author:
Mr. Chief Justice Scott
      Mr. Justice Dickey,

text:
    The Workingmen’s Banking Company v. Henrietta Rautenberg, Admx.

      Filed at Mt. Vernon June 21, 1882.

    1. Contract—legality—indebtedness of director of a bank in excess of limit in charter—guaranty. Where a bank charter contains a clause that no director of the corporation shall be indebted to it, either directly or indirectly, at any time, to an amount greater than seventy-five per cent of the capital stock held by him in good faith as his own, and a director has become indebted to the bank in excess of such sum, a note given by him to the bank for a further sum will be illegal and void, and any guaranty of a third person of its payment, being in aid and furtherance of such illegal contract, will be equally void, and no recovery can be had upon such guaranty, although the guarantor is not a director.
    2. Same—courts will not assist either party to an illegal contract. The rule is well settled in this State that the court will not assist either party to an illegal transaction in any respect, but will leave them in the position they have voluntarily and knowingly placed themselves. In such case the maxim “ex turpi causa non aritur actio,” applies.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Hay & Knispel, for the appellant :
    A prohibition in a bank charter forbidding a loan to be made to an officer or director of a bank, does not render the contract whereby such loan is made, null and void. Such prohibitory clauses are regarded as directory merely. The breach of such a provision may subject the corporation to penalties at the process of the State authorities, but it does not avoid the contract which it affects. Morse on Banks and Banking, (2d ed.) pp. 16, 117; Angell & Ames on Corporations, sec. 264; Morawetz on Private Corporations, sec. 464; Parish v. Wheeler, 22 N. Y. 494; Smith v. Bank of the State,
      18 Ind. 327; Bradley v. Bank of the State, 20 id. 528; Bank of Middlebury v. Bingham, 33 Vt. 621; Planters’ Bank v. Sharp, 4 Sm. & Mar. 75; Shoemaker v. Nat. Mechanics’ Bank, 2 Abb. (N. Y.) 416; Elder v. First Nat. Bank of Ottawa, 12 Kan. 238; Richmond Bank v. Robinson, 42 Maine, 589; Bond v. Central Bank, 2 Ga. 203; Bates v. Bank of Alabama, 2 Ala. 460; Jack v. People, 19 Ill. 57; O’Hare v. Nat. Bank of Titusville, 77 Pa. 96; Union Nat. Bank v. Gold Mining Co. 1 Col. 531; Gold Mining Co. v. Nat. Bank, 96 U. S. 640; Allen v. Freedman’s Savings Society, 17 Fla; Littlewort v. Davis, 50 Miss. 408; Hughes v. Bank of Somerset, 5 Lit. (Ky.) 46; G. R. Bank v. Archer, 8 Sm. & Mar. 151.
    For construction of similar provision in National Banking law, see Stephens v. Monongahely Nat. Bank, 88 Pa. 157; Union Gold Mining Co. v. Rocky Mountain Nat. Bank, 96 U. S. 640; Harris v. Runnels, 12 How. 79.
    No part of the consideration was illegal, in the sense of the maxim ex turpi causa non oritur actio. First Nat. Bank of Columbus v. Garlinghouse, 22 Ohio St. 502; Bissell v. Michigan Southern and Northern Indiana R. R. Co. 22 N. Y. 259; Parish v. Wheeler, id. 494.
    ■ The defendant can not be permitted to repudiate a contract the fruits of which he retains. Sedgwick on Statutory and Constitutional Law, 90; Pratt v. Short, 53 How. 506; Township of Pine Grove v. Talcott, 19 Wall. 666; Steann Navigation Co. v. Weed, 17 Barb. 378; Chester Glass Co. v. Dewey; IQ Mass. 91; City of Baltimore v. Reynolds, 20 Md. 1.
    The restriction imposed by the statute is a simple inhibition. It does not declare that what was done should be void, nor was any penalty prescribed. The contract is valid as to defendant, and he has no right to raise the question of its invalidity. Whitney v. Wyman, 101 U. S. 397.
    There is no privity between the makers and guarantors of a note, or between co-guarantors; and the undertaking is as to a guarantor an original, independent undertaking, and he will be independently liable. Ritch v. Hathaway, 18 Ill. 548; Gage v. Mechanics Bank, 79 id. 62; 1 Parsons on Notes and Bills, 224.
    Mr. R. A. Halbert, and Mr. C. F. Noetling, for the appellee :
    It is the essence of a contract of guaranty that there should be some one else liable as principal. 1 Chitty on Contracts, (11th ed.) p. 738.
    If a loan to a director, in excess of the charter limit, is null and void by reason of its being against the statute or against public policy, it necessarily follows that anything done in aid and furtherance of such illegal or immoral contract is also null and void. So the guaranty falls with the original contract. Nash v. Bonheimer, 20 Ill. 250; Neustadt v. Hall, 58 id. 172; Tobey v. Robinson, 99 id. 222; Harris v. Hatfield, 71 id. 298; Arter v. Byington, 44 id. 468; Tenny v. Foote, 95 id. 99; Bowman v. Cunningham, 78 id. 48.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The claim which the Workingmen’s Banking Company seek to have established against the estate of Charles Rautenberg, deceased, is based on a note made by A. B. Pope, dated February 8, 1876, and is payable to the order of the Workingmen’s Banking Company, nine months after date, for the sum of $2000, with interest after maturity at ten per cent per annum. Payment of the note is guaranteed by A. B. Pope and by the intestate. No proceedings seem to have been had against A. B. Pope, either as maker or guarantor of the note. So far as this record discloses, the only effort to enforce payment of the note is this proceeding against the estate of the deceased guarantor, and which was commenced in the usual way in the county court where his estate is being administered. In all the courts in which the case was tried the finding was in favor of the estate, and the case comes to this court on the appeal of the banking company from the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed.

