley v. Birge, 124 Mass. 57; Lynch v. Smith, 104 Mass. 52; Ostertag v. Pacific R. R. Co., 64 Mo. 423.
    Counsel complain that appellant was not permitted to prove that appellee had thrown stones at the dog, and so had made him vicious toward appellee. The court properly excluded that testimony, because it was immaterial and could only tend to mislead the jury. Flansburg v. Basin, 3 Ill. App. 531; Muller v. McKesson, 73 N. Y. 195.
    In Smith v. Pelah, 2 Strange, 1264, held, if a dog has once bitten a man, and the owner, having notice thereof, keeps the dog, a suit will lie against him by one who is bitten, though it happened by such person treading on the dog’s toes, for it was owing to his not hanging the dog on the first notice. In Arnold v. Norton, 25 Conn. 92, it was held that satisfactory proof of a single instance of the dog having previously bitten a person was sufficient to establish the bad propensity. See, also, Ketbridge v. Elliott, 16 N. H. 77; Loomis v. Terry, 17 Wend. 496; Cockerham v. Nixon, 11 Iredell, 269; Worth v. Gilling, 2 L. R. (C. P.) 1; Flansburg v. Basin, 3 Ill. App. 531; Stumps v. Kelley, 22 Ill. 140.
   Conger, J.

It is urged that the instructions given upon the measure of damages is not a correct statement of the rule applicable to such cases. The answer to this objection is two-fold: first, no point was made in the court below upon motion for a new trial that the damages were excessive. As said in Jones v. Jones, 71 Ill. 563, “ Where the damages are excessive the presumption is that on being asked, the court below will require a remittitur to the proper amount or grant a new trial. And when no such request is made of the judge trying the case the party must be regarded as having had no objections to the amount of the finding, or , if he had, that he waived them.” Second, the damages, in our judgment, are not excessive, and hence appellant has in no way been injured by the instructions complained of, even if erroneous.

Complaint is made by appellant that the court refused the following instructions:

5. The court instructs the jury that if they believe from the evidence that the dog's biting the plaintiff was prevoked by the plaintiff’s kicking the dog, and was due to that fact alone, then they should find the defendant not guilty, notwithstanding the plaintiff is a minor.

7. The jury are instructed that if they believe from the evidence that the defendant’s dog was irritated and aggravated to bite the plaintiff, by being kicked by the plaintiff, that the plaintiff can not take the advantage of his own wrong and receive as damage for an injury received as a result of his own carelessness and recklessness; and if the jury believe from the evidence that the defendant’s dog bit the plaintiff, as the sole result of being kicked by the plaintiff, and not from the fact of being a dangerous and savage animal naturally, they will find for the defendant.

When it is remembered that appellee at the time of the occurrence was only about seven years old, it can be seen that these instructions were calculated to mislead the jury and were properly refused. They virtually place appellee upon the same plane of care and diligence as an adult, entirely ignoring the principle that the jury must determine from the age and general intelligence of appellee at the time, whether or not he used the care required of him by the law. C. & A. R. R. Co. v. Murray, 71 Ill. 601, and cases there cited.

The court below refused to permit appellant to show that his dog at other times and to other persons than those referred to by appellee’s witnesses, was quiet, and had never offered to bite them, and this ruling we think was right; for it matters not what the dog’s general character for peaceableness was, if it could be shown that he had in fact bitten people without justification prior to his assault upon appellee, and that appellant had knowledge of it.

Neither would it have been proper to show that appellee at other times and planes than the one where bitten, had teased and worried the dog. It would be a dangerous rule to hold that because a thoughtless child should at one time strike or worry a dog he might afterward be bitten with impunity.

We think the verdict is well sustained by the evidence, and no such substantial error occurred upon the trial below as to require us to interfere.

The judgment of the Circuit Court will therefore be affirmed.

Judgment affirmed.


author: Pleasants, P. J.

text:
    John A. Reed et al. v. Andrew J. Reed et al.

      Marriage Settlement—Alleged Trust Fund—Bill in Equity by Children against Father to Secure Accounting for Fund Alleged to Hare Been Held in Trust for First Wife.

    Complainants are children of appellee by ’a former wife, who died intestate. Prior to his first wife’s death she became entitled, under the will of her father, to a distributive share of his personal estate. She personally settled with the executor of her father’s estate for this share, by receiving from him a note given by her husband as part of the purchase price of their home farm, purchased by him some time before, and having indorsed upon another similar note the balance of the share due her. The note paid in full she turned over to her husband. The husband subsequently paid out of his own means the balance of the other note. Subsequently the wife, with her husband, sold land devised to her by her father, and the proceeds were chiefly used for household expenses and by the husband in his business. Held: That appellee, there being no evidence of an express trust, was not chargeable as a trustee of the funds or property received from his wife for the benefit of her or her children; and that even if the wife had been presumed to have purchased the notes, which were secured by a purchase money lien on the home farm, to protect her dower right, and she were to be considered as subrogated to the creditor’s security, that lien could not be enforced under a bill seeking to charge the husband as trustee.
    [Opinion filed November 23, 1889.]

