text:
    The People of the State of Illinois v. The Wabash, St. Louis and Pacific Railway Company.

      Filed at Springfield September 28,1882.

    1. KaiiiBOADs—unjust discrimination in charges—statute not limited to corporations of this State, or to transportation within the State—and in what consists unjust discrimination. Section 87 of the Eailroad act, to prevent unjust discriminations in the rates charged for transporting passengers or freights, etc., is not limited to railroads organized under the laws of this State, but includes all railroad companies which operate railroads in this State, regardless of the States in which they may have been organized.
    2. Under this section of the Eailroad law, the offence therein provided against consists in an unjust discrimination in the rates charged,—first, for the transportation of passengers or freight of any description; second, for the use and transportation of any railroad car upon the road; third, for the use of any railroad car upon any of the branches of the road; fourth, upon any railroads connected with the road or its branches which it is authorized to use in the State. There is nothing in the section or act which confines the unjust discrimination for charges for transportation of property within the limits of the State. The language, “within this State,” in the last part of the section, has reference to the roads which a railroad company may operate in the State.
    3. The words used in section 88 of the act, “if any such railroad corporation shall charge, collect or receive, for the transportation of any passenger or freight of any description upon its railroad, for any distance within this State,” etc., was not intended to limit the law to transportation within the State, but its main object is to provide and declare that certain things shall be prima facie evidence to sustain a charge of unjust discrimination.
    4. Same—as to the particular case. In this case suit was brought in the name of the People against the Wabash, St. Louis and Pacific Eailway Company, to recover for an alleged unjust discrimination in the rates of freight charged by that company upon shipments made from different points in this State, and by different persons, to the city of New York. It was alleged the defendant company was a corporation duly organized under the laws of this State, owning and operating a railroad lying partly within this State, and running from Peoria, Illinois, eastward through the station of Gilman, also in the State of Illinois, to the city of Toledo, in the State of Ohio. It was further alleged, the said company transported eastward, upon its said railroad, and upon and over railroads connected therewith, through the said station of Gilman, to New York City, one car-load of corn, of the weight of 26,000 pounds, the charges for the entire distance from Peoria to New York being §39, or at the rate of fifteen cents per 100 pounds. That at the same time the defendant company, for other parties, transported from the said station of Gilman, a point eighty-six miles eastward from Peoria, a car-load of freight of the same class, and of like quantity, to the city of New York, for which it demanded and received, as charges for carriage from Gilman to New York, the sum of $65, or at the rate of twenty-five cents per 100 pounds. This excess in charges for the lesser distance of carriage constituted the alleged unjust discrimination. It was held the action was well brought, under the 87th section of the act which prohibits the making of unjust discriminations by railroad companies in their charges for the transportation of freight. That act is not to be limited in its application to freights carried from one point to another wholly within the State, but may as well apply where the carriage is from a point within the State to a point without the State.
    ■ 5. Same—constitutionality of the act as affecting inter-State commerce. A State law to prevent the unjust discrimination in rates for the transportation of passengers or freight from a point within to a point without the State, though it may incidentally affect commerce between States, can not be said to be a law regulating commerce among the States, within the meaning of the Federal constitution, especially when it does not purport to exercise control over any railroad corporation except those that run or operate in the State, and which have domestic relations with the people of the State.
    6. If Congress should, under the provision of the Federal constitution authorizing the same, pass a law regulating the charges of all railroads engaged in inter-State commerce, it may.be that the law of this State on that subject might then be confined to charges for the transportation of property wholly within the State.
    7. Constbuction OF statutes—the title of an act—how far to be considered. While the constitution requires the subject of an act to be embraced in the title, it is still no part of the law, and is not to be regarded in a question as to the intent of the legislature. At all events, it can have no" controlling effect. It may have a slight bearing when considered in connection with the whole act, but that is all.
    8. Same—the evils to be remedied to be considered. In construing an act of the legislature it is a legitimate inquiry to ascertain the purpose and object of the law, the evil to be remedied, and the wrong to be righted by its passage.
    Writ of Eebob to the Circuit-Court of Ford county; the Hon. Owen T. Beeves, Judge, presiding. ■
    This was an action of debt brought in the court below, in the name of the People of the State of Illinois against the Wabash, St. Louis and Pacific Bailway Company. The declaration contained several counts, but the alleged cause of action is substantially set forth in the first count, which is as follows:
    “For that whereas, heretofore, to-wit, on the 29th day of August, A. D. 1881, at, to-wit, the county of Ford, aforesaid, the said defendant was a railroad corporation, duly organized and incorporated under the laws of the State of Illinois, and ’Was then and there owning and operating a certain railroad lying partly within the State of Illinois, and running from Peoria, in the county of Peoria, in the State of Illinois, eastward through the stations of Gilman and Sheldon, in said Iroquois county, to Toledo, in the county of Lucas, and State of Ohio, commonly known as the Wabash, St. Louis and Pacific railroad, and was then and there doing business as a common carrier of freight and passengers upon and over said railroad, and afterwards, to-wit, on the day and year aforesaid, to-wit, at the county of Peoria aforesaid, the said defendant, at the request of Joseph Elder and D. McKinney, partners, doing business under firm name of Elder & McKinney, and residents and citizens of said State of Illinois, carried and transported eastward, upon and over said line of railroad owned and operated by it as aforesaid, and upon and over railroads connected with said defendants, for said Elder & McKinney, from Peoria aforesaid, a station upon said railroad, through said Gilman to New York City, in the State of New York, a large quantity of freight, to-wit, one car-load of corn, of a great weight, to-wit, of the weight of 26,000 pounds, of the goods and chattels of said Elder & McKinney, and that defendant afterwards, to-wit, on the day and year aforesaid, at, to-wit, the county of Peoria aforesaid, charged, demanded, received and collected of and from said Elder-& McKinney, as and for said defendant’s entire toll and compensation for the said carriage and transportation of said one car-load of corn upon and over said railroad, and said connecting lines of railroad, from said Peoria to said New York City, a large sum of money, to-wit, the sum of 039. And afterwards, to-wit, on the same day and year last aforesaid, at, to-wit, the county of Iroquois t aforesaid, the said defendant, at the request of Isaac Bailey and F. 0. Swannell, partners, as Bailey & Swannell, and residents of said county, carried and transported for said Bailey & Swannell, eastward upon and over said line of railroad owned and operated by the said defendant as aforesaid, and upon some other lines of railroad connected therewith, over which said com was transported from Gilman aforesaid, in the county of Iroquois, and State of Illinois, a station upon said railroad, to New York City, in the State of New York, a certain other large quantity of freight, to-wit, one car-load of oil cake, of a great weight, to-wit, of the weight of 26,000 pounds, of the goods and chattels of said Bailey & Swannell, and that defendant afterwards, to-wit, on the same day and year aforesaid, at, to-wit, the county of Iroquois aforesaid, charged, demanded, received and collected of and from said Bailey & Swannell, as and for said defendant’s toll and compensation for the said transportation and carriage of said one car-load of oil cake last aforesaid, upon and over its said railroad, and said connecting ■ lines of- railroad,, from said Gilman to said New York City, a large sum of money, to-wit, the sum of §65, which the said Bailey & Swannell then and there paid to defendant for such carriage and transportation of said one car-load of oil cake last aforesaid, from Gilman aforesaid, to said New York City, as aforesaid.
    “And plaintiffs aforesaid aver that said goods and chattels, -2—oil cake,—last aforesaid, carried and transported by said defendant as aforesaid, was of like quantity, and of the same class of freight as the freight first aforesaid, to-wit, the one car-load of com carried and transported by said defendant as aforesaid, and was carried and transported, to-wit, at the same time, and in the same direction, and over the same lines of railroad, by said defendant, as said car-load of corn hereinbefore mentioned. And the plaintiffs further aver, that the distance over and upon the line of said defendant’s railroad over and upon which said corn was carried .and transported from, said Peoria eastward to Sheldon, a station on the line of said road near the eastern boundary of the State of Illinois, is, to-wit, one hundred and nine miles, and that the distance from said Gilman, a station upon the line of said railroad, over and upon the line of said railroad over and upon which said car-load of oil cake was carried and transported to said station of Sheldon,, near the eastern boundary of said State, is only, to-wit, twenty-three miles, and that the distance from said Gilman, to said New York City, upon the route or railroads over and upon which said goods and chattels,—oil cake aforesaid,—were carried and transported, is less than the distance from said Peoria to the city of New York aforesaid, upon the route or railroads over and upon which said goods and chattels,—corn,—were transported, by eighty-six miles. And the plaintiffs further aver, that the said defendant’s rate of freight so charged," collected and received as aforesaid, for the carriage and transportation of said car-load of corn from Peoria aforesaid to said city of New York, was only fifteen cents per 100 pounds per car load, making the sum, to-wit, of $39 aforesaid, and that the said defendant’s rate of freight so charged, collected and received, as aforesaid, for the carriage and transportation of said car-load of oil cake, from Gilman aforesaid to said New York City, a less distance, was twenty-five cents per 100 pounds per car load, making, to-wit, the sum of $65 aforesaid. And the plaintiffs further aver, that the said defendant made, demanded, collected and received, to-wit, the same proportionate discrimination in the said rates of freight for the transportation of said goods and chattels, to-wit, said oil cake and corn, upon and over its line of railroad in the State of Illinois, that was made, demanded, ■ collected and received, as heretofore alleged, for said transportation between said Peoria and New York City, and said Gilman and New York City, whereby, and by means of the premises aforesaid, the plaintiffs aver that the said defendant has been guilty of making an unjust discrimination in the rates of freight in the State of Illinois, in the carriage and transportation of said goods and chattels, to-wit, one car-load of corn and one car-load of oil cake aforesaid, to the great injury of the citizens of said State, and contrary to the form of the statutes of said State in such cases made and provided, and against the peace and dignity of the People of the State of Illinois, whereby an action hath accrued unto the said plaintiffs, to have and demand of. and from the said defendant the sum of §5000, parcel of the said sum above demanded.”
    A demurrer was sustained to the several counts in the declaration, and the People thereupon sued out this writ of error.
    Mr. James McCaetney, Attorney General, for the People
    The statute against unjust discrimination is not confined in its force to the carriage of freights, etc., wholly within this State. The words “within this State, ” in section 2, have reference to the roads which any company has the right or license to operate or use in this State. The act was intended to apply to any discrimination made in this State, no matter where the carriage is to be done. The State, until Congress shall provide a law governing inter-State commerce, may pass such a law affecting railroad companies in this State, or operating here, even though such regulation may incidentally reach beyond the State. Peck v. Chicago and Northwestern Ry. Co. 94 U. S. 164; Chicago, Burlington and Quincy R. R. Co. v. Iowa, id. 155; Railroad Co. v. Fuller, 17 Wall. 560.
    Unjust discrimination in the carriage of freights was an offence at common law. McDuffee v. Portland and Rochester R. R. Co. 52 N. H. 430; Messenger et al. v. Pennsylvania

