text:
    Galena and Chicago Union Railroad Company, Appellants, v. Abner Loomis, Appellee.
    APPEAL FROM COOK.
    The legislature has the power, by the enactment of general laws from time to time, as the public exigencies may require, to regulate corporations in the exercise of their franchises, so as to provide for the public safety.
    A general law which requires that a bell or whistle shall be attached to each locomotive engine upon a railroad, which shall be rung or whistlqd before crossing any other road, is applicable to and binding on railroad corporations created before the passage of such law; and an omission to give the required signal constitutes a prima facie case of negligence.
    Railroad corporations are not liable for any and all damages a party may sustain, when such corporations have omitted to give a required signal, nor is the onus thrown uPon the corporation, until some proof has been given, tending to show that the injury complained of resulted from the want of a signal.
    In the exercise of privileges, a coporation is as much subject to the general police laws of the State, as is any individual pursuing his lawful business.
    This cause was heard before H. T. Dickey, Judge, and a jury, at December term, 1851, of the Cook County Court. Verdict and judgment for plaintiff in the court below, for $200. The railroad company prayed for and obtained the appeal. The facts of the case will be found in the opinion of the court.
    J. H. Collins, for appellants,
    Cited 11 East, 60; 21 Wend. 619; 5 Hill, 292; 6 Id. 593; 1 Denio, 99; 5 Id. 266; 4 Comstock, 358.
    Earned & Woodbridge, for appellee,
    Cited 2 Cushing, 539; General Railroad Law of 1849, sects. 38, 39, 45; 7 Cowen, 585; Id. 349; 8 Mass. Rep. 445; 12 Pick. 184.
   Trumbull, J.

This was an action of trespass on the case, brought to recover damages alleged to have been sustained by the plaintiff, in consequence of the careless and improper management by the defendants of their railroad cars and locomotive engine. Plea, not guilty.

It appears, from the evidence, that in December, 1850, about six o’clock in the evening, the plaintiff was travelling in a wagon, drawn by two horses, near the railroad crossing on the turnpike leading west from Chicago; that the locomotive engine and cars of the defendants were at the same time going towards Chicago, and near the place where the roads cross; that the two roads run nearly parallel for a number of rods before they cross; that the defendants failed to ring a bell or sound a whistle as the train of cars approached the crossing; that the plaintiff drove across the railroad track immediately before and within a few feet of the locomotive; that his horses became frightened at the engine and cars, ran into the railroad ditch, upset the wagon, ran off, and were lost; and that the plaintiff himself was considerably bruised.

The jury returned a verdict of two hundred dollars against the defendants, and the plaintiff had judgment thereon.

At the request of the plaintiff, the court, among other instructions to the jury, gave the following:

“ If the jury believe, from the evidence, that the defendants omitted to ring a bell or sound a whistle, in the manner required by law, such omission constitutes a primá facie case of negligence, and the defendants are liable to the plaintiff for the loss and damage proved to have been sustained by him, unless the defendants prove that such loss and damage were not occasioned by such omission.”

The defendants object to the first branch of this instruction, that there is no law requiring them to have a bell or whistle attached to their locomotive engines. It is admitted that their charter, as originally passed, contains no such requirement; but, by the thirty-eighth section of a general law subsequently enacted, entitled “An act to provide for a general system of railroad in-corporations,” approved March 5, 1849, it is declared, that “ a bell of at least thirty pounds weight, or a steam-whistle, shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one half thereof to go to the informer and the other half to the State, and shall be liable for all damages, which shall be sustained by any person by reason of such neglectand the forty-fifth section of the same act declares, that “ all existing railroad corporations within this State shall respectively have and possess all the powers and privileges, and be subject to the duties and liabilities and provisions contained in this act, so far as they shall be applicable to their present conditions, and not inconsistent with their several charters.”

That the provisions of the thirty-eighth section are applicable to the- present condition of the road of the defendants, does not admit of question ; and that they are not inconsistent with any provision of their charter, is equally certain. They are, therefore, bound by these requirements of the law, unless, as has been suggested, the legislature had no authority to impose them.

That the legislature has the power, by the enactment of general laws, from time to time, as the public exigencies may require, to regulate corporations in the exercise of their franchises, so as to provide for the public safety, admits of no doubt. The provision in question is a mere police regulation, enacted for the protection and safety of the citizens of the country, and in no manner interferes with or impairs the powers conferred on the defendants in their act of incorporation. There is nothing in the character of this or any other charter so sacred as to shield the corporators from punishment for criminal offences, committed in the exercise of their corporate powers. Nor is the corporation itself above the general laws enacted for the safety of the community. The act of corporation confers on the company certain privileges ; but, in the exercise of those privileges, the corporation is just as much subject to the general police laws of the State as is an individual pursuing his lawful business. Stuyvesant v. The Mayor &c. of New York, 7 Cow. 603; Baker v. Boston, 12 Pick. 184; Angell & Ames on Corporations, 427, 428.

There can be no question that the general law, requiring a bell or whistle to be attached to each locomotive engine, which shall be rang or whistled before crossing any other road, is applicable to and binding on the defendants in this case; and that an omission to give the required signal, constitutes a primá facie case of negligence.

So far, the instruction was clearly right; but the other branch of it was, we think, erroneous. It implies that railroad corporations are liable, primá facie, for any and all damages a party may sustain when they have omitted to give the signal required by law, whether such damages were sustained by reason of such neglect or from any other cause. The party himself may have been guilty of negligence; or the circumstances may be such as to show no probable connection between the injury sustained and the omission to give the requisite signal; and, in such cases, it would be requiring too much to compel the company to prove affirmatively that the damage was not occasioned by such omission. Until some proof is given, tending to show that the injury resulted from the failure to ring a bell or blow a whistle, the burden of proving a negative, and that it did not arise from such failure, should not be thrown on the company.

Judgment reversed, and cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    John Morrison et al., Appellants, v. Moses P. Silverburgh, Appellee.
    APPEAL PROM JO DAVIESS.
    A clerk is not required to state on the face of process, that it is issued under the seal of the court, if the seal is actually affixed.
    Applications to discharge on common hail, are addressed to the discretion of the Circuit Courts, and their decisions thereon cannot be assigned for error.

      The Supreme Court will not intend that there was a condition to an instrument, which the plaintiff was bound to set out in his declaration and assign breaches thereon.
    The opinion of the Chief Justice embodies a history of the questions raised upon the record in this case.
    This cause was heard before Sheldon, Judge, and a jury, at March term, 1852, of the Jo Daviess Circuit Court, and resulted in a verdict and judgment for Silverburgh. The Morrisons took this appeal.
    T. L. Dicicey and E. S. Leland, for appellants.
    Higgins 5c Strother, for appellee.
   Treat, C. J.

Silverburgh brought an action of debt against J. 5c H. J. Morrison. The defendants were arrested on a capias, and gave bail to the sheriff. The conclusion of the writ was as follows:

“ Witness, William H. Bradley, clerk of the Circuit Court of Jo Daviess county, Illinois, at Galena, this 15th of January, A. D. 1852.

“.Attest, William H. Bradley, Clerk.” [seal.]

The first count of the declaration was upon a common money bond. The second count was on a penal bond, conditioned for the payment of a judgment in the event it should be affirmed in this court. A motion was made by the defendants that they be discharged on common bail, and that the capias stand as a summons, which the court overruled. On the 16th of March, a judgment by default was entered against the defendants, and this order made:—“But as those damages are not certainly known, it is ordered by the court, that a writ of inquiry issue, returnable at the present term of this court.” An order entered on the 19th of March, states, that “ the writ of inquiry heretofore ordered in this cause was this day returned into court by the sheriff, executed, and thereupon came a jury of good and lawful men, to wit;” and it then proceeds to state an assessment by the jury of the plaintiff’s debt at $200, and his damages at $183.50, and concludes with a final judgment thereon.

It is contended that the defendants were not before the court, because the capias was not under the seal of the court. The writ was issued by the clerk, and the seal of the court was attached. That was a substantial compliance with the requirement of the statute. A clerk is not required to state on the face of the process that it is issued under the seal of the court. It is enough that he actually affixes the seal to the writ. In such case his act is verified and the object of the statute is answered.

The refusal of the court to discharge the defendants on common bail is assigned for error. Applications of this character are addressed to the discretion of the circuit courts, and their decisions thereon cannot be assigned for error. Bancroft v. Eastman, 2 Gilm. 259.

It is insisted that the declaration shows no cause of action and is, therefore, insufficient to6 sustain the judgment. The first count is unquestionably good. It is on a bond for the payment of money without any condition. This court cannot intend that there was in fact any condition to the instrument which the plaintiff was bound to set out in the declaration and assign breaches thereon. There is no occasion to inquire into the sufficiency of the second count.

Again, it is insisted that it was error to assess the plaintiff’s damages in open court, without first setting aside the assessment returned by the sheriff. We do not understand, from the record, that any assessment of damages had been previously made. On the other hand, we understand the first entry as awarding a writ of inquiry to be executed during the term, and the recital in the subsequent entry as showing only that the sheriff returned a jury for the purpose of having the damages assessed in open court. It does not appear, from the record, that any writ of inquiry was ever issued, or that any proceedings were had before the sheriff out of court in the way of an assessment of damages.

Many other errors are assigned, but they are not of sufficient importance to require the special notice of the court.