      Appeal from the Circuit Court of Morgan County; the Hon. C. Epler, Judge, presiding.
    Mr. Owen P. Thompson, for appellants.
    If the defendant, Heed, had received in the same way this amount of money from a stranger, would any one question the right of such person to hold him liable as trustee ? The rights of Mrs. Heed, and consequently her heirs, can be enforced under the law, as it now exists, the same as if she and her husband had been total strangers. Under the married woman’s act of 1861, all the rights of the husband in and to the separate estate of the wife are swept away, and the wife may own, hold, possess and enjoy such estate precisely as though she were sole. As to such estate and her relations thereto she has no husband.
    In the case of Patten v. Patten, 75 Ill. 446, the court held that if the husband receipts for and manages his wife’s separate estate, with her consent, the presumption is that he does so in the character of agent, and it will not, in deference to marital legal rights, become his property. If the husband claim, as gift, the burden is upon him to establish his claim by evidence. See, Tomlinson v. Matthews, 98 Ill. 178; 2 Perry on Trusts, Sec. 666, third edition.
    As to the Kirkman land, the testimony of Heed is that it was purchased with what he called the “general fund.” The general fund, according to his testimony, was made up of his wife’s money and his own, commingled together, the larger portion of it being his wife’s. Here, too, the evidence is ample to show a resulting trust. His wife’s money was used in purchasing the land, and the deed was taken in his name. Our Supreme Court has held that the wife has an equitable interest in the property to the extent of the money furnished. Haines v. Haines, 54 Ill. 74; see, also, Seaman v. Cook, 14 Ill. 501; Ward v. Armstrong, 84 Ill. 151; Perry on Trusts, Sec. 128; Persch v. Quiggle, 57 Pa. St. 247; Russell v. Jackson, 10 Hare, 209.
    The funds which went toward the payment of the purchase price of the Gallagher farm were paid after the deed was made, and consequently no resulting trust can be said to exist as to those lands. But we do insist that in equity the §4,870.51 of Mrs. Reed’s money, that went into this farm, and the benefits of it received by Reed, should be held to be a lien on the property, in the nature of a vendor’s lien, and should be held subject to sale to reimburse the trust fund. Wallace v. McCullough, 1 Rich. Ch. 426; Perry on Trusts, Sec. 128.
    All of the money which Reed says his wife allowed him to use and which is not a trust impressed upon the lands now held by Reed, is nevertheless money he holds in trust. The name by which the trust is to be known is wholly immaterial, but we have used the term constructive trust as applicable to this fund. The authors of the leading text books on the subject of trusts, viz., Story, Perry and Pomeroy, do not use the same name for the same character of trust, but all agree that where one possesses himself of trust property, or who has defrauded another of his estate by concealment or fraudulent practices, even though no fraud was intended at commencement of the trust relation, is to be held as a trustee by construction or operation of law, and the parties beneficially entitled have the same rights and remedies against him that they would be entitled to as against an express trustee who had fraudulently committed a breach of the trust. Perry on Trusts, Sec. 166; Pomeroy’s Eq. Jur., Sec. 1044; Thompson v. Thompson, 16 Wis. 91; Pillow v. Brown, 26 Ark. 240; McLane v. Johnson, 43 Vt. 48.
    Messrs. Brown & Kirby, for appellees.
    We respectfully insist that the presumption of law is that these notes were the gift of Susan F. Reed to Andrew J. Reed, because of her love and affection for him, and in support of this proposition we cite the following cases: Lux v. Hoff, 47 Ill. 425; Story’s Equity Jurisprudence, Vol. 2, Secs. 1202 and 1203; Pomeroy’s Equity Jurisprudence, Vol. 2, Sec. 1041; Sidmouth v. Sidmouth, 2 Beavan, 447; Maxwell v. Maxwell, 109 Ill. 588; Temple v. Williams, 4 Iredell’s Equity Rep. 39
   Pleasants, P. J.

Appellants are children of appellee Andrew J. Reed, by a former wife, who died intestate December 15, 1884. In January, 1886, he married his present wife, after conveying certain lands to trustees for her use, in pursuance of an ante-nuptial agreement. Appellants filed the bill herein, averring that he purchased these and other lands described, amounting to 380 acres in Morgan county, with means of their mother derived from her father’s estate and placed in his hands at different times for safe keeping for her and her children, with the understanding between them that it was to be held by him in trust for her, and that in the event of her death he was, as trustee, to account for and pay it over to her children; and praying that he be required to convey said lands to said children, or to account for and pay over to them all of said trust fund, with the rents, profits and interest accrued thereon. Appellee’s wife, the trustees of the'land conveyed for her use, and certain mortgagees of other portions are charged with notice of complainant’s rights and made parties defendant.

Appellee Reed, by his answer, denied the alleged trust, claiming that the money he received was given to him absolutely by her, and also set up the statutes of frauds and of limitations. The other defendants denied all notice of complainant’s claims before they took their respective deeds or mortgages and that they were made without valuable consideration.

On final hearing upon the proofs taken under these pleadings, the court dismissed the bill at complainants’ costs, and they appealed. Without now undertaking a full review of the evidence or the argument for appellants, we are of opinion, upon a full consideration of both, that this decree should be affirmed, upon the ground that there was no sufficient proof of any trust reposed in appellee Reed in connection with the moneys in question.

There was none whatever of any such understanding as was alleged. The nearest approach made to it was by the testimony of two of the complainants, that they heard their mother say, long after the money had been received or applied, and in the absence of their father, that some of it had gone into the home place, and that the children ought to have a share of it, and that she wanted them to have it; and the statement of one Mrs. Hembraugh, that her father, in talking with her about his intention to marry again, said he wanted to know what they thought about it; that she told him if he would wait long enough it would make no difference to them, and he said, referring to the home property, that before he married he would make satisfactory settlement with the children; which last statement he denied. This is not urged as satisfactory proof of the alleged understanding between him and his deceased wife. The reliance is rather upon a supposed resulting or constructive trust.

It appears that in October, 1865, she applied upon two promissory notes made by him and then belonging to her father’s estate, the sum of $4,870.51, coming to her from that estate. It was paid to her by the executor, by surrendering to her one, receipted as paid in full, on which was due $3,024.33, and indorsing on the other, by her direction, a credit of the balance, $1,797.48. These notes had been given on the 18th of February, 1858, to W. G. Gallagher, in part pay ment for the home farm then deeded to him, and were assigned to her father. The one so paid she delivered to her husband, and he afterward paid with his own means the balance remaining due on the other and took it up. It does not appear that appellee was present or had anything to do with this arrangement and transaction with the executor, or that he requested, suggested or expected it. The money having been thus voluntarily applied by her, and toward payment for land long before purchased by and conveyed to her husband in his own name, it is not claimed that a resulting trust would arise thereon as to that land; but counsel “insist that in equity it should be held to create alien upon it, in the nature of a vendor’s lien.” On what principle it should be so held is not suggested, and we think of none unless it he that the application of this money was not made by her voluntarily, but to protect her contingent right of dower in the premises; and therefore she should be subrogated to the creditor’s security, which was a vendor’s lien reserved by the deed; for it is clear she could not make her husband her debtor without his consent by the voluntary payment of his debt to another. But if the facts showed a right to such subrogation, which we do not concede, this is not a bill to enforce a lien of any kind, and however clear the right to such relief it could not be properly granted in this case.