      R. R. Co. 36 N. J. L. 407; Chicago and Alton R. R. Co. v. People ex rel. 67 Ill. 11.
    Mr. A. Sample, also for the People, took the same ground, and further contended that the exercise of the police power by the State, to prevent unjust discrimination in the transportation of property from within the State to points in another State, is not in violation of that provision of the Federal constitution which gives to the Congress the right to regulate inter-State commerce, citing Railroad Co. v. Fuller, 17 Wall. 560; Munn v. Illinois, 93 U. S. 113; Peck v. Chicago R. R. Co. id. 175.
    Mr. H. S. Gkeene, and Mr. F. T. Hughes, for the defendant in error:
    Freight delivered to a carrier, to be transported from a point within this State to a point in a distant State, can not be regarded as local or domestic freight. The very moment it is so delivered and marked, the character of inter-State commerce attaches to it, even while passing through this State. The Daniel Ball, 10 Wall. 557.
    The power to regulate commerce between the States is vested solely in Congress. Gibbon v. Ogden, 9 Wheat. 196; Homes v. Jennison, 14 Pet. 570; Brown v. State of Maryland, 12 Wheat. 446 ; New York v. Miln, 11 Pet. 158; Wilson v. Black Creek Marsh Co. 2 id. 250.
    The non-exercise of that power by Congress is equivalent to a declaration by that body that such commerce shall be free from any restriction. Welton v. State of Missouri, 91 U. S. 275.
    That the qases cited by the Attorney General do not justify the inference drawn froiñ them, is demonstrated in the reasoning of the court in Hall v. DeCuir, 95 U. S. 485; County of Mobile v. Kimball, 102 id. 691; Webber v. Virginia, 103 id. 344.
   Mr. Justice Craig

delivered the opinion of the Court:

The declaration in this case contained several counts, but the substance of the averments in each was, that the defendant carried the same class of freight from Peoria to New York City for a less sum of money than it carried similar freight from Gilman to New York, and that Peoria was a greater distance from New York than Gilman. The decision of the court sustaining a demurrer to the declaration was no doubt predicated on the view either that the statute did not in terms apply to the transportation of property beyond the limits of the State, or that the legislature had no power •to pass a law regulating charges for the transportation of property from a point within the State of Illinois to a point within the State of New York. The action was brought under sec. 87, Rev. Stat. 1874, page 817, which declares: “If any such railroad corporation aforesaid shall make any unjust discrimination in its rates or charges of toll or compensation for the transportation of passengers or freight of any description, or for the use and transportation of any railroad car upon its said road, or upon any of the branches thereof, or upon any railroads connected therewith, which it has the right, license or permission to operate, control or use within this State, the same shall be deemed guilty of having violated the provisions of this act, and upon conviction thereof shall be dealt with as 'hereinafter provided. ”

In order to arrive at a proper construction of this section, it should be read in connection with section 86, which precedes it. That section declares: “If any railroad corporation organized or doing business in this State * * * shall charge, collect, demand or receive more than a fair and reasonable rate of toll or compensation for the transportation of passengers or freight of any description, or for the use and transportation of any railroad car upon its track, or any of the branches thereof, or upon any railroad within this State which it has the right, license or permission to use, operate or control, the same shall be deemed guilty of extortion, and upon conviction thereof shall be dealt with as hereinafter provided. ” It will be observed that this section is not limited to railroads organized under the laws of this State, but includes all railroad companies which operate railroads- in this State, regardless of the State in which they may be organized, and the language of the first part of section 87, “if any such railroad corporations shall, ” etc., brings all railroad corporations which operate railroads in the State within the provisions of the section, whether they -may be organized under our law or under the laws of some other State. The statute seems to make no distinction whatever between a railroad organized in this State and a railroad organized in another State, and by the terms of the section the offence consists in an unjust discrimination in the rates charged,—first, for the transportation of passengers or freight of any description; second, for the use and transportation of any railroad ear upon the road; third, for the use of any railroad car upon any of the branches of the road; fourth, upon any railroads connected with the road or its branches which it is authorized to use in the State. There is nothing here which would confine the unjust discrimination to charges for the transportation of property within the limits of the State. The use of the words, “within this State, in the last part of the section, can not, by any fair construction, be held to limit the unjust discrimination mentioned in the statute to charges for the transportation of freight wholly within the State. The language, “within the State, ” has reference to the roads which a railroad company may operate in the State.

Beliance is placed upon the language of the first part of section 88, which declares: “If any such railroad corporation shall charge, collect or receive for the transportation of any passenger or freight of any description upon its railroad, for any distance within this State, ” etc. But upon an examination of the whole section it will be seen that it was not intended for the purpose claimed, but its main object is to provide and declare that certain things shall be prima facie evidence to sustain a charge of unjust discrimination.

The title of the act is referred to, in order to sustain the position of the defendant. It is true, the constitution requires the subject of an act to be embraced in the title, but the title of an act is no part of the law, and we dp not understand that the title is to be regarded a question as to the intent of the legislature. At all events it can have no controlling effect. It might have a slight bearing when considered in connection with the whole act, but that is all.

Again, in arriving at a proper construction to be placed upon an act of the legislature, it is a legitimate inquiry to ascertain the purpose and object of the law, the evil to be remedied, and the wrong to be righted by the passage of the law. Now, if the object was to provide a reasonable and uniform system of rates, and one which would prohibit a common carrier from charging one person more than another, why should a system be established which would afford relief and protection when property is to be transported from one point to another in the State, and make no provision whatever where property is to be shipped from a point within to some point without the State ? It is a part of the history of .the country, with which the legislature was no doubt familiar when the law was enacted, that a much larger per cent of the property shipped by rail was transported out of the State than from one point to another within the State. This being the case, it is unreasonable to believe that the legislature would provide relief in the latter case and take no action whatever to avert the evil in the former.

But it is urged, if we are correct in the view that the law is broad enough to include unjust discrimination in the rates of charges for the transportation of property'from a point within to a point without the State, then the statute is in conflict with section 8, article 1, of the Federal constitution, which declares that Congress shall have the power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. ” There is no doubt in regard to the right and the power of Congress to regulate commerce among the States, but a law of a State which may incidentally affect commerce among the States has never, so far as we are informed, been regarded as falling within the inhibition of the Federal constitution. In Hall v. De Cuir, 95 U. S. 487, where this question was under discussion, it is said: “There can be no doubt but that exclusive power has been conferred upon Congress in respect to the regulation of commerce among the several States.” The difficulty has never been as to the existence of this power, but as to what is to be deemed an encroachment upon it; for, as has been often said, “legislation may, in a great variety of ways, affect commerce, and persons engaged in it, without constituting a regulation of it, within the meaning of the constitution. ”