The judgment must be affirmed. Judgment affirmed.


author: Catón, J.

text:
    The People of the State of Illinois, Plaintiffs in Error, v. Philip Thurber, Defendant in Error.
    ERROR TO COOK.
    Chapter 64, of the Revised Statutes, entitled License, does not violate that provision of the Constitution, which requires that all taxation shall be hy valuation, and uniform.
    The constitutionality of the law does not depend upon the fact, that license is not required to be issued in all cases; the law itself, when its terms are complied with, becomes a license. The burden imposed by the law need not he uniform.
    This law does not violate that provision of the Constitution of the United States, regulating commerce, inasmuch as the law has no reference to commerce in the sense in which it is used in the Federal Constitution.
    It is no objection to this law, that it is made to operate directly upon the agents themselves.
    This law was not repealed, by abolishing the office of cleric of the County Commissioners’ Court; for although there is no express provision made, that the cleric of the County Court should succeed that officer and perform the same duties; yet hy implication and a fair construction of all the statutes upon the subject, there can be no doubt hut that it was the will and intention of the legislature that the one cleric should succeed the other, and perform all the duties required by law of the cleric of the County Commissioners’ Court under the old organization.
    This is an action of debt against Thurber for violating the 22d and 23d sections of chapter 64 of the Revised Statutes, entitled License, by his acting as the agent of a foreign insurance company without complying with the terms and conditions of said sections. Thurber demurred to the declaration of the plaintiffs, which demurrer was sustained by the Circuit Court, H. T. Dickey, Judge, presiding, at May term, 1851, and judgment thereon rendered for the defendant. The people bring the case to this' court, and assign for error the sustaining of the demurrer to the declaration by the court below.
    The opinion gives a full history of the questions involved in this case.
    E. Peck, for the plaintiffs in error.
    Wilson & Frink, for defendant in error.
   Catón, J.

Under the demurrer which was filed to this declaration, two objections have been urged to the maintenance of this prosecution: 1st, that the act under which it was instituted violates not only the Constitution of this State, but also that of the United States; and 2d, that the law creating the County Court, passed to carry out the new Constitution, having abolished the office of clerk of the County Commissioners’ Court, operates as a repeal of the law itself, by abolishing the instrument provided in the law for its own execution.

It is objected that the law in question violates that provision of the State Constitution which was in force at the time the law was enacted, which provides in substance that all taxation shall be by valuation of the property to be taxed, and shall be uniform. To sustain this objection, it must first be shown that the'"' three per cent, on the amount of the premiums charged by the agent, and which is required to be paid over by him to the clerk, and by him to be paid into the State treasury, is a tax within the meaning of that Constitution. The 80th section of the 8th article of the old Constitution provides, “ that the mode of levy.ing a tax shall be by valuation, so that every person shall pay a tax in proportion to the valuation of the property which he or she may have in his or her possession.” It has never been doubted that the word “ tax,” as here used, means the tax which is imposed upon a person on account of the property which he has, and has never been held to deprive the legislature of the power to inhibit persons from exercising certain callings, franchises, or privileges, without a license or authority for so doing, which they may withhold entirely, or until a pecuniary compensation shall be paid into either the State, or some town, city, or county treasury. This power has been exercised by the legislature ever since the adoption of that Constitution, and these laws have been recognized and enforced by the courts during all that time, and we do not feel called upon to enter into an elaborate argument to vindicate such enactments. Indeed their constitutionality was distinctly admitted upon the argument of this case, while reasons were urged with a view to show that this act did not come within this recognized legislative power.

In the first place, we do not agree with counsel that this three per cent, is not paid for a license to issue policies and charge premiums as agents of foreign corporations. It is true that no license is required to be issued by the clerk, nor is he authorized to withhold the right to act as such agent from any one who complies with the provisions of the law. But that makes no difference. The law itself is the license; and it would certainly be no more constitutional if it. had provided that the clerk should issue a license to such persons as complied with its requirements. Suppose the law had provided that every person who should pay á certain amount into the treasury therefor should be authorized to keep a grocery or exhibit a show, that law would be equally obnoxious to the charge that no license was granted.

It was urged, also, that the authority to issue these licenses', the power to do which was not denied, was the exercise of a right of police, and was rendered necessary and proper,'because the exercise of the calling may impose a special burden upon the State or community; but that when a burden is imposed upon the persons who are authorized to exercise the particular calling, it must be uniform, that is, the same amount must be imposed upon each. We cannot appreciate the necessity for adopting this standard of uniformity. As a question of power, we know1 of no authority for requiring it; and as a question of propriety or of justice, the reason of the thing would seem to be the other way. A grocery, which sells a thousand glasses of liquor in a day, may well be 'supposed to create more disturbance in society than one which sells but ten, and hence imposes a greater burden upon the State in the preservation of good order; and a circus, with a large company, and which collects a large concourse of people, may in like manner be well supposed to impose á more onerous burden upon society, in the preservation of the laws, than one of less attractions ; and we can perceive no impropriety in compelling each to contribute in proportion to the amount of business done or money received. Such a law would be eminently uniform and equal, not only as to the amount of benefits received in the exercise of the license, but also as to the amount of burdens imposed upon the State. So in the case before us, the State is supposed to proceed to a greater or less extent, either directly or through its municipal corporations or by private efforts of its citizens, for the extinguishment of fires, and these provisions in large cities are usually very expensive, and, as a general thing, the greater the amount of premiums charged by the underwriter, the greater will be the benefit which he receives from these provisions to extinguish fires; and it would be difficult to demonstrate the justice of imposing the same burden upon the agent who charges premiums but to the amount of one hundred dollars, as are imposed upon him who charges ten thousand dollars. In our apprehension, there is and can be no force in the objection that the burden imposed by this law is a per centum upon the amount of premiums charged by each agent, instead of a specific and uniform sum upon each. This is not a tax upon property, but is a burden imposed upon the agent for the right of exercising a franchise or privilege, and which the legislature would have the right to withhold or inhibit altogether, and the amount of premiums charged is merely used as a mode of computing the amount to be paid for the exercise of the privilege. The legislature might have adopted, as a mode of computing the amount, the value of the property insured, and in that event it could hardly be said to be a tax upon that property; or the mode of computation might have been the number of policies issued or risks taken, without regard to the premiums charged, and then what would the tax have been upon ? It will be observed that the law in question only applies to agents of foreign insurance companies; and it would be strange indeed if the legislature had not the power to prescribe the terms upon which foreign corporations should be permitted to come into this State and carry on their business, or even to prohibit them altogether. If not, then the power of our legislature to withhold charters of incorporation is but a shadow. Prudent legislation on their part will result in no substantial protection to the people. If foreign, and perhaps irresponsible corporations, may force themselves upon us in defiance of our laws, State sovereignty is but a name. If foreign insurance companies may establish their agencies all over the State, in spite of her sovereign power, then foreign banks may do the same; and where will this new doctrine end, short of an utter prostration of all power in the State to protect her own citizens ? It was seriously urged, that the Constitution of the United States has been violated by this attempt of the legislature to prescribe the terms upon which these agencies of foreign insurance companies might be established here, because it is a regulation of commerce, which is exclusive in Congress. If issuing policies of insurance is a commercial transaction within the provision referred to, of the Federal Constitution, then Congress alone must regulate their issue, and there is no power in the States to limit the right. If this be commerce, in the sense referred to, then surely receiving deposits, drawing bills of exchange, issuing bank-notes, and indeed all other banking business, is none the less so, and all foreign banks may cover the State with their agencies, in defiance of the domestic authorities. Such is not the law in relation to banks or insurance companies. It is as competent for the legislature to regulate the one as the other, and the interests of the people may require that they should be protected from imposition by foreign or even domestic institutions of the one character as much as the other. The whole subject is unquestionably within the control of the legislature, and they are responsible for its judicious exercise. Nor is it any objection that the law is made to operate directly upon the agents themselves. In this" way alone could the law be made effectual. The corporations themselves are untangible, or, at any rate, out of our jurisdiction and beyond our reach. The agent is the active instrument in the accomplishment of the prohibited act, and if he does not choose to accept the agency upon the terms upon which the law has authorized him to do so, it is his duty, under the law, to refuse to be made the instrument of its violation. We perceive no objection to the law itself. The last, however, is a much more difficult question to dispose of satisfactorily, and if the fate of this law alone depended upon its decision, we might hesitate long before holding it to be untenable. The law itself provides, that the notice of the acceptanee of the agency shall be filed with, and the three per cent, on the amount of premiums charged shall be paid to, the clerk of the County Commissioners’ Court. At that time, there was in each county in the State a court called the County Commissioners’ Court, with a clerk and seal. The jurisdiction of this court was principally confined to the transaction of county business, but the clerk was authorized to perform a great variety of ministerial acts, independently of, and frequently in no way connected with, the jurisdiction of the court. To these more particular reference will be made hereafter. Not only was the County Commissioners’ Court established, in pursuance of power expressly conferred upon the legislature by the old Constitution, but also in like manner was a probate court organized, upon which probate jurisdiction was conferred.