Proof of the execution of the note and guaranty being waived, claimant gave the note, with the guaranty of the intestate and maker written on the back, in evidence, and rested its case. The administratrix, defending for the estate, then gave in evidence a section of the charter of the bank, as follows: “No director of said corporation shall be indebted to said corporation, either'directly or indirectly, at any time, to an amount greater than seventy-five per centum of the amount of the capital stock held by such director in good faith as his own. ” It was proved by the cashier of the bank, that at the time of making the loan, and of the execution of the note and guaranty to secure the same, A. B. Pope, to whom the money was loaned, was a director and stockholder in the bank, and so continued until after the note became due, and was at the time, and so continued to be, indebted to the bank in a sum, exclusive of that mentioned in the note guaranteed by the intestate, in excess of seventy-five per centum of the capital stock held by the maker. The circuit court found for the estate, on the ground the lending of the money to Pope, and taking his note therefor, was prohibited by statute, and hence illegal, and as the guaranty was in aid and furtherance of such illegal contract, no recovery could be had on it against the estate of the guarantor. That finding is warranted both by the law and the evidence.

It is clear the loan'-made to Pope by the bank was prohibited by the provisions of its charter, and was made in open violation of the limitations on its powers, and whatever may be the decisions elsewhere, no recovery can be had on the note in this State. The case of Penn v. Bornman, 102 Ill. 523, in this respect is an analogous case, and is conclusive as to this point in this case. '

But another consideration is pressed on the attention of the court. It is, conceding the section of the charter cited can be interposed as a defence to the note, it is a privilege personal to the maker, and is a defence that can not bb availed of by the guarantor, with whom the law did not forbid the bank to contract. No principle is suggested upon which the position taken can be maintained. The bank, which is the claimant here, was a party to an illegal contract understandingly entered into. It was- not lawful to loan the money to the maker of the note, who was a director of the corporation, and who was already owing the bank a sum in excess of the amount it was lawful for him to become indebted 'to it. The bank will not be permitted to do indirectly that which it is unlawful for it to do directly. The inhibition of its charter in this respect is absolute and positive. Should the bank be allowed to enforce payment of the note against the guarantor, who was not one of its directors nor the owner of any of its stock, it would be to the advantage of the party most guilty, and the only party innocent in the illegal transaction would be made to suffer. The law will sanction no such wrong. The rule is well settled, at least in this State, the court will not assist either party to an illegal transaction in any respect, but will leave them where they have chosen to place themselves. Here, claimant participated in a transaction forbidden by statute, with the expectation to make gain, and it will not be listened to when it asks the aid. of a court to assert rights growing out of such transaction as if it were a legal contract. It is a case where the familiar maxim of the law “ex turpi causa non oritur actio,” has its appropriate application. Arter v. Byington, 44 Ill. 468; Neustadt v. Hall, 58 id. 172; Harris v. Hatfield, 71 id. 298.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Dickey,

dissenting:

I did not concur in the ruling adopted by this court in Penn v. Bornman, 102 Ill. 523, and I now think it ought to be overruled. Conceding, however, the doctrine taught by that decision, it simply shows that the promise of Pope to repay the $2000 contained in the note made by Pope to the bank, was void, and that the promise made by Pope that the money should be paid in accordance with the terms of that note, contained in his guaranty on the back of the note, was also void. The case goes no further.

The prohibition in the statute is, that “no director of said corporation shall be indebted to said corporation * * * to an amount greater than seventy-five per cent of the amotint of the capital stock held by such director in good faith as his own.” This does not forbid the loaning of money to such a director upon the promise of some other party that it shall be repaid. The statute did not prohibit the bank from lending to Pope, its director, any sum of money upon the credit of Charles Bautenberg. There is no prohibition in the statute against Bautenberg becoming indebted to the bank. Assuming the promissory note made by Pope to be inoperative and void, yet when Charles Bautenberg indorsed upon the back of it his promise that the money mentioned in the note should be repaid, he did the same thing, in substance, as if he had simply executed his own promissory note for that amount to the bank. He rested under no disability. The law did not prevent him from becoming indebted to the bank, hence the loaning of the money upon the credit of Bautenberg was not in violation of the statute. His contract was not an illegal contract. There was no law forbidding Pope to pay the money mentioned in that note, and hence the contract of Bautenberg that Pope would pay it, was not forbidden by the statute.

There are cases, no doubt, wherein the contract of a guarantor is regarded as collateral, and dependent upon the original contract upon which the guaranty is made. In cases where it is inequitable and unjust that the principal in a note should pay the amount, (as, for instance, where the note was procured from him by fraud, and without consideration,) the guarantor of such a note may be relieved by reason of such defence, which might have been set up'by the maker of the note. The contract of a guarantor, however, is not always collateral and dependent. It is often treated as an original promise. The note of a married woman, at common law, was absolutely void, but the guarantor of such a note was liable upon his guaranty. A forged note is absolutely void, but the guarantor of a forged note is held upon his guaranty, as upon an original promise.

By the decision in the-case of Penny. Bornman, the bank has no claim against Pope for this loaned money, and by this decision the claim .of the hank against Bautenberg is taken away.

We read in the scriptures, that “from him that hath not shall be taken away even that which he hath. ” Expounders of scripture, I believe, are not entirely in harmony as to the lesson taught in this text; but I feel sure it can not, taken literally, be adopted safely by secular courts in administering the law between man and man in relation to their ordinary business transactions.

Mr. Justice Craig also dissenting.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    The People of the State of Illinois v. Thompson B. Stelle.

      Filed at Mt. Vernon June 21, 1882.

    1. Pasties—who may sue—on failure by purchaser at execution sale to make payment. An action of assumpsit will not lie in favor of the plaintiff in execution, against a bidder at sheriff’s sale under the execution, for failing ' to complete his purchase by payment of the purchase money, there being no privity between the parties.
    2. The sheriff who makes a sale under execution, alone, can maintain an action against the purchaser for a breach of his contract of purchase. The sheriff, in making such sale, does not act as the agent of the creditor, but as an officer of the law in performing a legal duty.
    Writ of Error to the Circuit Court of Hamilton county; the Hon. C. S. Conger, Judge, presiding.
    Mr. John C. Edwards, and Mr. James McCartney, Attorney General, for the People.
    Mr. Wm. Hamill, and Mr. T. M. Eckley, for the defendant in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