The responsibilities of a trustee, whatever be the kind of trust, are either contractual or penal. In other words, they arise only out of some act of the party to be charged, which expresses or implies his acceptance of them, or some default) fraud or wrong which makes it equitable that he should bear them without regard to his consent. But all the acts out of which any trust in appellee in connection with this money is claimed to have arisen, were shown to have been those of his wife alone, without so much to implicate appellee as his consent to or knowledge of them. Of themselves these facts indicate that the money so applied by herself was absolutely given to him or for his benefit. They relieved him from the necessity of making any proof to that effect. Pie had no presumption of agency on his part to rebut, as he would in case of a showing simply that he collected or received it as hers, though with her consent, from a debtor or custodian-Had she been any other than his wife the law would presume from these facts that it was a gift; and for any return therefor she must look to his sentiments and not to any obligation that a court can enforce. The distinction between receiving it from a third party, as hers, and receiving it from herself, bears on the pertinency of the principal authorities cited. Patten v. Patten, 75 Ill. 446; Tomlinson v. Matthews, 98 Id. 178; Perry on Trusts (3d Ed.), Sec. 666.

It further appears that on May 8,1867, Mrs. Reed with her husband conveyed certain land devised to her by her father to her brother, for $7,000, of which $1,000 (less the amount of a succession tax deducted) was paid in cash, and the residue in a note for $2,000 at sixty or ninety days, and another for $4,000 at five years. The cash was paid to her, and the notes were made payable and delivered to her. What disposition was made of this money and these notes was shown only by the testimony of Mr. Reed himself, who was called as a witness by the complainants. He stated that of the cash he paid $500, by her direction, to the Church Extension Society, and the rest she expended herself in furnishing their house and getting other things she thought necessary. The §2,000 note was indorsed and delivered by her to him. He left it at the bank, drew the money when it was paid, and put it into what he called the “ general fund,” that is, “ with what he made on the farm and what she got,” which fund they used for whatever they needed; and that he used this money, as she knew he would, in providing for the family and in his business, but just how, particularly, he could not remember. The other note she indorsed to the order of Robert Morrison, and delivered to her husband to be used by him, together with money of his own, to pay said Morrison for a lot of cattle purchased of him during that fall. Buying, feeding and selling cattle was his business. He sold that lot at a considerable loss, but with what he got for it he bought another, and so on. When first examined for the complainants he said his recollection then was that the money he got for the second bunch, after the Morrison lot, was used, with other means, in the purchase of a certain piece of land described—taking the deed to himself—which land he still holds. Afterward he corrected that statement, and having refreshed his memory from the deed and from his bankbook and other papers, stated that he paid for that land before he realized on the sale of that bunch.

But whether the proceeds of this $4,000 note or any part of them went into that land or not we think is immaterial, because it does not appear to us that they were received by him upon any trust whatever. The note was hers, and so made that she could control it and dispose of it as she should think proper. She could withhold it from her husband, or give it or loan it, or intrust it to him for her own or any other lawful use. When she indorsed it she knew the use to which it was to be put was speculative and hazardous, and that knowledge raises a presumption that it was not delivered to him in trust, to be safely kept and returned. Knowing it, she could not have complained of any loss suffered by the trade; but we apprehend, that under such a trust as is charged in the bill, her husband would have been liable for all loss, and also accountable for all profit by it. We think it apparent that no such liability was contemplated in this transaction. Nor is there an intimation in the bill or testimony that he was her agent, to do business with her money for her, and at her risk of legitimate loss in such business. She herself delivered the note to him, to be used in a particular trade, as of his own proper business, for the benefit of himself and the family, and subject to the risks of the trade, precisely like the other money he put into it.

Nor was there about it any of the indicia of a loan. Ho security or evidence of indebtedness was taken, nor anything said or done to distinguish it from an absolute gift—as in the case of the moneys first above mentioned—coming from the executor of her father’s will. She herself having possession and control of this note, applied it to his use in his business. The application of those moneys indicates her intention with respect to this. It came to her as her separate estate, but she did not intend to keep it as such. She voluntarily divested herself of it, and incorporated it in his. She lived with him as his wife for sixteen years after the delivery of these notes to him, and until her death, and yet there is no evidence that she ever asked him for an account, or in any act or word treated him as her trustee, agent or debtor, but always and only as her husband. And although the statute has abrogated the common law rights of the husband in respect of the property of the wife, nevertheless, as the court said in Patten v. Patten, supra, “the relation of the parties may be considered with reference to the weight to be given or inference drawn from their conduct and dealings with regard to her separate property.”

In addition to the circumstances shown, we have the positive testimony of the appellee, called as a witness by appellants, that none of this money was received by him under any trust, to account for or return it to his wife or her children, but all was given by her to him freely and absolutely; and his testimony stands without contradiction. Such a trust as is here charged should be established by clear and satisfactory proof.

We think the decree dismissing the bill was right, and it will be affirmed. Decree affirmed.


author: Wall, J.

text:
    Lucinda D. Whittaker, Executrix, v. Crow, Hargadine & Co.

      Negotiable Instruments—Note—Statute of Limitations—New Promise— Interest.

    1. Where indorsees o£ a promissory note, on which the statute of limitations had run, indorsed upon its back an agreement to accept a sum less than the amount for which it was given, in full satisfaction thereof, during the current year, and the maker wrote below, “I accept the above condition,” and signed his name, this court holds that the act in question constituted a valid contract on which an action would lie at its maturity.
    2. Interest at six per cent (the original note providing for interest at ten per cent) should be allowed after the maturity of the new contract.
    [Opinion filed November 23, 1889.]
    In error to the Circuit Court of Pike County; the Hon. C. J. Scofield, Judge, presiding.
    Mr. James E. McMurray, for plaintiff in error.
    The new promise to pay, to be sufficient to remove the bar of the statutes, must be absolute and unqualified, and is not to be extended by implication or presumption beyond the express words of the promise. Kimmel v. Schwartz, Breese, 218; Bell v. Morrison, 1 Pet. (U. S.) 351; Parsons v. Northern Ill. Coal and Iron Co., 38 Ill. 430; Carroll v. Forsyth, 69 Ill. 127; Wachter v. Albee, 80 Ill. 47.
    An offer to pay a less sum than the amount due, made by a debtor in whose favor the statute had run, will not remove the bar, unless accepted at the time when made. Wood on Limitations, p. 190; Lawrence v. Hopkins, 13 John. 287; Bell v. Morrison, 1 Pet. (U. S.) 351; Parsons v. Northern Illinois Iron and Coal Co., 38 Ill. 430; Slack v. Norwich, 32 Vt. (3 Shaw) 818; Batchelder v. Batchelder, 48 N. H. 23; Smith v. Eastman, 3 Cush. 355; Munford v. Freeman, 8 Met. 432.
    An agreement to accept a less sum than the amount due is a nudum pactum. Heathcote v. Crookshanks, 2 Term R. 24 Dederick v. Leaman et al., 9 Johns. 332.
    Mr. J. S. Irwin, for defendants in error.
    We both agree that an offer, unaccepted, is not binding; but if accepted absolutely and unconditionally becomes a contract. Addison on Contracts, Sec. 20. The question then to be determined is, does the indorsement on the note, of date March 20, 1885, amount to an offer, and an absolute and unconditional acceptance.
    Interest should have been allowed. Laws of 1857, Sec. 1; R. S. 1874, Sec. 4, Chap. 74; Brockman v. Sieverling, 6 Ill. App. 513; Norton v. Colby, 52 Ill. 198; Marshall v. Tracy, 74 Ill. 379; Chitty on Contracts, 821a, n. 1.
    The Circuit Court had the right to classify the claims. Darling v. McDonald, 101 Ill. 370; McCall v. Lee, 120 Ill. 261.
    The Appellate Court has the power to correct the judgment by the allowance of interest. Starr & Curtis’ R. S., Chap. 110, Sec. 82; Masters v. Masters, 13 Ill. App. 611; Church v. Jewett, 1 Scam. 55; Peck v. Stevenson, 5 Gilm. 127; Welch v. Wallace, 3 Gilm. 490.
   Wall, J.