The courts were not in express terms abolished by the new Constitution; but by the 16th section of the 5th article, provision is made for the establishment of a county court in each county, which is made by the 18th section, to supersede the old Probate Court, which confers upon the County Court probate jurisdiction, and which also authorizes the legislature to confer upon it further limited jurisdiction, both in civil and criminal matters ; and by the 19th section, the County Court is made to supersede the old County Commissioners’ Court, by conferring upon it, the jurisdiction over county business ; and this section also provides for the election of a clerk of the County Court, whose compensation shall be fees.

For the purpose of carrying out these provisions of the Constitution, on the 12th of February, 1849, the legislature passed a law for the organization of the county courts, which are declared to be courts of record, with seals; and provides for the election of judges and clerks of those courts. By the 13th section of the act, the probate jurisdiction is conferred upon the County Court in the following terms: “ The County Court shall be, and is hereby vested with all the powers and jurisdiction of the Probate Court, as now established by law;” and by the loth section, the County Court is made to succeed the County Commissioners’ Court, as follows: “ The said judge with two justices of the peace, designated and provided for, shall, in all cases whatever, sit as a county court; have, exercise, and possess all the power, jurisdiction, and authority, heretofore conferred by law on the County Commissioners’ Court of this State; and shall sit for the transaction of county business, on the first Monday of December,” &c. Here we find abundant provision made for the transfer of the entire jurisdiction of both of the old courts to that of the new; and that, of itself, necessarily carries with it authority, for the clerk of the new court to perform all the functions of the clerk of the County Commissioners’ Court, so far as those functions related to the jurisdiction of that Court; but as before stated, there was a great variety of duties imposed upon the clerk of the County Commissioners’ Court, which had no connection whatever with the jurisdiction or powers of the court of which he was clerk, and which might as well have been imposed upon any other officer or person; and there is no express provision anywhere to be found in the law, transferring these duties from the clerk of the County Commissioners’ Court to the clerk of the County Court; and it is this oversight of the legislature, or this omission of the law, which creates all of the embarrassment in the present case. From the nature of these duties, no one can doubt for a moment that it was the intention of the legislature that they should continue to be discharged by some one, for upon the discharge of some of them, the very continuance of the State government depends. In this connection it may be proper to refer to some of these duties, which the clerk of the County Commissioners’ Court was required to perform ex officio. By the 10th section of the 37th chapter Rev. ? St. he was required to issue notices of all elections, both general and special. By the 24th section of the same chapter, the poll-books are required to be returned to the same clerk; and by the 25th section, he, together with two justices of the peace, is required to canvass the votes, upon which it is made the duty of the clerk to issue certificates of election to members of the general assembly and county officers, who are found to be elected. By the 26th section, it is provided, that when two or more counties are embraced in one representative or senatorial district, the clerks of the county commissioners’ courts of the several counties, are required to meet at the county seat of the oldest county and there canvass the votes of the district. The 28th section requires the clerk to proceed, in case of a tie vote, to determine by lot who shall be declared to be elected. The 29th section requires the clerk of the County Commissioners’ Court to make abstracts of the votes given for State officers, and transmit them to the office of the Secretary

of State. Other duties were also required, by the election laws, to be performed by the clerk; but this is enough for my present purpose. These duties, it will be perceived, are entirely distinct from, and independent of, the jurisdiction or duties of the courts of which they were clerks, and were strictly ex officio duties. In the new election law, passed by the first general assembly under the new Constitution, and on the same day on which the county-court law passed, no provision whatever is made for the performance of any of these duties, except those prescribed in the 24th section above referred to, which section, with several others of the old law, incompatible with the new one, was expressly repealed; and the repealing clause of the new act provides—“And such sections of said acts as are not herein repealed, shall remaiñ in full force and effect.” Among the provisions of the old law, which was thus reenacted or reaffirmed by the new law, were those which required the clerks of the county commissioners’ courts to issue notices of elections; and those which required the clerks of the county commissioners’ courts of the several counties composing an election district, to meet together, and canvass the votes of the district; and the provision which required the clerks of the county com- „ missioners’ courts to determine the election by lot, in case of a tie vote ; and yet, the legislature knew that thereafter there would be no clerks of county commissioners’ courts in existence, to perform these duties. That it was the will of the legislature, that they should be performed by somebody, is certain, and it is to be regretted that they did not designate more clearly than they have done, by whom these duties should be performed. As the case now stands, the responsibility is thrown upon the court, either of saying, that for the want of sufficient legislation on this subject, no legal election could be held under the new Constitution and the new law, or else of determining, from such lights as we have, to whom these important duties have been transferred; and that too, in the absence of any express enactment making the transfer. Although these were the most vitally important, yet, they were by no means all of "the ex officio duties, which the clerks of the county commissioners’ courts were required to perform; among them may be enumerated the duty of issuing marriage licenses, licenses to showmen, groceries, &c., certificates for wolf-scalps, receiving and filing bonds of justices of the peace, and issuing certificates of their official character ; and the last which I will mention, and very important, receiving redemption-money from sales for taxes. In no subsequent law is there one word said, expressly declaring that all or any of these or any other like duties, shall be transferred from the clerk of the County Commissioners’ Court, to any other specified officer; and yet, we should be slow to believe that it was the intention of the legislature to annul all these laws, by omitting to provide for their execution. We are of opinion that such was not the intention of the legislature, and although there is no express provision of law, specially transferring these duties from the clerk of the County Commissioners’ Court to any other officer, we think there is sufficient indication of the legislative will to show to whom they designed that they should be transferred. We have no doubt that the legislature designed, intended, and understood that the clerk of the County Court be the successor of the clerk of the County Commissioners’ Court, and that to him the old records should be transferred, and that he succeeds to all these various ex officio duties, to which reference has been made. This legislative intention and understanding are clearly manifested in all the legislation referring to the subject, since the adoption of the new Constitution. The County Court and the clerk of the County Court are alike treated and considered, as the successors, in all respects, of the old court and the former clerk.

canvassing the votes; and hence we see the 24th section of the old .election law was repealed and the 19th section of the new law passed in its stead, which section provides that the returns shall be made to the clerk of the County Court, who shall proceed to open, canvass, and publish the return from each precinct, township, or place, as is provided by law.” Now it will hardly be believed that the legislature would have required the new clerk to have performed this portion of the ex officio duties relating to elections, which was formerly imposed upon the old clerk, if they had not intended also that he should succeed to the other duties constituting a part of the same system; and yet they have nowhere in express terms declared that he should, and for the simple reason that they understood and intended that the new clerk should be in all respects the successor of the old, and as such successor was bound to perform all those ministerial acts which previously had been required of the clerk of the County Commissioners’ Court. Many similar indications are to be met with in the revenue laws passed since the adoption of the new Constitution; and yet nowhere is the clerk of the County Court required to perform any of those ministerial duties formerly required of the clerk of the County Commissioners’ Court, except where some change has been made in relation to them, or some new duty of a similar character has been imposed, when it has become necessary to repeat or designate the officer who should perform them. Take, for instance, the 5th section of the revenue law approved on the same day of the approval of the law organizing the County Court. In that section a new provision is made for the redemption of land sold to the State for taxes, and it is provided that the redemption shall be made to the clerk of the County Court, while that and the revenue law, passed four days before, are entirely silent as to whom redemption shall be made in other cases. . Indeed so identical, were the clerks of the County Court and the clerks of the County Commissioners’ Court considered by the legislature, that they are mentioned almost indiscriminately in both these revenue laws, when duties are required to be performed by the county clerk in their execution. The statute fixing fees of clerks of the county courts, which was also approved on the 12th of February, 1849, shows that the legislature intended that they should succeed to those

Thus we see whenever it has been found necessary to change the law in relation to any of these ex officio duties, so as to conform to the new Constitution, they have, in acts of the same date or subsequent to the law organizing the County Court, designated the clerk of the County Court as the officer who shall perform them, and that too when those duties are intermingled with and form a part of the same system of acts all of which were required to be performed by the clerk of the County Commissioners’ Court, as in the case of the election laws; in changing the election from the viva voce vote to the vote by ballot, it was found necessary to change the law, in relation to the election returns and various ex officio duties of the clerks of the county commissioners’ courts. It provides for them the following fees : “ For each license and taking bond, for each ferry, toll-bridge, turnpike-road, tavern, grocery, or pedler, one dollar; for each marriage license fifty cents; for recording marriage certificate ten cents; each copy of rates of ferry, toll-bridge, or turnpike-road, twenty-five cents;” “for taking depositions and certifying the same for every one hundred words, ten cents; for taking and certifying the acknowledgment of a deed, power of attorney, or other writing, and sealing the same, twenty-five cents; for taking proof in case of estrays and granting certificate of the same, twenty-five cents ; for registering each certificate transmitted to him by a justice of the peace in case of estrays, ten cents ; for advertising in each case, including a copy of the newspaper publication, fifty cents ; for trying and sealing weights and measures, by the county standard, fifteen cents,” &c. Now these are all ex officio duties imposed by former laws upon clerks of the county commissioners’ courts, and it is manifest that the legislature did not in this law intend, originally to confer upon the clerks of the county courts, power to perform the acts, but fixed the fees, for the reason that they had by the law creating the county courts, made them the successors in all things of the clerks of the county commissioners’ courts, and thereby authorized them to perform these duties. While these acts, to which I have referred for the purpose of showing the intention of the legislature, were not designed to and may not of themselves make the new clerk the successor of the old one, even in reference to the duties thus specifically recognized, they serve to show what was the intention of the legislature in passing another law at the same time and in pari materiá with them. .