It is no doubt true that the statute to prevent unjust discrimination in the rates of charges of railroad companies, under which this action was brought, may affect commerce, but in our judgment it can not be said to be a law regulating commerce among the States, within the meaning of the Federal constitution. The law does not purport to exercise control over any railroad corporation except those that own or operate a railroad in the State,—such companies as have domestic relations with the people of the State,—and as we understand the decisions of the Supreme Court of the United States, similar laws enacted by State authority have been upheld and sustained, although such laws may affect commerce. Peck v. Chicago and Northwestern Ry. Co. 94 U. S. 164, is a case in point. The Chief Justice, in delivering the opinion of the court, as respects the question involved, said: “The suits present the single question of the power of the legislature of Wisconsin to provide, by law, for a maximum of charge to be made by the Chicago and Northwestern Bail-way Company for fare and freight upon the transportation of persons and property carried within the State, or taken up 'outside the State and brought within it, or taken up inside and carried without. ” In regard to the act of the legislature being in conflict with the constitution of the United States, the court said: “As to the effect of the statute as a regulation of inter-State commerce, the law is confined to State commerce, or such inter-State commerce as directly affects the people of Wisconsin. Until Congress acts in reference to the relations of this company to inter-State commerce, it is certainly within the power of Wisconsin to regulate its fares, etc., so far as they are of domestic concern. With the people of Wisconsin this .company has domestic relations. Incidentally these may reach beyond the State. But certainly, until Congress undertakes to legislate for those who are without the State, Wisconsin may provide for those within, even though it may indirectly affect those without. ”

A similar question arose in Chicago, Burlington and Quincy R. R. Co. v. Iowa, 94 U. S. 155, and it is there said; “The objection that the statute complained of is void because it amounts to a regulation of commerce am'ong the States, has been sufficiently considered in the case of Munn v. Illinois. This road, like the warehouse in that case, is situated within the limits of a single State. Its business is carried on there, and its regulation is a matter of domestic ' concern. It is employed in State as well as inter-State commerce, and until Congress acts, the. State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in so doing those without may be indirectly affected. ”

But it is said the cases cited are not authority, as the question involved here did not, and could not, arise in those cases. In the Peck case, one of the allegations of the bill upon which complainant relied to defeat the law of the State was, “that the 18th section is a regulation of inter-State commerce; ” and in the argument before the Supreme Court, one of the points relied upon, as shown in the statement of the case, was as follows: “The act is a regulation of interstate commerce, and for that reason unconstitutional. ” In the other, case (Chicago, Burlington and Quincy R. R. Co. v. Iowa,) we find a similar allegation in the bill, and the same question raised in the argument. When a question is presented by a bill in equity, urged and relied upon in the argument, and passed upon by the court in the opinion, it can not with reason be said that the point was not involved, and the opinion of the court on the question is obiter. The question was made by the pleadings, argued by counsel, and decided by the court. Under such circumstances we perceive no good reason why the decision of the court may not be relied upon as authority. The statute in question, as before observed, was not passed for the purpose, or with the view, of regulating commerce among the States,—its object was to reach railroad companies which derived their powers to transact business from this State,—those that were organized under the laws of this State, and those that were organized in another State and doing business in this State. The regulation imposed by the statute is a matter of domestic concern, pertaining to the people of the State and the railroads of the State. The Wabash railroad company, which was sued in this ease, is engaged in State as well as interstate commerce, and' as was said in the Burlington case, supra, the-State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in so doing those without may be incidentally affected. Should Congress, under the provision of the constitution which authorizes the regulation of commerce among the States, pass a law regulating the charges of all railroads engaged in inter-State commerce, it may be that the law of this State might then be confined to charges for the transportation of property wholly within the State; but no such law has been passed, and that question does not arise here.

In conclusion, we are of opinion that the question involved is controlled by the decisions in the two cases cited, which, so far as we can find, have not been modified by any subsequent decision of the Supreme Court of the United States.

The judgment of the circuit court will be reversed, and the cause remanded.

Judgment reversed.

Separate opinion by Mr. Justice Walker :

The legislature has the power to regulate the schedules of charges for passengers and freight, under the 15th section of article 11 of our constitution. In pursuance of that power it adopted the 87th section of the chapter entitled “Railroads and Warehouses. ” That section provides, that “if any such railroad corporation aforesaid shall make any unjust discrimination in its rates or charges of toll or compensation for the transportation of passengers or freight of any description, or for the use or transportation of any railroad car upon its said road, or upon any of the branches thereof, or any railroad connected therewith, which it has the right, license or permission to operate, control or use within this State, the same shall be deemed guilty of having violated the provisions of this act, and upon conviction thereof shall be dealt with as hereinbefore provided.”

The averment in the declaration is, that defendant in error, at the times stated, shipped freight of the same grade or class for a less rate from Peoria to New York than from Gilman to New York, the latter named place being a shorter distance than the former. When it is remembered that both cities are on the line of the road of defendant in error, and the freight shipped from Peoria to New York passed through Gilman to reach its destination, it is apparent that there was a discrimination against Gilman, or the person who shipped from that point. The map shows, that by that road Gilman is between eighty and one hundred miles nearer New York than Peoria. The haul of the freight in this State from Peoria to the Indiana line was over one hundred miles, and from Gil-man to that line about twenty-five miles. Thus it is seen that the service rendered for the shipper in Peoria, in this State, was four times, at least, greater than for the shipper from Gilman. This was a discrimination against the shipper at the latter place, he being charged at the rate of more than four times as much for the same service within this State, and comes clearly within the provisions of the section. This stands confessed by the demurrer.

But it is insisted that the discrimination may have been made after the freight passed beyond the boundary of the State. This presumption, if there could be such a presumption, is repelled by the averment that defendant in error made the charges complained of by plaintiffs in error. If the company undertook to make rates, it must have been because it had the authority from the lines beyond the limits of the State. We will and must presume that the rates beyond the State line to New York were the same on the same class of freight, and if so, then it inevitably follows that the company discriminated in favor of the longer haul, and against the shorter one, for services in this State, and that brings the case within the statute, and renders the company liable. I, for these reasons, concur in the decision of the court in this case, reversing the judgment of the court below.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    John D. McIntire v. John C. Yates et al.

      Filed at Ottawa September 27, 1882.