At the January term, 1879, of this court, judgment was rendered against James M. Blades, a defaulting collector of Hamilton county, and the sureties in his official bond, for the sum of $5670.34, in favor of the People of the State of Illinois, in an original suit on said bond, which judgment is still in force and unpaid, except as to the sum of about $270. The sheriff of Hamilton county levied an execution issued on this judgment upon certain tracts of land, and advertised them for sale under the execution. One forty-acre tract was sold and struck off to Thompson B. Stelle, for the sum of $1200. The sale was closed, and the sheriff made out the certificate of purchase as required by law, and tendered the same to the purchaser, who then failed and refused to pay the amount of his bid. The sheriff returned the execution with his indorsement thereon of the facts in relation to the sale. A writ of venditioni exponas thereafter was issued out of the office of the clerk of this court, commanding said sheriff to sell said forty-acre tract of land. The sheriff thereupon re-advertised and re-sold said tract of land, one Wilson becoming the purchaser for the sum of $40. This action in assumpsit was then instituted, in the name of the People of the State of Illinois, against Stelle, the former purchaser, to recover the difference between the amount of his bid, $1200, and the amount for which the land subsequently sold, viz, $40, the difference being $1160. To the declaration alleging the foregoing facts the defendant demurred, and the court below sustained the demurrer, and gave judgment for the defendant. The plaintiff brings the case here by writ of error.

We are of opinion that assumpsit does not lie in favor of the plaintiff in execution against the bidder at a sheriff’s sale under the execution, for failing to complete his purchase by payment of the purchase money. There is no privity between the plaintiff in the execution and such bidder. It is the sheriff who makes the sale, and the contract for the sale of the estate is made with the sheriff by the purchaser, and the sheriff alone, as we conceive, can maintain an action for the breach of the contract. The sheriff, in making the contract of sale with the bidder, is not acting as the agent of the execution creditor, but as an officer of the law in the performance of a legal duty, the sheriff being the principal himself. These views find support in the following authorities : Gaskill v. Morris, 7 Watts & Serg. 32; Adams v. Adams, 4 Watts, 160 ; McKee v. Lineberger, 69 N. C. 217.

We think the demurrer to the declaration was properly sustained, and the judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    William H. Scripps et al. v. Lucy K. King et al.

      Filed at Mt. Vernon June 21, 1882.

    1. Creditor’s bill—to set aside fraudulent conveyance. A creditor having no lien must reduce his claim to a judgment before he can maintain a bill in equity to subject property fraudulently conveyed to its payment. If the claim is against an insolvent estate, he must first have it allowed against the estate before he can avoid a fraudulent conveyance,—in other words, he must exhaust his legal remedies.
    2. Where there has been a fraudulent conveyance to hinder and delay creditors, and a claim against the grantor has been reduced to a judgment, so as to become an equitable lien on the property, a court of chancery may afford relief under section 49 of the Chancery act.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Bond county; the Hon. William H. Snyder, Judge, presiding.
    Mr. David Gillespie, for the plaintiffs in error.
    Mr. E. L. Thomas, for the defendants in error.
   Mr. Justice Walker

delivered the opinion of the Courts

In his lifetime Elisha H. Blanchard, being the owner of the land in dispute, on the 13th day of April, 1861, conveyed it to one William Allen, and he two days after conveyed it to Lucy K., the wife of Blanchard. This arrangement grew out of the fact that Blanchard was dissipated, and the conveyance was made at the solicitation of relatives of the wife. Something more than a year afterwards she executed a deed for the land directly to her husband, and they resided on it until his death, and she has resided on it since. Blanchard died on the 4th of June, 1865, having made a will by which he appointed William A. Allen and William S. Thomas his executors. They failed to qualify. No person ever applied for or obtained letters of administration on his estate. The widow subsequently married Edward T. King. The notes described in the bill were all due at the time of Blanchard’s death, the last maturing more than fifteen months before that date. He retained property in value more than sufficient to pay his indebtedness, and all of the indebtedness described in the bill, but about $150, was contracted after he made the conveyance to Allen. This indebtedness, or any portion of it, was never reduced to judgment. On these facts complainants seek to have the lands sold for the payment of their debts.

In the view we take of this case but one question need be considered, as that disposes of the right to have the relief sought: Can equity entertain jurisdiction on mere demands that have never become a lien on the property sought to be subjected to their payment? Where there has been a fraudulent conveyance to hinder and delay creditors, and a claim1 has been reduced to judgment so as to become an equitable lien on the property, chancery will afford relief under the 49th section of the Chancery act. That section provides that a creditor having an execution returned no property found, or unsatisfied in part, may file a bill to discover property belonging to the defendant, and on such discovery to apply the same to the satisfaction of the judgment at law.

It was held in Ishmael v. Parker, 13 Ill. 324, Greenway v. Thomas, 14 id. 271, Getzler v. Saroni, 18 id. 511, Bigelow v. Andress, 31 id. 322, Newman v. Willetts, 52 id. 98, and a large number of other cases in this court, that as a general rule a creditor must reduce his claim to a judgment before he can maintain a bill to subject property fraudulently conveyed, or to enable a court of equity to enforce the claim of a creditor. If there be exceptions to the rule, they do not embrace this case, as it falls within the rule announced and adhered to almost from the organization of this court. When the property, if not conveyed, would be subject to sale under a judgment at law, the creditor must obtain a judgment or decree, as though the rights sought to be subjected were purely equitable, before he can maintain a bill, and when the claim is against an insolvent estate, the creditor must have it properly allowed against the estate before he can remove a fraudulent conveyance to reach the property to satisfy his demand. He, in other words, must exhaust his legal remedies. See McDowell v. Cochran, 11 Ill. 31, Armstrong v. Cooper, id. 560, VanSyckle v. Richardson, 13 id. 174, Bay v. Cook, 31 id. 336, and numerous other cases in our Reports. If any proposition can be settled, this is the settled law in this jurisdiction. In this case the demands are simple debts, not reduced to judgments nor allowed against the estate in the probate court, or in any manner a lien on the property. The creditors had the right under the statute to have obtained administration on the estate, and have their claims allowed, and from the evidence in the record they could have obtained satisfaction of a considerable portion of their debts; but this they failed to do, and having slept on their legal rights, they are in no position to assert them in a court of equity. The eases cited above are conclusive of this question, and they render the other questions discussed by counsel unimportant in this case.