It appears from the record that A. S. Whittaker made his promissory note to Crow, McCreery & Co. for $789.50, payable December 20, 1874; that no payment was made thereon within ten years after maturity; that Crow, Hargadine &Co. became the holders by indorsement, and that after the statute of limitations—ten years—had fully rim, the following proposition and acceptance were written on the back of the note.

“We agree to accept five hundred dollars in full satisfaction of within note during 1885.
“ Crow, Hargadine & Co.
“I accept the above condition.
“ A. S. Whittaker.
“St. Louis, March 20, 1885.”

The question is, what legal significance is to be attached to these entries ? Plaintiff in error urges that the holder of the note merely proposed to accept the sum mentioned within the time mentioned, but that the debtor while accepting the condition did not bind himself to pay. If so, then the offer of the creditor was without consideration and not binding on him, and therefore nothing obligatory was effected on either side. We think, however, the parties intended to contract, and did contract, the one to pay and the other to receive, and that, upon the maturity of the contract thus made, an action would lie by the promisee against the promisor. In substance it was a new contract by the debtor based on the moral consideration of the old debt to pay the sum agreed on within the time fixed, and it was a surrender on the part of the creditor of all other demands growing out of the former liability. If this be the correct view it follows that the defendants in error were entitled to an allowance for the principal sum thus promised, which was granted by the Circuit Court, and as the contract was in writing interest also was allowable after maturity.

The cross-errors assigned are upon the failure of the court to allow such interest. This point is well made. The judgment will be reversed upon cross-errors and the cause will be remanded with directions to allow interest at six per cent after maturity of said new contract. The defendants in error will recover their costs herein.

Reversed and remanded with directions.


text:
    Northwestern Life Association v. Rachel Stout.

      Life Insurance—Plea to Jurisdiction—Demurrer—Matters of Fact, How Presented—Insurance Companies, What Are—Construction of Statutes.

      1. Upon hearing on a demurrer to a plea to the jurisdiction, the plaintiff is bound by the material averments of the declaration, but not so the defendant, further than they are admitted by the plea. If any matter of fact contained in the plea is to be denied, “or if there is any matter of fact that in law would avoid the prima facie effect of the plea, it should be presented by replication, whatever may appear in the declaration.
    2. In an action brought upon a certificate issued by a mutual benefit association, defendant filed a plea to the jurisdiction, alleging “that it is, and at all times since its organization has been, an association intended to benefit widows, orphans, heirs and devisees of deceased members thereof, and no annual dues are required and the members receive no money for profit or otherwise, that the location and principal place of business of the said association is, and ever since the organization thereof has been in the city of Bloomington, in the said county of McLean, and not at any time in the said Greene county,” and that the defendant had not been served with process in Greene county, but had been served in McLean county: Held, that the plea should have been held good on demurrer.
    3. In the case presented, this court holds that the plea was sufficient to bring the defendant within the meaning of Sec. 31 of the Act concerning corporations, and to show that it was therefore not to be deemed an insurance company within the meaning of See. 3 of the Practice Act, providing that the Circuit Court of the county where the plaintiff resided should have jurisdiction of all actions to be commenced against any fire_or life insurance company.
    [Opinion filed November 23, 1889.]
    In error to the Circuit Court of Greene County; the Hon. C. Epler, Judge, presiding.
    Messrs. Herrick, Lugas & Spencer, for plaintiff in error.
    Section 31 of the act concerning corporations is a complete answer to the claim that plaintiff in error is an insurance company. See Commercial League v. People, 90 Ill. 171; Catholic Congregation v. Germain, 104 Ill. 445; C., M. & St. P. R. R. Co. v. Dumser, 109 Ill. 410.
    In the case of Ottawa Gas & Coke Co. v. Downey, 20 N. E. R. 122, Wilkins, J., says: “Courts can not, as a general rule; disregard the plain language of a statute. It is their duty to accept it as they find it, and to enforce it as plainly written.” Cooley, Constitutional Limitations, 55; Foley v. The People, Breese, 57; Railroad Co. v. Dumser, 109 Ill. 402; Newell v. The People, 7 N. Y. 9.
    The same rule is laid down in Potter’s Dwarris on Statutes, etc., 189.