    1. Assignment—assignee of note, in equity takes subject to all defences. An assignee of a note secured by mortgage takes the same, in equity, subject to all the defences existing between the mortgagor and mortgagee.
    2. Same—when maker of note is estopped from questioning its validity, as against purchaser. Where a party executes notes, and a mortgage securing them, and delivers them to the payee therein named, to be by him sold upon the market to raise money to be used for a certain purpose, a sale of such notes by the payee in the market must he held to be a sale by the consent and authority of the maker, through his agent, and the maker is estopped from calling in question the validity of the notes and mortgage, even though ■the payee does not use the money received therefor for the purpose intended.
    3. In such case a party purchasing the notes and mortgage in the due course of business, can not he held responsible in any manner for the subsequent conduct of the payee, or the use he may make of the money derived from the sale of the notes. It is enough, so far as such purchaser is concerned, that the payee had authority from the maker to sell them.
    4. Mortgage—given to one person to secure debt due another, is valid. A member of a firm who is liable to creditors of the firm, may secure such indebtedness by giving his note, secured by mortgage, to a third person, as a trustee or agent of such creditors, and the indebtedness for which he is liable will be a sufficient consideration to uphold the transaction. In such case it is wholly immaterial whether he owes the agent to whom the note and mortgage run, and parol evidence may be given to show the indebtedness and who are the parties secured by the transaction.
    5. Consideration—note to secure preexisting indebtedness. A preexisting indebtedness is a good and valid consideration for a note and mortgage given to secure the same, even as against creditors of the party giving such security.
    6. Partnership—rights of partnership and of individual creditors. Partnership creditors have no claim on the fund arising from the separate estate of an individual partner until the individual debts are satisfied, and, on the other hand, separate creditors can only seek payment out of the surplus of the partnership assets after the satisfaction of the partnership liabilities.
    7. Same—right to have partnership debts paid out of partnership assets, is in partner, not in creditors. The right to have joint creditors seek payment out of the partnership effects to the exclusion of the separate creditors of the members of the firm, is a right for the benefit and protection of the partners, or their representatives, and not for the benefit of the creditors. Therefore a creditor of one partner can not invoke the aid of a court of equity to prevent the partnership creditors from collecting their debts from his individual property until his individual creditors have been paid. And such debtor partner can not enforce this equitable right against mortgages given by him on his individual property.
    8. MabshaiiING- assets—whether it should be ordered by the cour^t. An original bill was brought to foreclose a mortgage given by a member of a firm to secure partnership indebtedness. To this bill certain other parties filed a cross-bill to foreclose a deed of trust given by the same party to secure his individual notes, and another also filed a cross-bill to foreclose a mortgage the same party gave him after the execution and recording of the other mortgages: Held, that as the main object of the suit was to foreclose three distinct mortgages, it was not a case in which a court of equity was called upon to marshal the assets of a firm and an individual member of the firm, and determine the manner in which the assets should be distributed.
    9. Ebbob—who may complain. It was objected to a decree foreclosing three mortgages executed by a husband, his wife joining in one of them, that the wife had a dower right in a portion of the mortgaged premises, ahd “a resulting trust in the fee thereof, ” which should have been established and protected. The wife was not a party to the proceedings to foreclose either of the mortgages: Held, that her interest in the premises was not affected by the decree, and that there was no error in not finding her interest therein.
    10. Decree—binds only party to suit. The wife of a mortgagor who is not made a party to a bill to foreclose the mortgage, will not be affected in any way by the decree rendered in the case. If she has any rights in the premises, she may at any time institute proceedings to establish them; and if she executed the mortgage, the holder thereof may foreclose the same against such title when she does assert her claim.
    11. Attorney’s eee-.-when allowed on foreclosure. Where a mortgage contains a provision, that in case of foreclosure two per cent on the amount found due on the mortgage indebtedness shall be allowed and included in the decree as a solicitor’s fee, there will be no error in including such a fee in the decree.
    Wbit of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    The firm of Neill, McGrew & Co., of Peoria, being indebted in a large amount to the Mechanics’ National Bank of Peoria, and to Kingman, Blossom & Co., T. J. McGrew, a partner in the firm of Neill, McGrew & Co., to secure the same, executed to one Yates his note for $75,000, and at the same time a mortgage on his lands to secure its payment. It was stated in this note that it was “to include and secure only the legal and valid indebtedness of Neill, McGrew & Co. to the Mechanics’ National Bank of Peoria, and to Kingman, Blossom & Co., of Peoria,—any and all amounts realized herein to be divided and paid to said two banks in proportion to the amounts that said Neill, McGrew & Co. are now lawfully indebted to said banks. ” There was no pretense that McGrew owed this sum, or any other amount, to Yates, but the proof was that the latter was a mere trustee for the two banks, and that the security was taken for their benefit alone.
    McGrew, on June 18, 1.879, executed his deed of trust on the same lands to J. S. Lee, to secure the payment of two notes, of $10,000 each, due in one and two years, with ten per cent interest, payable to T. Neill, a member of the firm of Neill, McGrew & Co. These notes were given to Neill, to be negotiated by him to raise money to enable Neill to purchase for the firm certain property in the city of Peoria, from one James B. Hogue. Neill negotiated these notes before their maturity, and received the money on their discount, but failed to use it in the purchase of the Hogue interest, as was intended he should. The Second National Bank and Alice Kilduff became the holders of these notes before their maturity, in the due course of business. After the execution and recording of the mortgage and deed of trust above mentioned, McGrew executed and delivered to Mclntire another mortgage on the lands, or part thereof, to secure an individual debt due from him to Mclntire.
    The original • bill was brought to foreclose the mortgage given by McGrew to Yates to secure the firm’s indebtedness to the two banks, making McGrew, Lee, Mclntire and others defendants. Alice Kilduff and the Second National Bank filed a cross-hill, seeking to foreclose the deed of trust given to Lee. The answers to this cross-bill set up a failure of consideration—in this, that the notes therein secured were given to Neill to purchase the Hogue interest, which he failed to do, but appropriated the money to his own use. McIntire also filed a cross-bill, to foreclose the mortgage from McGrew to him, in which, and also by his answer to the original bill, he claimed a priority of lien, on the ground that his claim was for an individual indebtedness of McGrew to him, for which the individual property of the debtor was first liable, in equity, and that such property was liable for firm debts only after payment of the individual debts. The wife of McGrew was not made a party to any of the bills, and she never executed any of the mortgages, except the one to McIntire.
    On the hearing, the court, after a finding as to the state of the various matters of indebtedness, decreed that the mortgage from McGrew to Yates was a first and valid lien on all the lands described, except the tracts embraced in the Lee trust deed, and a certain forty acres set off to McGrew as his homestead. The decree then proceeded to direct payment to the various creditors, as their rights were found to be, and in case of a failure to make payment, it was directed that the premises be sold, and distribution of the proceeds made, expressly excepting the dower right of the wife of McGrew from the operation of the decree. Other facts in the case, and questions arising thereon, will be found in the opinion of the court.
    Mr. B. S. Prettyjian, for the plaintiff in error:
    An assignee of a note, in equity takes subject to all defences against the payee. Olds v. Cummings, 31 Ill. 188; Haskell v. Brown, 65 id. 29; Thompson v. Shoemaker, 68 id. 256; Bryan v. Vix, 83 id. 14; Chicago, Danville and Vincennes Ry.

      Co. v. Lowenthal, 93 id. 433; Sergent v. Howe, 21 id. 148; Kleeman v. Frisby, 63 id. 482.
    A note and mortgage given without consideration can not be held valid as collateral security. Walker v. Carlton, 97 Ill. 583.
    A party being indebted to one who executes his note to another for such indebtedness,.without satisfying the original debt or account thereby, makes such note without consideration. Conkling v. Vail, 31 Ill. 166; Fisher v. Meister, 24 Mich. 447; 1 Jones on Mortgages, 615.
    There was no consideration, and a voluntary trustee or usee can not enforce an executory trust. Minturn v. Seymore, 4 Johns. Ch. 499; Clark v. Lott, 11 Ill. 115.
    A voluntary assignee or mortgagee, as to creditors, is not a bona fide purchaser, and if the debtor only in such deed intended to hinder and delay his creditors, the deed is void. Gehre v. Meery, 6 Minn. 305; Bennett v. Ellison, 23 id. 242.
    Though one purpose of a mortgage is to secure a debt, if another is to deter other creditors, or delay them, it is void as to creditors. Crowningshield v. Kitridge, 7 Metc. 522; Kimbal v. Thompson, 4 Cush. 441; Harris v. Sumner, 2 Pick. 102; Robinson v. Stewart, 10 N. Y. 189; Garland v. Rivers, 4 Rand. 282; Reed v. Noon, 48 Ill. 324; Merry v. Bostwick, 13 id. 410; 3 Parsons on Contracts, 448; 1 Jones on Mortgages, 627.
    Separate creditors as to separate property are preferred, in equity, and joint creditors are excluded from participation in individual assets until individual creditors are paid. Parsons on Partnership, 347, 393; Union National Bank of Chicago v. Bank of Commerce, 94 Ill. 271; Ladd v. Griswold, 4 Gilm. 37; Reeves v. Ayers, 38 Ill. 418; Morrison v. Kuntz, 15 id. 193; Roney v. Nantz, 54 id. 29; Polman v. Graves, 26 id. 405; Adams v. Sturgis, 55 id. 468.
    The court erred in allowing two per cent on the sum due, as solicitor’s fee. This was creating a fictitious debt, against which the other creditors should have been protected. Soles v. Sheppard, 99 Ill. 620.

      Messrs. James, Jack & Moore, for the Second National Bank:
    McGrow is estopped by the recitals in his deed of trust from setting up the defence he urges. Parson v. Anderson, 4 Edw. 17; Scott v. Sadler, 2 P. E. Smith, 211; Schaffer v. Reilly, 50 N. Y. 61; Kellogg v. Ames, 41 id. 259; Wyncoop v. Corning, 21 Ill. 570; Stewart v. Metcalf, 68 id. 109; Meads v. Lousign, Hopkins’ Ch. 141.
    In the States holding as in .the Olds case, courts of equity will not allow the consideration to be inquired into for the sake of declaring the mortgage void for want of consideration, but they will for the purpose of ascertaining what is due on it. Farnam v. Barnett, 21 N. J. Eq. 89; Calkins v. Long, 22 Barb. 98; Parker v. Parmalee, 20 Johns. 133; Croft v. Bannister, 9 Wis. 462; 1 Hilliard on Mortgages, 608.
    If a note and mortgage are executed with the understanding they shall be assigned, the assent of the maker to the assignment will be presumed, and the bona fide holder protected. Mellendy v. Keen, 89 Ill. 395; Stevens et al. v. Hay, 61 id. 399.
    The equities protected are only such as arise out of the note and mortgage transaction itself, and not such as arise between the parties out of collateral matters. Colehour v. State Savings Institution, 90 Ill. 152.
    As to other distinctions made, where the rule in Olds v. Cummings is not applicable, see Bush v. Lathrop, 22 N. Y. 535; McNeill v. Tenth National Bank, 46 Ill. 325; Moore v. Metropolitan National Bank, 55 N. Y. 4. Also, see Lesley v. Johnson, 41 Barb. 360; Scott v. Sadler, 2 P. F. Smith, 211; Schaffer v. Reilly, 50 N. Y. 61; Kellogg v. Ames, 41 id. 259.
    Messrs. Puterbaugh & Püterbaugh, and Mr. N. W. Green, for Yates and the other defendants in error:
    The note and mortgage to Yates were executed at the same time, and are to be taken and considered as one instrument, and are to be so construed. Duncan v. Charles, 4 Scam. 561; Bailey v. Cromwell, 3 id. 71; Harper v. Ely, 56 Ill. 188.
    The trust appears in the note. It shows Tates to be trustee for the two banks. 1 Jones on Mortgages, sec. 612; Rood v. Winslow, Walker’s Ch. (Mich.) 340; Root v. Bancroft, 10 Metc. 44; Tunison v. Chamblin, 88 Ill. 378; Perry on Trusts, sec. 83.
    The preexisting liability of McGrew for the firm indebtedness, was a sufficient consideration for his note and mortgage given to secure the same. Manning v. McClure, 36 Ill. 490; Babcock v. Jordan, 24 Ind. 19; 2 Story’s Eq. Jur. 657, 658; Bagley v. Greenleaf, 7 Wheat. 46.
    Only judgment creditors- can attack a. fraudulent conveyance. A subsequent grantee or mortgagee can not. Finley v. McConnell, 60 Ill. 259; Fitzgerald v. Forrestal, 48 id. 228; Moritz v. Hoffman, 35 id. 553; Newman v. Willitts, 52 id. 98; Miller v. Davidson, 3 Gilm. 518; Greenway v. Thomas, 14 Ill. 271.
   Mr. Justice Craig

delivered the opinion of the Court:

The first point relied upon to reverse the decree is, that “it was error not to allow the defence of want of consideration to the foreclosure of the trust deed, in the cross-bills of Alice Kilduff and the Second National Bank. ” The trust deed was given by T. J. McGrew to J. S. Lee, on the 18th day of June, 1879, on certain property in Peoria county, to secure the payment of two notes, for $10,000 each, payable to T. Neill, due in one and two years, with ten per cent interest. Neill negotiated a loan of $20,000 from the Second National Bank, and assigned these notes and mortgage, in due course of business, before the notes were due, to the bank, as security for the loan. The law may be regarded as well settled in this State, as held in Olds v. Cummings, 31 Ill. 189, and subsequent cases, that an assignee of a mortgage takes the same subject to the defences in equity existing between the mortgagor and mortgagee. But the question here is, whether, under the facts of this case, McGrew is in a position to rely upon this rule of law. He claims that these notes and deed of trust were executed and delivered to Neill to be used in the purchase of an- interest which James B. Hogue owned in certain property in the city of Peoria, and as the property was not purchased of Hogue by Neill, and the notes were not appropriated to that purpose, but were used for another and a different object, the consideration upon which the notes were executed has failed. McGrew, however, in his evidence, in substance testified that Hogue was not to take the notes in the purchase; that there was no agreement or understanding that these notes and mortgage were to be turned over to Hogue, but the arrangement between McGrew and Neill was, that Neill was to sell the notes and mortgage in the market, and raise money, and use the money in the purchase of the Hogue property. That this was the understanding, is apparent from the fact that Neill told McGrew, as he testified, that he (Neill) had an arrangement in the. east by which he could get cheap money, and the notes and mortgage were executed and left with Neill, so that he could negotiate them at once, and without delay, as soon as he closed the proposed trade with Hogue.

Allowing, then, full credit to the evidence of McGrew, although he was not corroborated, and it was on his objection that Lee and Stephens, the only persons besides himself in the county who knew what the contract was, were excluded from testifying, the arrangement seems to have been that the notes were delivered to Neill to be negotiated on the market, and the money derived from a sale of the notes was to be used by Neill for a specified purpose. Neill negotiated the notes, obtained the money, and used it for a different purpose. Now, while Neill may have disregarded his duty and his contract in the use made of the proceeds of the notes and mortgage, still, that breach of duty or contract can not be set up as a defence to a suit brought by the assignee of the notes and mortgage to foreclose the same. The notes and mortgage having been sold on the market by the consent and by the authority of McGrew, the mortgagor, he is estopped from calling in question their validity. Neill was, in effect, the agent of McGrew, clothed with authority to sell the notes and mortgage; and as the agent acted within the scope of his authority, McGrew, the principal, is bound by the act of the agent. The bank that purchased the notes and mortgage was in no .manner responsible for the conduct of Neill in the use he should make of the money derived from a sale of the notes. It was enough that he had authority to sell the notes and mortgage. The bank had no concern whatever with the application which Neill should make of the money,—that was a matter entirely between McGrew and Neill, which could not in the least affect the validity of the notes and mortgage. We therefore hold, as the notes and mortgage were executed and delivered to Neill to be sold upon the market, the sale and transfer were made with the. consent of McGrew, and having consented, he is concluded by the sale, and can not question the validity of the notes and mortgage in the hands of persons who purchased and paid for them in due course of business, in good faith.

It is next claimed that the court erred in holding that the mortgage given by McGrew to Yates was a prior lien on the mortgaged premises. Various objections have been urged against the validity of • this mortgage. It is first said the mortgage is without consideration. It is not pretended by the complainants in the original bill that there was any consideration paid by Yates, the mortgagee, or that McGrew was in any manner indebted to him. The notes and the mortgage, which were executed at one and the same time, and are to be regarded as one contract, disclose upon their face the nature and character of the transaction. The firm of Neill, McGrew & Go. was indebted in a large amount to the Mechanics’ National Bank of Peoria, and also to King-man, Blossom & Co. In order to secure this indebtedness, McGrew, who was a partner in the firm, executed his note, payable to Yates, for $75,000, and at the same time executed a mortgage on his lands to secure the payment of the note. The note declares on its face that it is “to include and secure only the legal and valid indebtedness of Neill, McGrew & Co. to the Mechanics’ National Bank of Peoria, and Kingman, Blossom & Co., of Peoria,—any and all amounts realized herein to be divided and paid to said two banks in proportion to the amounts that said Neill, McGrew & Co. are now lawfully indebted to said banks.” Now, while the note was made payable to Yates, and the mortgage to secure the same given to him, yet the parol evidence, and also this declaration in the body of the note, show clearly that Yates was a mere trustee for the two creditors named in the note, and the. security was taken for their benefit alone, and we are aware of no rule of law that was violated by the transaction assuming this form. The fact that McGrew owed nothing to Yates, and that no consideration moved from Yates to him, does not in the least impair the validity of the notes and mortgage. The consideration upon which the validity of the note and mortgage rests, is and was the indebtedness due from Neill, McGrew & Co. to the Mechanics’ National Bank, and King-man, Blossom & Co. If these parties had a valid, subsisting indebtedness against McGrew, no reason is perceived which would prevent them from securing such indebtedness by mortgage, and whether the mortgage should be taken directly to the parties themselves, or in the name of some one else, is more a matter of form than substance, which can not affect the rights of the parties, or impair the validity of the transaction.

But it is said the mortgage having been executed to secure a preexisting debt, the consideration is not good as against creditors. In Manning v. McClure, 36 Ill. 490, it was held that the indorsee of a promissory note before maturity, in payment of a preexisting debt, was a holder for a valuable consideration. The same rule is declared in Mix v. National Bank of Bloomington, 91 Ill. 20. The same principle which controls in regard to the consideration in case a promissory note is indorsed before maturity for a preexisting debt, will govern where a mortgage is given to secure a preexisting debt. What may be regarded a good consideration in one case, is, by analogy, a valid consideration in the other case. Work v. Brayton, 5 Ind. 396.

It is also contended, that, in equity, partnership creditors are excluded from sharing in individual assets until the individual debts are first- paid, and hence Mclntire’s mortgage, having been given to secure McGrew’s individual indebtedness, is entitled to priority over complainants’ mortgage, which was executed to secure partnership liabilities. There is no doubt in regard to the general rule in equity on this subject. Many years ago it was held by this court in Ladd v. Griswold, 4 Gilm. 25, “that partnership creditors have no claim in the fund arising from the separate estate until the individual debts are satisfied; and, on the other hand, separate creditors can only seek payment out of the surplus of the partnership assets after the satisfaction of partnership liabilities.” The same rule has been declared in numerous cases since the decision in the case cited.

But while there is no dispute in regard to the general rule of law, the question is whether plaintiff in error, Mclntire, can avail of the rule in this case. This is not a case in which a court of equity is called upon to marshal the assets of a firm and an individual member of the firm, and determine the manner in which the assets shall be distributed. The original bill was brought to foreclose' a mortgage given by McGrew to Yates, on certain lands therein described. To this bill Alice Kilduff and the Second National Bank of Peoria filed a cross-bill to foreclose the deed of trust which had been given by McGrew to Lee to secure $20,000. Mclntire, plaintiff in error, also filed a cross-bill to foreclose a mortgage McGrew had given him after the execution and recording of the other mortgages. It will thus be seen that the main object of the suit was to foreclose three distinct mortgages—to enforce three distinct liens—and not to marshal assets. It is true that Mclntire undertakes to raise the question in his answer, and also in his cross-bill; but he is not the proper person, in his own name, to file a bill for that purpose. McGrew, the partner whose property is sought to be taken and misappropriated, is the proper person to invoke the aid of the court. “Upon a dissolution of the partnership, each partner has a lien upon the partnership effects, as well foi; his indemnity as for his proportion of the surplus. But creditors have no lien upon the partnership effects for their debts. Their equity is the equity of the partners, operating to the payment of the partnership debts.” (3 Kent, 65.) The same principle is announced in Ladd v. Griswold, supra, where it is said: “The right, in equity, of the joint creditors to seek payment out of the partnership effects, to the exclusion of the separate creditors of deceased or insolvent partners, results solely from the right of the partners, or their representatives, to have the joint estate thus applied. The rule is for the benefit and protection of the partners themselves. The equity of the creditor is of a dependent and subordinate character, and' is to be worked out and enforced through the medium of the equities of the partner.” If, then, this right is one for the benefit of the partner, it follows that McGrew is the person to call upon a court of equity to prevent the partnership creditors from collecting their debts from* his individual property until his individual creditors have been paid. But how can he enforce this right against mozdgages on his individual property, which he himself has executed ? When he gave the mortgage's he parted with the right to call upon a court of equity for relief. He is concluded by the mortgage he executed to secure partnership debts. When he executed the mortgage he parted with the equitable right "to have his individual property first applied in payment of individual debts.