The Appellate Court decided correctly in affirming the judgment of the circuit court, and that decision must be affirmed.

Decree affirmed.


author: Mr. Chief Justice Scott

text:
    St. Louis and Sandoval Coal and Mining Company v. Francis H. Edwards et al.

      Filed at Mt. Vernon June 21, 1882.

    1. Appeals and writs op error—by one or more of several parties. Under the provisions of the Practice act, any one of two or more parties to a suit, either at law or in equity, may sue out a writ of error to have reviewed the propriety of any final decree or judgment.
    2. Franchise —whether involved in suit to wind up affairs of a corporation, and to dissolve the same. Where a bill is filed against an insolvent corporation by certain of its stockholders and creditors, making the other stockholders parties, praying that the affairs of the corporation be wound up and the corporation itself dissolved, and its effects placed in the hands of a receiver, and a decree is granted to the same extent, a franchise is involved in the litigation, and a writ of error must be sued out, if at all, by the corporation from this court, and the fact that some of the defendants have perfected an appeal to the Appellate Court, will not deprive this court of jurisdiction of a writ of error brought by the corporation.
    3. Service op process—on corporation. On a bill by a director of a private corporation and others, stockholders and creditors of the corporation, the only service on the corporation was by leaving a copy of the summons with the complainant director, the return stating that “the president, clerk, secretary, superintendent, general agent, cashier and principal of said company not found.” The bill alleged that the president and all the other directors and officers of the company were non-residents: Held, that the service as to the corporation was void, the director with whom the notice was left being a party complainant in the suit, and, the service being void, advantage might be taken of it on error as well as in the trial court.
    4. Receiver—whether properly appointed—to take charge of affairs of corporation. On a bill by a portion of the stockholders, a director and creditor of a private corporation, against the corporation and the other stockholders, alleging mismanagement of the business of the company, its insolvency, its ceasing to prosecute the work for which it was organized, and that it would be useless to resume business, on account of financial embarrassment, and praying for a dissolution of the corporation and the appointment of a receiver, in which the defendant stockholders were properly served by actual or constructive notice of the suit, though the service of summons as to the corporation itself was void, it was held, that a clear case was shown for the appointment of a receiver, and the part of the decree making such appointment was affirmed, while that part dissolving the corporation was reversed for want of proper service on the corporation.

      Writ of Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.
    Mr. M. Millard, for the plaintiff in error :
    The service as to the corporation was not good. It was on Main, a director of the company, who was an active and interested party in prosecuting the suit. It has been frequently decided that a party can not bring a suit and execute process himself. Snydacker v. Brosse, 51 Ill. 357; O’Conner v. Wilson, 57 id. 226; Hammer v. Dole, 61 id. 307; Filkins v. O’Sullivan, 79 id. 524; Lee v. Fox, 89 id. 226.
    A receiver should be appointed in no ease unless it is made to appear there is an imperative necessity for the step to preserve some particular property for such parties as shall be entitled to the benefit. First Nat. Bank v. Gage, 79 Ill. 207.
    There was no ground for dissolving the corporation. The bill does not allege that the company had forfeited its rights or franchises. There were no judgments or decrees for the payment of money standing against the company, and the receiver’s report shows it had ample resources to pay its debts.
    Mr. M. Schaeffer, and Mr. H. C. Goodnow, for the defendants in error :
    If a corporation suffers acts to be done which destroy the end and objects for which it was instituted, it is equivalent to a surrender of its rights. Angell & Ames on Corporations, (9th ed.) p. 768; 2 Kent’s Com. 311, 312; 1 Paige, 258; 4 Sandf. Ch. 559.
    Every private corporation is subject to dissolution by a surrender of its corporate franchises, and a forfeiture of them by a willful mis-user or non-user. Mumma v. Potomac Co. 8 Pet. 287.

      As to circumstances under which a corporation may be dissolved, see State v. Pawtuxet Turnpike Co. 8 R. I. 182; The People v. The Kingston Turnpike Co. 23 Wend. 193.
    To save the subject of litigation, or rescue it from probable destruction, a receiver may be appointed. Baker v. Admr. of Backus, 32 Ill. 79.
    The residence of the St. Louis and Sandoval Coal and Mining Company was in Marion county, Illinois, and it was not a non-resident, and no other person on whom process could be served resided in Marion county, Illinois. Process could not be served by publication on the company. The stockholders of the company were all in court. Those who were not complainants were either actually or constructively served, so that service was had upon all the officers of the company. Hence no facility for imposition.
    This company was organized under the general law of the State, and hence section 25 of the act of 1872 is applicable to this company, and that act has given the chancery court jurisdiction in all eases for good cause shown, as well as certain causes pointed out in that section and charged in this bill, among others. Richardson v. Akin, 87 Ill. 138; Law v. Buchanan, 94 id. 76; Wincock et al. v. Turpin, 96 id. 135.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this ease was brought by stockholders in the St. Louis and Sandoval Coal and Mining Company, against the corporation and other stockholders in the company. One of complainants, Seymore, is a creditor, and another, Main, is a director of the corporation. It is conceded the St. Louis and Sandoval Coal and Mining Company is a corporation existing under the laws of this State, and was organized under the general law of 1872. It is alleged in the bill the directors of the company are all residents of the State of Missouri, except complainant Isaac Main; that the corporation has contracted large indebtedness for sinking a shaft on grounds purchased for that purpose by the company, and for other jrarposes; that the corporation has become wholly insolvent; that the directors were fraudulently mismanaging the affairs of the corporation; that the company has ceased to prosecute the work for which it wa's organized; that it is useless for the company to attempt to resume business, on account of financial embarrassment, arid the prayer of the bill is, the affairs of the corporation should be wound up, • that a receiver be appointed, and the property of the corporation be sold tojpay its indebtedness, and the “corporation dissolved and for naught esteemed in law. ”