      “It is the right of a party to be sued in the county where he resides, and to have his cause tried there, and he ought not to be denied that right—a right to him in many instances of the utmost importance—by any technical and metaphysical learning in regard to pleas in abatement.” Scott, J., in Humphrey v. Phillips, 57 Ill. 135. See, also, Drake v. Drake, 83 Ill. 528.
    The plea is in proper form. Nixon v. S. W. Ins. Co., 47 Ill. 444; Nispel v. W. U. R. R. Co., 64 Ill. 311.
    Mr. James R. Ward, for defendant in error.
    With courts of general jurisdiction the presumption is that they are in the proper exercise of jurisdiction until the contrary is shown. A plea to the jurisdiction of the court must aver facts showing the absence of jurisdiction, and must be certain in every particular. Diblee v. Davison, 25 Ill. 488; Kenney v. Greer, 13 Ill. 447.
    From the earliest period in the history of the common Jaw, pleas in abatement have not been favored by the courts, and hence great precision has been required, both in the substance and structure of such pleas. Nixon v. Ins. Co., 47 Ill. 446; Parsons v. Case, 45 Ill. 296; Feasler v. Schriever, 68 Ill. 323.
    The plea to the jurisdiction is defective. It does not contain the averment that plaintiff in error is not an insurance company, as described in the declaration. It does not contain facts showing how the association is “intended to benefit the widows, orphans,” etc., and that the association does not, by transacting an insurance business, but by constructing and operating railroads or bridges accomplish that purpose, to distinguish it from such corporations, so that in no event could the Circuit Court acquire jurisdiction under Secs. 2 or 3 of the Practice Act. F. & M. Ins. Co. v. Buckles, 49 Ill. 483. The reasoning in this case is applicable to the one at bar. It must negative all the facts upon which jurisdiction might depend. Lord v. Babel, 16 Ill. App. 434.
    The plea is inaccurate and lacks precision in substance in another respect. It does not contain all the averments necessary to bring the plaintiff in error within Sec. 31 of the act cited by counsel. Associations, etc., that shall not be deemed insurance companies, under that act, are associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof and members who have received apermament disability, and where no annual dues or premiums are, required, and whose members shall receive no money as profit or otherwise, except for permanent disability. The words italicized are found in said Sec. 31, but are not found in the plea to the jurisdiction. The plea is fatally defective in not containing the averment that no premiums are required. Com’l League v. People, 90 Ill. 171; Golden Rule v. People, 118 Ill. 497.
    It may all be true, as alleged in the plea, that no annual dues a re required, yet, if premiums are required, the association is not within the protection of that section. An averment in pleading will be taken most strongly against the pleader, especially in pleas of abatement. Henkel v. Heyman, 91 Ill. 97; Bourland v. Sickles, 26 Ill. 499; Feasler v. Schriever, 68 Ill. 323.
    To avail of a statute, the pleader must bring himself clearly within its terms and spirit. Williams v. Hogan, 46 Ill. 608.
    Where the clause of the statute relied upon contains exceptions or terms in the nature of exceptions, the pleader must show affirmatively that the case does not fall within any of them. T. P. & W. R. R. Co. v. Pence, 68 Ill. 525.
   Pleasants, P. J.

This was an action of assumpsit brought by defendant in error in the Circuit Court of Greene County, upon a certificate issued by plaintiff in error stating, in substance, that John H. Stout was entitled to all the rights and privileges of membership in the association, and to participa te in its beneficiary or relief fund to the amount of $2,000, which sum, or such part thereof as may be collected as specified in the constitution and by-laws of the association, should; within sixty days after his death and upon the condition therein mentioned, be paid to his wife, the defendant in error, which was dated and purported to be executed at Blooming-ton, Illinois. The declaration averred that the defendant was a body corporate, existing and “doing a life insurance business ” under the laws of this State; sets forth the certificate inhœc verba with what purported to be the constitution and by-laws, counted on it as a “ policy of insurance,” and alleged the other facts required to fix the liability claimed. The summons was directed to, and served and returned by the sheriff of McLean county.

Thereupon the defendant, by its attorney in fact, filed a plea to the jurisdiction of the Circuit Court of Greene County, averring that the defendant “is a corporation aggregate, organized under an act of the General Assembly of the State of Illinois, entitled “an act concerning corporations; ” that it is, and at all times since its organization has been, an association intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, and no annual dues are required, and the members receive no money for profit or otherwise. * * * That the location and principal place of business of the said association is, and ever since the organization thereof has been in the city of Bloomington, in the said county of McLean, and not at any time in the said Greene county; and that the defendant, nor its president, nor any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent or any agent of said association was found or served with process in the said action in the said county of Greene, but was found and served with process in said action in the said county of McLean.” To this plea the plaintiff demurred “ specially,” assigning the following causes: “1st. The plea is not sufficient in law. 2d. The plea is in conflict with matters set forth in the policy, constitution and by-laws set forth in the declaration. 3d. The plea presents an objection which, by the provisions of the by-laws set forth in the declaration and the law, the defendant is stopped from making in this court.” This demurrer was sustained, and the defendant abiding by its plea, a judgment by nil elicit was entered for the plaintiff for §2,000 damages assessed and the costs.

We presume the causes secondly and thirdly assigned for the demurrer are abandoned, as they are not urged in the argument here. And obviously the matters therein respectively set forth are not available on this demurrer. The plaintiff may be bound by the material averments in the declaration, and therefore she could not claim, as against the plea, that for aught it shows this might be a local action, since the declaration conclusively shows it is not. Humphrey v. Phillips, 57 Ill. 137. But the defendant is not so bound, further than it admits by the plea; and the plea here admits none of them, either expressly, or by implication from the denial of some-It presents only matters of fact which do not appear in the declaration, as the basis of its contention thereon, that what, ever the declaration may contain, and whether true or false, the Circuit Court of the county in which the action is brought should not take cognizance of it. If any allegation of fact material to the support of this contention is to be denied, or if there is any matter of fact that in law would avoid the prima facie effect, of the plea or estop the defendant from making such allegation, whether it appears or does not appear in the declaration, it should be presented by replication. The record shows that the court below ignored these causes, and sustained the demurrer upon the finding that the plea was “not sufficient in law.” That was a finding as upon a general demurrer. Its soundness is the only question here argued or really in the case. The substantial defect alleged against the plea is that it fails to bring the defendant within the terms or meaning of the statute relied on, or to show that it is not a life insurance company within the meaning of Sec. 3 of the practice act. By the second section of that act it is declared to be unlawful to sue any sole defendant in a transitory action out of the county where such defendant resides or may be found. A later act, approved April 3,1873, and now arranged as Sec. 3 of the practice act, provides that “the Circuit Court of the county wherein the plaintiff or complainant may reside shall have jurisdiction of all actions hereafter to be commenced by any individual against any fire or life insurance company.” Under that provision this action was brought.

In 1869 the legislature provided by separate acts for the incorporation and regulation of fire and life insurance companies, respectively, which acts, with the amendments made from time to time, have ever since been in force and constituted the 73d chapter of the Revised Statutes. They define the powers, duties and liabilities of such companies, and regulate the business in this State of those exercising like powers under the laws of other States and countries.

By an act approved April 18, 1872, entitled “ An act concerning corporations,” the legislature authorized the formation of corporations for any lawful purpose, except banking, insurance and some others specified, for which provisions were made by other acts. It classified them as corporations for pecuniary profit, corporations not for pecuniary profit, and religions corporations, and prescribed the proceedings for their incorporation and defined their powers, rights and duties, respectively; and byan amendment of May 22, 1883, (L. 1883, p. 74) the 31st section, relating to corporations not for pecuniary profit, was made to declare that associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, and members who have received a permanent disability, and where no annual dues or premiums are required, and where the members shall receive no money as profit or otherwise, except for permanent disability, shall not be deemed insurance companies.”