It is also claimed that the mortgage given to Yates is fraudulent and void, on the ground that it was given to hinder and delay the creditors of McGrew. If the evidence of McGrew was the only testimony in the record on this point, the position of counsel might be tenable; but when the evidence of the other witnesses who were present at the time the mortgage was executed is considered, it is apparent that the mortgage was taken by Yates, and those for whose benefit it was made, in good faith, to secure a valid indebtedness.

It is also claimed that Almira McGrew had a dower right in a portion of the mortgaged premises, and “a resulting trust in the fee thereof, ” which should have been established and protected, and the decree in favor of Yates ordering a sale of said premises is erroneous. Almira McGrew did not execute the Yates mortgage or the deed of trust to Lee, and she was not made a party to the proceedings to foreclose either of said mortgages. Her interest in the premises, whatever it may be, as she was not a party, and no decree passed against her, remains unaffected by the decree. She may at any time she desires, so far as the decree in this case is concerned, institute proceedings to establish her title, if she has any; and after she has established her title, if she has any, Melntire will then have an opportunity to foreclose his mortgage as against such title. This decree, as we understand it, has not disturbed Almira McGrew in any of her rights, nor has it deprived Melntire of any right or interest which he may have claimed through Mrs. McGrew. Under such circumstances the objection to the decree is not well taken.

The mortgage in this case contained a provision that in case of foreclosure two per cent on the amount found due on the mortgage indebtedness should be allowed, and included in the decree, as a solicitor’s fee. The court allowed this amount in the decree of foreclosure, and it is said that the decree in this regard is erroneous. This case can not be distinguished from Clawson v. Munson, 55 Ill. 395, where a similar question arose, and the court held that a judgment for an attorney’s fee, under a mortgage like the one under consideration, was proper.

Some other questions of a minor character have been raised, but it will not be necessary to consume time in their discussion. We have given the record a careful examination, and find no substantial error.

The decree will be affirmed.

Decree affirmed.


author: Mr. Chibe Justice Scott Mr. Justice Dickey:

text:
    John Devlin v. The People of the State of Illinois.

      Filed at Ottawa November 20,1882.

    New triaU'— upon the evidence—in a criminal case. In a criminal prosecution, upon the question of the identity of the accused, which has been determined by the jury, an appellate court will not disturb the verdict except for the most satisfactory reasons.
    2. Instructions—stating mere abstract propositions of law. While the giving of an instruction which states merely abstract propositions of law, may not in all cases be regarded as error, it is not' error to refuse such an instruction.
    3. Same—relating to the testimony of particular witnesses. It is not allowable in an instruction to call the attention of the jury to, and lay particular stress upon, the testimony of certain witnesses concerning facts about which the evidence is contradictory.
    4. Same—as tending to discredit some of the witnesses. Upon the question of the personal identity of persons on trial upon a criminal charge, several witnesses testified. The trial court was asked to instruct the jury that they were “not bound to believe that any witness or witnesses were able to identify the defendants with certainty, because.they may have sworn positively to their identity; and the jury should not so believe if they themselves were satisfied, from the circumstances proved, that there was a reasonable doubt as to whether any witness or witnesses were able to and did identify the defendants as the guilty persons.” It was held, not error to refuse the instruction.
    5. The vice of the instruction was, that, in effect, the jury were told that if they should believe that any one of the witnesses who testified on the subject was unable to identify the prisoners as the guilty parties, they should not believe any of the other witnesses would be able to identify them, even though such other witnesses could and did fix such identity by their testimony.
    Writ of Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    At the March term, A. D. 1882, of the Criminal Court of Cook county, John Devlin and John Van Liew were jointly indicted for an attempt to rob Edward Dougherty of articles of personal property it is alleged he had on his person. On the trial, Devlin was found guilty in manner and form as charged, and his punishment fixed at five years’ imprisonment in the penitentiary. Van Liew, who was tried at the same term, and by the same jury, was found not guilty. The motion made by Devlin for a new trial was overruled, and the court pronounced judgment on the verdict.
    The court was asked to give the following instructions, among others, for defendant:
    “10th. The jury are instructed by the court, that the policy df the law is, that it were better that ninety and nine, or any indefinite number, of guilty.persons should escape, than that one innocent man should be convicted, and that mere probabilities are not sufficient to warrant a conviction; nor is it sufficient to authorize a conviction that a greater weight or preponderance of evidence supports the allegations of the indictment; nor that, upon the doctrine of chances, it is more probable that the defendants are guilty than that they are innocent. Unless the jury are able to say, from all the evidence, that every material allegation of the indictment is proven beyond a reasonable doubt, they must find the defendants not guilty.
    “11th. The court further instructs the jury, that to justify a conviction of the defendants their identity must be proved beyond all reasonable doubt, and the jury are not bound to believe that any witness or witnesses were able to identify the defendants with certainty, because they may have sworn positively to their identity; and the jury should not so believe if they themselves are satisfied, from the circumstances proved, that there is a reasonable doubt as to whether any witness or witnesses were able to and did identify the defendants as the guilty persons. And if the jury have such reasonable doubt, then the jury should give the defendants the benefit of such doubt, and find the defendants not guilty. The jury have no right or discretion to do otherwise. ”
    The refusal of the court to give these instructions, among other causes is assigned for error. The case comes to this court on a writ of error sued out by Devlin.
    Messrs. O’Brien & Shissler, for the plaintiff in error.
    Mr. Luther Laelin Mills, State’s Attorney, and Mr. Geo. C. Ingham, Assistant State’s Attorney, for the People.
   Mr. Chibe Justice Scott

delivered the opinion of the Court:

The errors most confidently relied upon for the reifersal of the judgment against Devlin are, first, the verdict is contrary to the law and the evidence; and second, the court erred in refusing to give instructions asked by defendant. Neither position taken can be maintained. The evidence contained in the record has been examined and considered with care, and without entering upon any analysis of the same, it is sufficient to say it warrants the finding of the jury. What weight or credit should be given to the testimony of the several witnesses, was, of course, for the jury to determine, and no reason is perceived for any dissatisfaction with the conclusion reached. The question of most difficulty in the case was one of the identification of the accused, and that was peculiarly within the province of the jury. An appellate court will not disturb the verdict of a jury on questions of that character, except for the most satisfactory reasons, and it may be said confidently, no such reasons appear in the case being considered.

Excluding the tenth and eleventh instructions of the series asked, it will be seen, on a close examination, that all that is contained in the other refused instructions proper to be given to the jury, was contained in other instructions given, and the court was under no duty to give the same thing a second time. With respect to the tenth instruction, it will be noticed it contains, at most, mere abstract principles of law, more or less accurately stated, and, as this court has often held, it was not error to refuse such an instruction. If given, the tendency in this case would have been to confuse and perplex the minds of the jury, rather than illus-' trate any question submitted for their determination. An instruction exactly like this one seems to have been given in Lyons v. The People, 68 Ill. 271, but it will be noted it was not decided it was proper, or that it would have been error in the court to refuse it. All that was decided is, that a modification of the instruction, as originally asked, was properly made by the court. The propriety of giving such an instruction was not discussed in that case—there was no necessity for any such discussion, for neither the People nor defendants could claim it was error to give the instruction. It is not to be understood that a case might not arise where it would be proper to give an instruction containing some of the same principles contained in this one. All that is now decided is, it was not prejudicial error to refuse the instruction in this case. Had the latter clause of this instruction been disconnected from that which precedes it, it might, with great propriety, have been given in this case, but as framed, the court could properly refuse it, as calculated to mislead, rather than enlighten the jury. .

It will be readily seen, on examination, the eleventh instruction asked by defendant, and refused by the court, is faulty for several reasons. It calls the attention of the jury to, and lays particular stress on, the testimony of certain witnesses, concerning facts about which the evidence is contradictory. This is not allowable. But a more fatal objection is, it does not state a correct principle of law, when it is said the jury should not believe any witness or witnesses were able to identify the accused, if “they themselves are satisfied, from the-circumstances'proved, that there is a reasonable doubt as to whether any witness or witnesses were able to and did identify the defendants as the guilty persons.” It is possible the jury might believe one witness of the number examined was not able to identify the accused, but that others could and did identify them, and yet the instruction states, if they believe “any witness” was not able to.identify the accused, they were “not bound to believe any witness or witnesses were able to identify defendants with certainty.” In this case more than one witness was examined, and testified concerning the identity of the accused, and the instruction does not state the law accurately, as applicable to the facts of the case. The vice of the instruction in this regard is alone sufficient to justify the refusal of the court to give it.

No error affecting prejudicially the merits, of- the defence sought to be made by the accused appearing in the record, the judgment will be affirmed.

Judgment affirmed.