The only service of process on the corporation was made by leaving a copy of the summons with “Isaac Main, a director of said company, the president, clerk, secretary, superintendent, general agent, cashier and principal of said company not found. ” Other defendants were all either actually or constructively served with process. No one appearing for the corporation, a default was entered, and a decree pro covfesso rendered against it, as well as against all other defendants not answering. The court found the allegations of the bill substantially true, and entered a decree dissolving the corporation, and appointed a receiver to take charge of its property for the security of its creditors and others interested in it, and continued the cause, that its decree might be executed. The corporation has alone sued out a writ of error in the ease from this court, and defendants in error come and move to dismiss the writ of error for reasons assigned, none of which are tenable. It sufficiently appears counsel has authority to prosecute the suit in this court on behalf of the ’ corporation, and by the provisions of the Practice act, any one of two or more ■ parties to a suit, either at law or in equity, may sue out a writ of error. As respects the point made, a portion of defendants were allowed and perfected an appeal in the ease to the Appellate Court for the Fourth District, that can make no difference. It is a case where this court has jurisdiction, in the first instance, to hear the cause, because a franchise is involved in the litigation, and under the Practice act the writ of error must be sued out, if at all, by the corporation from this court. The prayer of the bill is, that the affairs of the corporation be wound up and the corporation itself dissolved, and the decree is to the same extent. It is, therefore, obvious a franchise is involved in •the litigation.

Considering the errors assigned, it will only be necessary to notice the first of the series, viz., the service on the corporation was void because Main, the director with whom the summons was left for service upon the corporation, was one of complainants. This court has had occasion more than once to decide a party to the suit can not serve his own writ, and in Lee v. Fox, 89 Ill. 226, it was held, a petitioner could not serve the notice required by law to be given to the opposite party, and as such service was void, the court failed to obtain jurisdiction in the cause. Between the case cited and the one at bar there is a close affinity. Here the only service on the corporation was made by leaving a copy of the summons with Isaac Main, a director of the company, who was himself a complainant. On the principle of Lee v. Fox, the service of the defendant by leaving a copy of the summons with a complainant in the suit, although a director in the company, is void, and hence gave the court no jurisdiction of the corporation. It is not a case of mere defective service, as in Wayman v. Crozier, 35 Ill. 156, which the practice requires shall be pointed out in the trial court or it will be deemed to have been waived. The service being void, advantage may be taken of it on error as well as in the trial court.

The merits of the case, as made by the bill, will not now be considered. That can be better done when the corporation shall have made known its defence. But on the face of the bill it would seem to be a clear case for the appointment of a receiver—a necessary step under the facts stated, if true, to the preservation of the property of the corporation for the benefit of the creditors and stockholders interested in it. That part of the decree of the circuit court appointing a receiver, as it was done in open court when the court had jurisdiction of a part of defendants, will be permitted to stand, and the residue of the decree will be reversed, and the cause remanded for further proceedings.

Decree reversed in part and in part affirmed.


author: Mr. Justice Scholeield

text:
    William J. Ward v. Marietta E. Ward.

      Filed at Mt. Vernon June 21, 1882.

    1. Divorce—“extreme and repeated cruelty,” as a ground for divorce. It is difficult to define with precision what is and what is not extreme and repeated cruelty. The same act is not the same thing under all circumstances and to all persons. Necessarily each case must, to a large degree, be judged by itself.
    2. As extreme and protracted suffering may be produced primarily by operating on the mind alone, threats of physical violence, and false charges of adultery, by a husband against hie wife to her face, maliciously made, are competent evidence to prove cruelty, on a bill for divorce, and when they are accompanied or followed by acts of actual malicious physical violence, they seem to magnify the atrocity of the acts.
    3. It seems that any willful misconduct of a husband which endangers the life or health of his wife,—which exposes her to bodily hazard and intolerable hardship, and renders cohabitation unsafe,—is extreme cruelty. To amount to such cruelty it is not necessary there should be many acts, and whenever force and violence, preceded by deliberate insult and abuse, have been once wantonly and without provocation used, the wife can hardly be considered safe.
    4. On the trial of a bill for divorce brought by a wife, the proof showed four or five distinct assaults and batteries upon her by the husband, apparently without provocation, and in addition falsely charging her with a want of chastity, and almost constant insult and abuse within a period of three years, terminating in their separation: Held, that the facts authorized a decree of divorce.
    5. Same—of the. allegations and proofs. Literal proof of every allegation of a bill in chancery, as, on a bill for divorce as to cruelty, is not required. Substantial proof of the material allegations is sufficient.
    6. Evidence—as to contents of a letter written by the witness. On the trial of a suit for a divorce brought by a wife against her husband, her brother was called by her as a witness, and on the cross-examination the court refused to allow him to testify to the contents of a letter written by him to the defendant, though he was allowed to state the facts he knew and the state of his feelings: Held, no error in the ruling.
    Appeal from the Appellate Court for the Fourth District heai'd in that court on appeal from the Circuit Court of Massac county; the Hon. David J. Baker, Judge, presiding.
    Messrs. Linegar & Lansden, for the appellant :
    If the cruelty is not extreme, or of such a character as to subject the wife to the danger of great bodily harm, no difference how often repeated, it constitutes no ground for divorce. Henderson v. Henderson, 88 Ill. 250; Turbitt v. Turbitt, 21 id. 438.
    The acts of the defendant in this ease, if sufficiently proven, are too far apart, and not of such a character as to show that the complainant was or is in danger of bodily harm. The marriage contract will not be dissolved for light and trivial causes. King et al. v. King, 15 Ill. 187.
    There must be acts or threats which may raise a reasonable apprehension of bodily hurt; the cause must be grave and weighty, and show a state of personal danger incompatible with the duties of married life. Harmon v. Harmon, 16 Ill. 90. See, also, Vignos v. Vignos, 15 Ill. 186; De LaHay v. De LaHay, 21 id. 252; Burkby v. Burkby, 25 id. 120; Von Glahn v. Von Glahn, 46 id. 145.
    Mr. J. F. McCartney, for the appellee :
    Two acts of physical violence, coupled with abusive language and false charges of unchastity, amount to extreme and repeated cruelty. Farnham v. Farnham, 73 Ill. 499; 1 Bishop on Marriage and Divorce, secs. 762, 724, 729.
    While it is true that in a bill for divorce on the ground of cruelty, the specific acts on which the charge rests must be set out in the bill, yet the evidence is not limited to the particular acts charged. Evidence of other acts, which serve to give, character to the specific facts proved, is admissible. Briggs v. Briggs, 20 Mich. 34.
    The finding of the jury is prima facie proof that it is sustained by the evidence. Thacher v. Thacher, 17 Ill. 66; Becker v. Becker, 79 id. 532.
   Mr. Justice Scholeield

delivered the opinion of the Court:

'This was a bill for divorce, by appellee against appellant. Several grounds are charged in the bill, but since the verdict of the jury and decree of the circuit court are in favor of appellee upon that of extreme and repeated cruelty only, it is unnecessary to notice the others.