"Whether the associations and societies here described are or are not, in fact, in any sense insurance companies, is immaterial. The legislature could not change the fact by declaring them to be or not to be such. Nor has it assumed to do so, but simply declared they shall not be “deemed” such. That declaration is not limited or qualified in any way, and can mean nothing else than that they are not to be held subject to any law that is specially and peculiarly or exceptionally applicable to insurance companies. . From the language employed this is plain, beyond dispute, or any qualification by construction. No judicial decision is required to establish it, but it is so assumed and held by the Supreme Court throughout the cases of the Commercial League v. The People, 90 Ill. 166, and the Golden Rule v. The People, 118 Ill. 497.

Appellee “deemed” appellant an insurance company. By this action she sought to have it subjected to a law specially and exceptionally applicable to such companies, by suing it alone in a transitory action in the county of her own residence, which was not the county where it resided or was found; and the question is whether the averments of the overruled plea fairly brought appellant within the description of associations and societies which the statute declares shall not be so deemed.

Appellee insists it fails in that it does not aver that no “premiums” are required; in that it does not include in the averment of those intended to be benefited “ members who have received a permanent disability;” and in that it does not add the exception “ for permanent disability” to its averment that the members receive no money for profit or otherwise.

Counsel hold the phrase “no annual dues or premiums,” to mean no annual dues or any premiums; and hence, that though no annual dues be required, yet, if any premiums are, the association is not within the protection of the statutes. We think not. For a valid contract in the nature of insurance, to benefit the widow of a deceased member or anybody else, there must be, as for all other contracts, a consideration. This statute, in allowing such a contract, must therefore have intended to allow a consideration for it, and the definition of “ premium,” as used in the law and business of insurance, is “the consideration for a contract of insurance.” See Bouvier’s Dictionary; also Webster’s. Whether called an initiation fee, an admission fee, or by any other name, this consideration is none the less strictly a “ premium.” Bouvier further says—which is also matter of general knowledge—that “in life insurance the premium is usually payable periodically,” citing 18 Barb. 541; and we have no doubt it was in view of this known usage of insurance companies, organized for profit, that the legislature employed the term “annual” to qualify both “premiums” and “dues.” Annual dues on any account which, being annual, could not be limited to the expenses of the association, would be likely to produce a surplus, to be divided or invested, and thus make a profit for the members, which the statute was designed to prevent. We are further of opinion that annual premiums “required” would be annual dues; that if these terms are not here used synonymously the one is to be regarded as generic and the other as specific; and in either case the averment that no annual “dues” are required would be sufficient. So we understand the case of the Commercial League v. The People, supra. There it appeared that an initiation fee of §50 and an advance assessment of 810 were required as the cash or executed part of the premium, but this requirement did not exclude the company from the protection of the statute; and in reference to dues thereafter to accrue for benefits and expenses—being the executory part—the saving point made was that they were not annual. The court say: “There is nothing in this by-law which requires the payment of annual dues or premiums. Ho sum whatever is required to be paid by the members annually.” Thus apparently treating premiums as dues, and the term annual as qualifying both.

Authority to provide for widows, orphans and other classes mentioned, is authority to provide for all, or any, or either of such classes. The statute does not make provision for all of them the condition of the immunity here claimed, but gives authority to provide for all, or for any less than all, with the immunity upon other conditions expressed, which are, that no annual dues shall be required, and that members shall receive no money for profit or otherwise, except for permanent disability. The plea avers, in effect, that the defendant has not only fully complied with these conditions, but has done so without availing itself of the exception made in its favor, and designates the classes it is intended to benefit, which appear to be no other than those, though not all of those designated by the statute; in other words, that it has done all it was required to do, and more, in performance of the conditions, and exercised no other privileges than those granted, though not all of those granted, upon those conditions. We think those averments, if true, entitle it to whatever immunity is afforded by the amendatory act of 1874.

It is insisted, however, that it does not afford the immunity here claimed; that it does not change or modify the provision of the act of 1873 (Sec. 3 of the Practice Act); that these two acts are not in pari materia, and therefore not to be construed or considered together; that so to construe or consider them would necessarily make the act of 1874 void under that part of Sec. 13, Art. IV of the Constitution, which provides that “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title,” and that “ no law shall be revived or amended by reference to its title only, but the law revived or the section amended shall be inserted at length in the new act;” and that, unless so construed oj considered, the jurisdiction conferred by the act of 1873 remains unimpaired.

If these premises were granted the conclusion sought to be drawn, that the jurisdiction assumed by the court below in this case was rightful, would not necessarily follow. That would still depend on the question whether this defendant was rightly deemed an insurance company—a question on which these legal propositions throw no light.

The act of 1874 does not amend nor purport to amend the practice act. It amends the act of 1872 “concerning corporations.” Sec. 3 of the Practice Act remains in full force and the Circuit Courts still exercise all the jurisdiction it confers. Nor is its meaning at all uncertain. The uncertainty, if any, is in the character of this company, whether it is or is not such as brings it within the designation of the act. Nobody holds the meaning of the statute against larceny uncertain, and yet in a given case it may be very doubtful whether the subject of the alleged larceny is personal property. In such ca^e we must go for a definition of the subject or object designated, wherever we can find it, whether to another statute or to a popular dictionary. We are not confined to amendatory acts and statutes in pari materia. In this case the plaintiff was obliged to go outside of the practice act to ascertain whether defendant was an insurance company; and by reference to text books, statutes, and whatever else was thought to show the general understanding of what constituted such a company, and by comparison of the features and operations of the defendant with those of companies which were understood to be such, reached the conclusion that it was, and therefore subject to the plain and certain provision of Sec. 3. Defendant, with the same object in view, finds another statute, describing specifically and precisely the features and functions which it claims for itself, and expressly declaring that companies having those features and functions shall not be deemed insurance companies. Whether this statute is or is not amendatory of or in pari materia with the third section of the Practice Act, is not a material question here. It is an authoritative dictionary for this case and settles the question presented by the demurrer.

For these reasons the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


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    Illinois Central Railroad Company v. Daniel Fishell.

      Railroads—Injury to Team—Crossings—Village Ordinance—Rate of Speed—Contributory Negligence—Evidence.