Mr. Justice Dickey:

The instructions refused were, in my judgment, an announcement of correct principles of law, which were applicable to the evidence before the jury. They contain some important thoughts not distinctly expressed in other instructions. The language of the instructions, if not sufficiently perspicuous, might, with propriety, have been modified. On the evidence the identity of the accused was a very close question, and the finding of the jury ought not to be sustained unless they were properly instructed.


author: Mr. Justice Walker

text:
    Portia Gage et al. v. Annie M. Reid et al.

      Filed at Ottawa November 20, 1882.

    1. Partition—parties—persons holding adverse titles. Under the statute the petitioners for the partition of land are required to make all persons known to hold an interest in, or who claim title to, the premises, parties to the proceeding. The jurisdiction of the court is not limited to the line or chain of title under which a part or even the whole of the tenants in common claim. The statute even authorizes the removal of clouds upon the titles involved in the suit for partition.
    2. Same—statement in bill as to adverse titles. But to bring such adverse or conflicting titles before the court, the bill must state, if known, their nature, and pray for a decree in reference to them. If the nature of the title is unknown, that fact should be alleged, and the holder or claimant can be made a defendant, and required to discover the extent and the nature of his claim, upon which the bill may be amended, so as to pray for the desired relief in respect to it.
    3. Same—relief limited to case made by the bill. Where a bill for partition shows that certain persons made parties defendant, have or claim some interest in the premises, and asks to have their claims and interests, if any, ascertained, and makes no other statement or prayer as to their interests, it is error to declare certain tax titles, claimed by them, to be irregular and void, and decree the cancellation of their tax deeds, and perpetually enjoin the assertion of any title under them. A complainant can only have such relief as he shows himself entitled to by his bill and proofs.
    4. Chancery—statement in bill to remove cloud on title. To authorize the court to set aside or cancel tax deeds for land as a cloud on the complainant’s title, the deeds should be set out in the bill, and the objections to their validity alleged, with a prayer for relief against them.

      Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. Augustus N. Gage, for the appellants :
    A court of equity has no jurisdiction, because the bill seeks to determine the legal title to the property, as to which complainants had an adequate remedy in ejectment, and because a court of equity, on a bill for partition, can not determine the right of partition between tenants in common, and determine the adverse legal title to the whole of the property held by one professing no relationship to the tenants in common, and whose title is derived through an entirely separate, independent and distinct source.
    The bill, in this respect, is multifarious. There is no allegation in the bill sufficient to warrant the decree against appellant. Garrick v. Chamberlain, 97 Ill. 620; Gage v. McLaughlin, 101 id. 155; Hyde v. Heath, 75 id. 381.
    Mr. Jakes R. Mann, and Mr. Josiah H. Bissell, for the appellees:
    The primary object of the bill was a partition, and in connection therewith to clear the title of a cloud. Any person having an interest in the premises was á proper party. Rev. Stat. chap. 106, see. 6; Henrichsen v. Hodgen, 67 Ill. 179; Gage v. Lightburn, 93 id. 248. As appellants were not in possession, ejectment would not lie.
    To sustain a tax deed in evidence, a valid judgment and precept must be shown. Gage v. Lightburn, 93 Ill. 248; Hinman v. Pope, 1 Gilm. 131; Atkins v. Hinman, 2 id. 437; Bailey v. Doolittle, 24 Ill. 577; Dukes v. Rowley, 24 id. 210; Holbrook v. Dickinson, 46 id. 285; Blackwell on Tax Titles, 9, and note.
    The tax deed of Gage is invalid,’ for non-compliance with the statute as to the service of notice. Sec. 217, Rev. Stat;
      Campbell v. McCahan, 41 Ill. 45; Foster v. Illinski, 3 Bradw. 345; Gage v. Bailey, 100 Ill. 530.
    The notice served on the occupants was defective. It should have stated in whose name the lot was taxed.
   Mr. Justice Walker

delivered the opinion of the Court;

Appellees, as widow and heirs at law of Joseph J. Reid, deceased, filed this bill against Thomas Brennan, Portia Gage, Asahel Gage, and others, to obtain the correction of a deed from Daniel O’Hara, deceased, to Sherwin and the heirs at law of Reid, and to have a certain lot, that should have been named in the deed, partitioned among the owners. The bill alleges that Reid, deceased, and Sherwin, were the owners of the lot, and to secure indebtedness they owed O’Hara, they conveyed it to him; that the indebtedness having been paid, and Reid being dead, O’Hara attempted to convey the lot to Sherwin and the legal heirs of Reid, but by mistake other and different property was described in the deed, and the title failed to pass to the grantees named in the deed. The bill prays that the error in the deed be corrected, and the title to the lot be vested in the grantees, and the lot be partitioned between them according to their several interests, as should be found by the court.

The bill contains this allegation: “Tour orators further show that James D. Watson, and -Watson, his wife, Portia Gage, of Vineland, New Jersey, Asahel Gage, of Vine-land, New Jersey, and Catharine Sherwin, have or claim some interest in said premises; wherefore your orators make them defendants hereto, that their claims and interests, if any, may be ascertained by this honorable court. ” But no other or further mention is made in the bill, or the prayer, of these defendants, or their title or interest in the premises. Portia and Asahel Gage demurred to the bill, but the demurrer was overruled. They answered, setting up each then* several tax deeds, claiming title in fee to the lot in controversy, and that they had expended large sums in paying taxes on the lot. On a .hearing the court granted the relief sought in the prayer of the bill. The decree went further, and found the tax deeds set up by Portia and Asahel severally in their answers, were void, and declared them illegal, irregular and void, and declared them canceled and set aside, and they were perpetually enjoined from asserting any right, title or interest under them. From this decree Asahel and Portia Gage appeal, and assign errors.

It is insisted that in a bill for partition, under the statute, no title can be examined or brought into the case but that in the line in which the tenants in common claim,—that separate titles derived from other sources, and claimed in other chains of title, can not be brought before the court and investigated in such a proceeding. The 5th section of the Partition act requires the petition to set forth the interests of all persons interested in the premises, so far as they are known, including tenants for years, for life, by curtesy, dower, and all persons entitled to the reversion, remainder or inheritance, and of every person who, upon any contingency, may be or become entitled to any beneficial interest in the premises, so far as known. The 6th section provides, that every person having any interest, whether in possession or not, and who is not a petitioner, shall be made a defendant. The language of these sections is very comprehensive, and its generally accepted import would include all known titles, whatever their source or character.

Again, the 39th section is very broad, and' confers more comprehensive jurisdiction than the 5th and 6th sections. It provides, that “in all suits for the partition of real estate, whether by bill in. chancery or by petition, under this act, the court may investigate and determine all questions of conflicting or controverted titles, and remove clouds upon the titles to any of the premises sought to be partitioned. ” When we consider that this provision was adopted as an amendment, it is apparent that it was intended to enlarge the scope of the 5tli and 6th sections. These sections fully covered and conferred jurisdiction to find the ownership and interest of the parties derived from the same source, and in the same chain of titles. The 39th section must therefore have been intended to enlarge their operation, so as to embrace all known claims and titles to the premises sought to be partitioned, without regard to their source.

The statute in terms embraces all conflicting titles, and every kind of adverse title conflicts with all other titles. It also embraces controverted titles,—and this includes all disputed titles, of every nature. But as though this was not sufficiently specific in its comprehensive provisions, it authorizes the removal of clouds upon the titles involved in the partition suit. We are unable, from the language of the act, to limit the jurisdiction of the court to the line or chain of title under which a part or even the whole of the tenants in common claim, but must hold that petitioners must make all persons known to hold an interest in, or who claim title to, the premises, parties to the proceeding. The statute, we think, will bear no other construction.

But to bring such title before the court, the bill must state, if known, the nature of the adverse title, and. pray for a decree in reference to it. If the nature of the title is unknown to complainants, that fact may be alleged, and the-holder or claimant can be made a defendant, and required to discover the extent and the nature of his claim, and on the discovery the bill can be amended so as to pray for the. desired relief. It would be anomalous to find titles invalid, or enjoin their assertion, without any pleadings or allegations upon which to base the relief. It would be an innovation on long, well established and familiar practice. It has been held, in cases almost without number, that a complainant can only have such relief as he entitles himself to by the allegations of his hill, supported by proof. The bill in this case shows no kind of title in appellants, nor is there any charge that it is defective, nor is there any prayer that it be canceled, and appellants be enjoined from asserting their titles. The titles under which they claimed were tax deeds, and were on record, and complainants could, by turning to the public records, without any considerable inconvenience, have learned their source and nature, or, on their titles being disclosed in their answer, they should have amended and set them out in their bill, and alleged objections to their validity, and prayed for relief against them. This they failed to do, and for that reason the bill was defective, and appellants’ demurrer should have been sustained, and the court erred in overruling it, and it was error to grant relief not asked by the bill.

The decree of the court below is reversed, and the cause . remanded.

Decree reversed.


author: Mr. Justice Dickey

text:
    F. S. Murphy v. Matthias Loos.

      Filed at Ottawa November 20,1882.