But I will not pursue further an examination which has already become tedious, of those laws which are in pari materiá with the law creating the County Court, but will content myself with a single further reference to the latter act, by which alone the clerk of the County Court is made the successor of the clerk of the County Commissioners’ Court, and is thereby authorized to perform those ex officio duties, which had been conferred upon the last mentioned clerk, if he has such power. That act not only provides for the election of county judges, and county clerks, but it also provides for the election of justices of the peace and constables, in place of the old ones theretofore existing; and the last section declares as follows: “• On the first Monday of December, eighteen hundred and forty-nine, the county judges, clerks of the county courts, justices of the peace, and constables provided for in this act, shall enter upon the duties of their respective offices, and on said day the term of office of the county commissioners, clerks of the county commissioners’ courts, probate justices of the peace, justices of the peace, and constables, then in office, shall expire; provided that the justices of the peace, constables, county commissioners, clerks of the county commissioners’ courts, and probate justices of the peace, who shall be in office on the first Monday in August next, shall continue in office until the first Monday in December next, and until the justices of the peace, county judges, and clerks of the county courts, provided for in this act shall respectively be elected and qualified.” This section indicates, as clearly as it could be done without an express provision to that effect, that it was the intention of the legislature that the new officers to be elected should succeed to, and supply the places of, the old ones, who were to go out of office at the same time that the new ones came in. To hold this, certainly requires no forced construction of the law, and above all does no violence to, but is in perfect harmony with, the evident legislative intention. The records and books of the old justices of the peace were no doubt designed to be transferred to their successors, and so of the courts and clerks. Suppose, for some cause, that a county clerk was not elected and qualified on the first Mqnday in December, 1849, then the old clerk continued in the exercise of all his functions and duties till a new county clerk was elected and qualified, who would then take his place and succeed to all those functions and duties. It is true the legislature has not said so in express terms; but if there ever was a case where the court was authorized by construction to hold the law to be what the legislature most manifestly designed it should be, this is that case. It is the undoubted duty of the court sometimes to look at consequences in construing statutes, for the legislature must be supposed to have had consequences in view in passing it. Now it is out of the question to suppose that the legislature, in the enactment of this law, ever designed to destroy the means of carrying out all these various laws, the execution of which depended upon the performance of those ex officio duties of the clerks of the county commissioners’ courts, and thus in effect destroy the license laws, prevent the issuing of marriage licenses, interrupt the execution of the revenue laws, and destroy the right to redeem land sold for taxes, prevent elections in the mode prescribed by law, and, in fine, interrupt and almost annihilate the government itself. Such was never the design of the legislature, and to consequences such as these it is the duty of the court to look, before we give a construction to the law which would produce such results. Although it is to be regretted that the legislature has not, by express and plain enactment, superseded the necessity of construction, in a matter so important in its results, yet this court will not in such a case hesitate to declare the law to be what the legislature most palpably intended it should be. This is not the case where the legislature merely suppose the law to be one way, and legislate upon that hypothesis, when it is in fact the other way, but it is affirmative legislation, where we are seeking to find out what the affirmative will of the legislature was; and in such a case, when that will is clearly ascertained, we then know what the law which they have enacted is, and it becomes as much the duty of the court so to declare it, as if it had been expressed in the most positive and unequivocal terms.

We hold, then, that the clerks of the county courts are the proper successors of the late clerks of the county commissioners’ courts, and as such are vested with the powers and duties conferred or imposed by former laws upon those clerks; and among those powers and duties are those of receiving and filing notices of agents of foreign insurance companies, and receiving and paying into the State treasury the three per cent, on the amount of premiums charged by such agents. The declaration we hold to be sufficient, and the court erred in sustaining the demurrer to it.

The judgment is reversed and the cause remanded.

Judgment reversed.


text:
    Jeremiah Crotty, Appellant, v. Edward Collins, Appellee.
    APPEAL PROM LA SALLE.
    After an agreement to lease premises has been made, but the owner notifies the applicant for a lease, that he cannot take possession until a lease is made and security given for the rent; if the applicant subsequently takes possession, in defiance of the notice, and cultivates a part of the premises at the same time with the owner, he cannot recover of the owner in trespass, although the owner harvested and retained the entire crop.
    A notice not to take possession of premises agreed to be leased, where the lessor requires something farther to be done, is all that is requisite to prevent the lessor from being dispossessed of the premises.
    This case was tried at the November term, 1851, of the La Salle Circuit Court, before T. L. Dickey, Judge, and a jury, and resulted in a verdict and judgment for Collins for $300. The defendant made a motion for a new trial, which was overuled. The defendant, Crotty, excepted, and took an appeal. The facts of the case will sufficiently appear in the opinion of the court.
    Glover & Cook and E. S. Leland, for appellant.
    A. Hoes and J. H. McGregor, for appellee.
   Catón, J.

The declaration was in trespass quare clausum fregit, setting out the abuttals of the locus in quo. To which the defendant pleaded the general issue, and also liberam tenementum. To which the plaintiff replied double: first, by taking issue generally on the defendant’s pleas; to the second plea he replied a demise from the defendant, and that, under the demise, he was lawfully possessed of the premises when the defendant committed the trespass complained of. Then, by leave of the court, the defendant rejoined double: first, tailing issue on the demise; and second, denying the possession, as was alleged in the replication. A verdict was found for the plaintiff, which the court refused to set aside upon plaintiff complying with a condition, which,, upon the view which we are disposed to take of the case, it is not necessary particularly to state. To this decision the defendant excepted.

The bill of exceptions shows that the defendant was the owner and possessed of a large field, of which the locus in quo formed a part; that in December, 1849, a verbal agreement was entered into between the plaintiff and defendant, that the defendant would let the plaintiff have and occupy the forty acres in question for one or two years, as the plaintiff should wish, at an annual rent of twenty dollars; that the defendant should repair the fences, and let the plaintiff into possession in the spring of 1850; that afterwards, and before the plaintiff had entered into the possession of the premises, the defendant^ requested the plaintiff to enter into a written contract on the subject, with the plaintiff’s mother as security, and forbade the plaintiff entering into possession till such a contract should be executed. The evidence, as given in the bill of exceptions, further showed that the plaintiff’s servant, by his direction, in the month of April, 1850, and before any ploughing had been done on the premises, let down the fence inclosing the field, and was about to drive in a team for the pmpose of ploughing for the plaintiff, when the defendant came and forbade him, saying “ You must not go in there till they have signed the writing,” when the servant went away. On the day following the plaintiff and his servant went to the premises, and when they were about going into the field the defendant again came and forbade them, when the plaintiff replied to the defendant, “ I am going in, and you may drive us out if you can,” and they went in and proceeded to plough the field for a crop of corn. This was the first ploughing done on the premises that spring. The testimony also shows that a crop of corn was raised upon the premises that season; that each planted a part of the ground, and each planted and cultivated a part of the corn, each claiming the possession and right to the whole; that sometimes both parties with their servants were at work upon the crop of corn at the same time, in different portions of the field. After the corn was ripe, the plaintiff went with his wagon and horses and picked a part of a load of the corn, and left them temporarily, when the defendant took possession of them, drove them up to his house, and impounded the horses. The defendant took off the entire crop, which was worth about three hundred dollars.

The only question which we shall consider is, whether, from this state of facts, the plaintiff was entitled to recover. We think not. It may be admitted that there was sufficient evidence to establish the demise, but it is clear that before the plaintiff attempted to take possession under the lease, it was repudiated by the defendant unless the defendant obtained security for the payment of the rent. Nor did the plaintiff ever obtain peaceable possession of the premises, either as tenant under the demise or in any other capacity. When he attempted to take possession, first by his servant and then by himself, the defendant was there on both occasions and forbade him, and resisted him so far as the law would require him to resist. He was not bound to resist with the strong hand, or subject himself to personal violence, in order to prevent the party from taking possession under the lease. He was not bound to commit a breach of the peace, and the resistance which he did make was as effectual to protect him from being dispossessed as if he had used actual force in his resistance. The premises were not vacant, as was assumed on the argument, for Grotty was and had been for a longtime in the actual possession, and he was present protecting that possession by an actual resistance of the intrusion made upon him. This is not the case of a lessee, with the right of possession, making a peaceable entry into vacant and unoccupied premises. Nor was the occupancy, which the plaintiff did obtain by violence, exclusive and enture, for the defendant cultivated the ground and tended the crop as much as the plaintiff did. He never at any timé abandoned or gave up his possession to the plaintiff, but continued as before in the use and occupancy of the field. The case is even much stronger for the defendant than as if he had abandoned the premises after the forcible entry made by the plaintiff and left him to the exclusive cultivation thereof, and even then he would not be entitled to recover unless the jury might infer, from the circumstances and his subsequent conduct, that he peaceably acquiesced in the possession taken. Here there can be no pretence of any such acquiescence. It takes something more to make out a change of possession than is required to establish the continuance of a possession. Although the plaintiff may have been entitled to the possession, he became himself a trespasser upon the actual and open possession of the defendant, when he entered with a strong hand in the face and defiance of the immediate and direct protestations and resistance of the defendant, who was there all the time maintaining his exclusive control. If the plaintiff was wronged by the violation of the agreement, it was not his place to undertake to right himself himself by violence. The agreement to lease was executory; and the only rights he could acquire under it, until he could obtain the peaceable possession of the demised premises by the consent or abandonment of the defendant, was a right of action against Crotty for his violation of the agreement. The evidence here given shows that the continued possession was, during the whole time, in the defendant, and not in the plaintiff; and we cannot doubt for a moment that the defendant was entitled to a verdict. There were some other questions made at the bar in the discussion of the evidence, but, as this seems to us conclusive, we deem it unnecessary to advert to them. The judgment of the Circuit Court must be reversed, and the cause remanded.