We deem it important to say in regard to the preliminary objection urged, of a variance1 between the allegations and the proofs, only that, in our opinion, it is without merit. Literal proof of every allegation is not required. Substantial proof of the material allegations is sufficient, and, in our opinion, this record shows such proof was here made.

The principal objection taken to the decree below is, the evidence fails to show that appellant treated appellee with extreme and repeated cruelty. Appellee testified that about . the last of February, 1874, on a Sunday, in consequence of her having left word with her hired woman for her oldest son to follow her to church, appellant said to her: “Madam, I’ll learn you not to interfere with my children. You are the d-dest b-h in town!” and that he then struck her as hard as he could. Then, a short time after this, a controversy arose between them in regard to a power of attorney to appellant to control property which she had inherited from a deceased uncle, when, as she testified, appellant struck her again. Sometime after this, as she also testified, appellant said to her: “Madam, you have been countermanding my orders about the children again.” She replied: “I have done nothing more than is necessary. ” He then came up and again struck her. She says he struck her on the side of the face violently,—that the pain it made caused her to cry. At another time, she says, he threw the silverware in the fire, saying at the same time, “D—n these things of your mother’s, I will make an end of them! ” On a subsequent occasion, she says, while she was sick with the chills, appellant was “calling her names.” Her brother, who was present, remarked to him that “nobody but a brute could talk to his wife that way when she was sick, ” and her husband thereupon ordered him to leave the house. The next difficulty between them she thus describes: “One evening I came back from Eev. J. H. Scott’s, the Presbyterian preacher. At supper time he (appellant) said: ‘Madam, this is a pretty way for a woman running after other men—neglecting their family. You’re one of the d-dest b-s in town.’ * * * The next day he kept up the insulting language, calling me an old b-h.” She says that she then started .to leave, but was induced not to do so by her children. Another difficulty, that occurred in the summer of 1875, she thus describes: “I was wiping the things to hurry up dinner. Mr. Ward came and said, ‘I believe I’ll go to the hotel and get my dinner.’ I said, ‘Mr. Ward, you’ve been away, and had better eat dinner at home.’ He said, ‘I can be waited on better there than at home; I have to wait a half an hour for sugar.’ I told him I tried to do the best I could. I started in the room, and he struck me and knocked me against the door.” She says they had trouble again in June or July, 1876, and for three weeks he allowed her no rest, by night or by day. After this, upon one occasion, after reproaching her, he seized her so violently by the wrist that she was compelled to scream for help. Finally, after detailing many instances of excessive drinking and annoying language by appellant, she says: “Mr. Ward said, ‘Madam, by what authority do you forbid the colored man from cutting rails ?’ I said I had not, but Cap Johnson had. He said, ‘Madam, you’re a liar! You had better go and stay with Cap Johnson, for you love him better than you do me.’ I said I would not stand this. He said, ‘Go and live with Cap Johnson.’ I went out of the door, and he gave me a push as I went. I was afraid to live in the house with him. ” She then went and stayed for a time at a Mr. Brewer’s, and she says she did so because he accused her of being too intimate with other men, and because she was afraid to live alone with him. Since then they seem never to have lived together as husband and wife.

Appellant, in his testimony, it is true, contradicts most, if not all, of these charges, but in several of the most material appellee is fully corroborated. William McBane, a brother of appellee, testified that, for a considerable time, he boarded with appellant and appellee; that on one occasion, when appellee returned from church, appellant said she only went to church to show herself; that she was too intimate with preacher Scott, anyway,—that she was no better than any other woman in Metropolis. On one occasion he heard appellant call appellee “a d-d b-h.” In February or March, 1874, witness came home about dinnertime, found appellee sitting on the piano stool’crying, and her face very red. This witness, his brother Angus McBane, and the wife of the latter, and a girl named Belle Everett, also corroborate appellee as to what occurred at the time appellant proposed to go to the hotel for his dinner, as testified to. by appellee. They show conclusively that he then inflicted a blow upon her. Caroline Knapp, who had been a servant girl in the family, also corroborates appellee as to the occurrence when appellant commenced upbraiding appellee for having directed that her son follow her to the church. She says he then struck her, and caught her by the cloak and tore it off her, the buttons flying about the room. Appellee’s son, Angus Ward, testified substantially to the same thing.

It is, therefore, evident the jury had reason to believe the story of appellee rather than that of appellant. The circuit court felt authorized, by the evidence, to render a decree upon the verdict, and the Appellate Court, with the entire record before them, saw no reason to disturb that decree. -No new light has been shed upon the case since it was brought to this court. We can not say we are clearly satisfied the lower courts took a partial and incorrect view of this evidence, and not being so satisfied, it only remains to inquire, did the law, upon such evidence, authorize the decree of divorce ?

In Harmon v. Harmon, 16 Ill. 90, this court, in discussing what is meant by cruelty, said: “There must be acts or threats which raise a' reasonable apprehension of bodily hurt, the causes must be grave and weighty, and show a state of personal danger incompatible with the duties of married life.” And it was also -said these must be extreme and repeated.