    ¿Judicial saue—insufficient service of original process—judgment for more than is due—subsequent bona fide purchasers—relief in favor of the debtor. A sued B upon a note upon which payments had been made, and B, when served with process, was in such a condition of mind from intoxication as not to comprehend the nature and meaning of the service. A took judgment for the whole amount of the note, allowing no credit for the payment, sued out an execution, and had it levied on a lot of B, and became the purchaser, and received a sheriff’s deed, after which he sold the lot to C and D, who paid him a part of the price, and gave him their notes, secured by mortgage, for the balance. C and D were bona fide purchasers, without notice of the equities of B. B knew nothing of the judgment until after the sale to C and D. B filed Ms Mil to have the sale set aside, or if 0 and D were bona fide purchasers, to reach the purchase money paid and to be paid: Held, that the proper decree was to confirm the title in 0 and D, and require A to surrender to B the notes and mortgage for the unpaid purchase money, and require C and D to pay the same to B, and to require A to pay B the purchase money he had received, less the amount then due of principal and interest unpaid upon the note of B, and interest upon that balance from the time of its receipt.
    Appeal from the Appellate Court for the Second District; ■—heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Willoughby & Dougherty, for the appellant:
    The complainant not being so drunk at the time of service on him as to be non compos mentis, can not take advantage of his own wrong in getting drunk voluntarily. Bates v. Ball et al. 72 Ill. 119.
    Courts of equity will not relieve against gross negligence in asserting rights. Walker v. Shreave et al. 87 Ill. 474; Hewitt v. Lucas, 42 id. 296; Walker v. Kretzinger, 48 id. 502; Winchester v. Grosvenor, 48 id. 515; Higgins v. Bullock, 73 id. 205.
    The return of the officer as to the service of the summons is conclusive. Freeman on Judgments,' sec. 132; 30 Cal. 439; Smith v. Smith, 22 Iowa, 516; Cairo and St. Louis R. R. Co. v. Holbrook, 92 Ill. 297.
    Nor will a court of equity undertake to question the eor- ' reetness of a judgment at law for irregularity. Crafts v. Hall et al. 3 Scam. 131; 3 Johns. Ch. 275.
    Courts will not relieve after an unreasonable delay. O’Halloran v. Fitzgerald, 71 Ill. 53; Lloyd v. Karnes, 45 id. 62.
    Messrs. Lanpherb & Brown, for the appellee:
    Courts of equity, in a proper case, will set'aside judgments obtained by fraud, or through mistake or accident, or for want of jurisdiction of the person or of the subject matter.
      Earl of Oxford's case, 13 Jac. 1, 1 Ch. 1; Davis v. Fileston, 6 How. 114; Nelson v. Rockwell, 14 Ill. 375; Truit v. Mainright, 4 Gilm. 418; Heinrich v. DeZoya, 2 id. 385; Propst v. Meadows, 13 Ill. 157; Vennum v. Davis, 35 id. 568; M. Ins. Co. v. Hodgson, 7 Cranch, 333; Grimes v. Williams, 16 Ill. 47; Weaver v. Poyer, 70 id. 567.
    And this they will do, even though the record shows jurisdiction of both the person and the subject matter. Nelson v. Rockwell, 14 Ill. 375; Owens v. Ransted, 22 id. 161; Vennum v. Davis, 35 id. 568; Thompson v. Whitman, 18 Wall. 457; Miller v. Handy, 40 Ill. 448; Ward v. Dewey, 16 N. Y. 422; D'Arcy v. Ketchum, 11 How. 165; Webster v. Reed, 11 id. 437; Harris v. Hardman, 14 id. 334; Borden v. Fitch, 15 Johns. 141; Starbuck v. Murry, 5 Wend. 156; Christmass v. Russell, 5 Wall. 290; Moulin v. Inswance Co, 4 Zabr. 222; Price v. Ward, 1 Dutch. 225; Mackey v. Gordon, 34 N. J. 286; People v. Dawell, 25 Mich. 247; Lyon y. Lyon, 2 Gray, 367; Chase v. Chase, 6 id. 157; Smith v. Smith, 13 id. 209; Shannon v. Shannon, 4 Allen, 134; Leith v. Leith, 39 N. H. 20; Ditson v. Ditson, 4 R. I. 87; Thompson v. State, 28 Ala. 12; Parish v. Parish, 82 Ga. 653; Hoffman v. Hoffman, 46 N. Y. 30; Pearce v. Olney, 20 Conn. 541.
    Flynn'and Merrick had sufficient notice to put them upon inquiry. Henneberry v. Morse, 56 Ill. 394; Harper v. Ely, 56 id. 179; Bank v. Godfrey, 23 id. 531; Franze v. Orton, 75 id. 100.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a suit in chancery, brought in the circuit court of Knox county, in 1879, by Matthias Loos, seeking to set aside a sheriff’s deed made in May, 1877, conveying to Murphy a lot in Galesburg, sold on execution January 31, 1876, as the property of complainant,“ for the sum of $205.28, and also seeking to set aside the judgment under which the sale, was made; seeking also to set aside a deed made by Murphy February. 13, 1879, conveying the same property to Flynn and Merrick, charging that Flynn and Merrick were not bona fide purchasers, but asking that if it should turn out that they bought bona fide, complainant should have the unpaid part of the purchase money paid to him, and that Murphy should'account to him. for his losses by reason of the proceedings under the judgment. On hearing, the court (being advised by the verdict of a jury upon issues formed for that purpose) found that at the time of the service of the summons, in the suit in which the judgment in question was rendered, the condition of the mind of Loos was not such “as to enable him to understand the nature and meaning of the service; ” that the service of that process was procured by the fraud of F. S. Murphy; • that the judgment itself was procured by Murphy through fraud, and that the note on which the judgment was rendered had, prior to that time, been put in judgment by Murphy. The court also found that Flynn and Merrick were bona fide purchasers. The decree confirmed the title to the lot in Flynn and Merrick, and required Murphy to surrender to the clerk of the court two notes of Flynn and Merrick, given to him as part of the purchase price of the lot, and secured by mortgage, and that Flynn and Merrick should pay the same to complainant, and by the decree Murphy was required to pay to complainant $285.75, and the costs of suit. This decree was affirmed in the Appellate Court, and Murphy appeals to this court. Afterwards Loos brought a writ of error to the. circuit court, making Murphy, and also Flynn and Merrick, defendants in error. These two cases are now considered together.

Flynn and Merrick are content, and insist that the decree as to them shall be affirmed. Murphy insists that the decree is all wrong, and should be reversed. Loos insists that the findings against Murphy are right, and that Flynn and Merrick are not bona fide purchasers, and claims that the title to the lot should be unconditionally restored to him' otherwise that the present decree shall be affirmed.

We have carefully examined the proofs, and find the testimony as to the condition of mind of complainant at the time of the service is very contradictory, and after a full review of the same we think the finding of the court in that regard is sufficiently sustained by the proofs, and ought not to be disturbed.

As to the findings that the service of process and the entry of the judgment were procured through fraud on the part of Murphy, we do not find any proof tending to establish one single fraudulent act on the part of Murphy. The finding that the note was already merged in a judgment, as against Matthias Loos, is conceded to be true. It is shown that Loos was drunk when he was served, and so drunk as not to comprehend what was the nature and effect of the service, and wffiile it does not appear that Murphy acted with any ■wrongful or fraudulent intent in sending the constable to make the service, still it does appear that he .knew that Loos had been drinking freely, and he acted improvidently and negligently, under the circumstances, in not inquiring into the real condition of Loos, and in founding his judgment and sale, and subsequent proceedings, upon the service, without further inquiry. It is apparent that Loos lived in actual ignorance of the judgment and of all subsequent proceedings, until after the sale to Flynn and Merrick.

Under all the circumstances, which are very peculiar, the interests of Loos ought to be protected, so far as they can be without doing injustice to others. By the accident of the actual ignorance of Loos, and partly through the improvidence of Murphy, Loos has lost his title to his lot. Murphy ought not in good conscience seek to profit by the transaction, but he should be made whole, for the misfortune of the accident should be borne by Loos. The note on which the judgment was rendered had been partially paid at the time of the judgment, and Murphy took judgment for more than was due. There was then unpaid upon the debt represented by the note only about $100. Murphy, in our judgment, ought to be required to surrender the whole of the purchase money received from Flynn, except so much as would pay to him the balance due on the debt represented by that note; and this, at the time he received $250 from Flynn and Merrick, was about the sum of $125. He had expended some money in costs, but by reason of the heedlessness and irregularity of his proceedings he ought to suffer that loss.

The decree of the circuit court is, in our judgment, right in all respects except in the amount of money Murphy is required to pay to Loos, and except as to the costs. Murphy ought to have been required to turn over, for the benefit of Loos, the unpaid notes and mortgage of Flynn and Merrick, and to pay to Loos the amount of money actually received from Flynn and Merrick, less the amount then due (interest and principal) and unpaid upon the debt originally represented by the note on which the judgment was founded, and interest upon that balance from the time of its receipt by Murphy. The writ of error by Loos is therefore ordered to be dismissed at his costs, and the judgment of the Appellate Court affirming the decree of the circuit court is reversed upon the appeal of Murphy, and the cause remanded to the Appellate Court, that the decree be reversed, and the cause remanded to the circuit court, with direction to enter a decree as above indicated..

Decree reversed.