Judgment reversed.


author: Trumbull, J.

text:
    William S. Moss, Appellant, v. Thompson J. S. Flint et al., Appellees.
    APPEAL FROM TAZEWELL.
    The Circuit Court may, on an appeal from a justice of the peace, allow an amendment of the original summons; especially if there is any thing in the proceedings to amend by.
    A mistake in the Christian name of one of several plaintiffs, should be taken advantage of by plea in abatement; it is too late to raise such an objection after trial upon the merits, before a justice of the peace.
    In order to bring the evidence offered on the trial before the Supreme Court, it must be contained in a bill of exceptions, or so referred to and by express terms made part of the bill, in such way that it shall clearly be presented under the sanction of the judge who tried the cause.
    This cause was heard before Davis, Judge, and a jury, at the September term, 1851, of the Tazewell Circuit Court.
    The opinion of the court contains a statement of the case.
    N. H. Purple, for appellant.
    H. O. Mbrriman, for appellees.
   Trumbull, J.

This was an action originally commenced before a justice of the peace on an account in favor of11 Thompson J. S. Flint, Daniel J. T. Thompson, and Richard Flint, partners, under style of Flint & Co.” The summons issued by the justice required the defendant to answer the complaint of “ Thompson J. S. Flint, David J. S. Thompson, and Richard T. Flint, partners, under style of Flint & Co.”

At the return-time of the summons before the justice, both parties appeared, and by consent the cause was continued till another day, when a trial was had and judgment entered against the defendant for seventy-eight dollars and costs.

The defendant appealed to the Circuit Court, where, after several continuances, he filed exceptions to a deposition taken by plaintiffs; because it did not appear to have been taken in a cause between the parties named in the original summons issued by the justice of the peace; and, therefore, the Circuit Court, on motion of the plaintiffs, allowed the original summons to be amended by changing the name of David J. S. Thompson to Daniel J. S. Thompson; and the allowing of this amendment presents the only question in the case.

With the exception of some of the middle letters in a few instances, which are not material, it having been often held that a middle letter constitutes no part of a person’s name, the names of the plaintiffs are correctly written in all the proceedings except in the original summons.

An examination of the record shows this to have been the case upon the docket of the justice, in the judgment entered by him, in the appeal-bond given by the defendant, in the transcript sent to the Circuit Court, and in the summons issued by that court to the appellees.

If any amendment of the original summons was necessary, after all these proceedings, there can be no doubt of the authority of the Circuit Court to allow it. The account filed with the justice of the peace had the names of the plaintiffs correctly written, and they were moreover described as “ partners, under style of Flint & Co.,” both in the account and summons which was issued. The defendant knew full well when he was summoned to answer, and could not have been surprised by the amendment. David was written for Daniel, as clearly appears, by misprision of the magistrate. The account on file afforded something to amend by. Not to allow the amendment, under the circumstances of this casé, would demand a precision and nicety in proceedings before justices of the peace scarcely required by the strictest rules of special pleading in a court of record, and would have been directly in the teeth of the statute, which declares, that in the Circuit Court “ no exception shall be taken to the form or service of the summons issued by the justice of the peace, nor to any proceedings before him.”

There is, however, another conclusive answer to the defendant’s objection to the amendment of the summons, as well as his motion in arrest of judgment. His objection, that there was a mistake in the Christian name of one of the plaintiffs, if it could have availed him at any time in-this case, came entirely too late. Such a mistake can only be taken advantage of by plea in abatement, and it was too late to raise the objection, for the first time, after going to trial upon the merits before the justice. 1 Chitty’s Plead. 451; Salisbury v. Gillet, 2 Scam. 290.

The question sought to be raised, upon the exclusion of certain depositions of the defendant, is not presented by the record. The depositions are not contained in or made part of the bill of exceptions. They are not, therefore, properly before us, and we cannot know but they may have been wholly irrelevant, and therefore properly excluded. In order to bring the evidence offered on the trial before this court, it must be contained in a bill of exceptions signed and sealed by the judge; or, at all events, if not incorporated into the bill of exceptions, which is the correct practice, it must be particularly referred to, and, by express terms, made part of the bill in such a way that it shall clearly come before this court under the sanction of the judge who tried the cause. It is by virtue of the signature and seal of the judge, that the papers not otherwise constituting part of the record are incorporated into it, and not in consequence of their being copied into the record by the clerk who makes out transcript. McLaughlin v. Walsh, 3 Scam. 185; Petty v. Scott, 5 Gilm. 209; Mogher v. Howe, 12 Ill. 379.

Judgment affirmed.


text:
    Edward D. Kemp, Appellant, v. Hiram Humphreys, Appellee.
    APPEAL FROM BUREAU.
    Parties have the right to make their own contracts, making the time of their performance material, so that a failure to perform at the time, will avoid the agreement.
    A court of equity has no power to enforce a specific execution of a contract contrary to the clearly expressed intention of the parties.
    A statement of the facts will be found in the opinion of Judge Trumbull. .
    The decree in this case was entered by T. L. Dickey, Judge, at March term, 1852, of the Bureau Circuit Court.
    M. T. Peters and E. S. Leland, for appellant.
    Glover & Hooker, for appellee.
   Trumbull, J.

Humphreys filed his bill to compel a specific performance of the following agreement:

This article of agreement, made and entered into this twelfth day of April, one thousand eight hundred and fifty-one, by and between E. D. Kemp of the one part, and Hiram Humphreys of the other part, witnesseth that the said Kemp does agree to make, unto the said Humphreys, his heirs, or assigns, a good and sufficient deed of the west half of the south-west quarter of section twenty-four, at the end of three months from this date, or sooner, if payment shall be made of one hundred and ten dollars, and the interest thereof from this date, at ten per cent. An uncompliance on the part of said Humphreys, at said date, this shall null this article, and the unperformance on the part of said Kemp shall be the damages to be paid to said Humphreys. In witness our hands and seals, the year and day above. “ Edward D. Kemp, [seal.]

“ John G. Reed, “ Hiram Humphreys, [seal.]

“John Cain.”

The bill alleges, that the township and range were omitted by mistake to be inserted in the agreement, and asks to have it in that respect corrected; that, before the end of the three months within which the money was to be paid, Humphreys went to Kemp, and prevailed upon him to agree to prolong the time for the payment of the money for one month beyond that which was fixed by the agreement, he, the complainant, agreeing, at the same time, to pay interest at ten per cent, till paid; that, in consequence of said agreement to prolong the time, complainant suffered the day fixed by the written agreement to pass without a tender of the money; but, on the Sixth of August following, and before the expiration of the month for which the payment had been prolonged, he tendered to the defendant the said sum of one hundred and ten dollars and interest, and demanded a deed, but the defendant refused either to receive the money or make the deed; and that, on the faith of said written agreement, he took possession of the land agreed to be conveyed, and had made valuable improvements on the same. The bill waives an answer under oath, and prays that the defendant be compelled to execute a conveyance for the premises in question.

The answer of the defendant admits the making of the written agreement, but denies all the other material allegations of the bill; and insists that, if any such parol agreement for the extension of time was made, as the complainant alleged, it was void by the statute of frauds. A replication was filed to the answer, and the case was heard on bill, answer, exhibits, and depositions. One witness testified that, about the 12th day of July, 1851, he inquired of Kemp, who was then at the house of witness, whether he was going to wait on Mr. Humphreys; to which Kemp replied, that “ he was going to wait, but did not say how long he was going to wait.” Another witness testified that, some time in the early part of July, he heard Kemp say he had sold a lot of land to Mr. Humphreys, and “ had agreed to wait on the old man; but did not say how long.” A third witness stated that, “ in the latter part of June, 1851, Mr. Humphreys came to Mr. Kemp’s house, and said he had not got the money for that land; said he had about fifteen days on the article. He said, he had a son-in-law, East, and he would write that day to him for the money. He said it would take about fifteen days for a letter to go to him, and the same time for it to come back. It would take about a month to get it. He said he would not wait another moment or hour after it returned. Mr. Humphreys said it would accommodate him very much. Mr. Kemp said he did not think he would; and if he should, it would not avail any thing unless it was entered upon the article. Mi’. Humphreys said, of course not. Then Mr. Humphreys went off.” This was all the evidence in reference to a postponement of the time of payment, and it was all given by witnesses examined by and on behalf of complainant.

The Circuit Court entered a decree in accordance with the prayer of the bill; and the entry of that decree is assigned for error.