    1. In an action against a railroad company for damages to a team at a crossing in a village in which the negligence charged is a violation of an ordinance as to speed, a stipulation that the ordinance put in evidence “was duly certified under the seal of the corporation, as required by law,” and that it was “ duly passed and published as required bylaw,” avoids the necessity of further proof that the ordinance was in force.
    2. The failure of plaintiff to stop and look and listen before going upon the track at the time of the accident can not be said, under the circumstances of the case presented, to constitute negligence as matter of law.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Champaign County; the Hon. C. B. Smith, Judge, presiding.

      Mr. J. S. Wolfe, for appellant.
    Plaintiff averred the use of due care and must prove the averment. I. & St. L. Ry. Co. v. Evans, 88 Ill. 63.
    It is gross negligence to go upon a crossing without looking for a train. C. & A. R. R. Co. v. Robinson, 8 Ill. App. 140.
    Duty of plaintiff to use care is not diminished because of the obstruction caused by the cars on the side track. This obstruction suggested greater vigilance. Garland v. R. R. Co., 8 Ill. App. 578.
    On coming to the crossing it was plaintiff’s duty to look in either direction. R. R. Co. v. Miller, 76 Ill. 280; 2 Am. & Eng. R. R. Cases, 121.
    Traveling with a wagon, must stop, look and listen. 2 Am. & Eng. R. R. Cases, 191, 202; 6 Am. & Eng. R. R. Cases, 38. And failure to give signals does not excuse this omission. 2 Am. & Eng. R. R. Cases, 220; 6 Am. & Eng. R. R. Cases, 27.
    If there is obstruction to sound or vision, must stop and look and listen. 6 Am. & Eng. R. R. Cases, 268.
    Mr. Francis M. Wright, for appellee.
   Pleasants, P. J.

This suit was brought for damages to appellee’s wagon, load, and one of his horses, by appellant’s train, on a crossing of its track in the village of Ludlow; judgment for $116.

The negligence charged in the declaration was the running of the train at a greater rate of speed than was allowed by the village ordinance therein set forth, which was ten miles per hour between the cattle guards, and fifteen outside of them, in said village. It was between the cattle guards that the collision occurred; and while the evidence as to the speed of the train was conflicting, there was clearly enough for the plaintiff to support a finding that it greatly exceeded the limit so prescribed. In that case the statute makes the railroad company “liable to the person aggrieved for all damages done” thereby to his person or property, and declares that “ the same shall be presumed to have been done by the negligence of the corporation or their agents.” Hurd’s R. S., Ch. 14, Sec. 87.

It is said that the ordinance alleged was not shown to have been in force, and that this allegation was material and proof of it indispensable; citing C. & A. R. R. Co. v. Engle, 76 Ill. 317. That was a case like this, and it was there held that the ordinance was not shown to have been “ in force” only, because there was no other proof' of its “ publication” than the certificate of the town clerk, which the statute did not make competent evidence of the fact. But since in this case there was a stipulation that the ordinance put in evidence “was duly certified under the seal of the corporation, as required by law,” and that it was “ duly passed and published, as required by law,” we do not understand the ground of the objection.

It is further urged that plaintiff’s own negligence in driving upon the track as he did, should bar a recovery. The only evidence upon that point is that of the plaintiff himself. His wagon was loaded with corn. He was walking on the south side of it, driving east, and the train came from the north. On the west side of the track were some cribs and bins, and also a side track which was occupied by cars up to the crossing, two blocks north. The substance of his testimony is that he- was a farmer, living in the neighborhood; that Ludlow had been his market for years ; that he was well acquainted in the village and familiar with the crossings there; that on the occasion in question he looked and listened for trains before going on the track; that he bent down and looked under his wagon, as far as he could, but his view was obstructed by the cars on the side track; that he tried to see and hear all he could, but everything was still and he went on; that he did not stop and go to the track to look, and that he saw nothing and heard nothing to warn him of the train until it whistled, when he was on the track. His language being that he could ” not hear, counsel infer it must have been because he was deaf or prevented by the noise of his wagon on frozen ground—more probably the latter—in which case ordinary care required that he should stop in order that he might hear. The inference may be just and it may not be. According to a common use he might as well be understood, from that form of expression in reference to the subject-matter, to mean that, under the actual conditions, he expected to hear the sound of the approaching train if it was near enough to forbid an attempt to cross and coming as it ought to come, and that he “did” not hear it. That understanding would be further warranted by his statements—“the road was rather smooth right there” and “ everything was still, and (therefore) I went across.”

If he did so mean and his statement was true it can not be held as matter of law that his failure to stop was negligence. Garland v. C. & H. W. R. R. Co., 8 Ill. App. 581; C., St. L. & P. R. R. Co. v. Hutchinson, 120 Ill. 587; Pennsylvania Co. v. Frana, 112 Ill. 398. It is a question of fact, into the consideration of which the experience and observation of jurors, apart from the evidence, must necessarily and largely'enter. They thus know that even very careful persons of unimpaired senses, in approaching railroad crossings in villages, towns and cities, very commonly, if not as a rule, do not stop to hear, unless they actually do see or hear indications of an engine or car also approaching, and so near or in such manner as to make the attempt to cross apparently in some degree hazardous. They take care to have their horse or team under such control as to be able to stop instantly ah ’will, and they look and listen; but go on, looking and listening as they go, unless arrested by some sensible indication of danger. This they do, notwithstanding the noises of the town, or the obstructions to sight by standing cars or otherwise; and if the trains moved as slowly as they' ought, with the proper signal by bell, there would be no danger from them to drivers of average sight and hearing, using this degree of care, except from pure accident.

We think the plaintiff’s statement on the whole fairly tended to show he recognized the crossing as a place of danger and approached it as such, and that he used ordinary care for the safety of his property.

It may seem incredible to counsel that he did not, without a want of such care, fail to know the train was coming until he was on the track, and yet too late to avoid the collision; but without knowing more than the record discloses of the conditions and circumstances, we can not overrule the conclusion of the jury, based as it must have been on their -belief of his statement. They must have found he was not chargeable with any negligence, contributory or other; that he made a prima facie case, and did not himself rebut it. The views here presented and these findings meet the objections urged to the instructions. The judgment is affirmed.

Judgment affirmed.


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    John Hilligoss v. J. E. Grinslade et al.

      Municipal Corporations—Village Trustees—Power of President and Trustees to Pet-ermine the Election and Qualifications of Members—Chancery Jurisdiction.