In Farnham v. Farnham, 73 Ill. 497, this court said, in reference to the facts of that case: “Two distinct acts of physical violence to the person of appellee are clearly proven. It is shown by testimony every way worthy of belief, outside that of appellee, that appellant, on two occasions, struck his wife in anger. This would constitute, under our statute, technical cause for divorce. No great physical injury was inflicted upon appellee on either' occasion; but the jury could, very properly, consider the abusive language which the evidence shows he applied to her, not only in their private room, but in the presence of strangers, as characterizing these acts of physical cruelty, and as giving to them a poignancy they would not otherwise have. ' It was proven he addressed to her, in the coarsest terms, language that implied a want of chastity. There is nothing that inflicts so deep and cruel a wound upon a pure wife as a false accusation of a want of chastity, beside which the physical injuries proven in this case are as nothing. The law has made the . one a cause of divorce, but not the other. It would be a reproach to our laws if it were not permissible for a wife to abandon a husband who should continually, without just reason, reproach her with a want of virtue and fidelity to her marriage vows. Happily the law will not require her to submit to any such degradation. While such conduct will constitute no grounds for divorce, under our statute, it will justify her in living separate and apart from her husband. ”

Undoubtedly extreme and protracted suffering may be produced primarily by operating on the mind alone, and hence threats of physical violence and false charges of adultery, maliciously made, are competent evidence to prove cruelty, (Kennedy v. Kennedy, 73 N. Y. 369,) and when they are accompanied or followed by acts of actual malicious physical violence, they serve to magnify the atrocity of the acts.

It is difficult to define with precision what is and what is not extreme and repeated cruelty. The same act is not the same thing under all circumstances, and to all persons. Necessarily each case must, to a large degree, be judged by itself. It is said, with perhaps sufficient accuracy, in Poor v. Poor, 8 N. H. 307: “In the judgment of law, any willful misconduct of the husband which endangers the life or health of the wife, which exposes 'her to bodily hazard and intolerable hardship, and renders cohabitation unsafe, is extreme cruelty, and in order to amount to such cruelty it is not necessary that-there should be many acts. Whenever force and violence, preceded by deliberate insult and abuse, have been once wantonly and without provocation used, the wife can hardly be considered safe. ”

As has been seen, the proof here shows some four or five distinct assaults and batteries committed by appellant upon appellee, and apparently without provocation, and, in addition to these, almost constant insult and abuse within a period of three years, terminating with their separation. It is but just to appellee to say that even appellant admits there ■ was not the slightest foundation for the charge of adultery. It can admit of no doubt that in his references to the Bev. Mr. Scott and Capt. Johnson he wished her to believe that he supposed her unchaste, for the sole purpose of adding mental pain and suffering to that suffered by her person from the violence of his hands. We think the law authorized the decree as rendered.

An objection is alluded to, but not discussed, in regard to the conduct of a juryman, but since the evidence on this question is not abstracted or fully presented in the briefs, we conclude it is abandoned.

The objection on account of the refusal of the court to allow the witness William McBane to give the contents of a letter written by himself to appellant, is untenable. He was not a party to the suit, and what he wrote was of no consequence. What his feelings were, and what the facts were, he was allowed to show, but what he wrote in regard to appellee’s conduct would have presented an immaterial issue.

The court, in giving and refusing instructions, ruled substantially in accordance with the views we have here expressed, and it will subserve no useful purpose to discuss the rulings in these respects seriatim.

We see no cause to disturb the decree below, and it will be affirmed.

Decree affirmed.

Mr. Justice Mulkey took no part in the decision of this case.


text:
    The Chicago City Railway Company v. Catharine McMahon.

      Filed at Ottawa June 21, 1882.
    1. Evidence—attempt to suppress evidence or influence a witness. On the trial of an action on the case, brought against a city railway company to recover for a personal injury, the court allowed a witness for the plaintiff to testify that a clerk in the employ of the defendant -offered him $300, either to prevent him from appearing as a witness against the company, or to influence his evidence in favor of the company. This was objected to as no part of the res gestœ: Held, that the evidence was proper, though not a part of the res gestœ.

    2. On the trial of a case it may be shown that a party has destroyed or suppressed material evidence, or has fabricated such evidence, as it implies an admission that he has no right to recover if the case is tried on the evidence as it exists.
    - 3. Masteb and sebvant—liability for wrongful act of servant in the scope of his employment. Where a clerk of a city railway company has assigned to him the general and special duty of looking for and arranging the evidence in cases where the company is sued by persons injured, or claiming to be injured, by the carelessness of those intrusted with the management and operation of its street cars, and is empowered generally to perform that duty without special directions, with general authority to use his own judgment in the performance of his duties, if he, in looking up the evidence in the case, wrongfully and without authority offers money to a witness to keep him from testifying against the company, or to influence his testimony, the company must be held responsible for his act, and it is proper evidence against the company. .
    4. The master is liable for not only the careless and negligent acts, but also for the willful and malicious acts of his servant while acting within the scope of his duty or employment. This rule is well recognized in this State.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Messrs. Dupee & Judah, for the appellant :
    Where an agent or servant in a particular business goes outside of his employment, or beyond his authority, in discharging his duties, the master will not be liable for his acts. He is liable only for acts done within the scope of his authority. Oxford v. Peters, 28 Ill. 434; Pritchard v. Keefer, 53 id. 117; Green v. Town of Woodbury, 48 Vt. 5; Johnson v. Barber, 5 Gilm. 430; Tulter v. Voght, 13 Ill. 285; McManus v. Crickett, 1 East, 106; Halty v. Markel, 44 Ill. 228; Chicago, Burlington and Quincy R. R. Co. v. Casey, 9 Bradw. 638; Clark v. Metropolitan Bank, 3 Duer, 241; Stanley v. Chamberlain, 39 N. J. 565; Gokey v. Knapp, 44 Iowa, 32; Sherman & Bedfield on Negligence, sec. 63.
    Mr. John Lyle King, for the appellee :
    The testimony of Taylor to the attempt to bribe him was clearly admissible on two grounds: first, that it was an admission by conduct; and second, it was an admission by conduct of an accredited representative of the company in the course of his duty to or in the performance of an authorized service for the company.
    Aside from that class of eases where the acts and conduct of persons are admissible against them, under the maxim in odium spoliatoris, (2 Wharton on Evidence, sec. 1265,) there is direct authority in point as to the competency of this evidence. Moriarty v. London, Chatham and Dover Ry. Co. L. R. 5 Q. B. 314; Annesley v. Earl of Aglesea, 17 How. State Trials, 1139; Green v. Town of Woodbury, 48 Vt. 5.
    A corporation can act only through the instrumentality of its officers, agents and employes, and if the act of such agent or’servant be even willful, wrongful or unlawful, if performed or done in the course of his duty, still it is the act of the corporation, or rather of those representing it, for which the corporation is itself accountable. St. Louis, Alton and Chicago R. R. Co. v. Dalby, 19 Ill. 353; Illinois Central R. R. Co. v. Read, 37 id. 484; Toledo, Wabash and Western Ry. Co. v. Harmon, 47 id. 298; Chicago, Burlington and Quincy R. R. Co. v. Dickson, 63 id. 151; Northwestern R. R. Co. v.
      Hock, 66 id. 238; Chicago, Burlington and Quincy R. R. Co. v. Sykes, 96 id. 162.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee entered a street car of appellant through mistake. On finding she had hoarded the wrong car, she requested the conductor to stop and permit her to leave it. It is claimed he refused, and in'attempting to descend from the car while in motion she was injured. She brought an action of case, alleging negligence, and that she was pushed off by the conductor. Three trials were had. The first resulted in favor of plaintiff, but the verdict was set aside. The second ended by the jury failing to agree, and being discharged. The third resulted in a verdict and judgment for $1500 in favor of plaintiff. A motion for a new trial was duly entered, but was overruled by the court. The case was removed to the Appellate Court for the First District, where the judgment was affirmed, and the defendant appeals to this court, and assigns error on the record.