That time was made material in the contract between the parties is very clear, not only from the terms of the article itself, which declares that a non-compliance by Humphreys in paying the sum stipulated and interest at the date specified shall render it null, but that it was so intended is manifest from the subsequent conduct of the parties; for why should Humphreys apply for an extension of time, (and both parties admit that such extension would amount to nothing unless entered on the article,) if they did not suppose that the contract would be avoided by a failure on the part of Humphreys to pay the money at the time specified ? Parties have the right to make their own contracts, and may, if they think proper, make the time of their performance material, so that a failure to perform at the time will avoid the agreement. Benedict v. Lynch, 1 Johns. Ch. Rep. 370; Smith v. Brown, 5 Gilm. 314.

The only question is, is time of the essence of the contract, and did the parties so intend? If so, a court of equity is bound by the contract as the parties made it, and has no authority to substitute for it another and a different agreement. Humphreys having failed to make the payment at the time specified, it is clear that he cannot have a specific performance of the agreement, unless, as insisted, the time for the payment of the money was extended by a subsequent agreement.

Admitting that an agreement, required by the statute of frauds to be in writing, may be varied in a material part by a subsequent parol agreement, and a specific performance of the agreement as varied be subsequently enforced, which is by no means a settled point, still the complainant in this case must fail for another reason. The evidence wholly fails to show an agreement to extend the time for the payment of the money beyond the period specified in the written contract. Two witnesses testify that Kemp told them he had sold land to Humphreys, and had agreed to wait with him. Whether this agreement to wait had reference to the original credit given in the written contract, or to an extension of that credit, is altogether uncertain, and it falls far short of proving an agreement to extend the time for the payment one month beyond the original credit, as alleged in complainant’s bill. The testimony of the other witness shows that so far from extending the time fixed by the written contract for the payment of the money, Kemp, when applied to by Humphreys to do so, said he did not think he would; and both admitted that a promise to extend the time would amount to nothing unless entered on the article. The strong and almost irresistible inference from this is, that Kemp never did agree to extend the time, else it would have been entered on the article.

There is another point of view in which complainant is not entitled to the relief he seeks. The contract in substance provides, though it is informally expressed, that the consequence of a non-performance on the part of Kemp shall be the damages that Humphreys sustains thereby. This would seem to exclude the idea of a specific performance of the contract, or of any other remedy for a breach of it than an action for damages.

The parties had the same right to limit Kemp’s liability in case of his refusal to make the deed, as they had to make the time of payment by Humphreys material; and having done so, a court of equity has no power to enforce a specific execution of the contract, contrary to the clearly-expressed intention of the parties.

, The question of improvements can cut no figure in the case, for the reason that the complainant has failed to prove any parol contract of purchase, and they cannot avail him under the written contract, because he failed to comply with it.

Decree reversed, and bill dismissed.

Catón, J., dissented.

Decree reversed.


text:
    Leander Lawrence, Appellant, v. William P. Cowles, Appellee.
    APPEAL PROM JO DAVIESS.
    Where, by the terms of a contract, a party can discharge himself by paying the real amount due, the transaction is not obnoxious to the statute against usury.
    Where goods are purchased by A upon a letter of credit from B, the goods being charged on the books of the vendor to B, B giving his individual note for the amount of goods sold; these facts authorize the conclusion, that the goods were sold exclusively on the credit of B.
    This was an action instituted in the Jo Daviess county Circuit Court, to recover the amount of a promissory note for $500, made by the appellant, and payable to the appellee. The declaration is in the usual form, and the pleas were non assumpsit and usury; a demurrer was interposed to the plea of usury, which was sustained by the court.

      The other branch of the defence to the note on the trial was, that Lawrence, the appellant, agreed to guarantee the payment of an amount not exceeding $500 for one Wellington, and that said note was given merely as collateral security for the payment by Wellington of said sum. And that Lawrence was not liable on said note, by reason of said guaranty.
    First, Because Cowles, the appellee, had trusted Wellington for a much larger sum than $500; and, secondly, because the bill of goods for which said guaranty was given, was paid for by Wellington to said appellee, Cowles, and because a much larger sum than $500 was paid to Cowles by Wellington both before and after the maturity of the note.
    This cause was heard by Sheldon, Judge, (a jury having been waived,) at November term, 1851, of the Jo Daviess Circuit Court.
    Higgins & Strother and B. C. Cooic, for appellant.
    B. S. Leland, for appellee.
   Treat, C. J.

This was an action of assumpsit brought by Cowles against Lawrence. The declaration was on a promissory note, made by the defendant to the plaintiff, bearing date at St. Louis, on the 22d day of June, 1847, for $500, at four months, with ten per cent, interest after maturity. The first plea was non assumpsit. The second plea alleged in substance, that the note was made in the State of Illinois, and that the plaintiff corruptly contracted to receive more than six per cent, interest thereon after maturity. The court sustained a demurrer to this plea. The cause was submitted to the court at the November term, 1851, and a judgment rendered in favor of the plaintiff for $398.92. The defendant prosecuted an appeal.

The demurrer was properly sustained to the second plea. The only pretence for holding the contract usurious, was the fact that a greater rate of interest than the law allowed was to be paid after the note became due. That circumstance did not taint the transaction with usury. The interest was in the nature of a penalty, to secure the punctual payment of the debt. It was in the power of the maker to avoid the payment of interest altogether, by the prompt payment of the principal. Where, by the terms of a contract, a party can discharge himself by paying the real amount due, the transaction is not obnoxious to the statute against usury. On this point, the law seems to be well settled. Roberts v. Tremayne, 3 Croke, 507; Floyer v. Edwards, 1 Cowp. 112; Wells v. Girling, 1 Brod. & Bingh. 447; Bacon’s Ab., title, Usury, letter C.; Cutler v. How, 8 Mass. 257: Gambril v. Doe, 8 Blackf. 140.

Did the evidence warrant the judgment of the court 1 The plaintiff read in evidence a promissory note corresponding with the one described in the declaration. The defendant then introduced the deposition of Freligh, who swore, in substance, that, a short time previous to the date of the note, he received a letter from the defendant, who resided at Galena, Illinois, requesting him to say to the plaintiff, who was a wholesale merchant in St. Louis, that he, defendant, would be responsible to plaintiff to an amount not exceeding §500 for groceries he might sell to Wellington, on four months’ credit; which letter witness read to plaintiff, and he sold Wellington the goods. Plaintiff brought witness the note in question, and witness got the defendant to sign it, and returned it to the plaintiff. It was the impression of witness that plaintiff agreed to apply the first moneys received from Wellington to the payment of the note. Plaintiff told witness in the spring of 1849 that the note was nearly half paid. Witness has heard plaintiff say that Wellington owed him nothing when the goods were purchased for which the note was given, and that he credited Wellington at the same time for other goods. In November, 1849, plaintiff told witness that Wellington had purchased goods of him on credit at different times after the note was given, and was still owing him on account. Witness, at the same time, at the request of defendant, asked plaintiff for a statement of moneys received by him of Wellington, and plaintiff made a statement from his books of payments made by Wellington in 1837, as follows:

“ Received of Wellington, July 24th, cash, §200; July 29th, L. L. note, §500; August 10th, cash, §400; September 6th, cash, §40; October 19th, cash, §22.53; December 4th, cash, §581.50.”

The defendant also read in evidence the following letter:

“ St. Louis, April 6th, 1849.

“ Mr. L. Lawrence, Galena, III.

“ Dear Sir, — Mr. Alfred Vinton, agent for Lyon, Shorb, & Co., having failed to collect your note (in my favor, dated June 22d, 1847, for $500) from Mr. Wellington, has handed it back to me. Mr. Paul, who had the note at Peru, informs me that Mr. Wellington has removed to Chicago, and all further hopes of getting the money from him are at an end. He owes me several hundred dollars, which I have no hopes at present of getting, and will thank you for any information which may lead to obtaining security. Mr. Freligh informs me that he will write you to-day, but I have thought best to write also, giving you such information as I think will at all refer to the matter. Your attention to this matter will oblige,

“ Yours, respectfully, “ William P. Cowles.”

The plaintiff then read the deposition of Cole, who stated he was the bookkeeper of plaintiff in 1847; that there was an account on the books against defendant, for which he gave his notes. One note was dated in March, 1847, and is nearly paid the other was dated the 22d of June, 1847, for $500. The books do not show that Wellington made any payments on the notes. • Wellington bought the goods and paid some money. Defendant gave notes for part of the goods bought by Wellington, and the account was under the defendant’s name. The last note appears to the credit of defendant in July, 1847.

It is insisted that the note was given as collateral security for the payment of the first goods obtained by Wellington, and that the amount was fully discharged by the payments subsequently made by him; in other words, that the plaintiff had one continuous account against Wellington, and that the payments made from time to time extinguished the items on the debit side of the account in the order in which they accrued. But we think the circuit judge was authorized by the evidence to conclude, that the first goods procured by Wellington were sold» exclusively on the credit of the defendant, and that he became responsible therefor as the principal debtor. The goods were originally charged to him on the books, and he afterwards gave his individual note for the amount, which was passed to his credit on the account. It does not appear that these goods were ever charged to Wellington, or that he was regarded as liable for their payment. It is manifest that the plaintiff looked for payment to the defendant as the principal, and not merely as the security of Wellington. If the defendant only intended to assume the responsibility of a guarantor, why did he give his individual note for the goods ? The fact that the plaintiff endeavored to obtain payment of the note from Wellington, does not tend to show that he considered him the principal debtor. He knew that, as between the defendant - and Wellington, the latter ought to pay for the goods, and he therefore had the note presented to him for payment. It may well be doubted whether the plaintiff could maintain an action against Wellington, after charging the goods to the defendant and receiving his promissory note for the same. Nor did the memorandum, made at the instance of Freligh, tend to show that Wellington was ever regarded as the debtor for the goods. The plaintiff was asked for a statement of payments made by Wellington, and the note in question was included in the statement furnished. This does not show that Wellington was held responsible for the goods. It is certainly consistent with the fact that the goods were obtained by Wellington solely on the credit of the defendant.