    1. Upon a bill in chancery filed by three village trustees to prevent another from exercising the functions of such office, it is held: That the evidence failed to support the allegations of the bill; and that the bill failed to present grounds for equitable jurisdiction.
    2. Where, by express statutory provision, the president and trustees of a village are vested with the power to judge of the election and qualifications of their own members, the exercise of this power is one of the public duties of the board, and chancery will not interfere therewith where no property rights, strictly considered, are concerned.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Moultrie County; the Hon. E. P. Vail, Judge, presiding.
    Messrs. Spitler & Hudson and F. M. Harbaugh, for appellant.
    Messrs. Mills Brothers, for appellees.
   Wall, J.

This was a bill in chancery by the appellees, who were three of the trustees of the village of Dalton City, against the appellant, to prevent the latter from exercising the functions of trustee of said village upon the main alleged ground that he was not legally elected.

It was averred that at the special election to fill a vacancy, which was the election in question, held August 28, 1888, one Kennedy received thirty-six votes and the appellant received thirty-seven votes, but that of the votes so received by appellant two were cast by persons not entitled to vote. It was averred that a petition had been presented to the board, composed of the president and trustees of the village, setting forth the said illegal votes and the consequent election of Kennedy, and praying that the board would investigate the matter; ¡that the board had not yet canvassed the returns or declared the result of the election, and that appellant had pretended to take the oath of office and was claiming the right to exercise the functions of trustee; that the president of the board was illegally recognizing appellant as a trustee, and that appellant acting with the president and two other trustees would constitute a majority, and that there was danger that they would grant license to sell intoxicating liquors within said village, to the irreparable injury of the village and of the inhabitants thereof. A temporary injunction was prayed to restrain appellant from acting as such trustee until the board should canvass the returns. Such injunction was granted. A demurrer to the bill having been overruled the defendant (appellant) filed his answer in which he denied that he had received any illegal votes; denied that before the canvass of the returns a petition was presented to the board; alleged that the board had canvassed the returns and had declared him duly elected; and denied that he and other members of the board were about to or would grant license to sell liquors within the village. The cause having been heard the court made the injunction perpetual.

From a careful examination of the evidence, as contained in the record, we can not find any proof that a petition was presented to the board, as alleged in the bill, or that there was any proof whatever that the persons named in the bill as idle-gal voters were such in fact. The record is barren of any proof on the latter point. As to the former we find in the verbal evidence an occasional reference to a petition supposed to have been before the board, and we find in the proceedings of the board that a motion was made to “ table the petition in regard to the election,” but there is nothing to indicate what the petition was for or what it contained—nor does it appear that any action was had on the motion.

We find also that at the same meeting of the board, which was held prior to the filing of the bill, a motion was made by J. E. Grinslade, one of the appellees, to “ table the returns of the last special election ” (the one in question); that the president overruled the motion and ordered the clerk to swear in the appellant, and that then the appellant came forward and took the oath of office, whereupon on motion the board adjourned. This meeting was held on the 13th of September, 1888, and all the trustees were present, and as appears from the record the meeting was for the purpose of finishing up the business of the last adjourned meeting and to swear in the newly elected member of the board.” We are at a loss to understand how the decree can be sustained upon the evidence. A fair construction of the proceedings of the board would seem to be that they considered the appellant duly elected. It was, perhaps, informal to permit the president to assume the power of overruling the motion, to table the returns and order the member sworn in, but the board evidently acquiesced in what was done by making no protest or objection. This occurred before the filing of the bill, and therefore at that time the board had taken such action as it deemed necessary.

Furthermore, as already stated, it did not appear what the petition was or that illegal votes had been cast for appellant.

It did appear, however, that in October, after the bill was filed, a meeting of the board was held, when resolutions were presented declaring that the votes referred to were illegal, and that Kennedy was therefore elected. At this meeting there seems to have been some confusion and irregularity, and upon the passage of the resolutions the three appellees only participated. This proceeding occurring after the filing of the bill and after the September meeting, amounted in substance, if it had any legal Validity, to a reconsideration of the action of the board in seating the appellant at the September meeting, and to a declaration that there was illegality in respect to the two votes mentioned. Without adverting to the question whether, pending the suit, the board could take action which would affect the legal rights of the parties, we are of opinion that the passage of these resolutions, in the manner stated, does not furnish proof of the fact alleged in the bill that these votes were illegal. The bill alleged they were illegal and the answer denied this allegation. It was to be proved, therefore, by legal and competent evidence. Assuming, then, that the bill stated such a case as would move a court of chancery to action, the evidence wholly failed to support it and therefore the bill should have been dismissed. But the fundamental point is to be considered, whether the bill presents sufficient ground for jurisdiction in equity. By the statute under which the village is organized, the president and trustees of the village are vested with the power to judge of the election and qualifications of their own members. See paragraphs 35 and 192, Chap. 24, Starr & C. Ill. Stats. The jurisdiction to determine contests for seats in the board is thereby given to the board, and is primarily to be exercised by the board as an independent tribunal. Linegar v. Rittenhouse, 94 Ill. 208.

Whether this power of the board is exclusive, or whether the courts might, in proper cases, entertain quo warranto or mandamus upon questions arising in controversies regarding' the right to a seat in the board, we need not determine or consider in the present case. It is enough to say the power is clearly vested in the board, composed of the president and trustees, and its exercise is one of the public duties of the board conferred by express provision of the statute, and is a power generally held and exercised by bodies having legislative functions. The rule is well settled that chancery will hot interfere with the exercise of such duties and powers where no property rights, strictly considered, are concerned. It will not interfere in matters of a political nature or in matters involving merely the exercise of governmental or official functions, either in respect to the official himself or the body which recognizes or authorizes his action. Kerr on Injunctions, 1, 2; Sheridan v. Colvan, 78 Ill. 237.

In this instance the bill was not filed against the village trustees, nor did it profess to operate upon them, but the effect was to prevent one of their members from acting in discharge of his official powers, upon the ground that the board had not properly exercised its duty or power in the premises, and this was extended to and did operate upon the board, indirectly, at least, and was efficient to obstruct its free proceedings. It assumed to determine for the board whether it had properly exercised its power to judge of the election and qualification of its own members—an assumption quite inconsistent with the authority cited above, and if sustained, quite certain to embarrass and impede the board in discharging this function. It is in effect to supervise the board in the performance of this public duty.

We are of opinion, therefore, the bill contained no equity upon its face and presented no ground of jurisdiction in chancery. The decree will be reversed and the cause remanded with directions to dismiss the bill.

Reversed and remanded.