The jury and Appellate Court having settled the facts, questions of law only are urged for a reversal.

It is alleged for error that the court permitted a witness to testify that a clerk in the employment of the company offered him $300, either to prevent him from appearing as a witness against the company, or to influence the evidence of the witness. It is insisted that this evidence was not a part of the res gesta, and for that reason was not admissible. In answer it may be said, many things are admissible that are no part of the res gesta, such as admissions of the parties, and all efforts by either to destroy, fabricate or suppress evidence. Such is the recognized doctrine of the courts. The rule relating to res gesta did not, therefore, prohibit the introduction of this evidence.

It is believed to be a rule never questioned, that it may be shown that a party has destroyed or suppressed material evidence, or has fabricated such evidence, because it is in the nature of and implies an admission that he ha's no right to recover if the case was tried on the evidence in the case as it exists,—that it is not sufficient to recover unless aided by suppressing evidence, or the fabrication of more evidence. It follows that all efforts to suborn witnesses, made by a party, or his authorized agent, are for these reasons proper to be shown.

But a more difficult question is presented in this case, and it is, whether the relation of the person offering the bribe to the witness was such to the company that it was responsible - for his acts in the matter. Was the act, although unauthorized and unsanctioned by the company, so far within the scope of his employment as to render his acts the same as those of the company ? The agent who approached the witness was a clerk in the office of the superintendent of- the company. He testified that it was the business of the clerk, in case of an accident, to take the statements of parties and witnesses to it, and that he attended to the business of looking up witnesses for cases in court; to take the statement of parties to the circumstances of the accident; when an accident occurred to investigate and ascertain all he could with reference to its circumstances; that sometimes he was specially sent for such purpose, and sometimes went in pursuance to general instructions; that no person had any authority from the company to deal with any witness in any way; that had any person used money to suborn or get him out of the way, he would have been instantly discharged.

A corporate body being an intangible and mere imaginary body, must, to accomplish the purposes of its creation, employ or act through natural and physical instrumentalities. It must act through natural persons, and such natural persons- perform the acts the corporation by its charter is authorized to perform. The agents- of the corporation act for it, and it is by such agencies that it can exercise or perform any function or act, or incur any liability. Most generally the business is divided into departments or sections, and an agent is put in charge and given power to control his department; but generally a superintendent is appointed to direct and control, appoint or remove subordinate agents, and to intrust to each the power he may exercise, and prescribe the duties he shall perform. This superintendent, under the directors, is usually the active head of the body, and all its agencies perform duties and exercise corporate powers as he may authorize and direct.

In. this case the clerk had assigned to him the general and special duty of looking for and arranging the evidence in cases where the company was sued by persons injured, or claiming to have been, by the carelessness of those intrusted with the management and operation of its street cars. He was empowered generally to perform that duty, without special directions. That part of the business of the company was placed in his charge, with the general authority to use his judgment in its performance. His acts, therefore, were the acts of the company within the scope of his employment. His legal authority, of course, but extended to lawful acts. So it is true of all agencies, as they are not appointed for the purpose of committing prongs, or the performance of illegal acts, except in rare cases. Few actions would be maintainable if a recovery could be had only in cases where express authority is given, or the agent is required, to commit the wrong. It is a general rule, without exception, that when a servant exercises his power or performs his duty in so careless or negligent a manner that wrong ensues to another, the master is liable in damages. This rule has its origin in the foundation of the common law, if it was not borrowed from the civil law.

In this State the rule has a more comprehensive definition and a broader application. It has been repeatedly held, that when acting in the scope of his duty, acts of the servant not merely careless or negligent, but willful and malicious acts, are embraced. A railroad conductor or engineer is never authorized to commit wanton or malicious acts on persons or property of others, yet our reports abound in cases holding the railroad companies employing them liable for such act done while discharging their several duties. Nor is. the rule a new one in this jurisdiction, as it has obtained for a quarter of a century or more. Such acts, under the circumstances, are considered as the acts of the company, as it can act only through agents intrusted with the exercise of their franchises. In this case the clerk was in the exercise of a corporate power, engaged in the performance of a duty delegated to him by the company, and in the performance of that duty he attempted the use of illegal means for the accomplishment of a legal end, and for the benefit of the company. He did not attempt to suborn the witness for the benefit of himself, but for the benefit of the company,—mot with the consent of his superior, but in the course of legitimate and authorized business of the company. He was unquestionably employed, by the company, was acting for it, and did the act to promote its interest. He was engaged in performance of a duty for the company,—he did the act as a part of the duty, although unauthorized. We are therefore of thé opinion that he performed the illegal and7 unauthorized act while acting in and as a part of his employment, and we must hold the company is responsible for the act. For that reason we hold that the 'evidence was admissible.

If Green v. The Town of Woodbury, 48 Vt. 5, announces a different rule, it is opposed to the long and well established doctrines of this court, nor do we incline to change the rule of this jurisdiction merely for the sake of conformity.

We perceive no error in the record, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.