The judgment is affirmed.

Judgment affirmed.


text:
    The People, on the relation of George Dixon, Plaintiffs in Error, v. Bela Shaw et al., Defendants in Error.
    ERROR TO STEPHENSON.
    A party cannot plead in contravention of the record in the same cause, and objection to such a plea may be taken by demurrer.
    A change of venue upon a quo warranto will be allowed under the statute, when that proceeding is resorted to, for the protection of the private and individual rights of the relator.
    This was a proceeding by information, in the nature of a quo warranto, originally commenced in the Winnebago Circuit Court, and removed to the county of Stephenson, by change of venue.
    Notice, in the name of the State’s attorney for the eleventh judicial circuit, was served upon the defendants, Bela Shaw and others, of a motion to be made in the Winnebago Circuit Court, for a rule upon them to show cause why leave should not be given to the State’s attorney, to exhibit in that court an information in the nature of a quo wa/rranto, upon the relation of George Dixon against the defendants, for usurping, intruding into, and unlawfully holding and executing the office of bridge commissioners of the Rockford Bridge, and that an affidavit would be exhibited in support of the motion.
    Application for the writ was made and resisted. At the March term, 1850, of the Winnebago Circuit Court, the relator filed his petition and affidavit for a change of venue, alleging that the judge of that court was prejudiced against the relator. After hearing argument, the judge of the Winnebago Circuit Court ordered the venue changed to Stephenson county. The transcript and papers, except the petition for the change of venue, were filed in the Stephenson Circuit Court, at March term, 1850. Application was then made to the Stephenson Circuit Court, for leave to file the information; the defendants resisted the application, but the court granted leave to file the information. The writ of subpoena was issued, and returned served. The information was filed at the same term.
    At September term, 1851, the defendants entered their appearance, and filed a plea, that the Stephenson Circuit Court ought not to take cognizance of, or sustain the proceeding by quo warranto, because the cause of action accrued in the county of Winnebago, and within the jurisdiction of the Circuit Court of that county, and not within the jurisdiction of the Stephenson County Circuit Court.
    To this plea the relator filed a general demurrer.] After a hearing upon the demurrer, it was overruled, and the court dfeclined to proceed farther for want of jurisdiction. Judgment was given against the relator for costs.
    The counsel for the relator then moved the court ‘to remand the cause to Winnebago county, which motion was overruled. The counsel for the people excepted, and brought the case to this court, by writ of error, for review.
    F. Burnap, for the relator,
    Cited Rev. Stat. p. 527; Clark v. Harkness, 1 Scam. 56; Rev. Stat. p. 429, § 1, 430, § 2 to 4; Cole on Informations, p. 89 to 91; Stat. of 9 Anne, § 20; Cole, 94 to 96; 31 Eng. Com. Law R. 204, 209, 236, 237; The King v. Francis, 2 T. R. 484; The King v. Pickerell, 4 T. R. 809; 4 Black. Com. 412; The King v. Bennet, 1 Strange, 101; Willes, 534; 3 Dallas’s R. 490; 1 Serg. & Rawle, 385; The People v. Scates, 3 Scam. 354; 3 Archbold’s Prac. 319; Sowerby v. Woodruff, 4 Eng. C. L. R. 269; 3 T. R.328; 2 Strange, 704; 6 T. R. 642; 1 Chit. Pl. 444; Porter v. The State, 5 Mis. 538; Cole on Inf. 205; 11 Ill. R. 552; 9 Wend. 377; 13 Wend. 603; 2 Hawk. Pl. Cr. 357, § 4.
    J. Marsh, for defendants in error.
   Catón, J.

The demurrer to the plea to the jurisdiction of the court only presented the question whether this is a case in which the relator could obtain a change of venue; for the record showed that the venue had been changed, and that estopped the party from denying that fact by a plea. It is not competent for the party to plead in contradiction to the record itself in the same cause. The court must take notice of the contents of the record of the case. Suppose the plea had averred distinctly that there had been no change of venue, or had denied the existence of some other order which the record showed had been made in the cause, it would be absurd to say that the plaintiff should take issue upon the plea and produce the record. To admit the party to deny the existence of any portion of the récord of the cause at bar would be something new in pleading. The record itself stands as a perpetual estoppel to such a plea, and the objection may be taken by demurrer to the plea, and perhaps it might be treated as a mere nullity. This plea, then, cannot be considered as denying that in fact an order had been made changing the venue in the cause; but we are willing to treat it as presenting the question, whether this order changing the venue was not a mere nullity, conferring no jurisdiction upon the Circuit Court of Stephenson county, for the reason that it is not a case in which the statute authorizes a change of venue, on the 'application of the plaintiff or relator. We do this the more readily because it was so treated at the bar by the counsel for both parties, who only argued the last question stated. The statute provides that either party in any civil cause shall be entitled to a change of venue upon showing to the court the existence of certain enumerated facts, and we have only to determine whether this case comes within that provision of the statute. In form this is a criminal proceeding, but it is only so in form. In substance it is for the protection of the private and individual rights of the relator, and others 'in the precinct similarly situated. Donnelly v. The People, 11 Ill. 552. It may be as essential to the protection of his rights that he should be allowed a change of venue, as if the proceeding were in his own name and not in the name of the people. He may be the subject of the same prejudices, and is liable to be as much injured thereby as if he were the nominal as well as the real party, and the policy and justice of the law secure to him the same rights to have his case tried uninfluenced by such prejudices. It is the nature of the rights to be asserted and maintained to which we should look, rather than the form in which the party may be obliged to proceed to assert those rights, in giving a just interpretation to the statute. This being in substance a civil suit, we are of opinion that the statute secured to the relator a right to a change of venue upon making out a proper case, and that the Circuit Court of Stephenson County should have proceeded with the cause, as if it had originated in that county. A different construction may be required when an information shall be filed, not for the assertion or protection of an individual right, but purely to protect or promote the rights and interests of the people at large; but it will be in time to decide that case when it arises.

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.

Judgment reversed.


author: Caton, J.

text:
    The Aurora Branch Railroad Company, Appellants, v. Jacob Grimes, Appellee.
    APPEAL FROM KANE.
    A party seeking to recover damages for a loss which has been caused by negligence or misconduct, must show that his own negligence or misconduct has not concurred in producing the injury.
    The degree of care which a plaintiff should exercise, will depend upon the relative rights or position of the parties at the time of the injury; where both parties are equally in the position of right, independent of the favor of the other, the plaintiff is only bound to show that he exercised ordinary care and diligence to avoid the injury; otherwise if he is enjoying a privilege or favor, without compensation, of the party complained of.
    If the plaintiff alone is in fault, or if both parties are equally in fault in committing an injury, the aggrieved party cannot recover.
    This case was heard at the May term, 1852, of the Kane Circuit Court, Wilson, Judge, presiding. Trial by jury. Verdict and judgment for Grimes for $>110 and costs. The railroad company brought the cause to this court by appeal.
    The opinion contains a statement of the case.
    W. B. Plato and Glover & Cook, for appellants.
    Thomas C. Moore, for appellee.
   Caton, J.

This is an action on the case brought by Grimes against the railroad company, to recover the value of a mare which was killed in a well belonging to the company. It appears that the appellants own a railroad and depot at Batavia. At a point where the main track and the side track for the depot are some distance apart, they have a well, which is situated between the two tracks, which is distant from the west trade from six to ten feet. The well was about six feet across, and was covered with oak boards one inch thick and twelve feet long, and mostly with two thicknesses. There was no other inclosure of the well. The place between the tracks where the well was situated was not frequented by teams or the public. The top of the well was even with the surface of the ground, which was nearly level between the two tracks. In December last, a car load of lumber arrived at the depot for Grimes, which was left standing on the west track, where freight was usually discharged. He desired it moved on to the west track, that it might be discharged at his lumber-yard. The agent of the road declined moving it from the usual place of discharging freight, when Grimes, with the consent of the agent, hitched his mare to the car, and moved it to the desired place.

A few days after, another load arrived, and was left in the same place as the former, when Grimes, without consulting the agent, again hitched the mare to the car, and removed it to the west track. When they had got a short distance beyond the well, the mare refused to draw, backed off the track, became entangled in the traces and got down, and in her struggles got into the well and was killed. When the first car was removed, Grimes led the mare, and she worked well. Upon the last occasion, one witness says, he also led her, while another says he was behind and driving her, when she refused to draw and backed off the track, and that he thinks the plaintiff pulled her off by the line. The mare was a spirited, restive animal. Cars are not usually propelled by.horses on that road; but one other person had been seen to move cars, with steady horses, at that place. These are the leading features of the accident, as described by the testimony, and sufficiently in detail to enable us to understand the instruction which was refused, and of which complaint is made. That instruction was : “ If the jury, believe from the evidence, that the injury done to the plaintiff’s horse was the result of the fault or negligence of the plaintiff, or the fault or negligence of both the plaintiff and defendants, without any intentional wrong on the part of the defendants, then the plaintiff cannot recover, and the jury must find for the defendants.”

Where a party seeks to recover damages for a loss which has been caused by negligence or misconduct, he must be able to show that his own negligence or misconduct has not concurred with that of the other party in producing the injury, and the burden qfjtroof is upon the plaintiff, to show not only negligence on the part of the defendant, but also that he exercised proper care and circumspection; or, in other words, that he was not guilty of negligence. Lane v. Crombie, 12 Pick. 177.

As to the degree of diligence or care which the plaintiff must show himself to have exercised, upon a cursory examination of the cases on this subject, an apparent conflict may be supposed to exist, but a careful examination of the facts of each case will show that such is not in fact the case. The degree of care, which the plaintiff is bound to exercise, will be found to depend upon the relative rights or position of the parties in relation to the rights exercised or position enjoyed by the plaintiff at the time the injury complained of happened. As growing out of these relative positions of right, two classes of cases will be found. Where both parties are equally in the position of right, which they hold independent of the favor of each other, the plaintiff is only bound to show that the injury was produced by the negligence of the defendant, and that he exercised ordinary care or diligence in endeavoring to avoid it. Or that by the exercise of ordinary care he could not have avoided it. Thus, in the case of Butterfield v. Forrester, 11 East, 60, the defendant had placed an obstruction in a part of the public road, and the plaintiff rode furiously along the road and was injured by it. And Lord Ellen-borough held: “ Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care on the part of the plaintiff.” This case-has been referred to in nearly all the subsequent cases on this branch of the law, and may well be considered a leading case on this subject. It has undoubtedly been sometimes misapplied, and its doctrine carried beyond the principle of the case itself, but in no subsequent well-considered case do I find the rule as applied to such a case denied or limited. In Beers v. Housatonic Railroad Company, 19 Conn. 566, the plaintiff’s servants were driving a drove of cattle along the highway where it crossed the defendants’ railway, when the defendants’ locomotive passed along the railroad, and by the negligence of their servants was run against and injured some of the cattle, while upon the track. After a pretty extensive review of the authorities, the court in that case said: “ The rational rule, and the one as we think established by the best authorities in reference to the care incumbent on the plaintiff is, that it must be ordinary care, as it is termed, which, as stated by Lord Denman, C. J., in Lynch v. Nurdin, 1 Ad. &. El. N. S. 36, (41 E. C. L. 422, 425,) in interpreting the phrase as used by Lord Ellenborough in Butterfield v. Forrester, 11. East, 60, means, ‘that degree of care which may reasonably be expected from a person in the plaintiff’s situation,’ and is synonymous with reasonable care.”

In Kinnard v. Burton, (12 Shepley, 39,) the action was for damage occasioned by a collision in the highway, where both parties had a right to be, and the court laid down the following rule : “An examination of all the cases leads to the conclusion that the correct rule is, that if the party, by the want of ordinary care, contributed to produce the injury, he will not be entitled to recover. But if he did not exercise ordinary care, and yet did not by the want of it contribute to produce the injury,' he will be entitled to recover.” In all these cases, it will be observed, that the plaintiffs were exercising their undoubted rights, with which the defendants had no right to interfere at the time the injury complained of was inflicted; and in such cases, I have no doubt, the plaintiff is only bound to exercise that degree of care which may be reasonably expected from a man of ordinary prudence in such a situation.

The case of Bird v. Holbrook, 4 Bing. 628, (15 E. C. L. R. 91,) is one of another and peculiar class of cases, of which but few are to be met with, where the plaintiff" was allowed to recover, although he was doing an unlawful act at the time he sustained the injury. There, the defendant had placed a spring-gun in his garden, for the purpose of shooting trespassers, and sedulously concealed the fact; and the plaintiff went into the garden for the purpose of reclaiming a stray fowl, and was wounded by the gun. The plaintiff was allowed to recover, expressly on the ground that it was inhuman and cruel to place such an engine of destruction where it might endanger human life, without giving notice thereof; and that the only lawful design of placing such machines is that of terror and not of destruction. In the case of Ilott v. Wilks, 3 B. & A. 304, (5 E. C. L. R. 295,) the plaintiff went into the defendant’s woods, having had notice that spring-guns were set there, and was injured by one of them, and it was held that he could not recover. Bay ley, J., said, “It is sufficient for a party, generally, to say," ‘ There are spring-guns in this wood;’ and if another then takes it upon himself to go into the wood, knowing that he is in the hazard of meeting with the injury which the guns are calculated to produce, it seems to me that he does it at his own peril, and must take the consequences of his own act.” In the previous case of Deane v. Clayton, 7 Taunt. 489, (2 E. C. L. R. 461,) the action was for the loss of a dog, which had pursued a hare into the defendant’s preserves, and was killed by spikes placed there for that purpose. The plaintiff had used every effort to restrain the dog from pursuing the hare into the defendant’s premises ; and the court was equally divided upon the question of the right of the plaintiff to recover, each of the four judges delivering a very elaborate opinion; and since that time there is no case affirming the right to recover for the loss of property even under such circumstances.

There is another case, which would seem to be an exception to the general rule, that the party who was not in the exercise of a legal right was allowed to recover for an injury which was imputed to the carelessness of the defendant’s servant, while the plaintiff was not only chargeable with carelessness, but with an actual trespass upon the defendant, when it would seem to me that gross carelessness could not be properly imputed to the defendant or his servant. It is the case of Lynch v. Nurdin, 1 Adolph. & El. N. S. 29, (41 E. C. L. R. 422,) where a child seven years old was allowed to recover damages against the defendant, whose servant had allowed his horse and cart to stand for half an hour unattended in the street of a town, when the plaintiff and other children were playing about them; the plaintiff got into the cart, and another boy led the horse along; when the plaintiff was getting off the shaft, he fell, was. ran over by the wheel, and his leg was broken. The plaintiff was allowed to recover upon the principle that he was incapable of exercising prudence, and that therefore he should not be charged with negligence. Two years before this decision was made a similar question was decided by the Supreme Court of New York, (Hartfield v. Roper, 21 Wend. 615,) where the opposite rule was laid down, under much stronger circumstances, in favor of the plaintiff. The plaintiff was a child of two years old, and, while sitting or standing in the public highway, he was run over by the defendant, Roper, who was driving a sleigh and horses. At the time of the accident the defendant was descending a hill, and the road was in full- view during the whole descent. There were three persons in the sleigh, none of whom saw the child till the 'horses had passed over it. "Although admitting that the child was totally incapable of exercising any discretion, the court held him guilty of negligence in being in the road' or not getting out of it; and that the defendant was not guilty of gross negligence in not seeing him, and that the action could not be sustained. I have referred to these cases for the purpose of showing that neither may be considered as conclusively settling the law upon the particular subject to which they relate; and that, at most, one of them may be considered as indicating an exception to the general rule which I have before laid down.

The case of Pluckwell v. Wilson, 5 Carr. & P. 375, (24 E. C. L. R. 368,) may be considered a fair representative of the other class of cases, which hold that the plaintiff who is himself in the wrong, or not in the exercise of a legal right, must use extraordinary care before he can complain of the negligence of another. That was an action on the case for an injury sustained by the plaintiff by a collision in the highway, when the plaintiff was himself on the wrong side of the road; and' “ Mr. Justice Alderson left it to the jury to say, whether the injury to the plaintiff’s chaise was occasioned by negligence on the part of the defendant’s servant, without any negligence on the part of the plaintiff himself; for that, if the plaintiff’s negligence in any way concurred in producing the injury, the defendant would be entitled to the verdict. Also, they would have to say, whether it was altogether an accident, in which case, also, the defendant would be entitled to the verdict. His lordship also observed, that a person was not bound to keep on the ordinary side of the road; but that, if he did not do so, he was bound to use more care and diligence, and keep a better look-out, that he might avoid any concussion, than he would if he were to confine himself to his proper side of the road.” Here, the plaintiff himself being in a wrong position, was bound to use more than ordinary care, to avoid an injury. Other instances may be mentioned where justice and propriety would require an extraordinary degree of care to avoid accident, as where the party injured was at the time enjoying a privilege or favor granted, without compensation or benefit to the party granting it, and of whose carelessness complaint is made. As if I gratuitously allow a person to pass through my field, he should be held to use extraordinary care before I should be made liable for an injury which he sustains by an obstruction which I had carelessly left in the way. And this, upon the same principle that the bailee of a horse, to whom he is gratuitously loaned, is bound to take extraordinary care of him, else he will be responsible if any injury befall-him ; while he who hires a horse is only bound to use him with ordinary care.

Whether the one rule or the other should be applied to the case before us, we are equally clear that the instruction should have been given. The substance of the instruction was, that if the plaintiff alone was in fault, or if both parties were equally in fault, the plaintiff could not recover. This, certainly, is the rule of law, even though the plaintiff was only bound to use ordinary care; for, if both used ordinary care, then the misfortune was an accident, without the fault of either, and the loss must rest where the misfortune placed it; and if neither used ordinary care, then, for the want of it, the plaintiff cannot recover, even admitting that he had as much right to be upon the track as the company had to dig the well.

The judgment must be reversed and the cause remanded.

Judgment reversed.