text:
    John R. Case, Plaintiff in Error, v. The Hartford Fire Insurance Company, Defendants in Error.
    ERROR TO COOK.
    Insurers are liable only for direct, and not for remote and consequential losses, occa- — sioned by any peril in the policy.
    Where the policy requires the insured, in case of exposure to loss or damage by fire, to use all possible diligence to preserve his goods, and provides, in case of Ms failure to do so, that the insurers shall not be liable for any loss sustained in consequence of such neglect; if the insured shall remove his goods, the circumstances, as they existed at the time the removal was made, must determine the necessity for the removal; and whatever loss or damage is necessarily sustained by the removal of the property insured, when the danger of its destruction by fire was so direct and immediate, that a átilura to have made the removal while he had the power, would have been gross negligence on his part, he is entitled to recover under the policy.
    The fire, under such circumstances, may be regarded as the proximate cause of any loss that is sustained.
    As a means of proving the amount of loss, in consequence of removal of goods from a store, it is proper for the insured to offer in evidence, his invoices, bills of purchase, books of account, amount of sales, inventories of stock taken immediately after the loss, together with such facts as may be established by his clerks,
    If goods are carelessly removed or wantonly and unnecessarily exposed, the insurers will be released from liability.
    The facts of this case will be found stated in the opinion of the court.
    This case was heard before H. T. Dickey, Judge, and a jury, at December term, 1851, of the Cook Circuit Court. Verdict and judgment for §69.17. Case brought the cause to this court, and assigned errors.
    Arnold & Lay, for plaintiff in error.
    Earned & Woodbridge, for defendants in error.
   Trumbull, J.

This was an action of assumpsit brought by Case against the Hartford Eire Insurance Company, on a policy insuring the plaintiff against loss or damage by fire, to the amount of §3,000 on his stock of goods in brick store No. 88, Lake Street, Chicago.

By the terms of the policy, the company agreed to make good to Case all such immediate loss or damage, not exceeding the amount insured, as should happen by fire from October 6, 1849, to October 6, 1850.

Annexed to the policy, and forming part of it, is the following condition: In case of fire, or loss or damage thereby, or of exposure to loss or damage thereby, it shall be the duty of the insured to use all possible diligence in saving and preserving the property; and if they shall fail to do so, this company shall not be held responsible to make good the loss and damage sustained in consequence of such neglect. And it is mutually understood that there can be no abandonment to the insurers of the subject insured.”

The testimony shows that the building containing the goods was what is called in Chicago a fire-proof building, though not strictly so; that in the evening of the 10th of August, 1850, the buildings in the rear of the Mansion House, a large wooden building east of, and immediately adjoining, the store of the plaintiff, took fire; that the rear of the Mansion House was burned out, and it seemed almost impossible at one time, with the greatest exertions of the fire department, to save the main building; that the fire was a very hot one, the flames at times extending quite over and enveloping at least half the store of the plaintiff; that at one stage of the fire the firemen raised their hose to the top of plaintiff’s store and threw water from there upon the burning buildings; that water was also thrown on the store, and came down into the building in considerable quantities; that the store itself was filled with heated air and smoke, and the doors ordered to be thrown open by the fire department, so as to allow the hose to pass through to the rear, but the order was countermanded while the hose was being introduced, for the purpose of taking it to another point; that the wind at the time was from an easterly direction, and, had the main building of the Mansion House burned, no exertions of the fire department could have saved plaintiff’s store from destruction, nor could the goods have been removed after the fire had caught in front; that a portion of the goods were damaged by the water and smoke, and most of them removed across the street, to other buildings, about the time the store doors were thrown open; that the fire, after raging some half hour, was subdued without burning the main building of the Mansion House, or any portion of plaintiff’s store, though the heat was so great as to crack many of the panes of glass in the windows and scorch the window-frames, through the iron shutters, also as to burn off the’ paint on the roof, and that the damage to the goods from smoke, water, &c. was appraised at $64.57.

The plaintiff also offered to prove the amount of goods he had on hand in the month of April preceding the fire, by the bills of purchase, books of account, and clerks; then to show the amount of purchases since that time, also the amount of sales and the inventory taken immediately after the fire, to ascertain the amount of goods lost by the removal. All this evidence was objected to by the defendant and excluded by the court, to which decision the plaintiff at the time excepted. The jury returned a verdict of sixty-nine dollars and seventeen cents for the plaintiff.

The only point in the case arises upon the refusal of the Circuit Court to admit the evidence tending to show that some of the goods had been lost in the removal occasioned by the fire; and this raises the question, whether the insurers are liable for the loss of the goods resulting from their removal under the particular circumstances of this case.

On behalf of the defendant, it is insisted, that the policy only insures against immediate loss or damage by fire, and that there can be no fire without ignition.

Such is the law as stated in 2 Greenleaf’s Evidence, § 405. The author says, “ The proof of loss must show an actual ignition by fire; damage by heat alone, without actual ignition, not being covered by the policy”; and he refers to the case of Austin v. Drew, reported in 4 Camp. 360, and 6 Taunt. 436, as his authority. By referring to that case, it will be seen that it does not support the position. The case was this: The premises insured were used as a manufactory, and were heated by a stove on the ground floor. A flue went from the stove through each story, seven or eight in number, to the top of the building. There was a register in the flue with an aperture into the rooms, whereby more or less heat might be introduced at pleasure. One morning the fire being lighted as usual below, the servant whose duty it was to have opened the register in the highest story forgot to do so. The consequence was that the smoke and heat were completely interdicted in their progress through the flue, and came into the rooms, doing some damage, but there never was more fire than was necessary to carry on the manufactory, and the flame never got beyond the flue. Gibbs, C. J., said, “ There was no fire except in the stove and the flue, as their ought to have been, and the loss was occasioned by the confinement of heat. Had the fire been brought out of the flue, and any thing had been burnt, the company would have been liable. But can this be said where the fire never was at all excessive, and was always confined within its proper limits ? This is not a fire within the meaning of the policy, nor a loss for which the company undertake. They may as well be sued for the damage done to drawing-room furniture by a smoky chimney.”

The principle upon which this case turned was, that there had been no fire except in the usual and proper place where a fire ought to have been, and that the parties never contemplated insuring against a loss occasioned by the ordinary fire kept up in the stove; but had the same injury resulted from the burning of an adjoining house, or from heat proceeding from any other than the ordinary fires in the building, the decision would have been very different. Suppose some of the wares and merchandise of the plaintiff in this case, as lead pipe, for instance, had been of a fusible character, and that they had been melted by the heat from the burning of the adjoining building, would it be pretended for a moment that he could not recover for the damage because the articles were not actually ignited? Had the store actually burned down, it no doubt contained many articles which the fire would have ruined, and yet were not susceptible of ignition. The idea that there can be no loss by fire without actual ignition, is so, unreasonable to my mind, that, but for the respectable authorities that have been vouched for the position, I should not have thought it worthy a moment’s consideration.

The case of Hillier v. The A. M. Insurance Company, (3 Barr, 470,) is also relied upon by the defendant. The court in that case do say, that where the peril insured against “is fire, the instrument of destruction must be fire,” but the case itself was a very different one from this. In that case the building from which the goods were removed was not touched by the fire, but the fourth house from it was at one time on fire, and it is stated that the goods were not injured by endeavors to extinguish the fire or save them from it, but in the removal of them under an apprehension that they might be reached by the flames which had caught one of the houses in the same block. The court, moreover, intimate in that very case, that had the building containing the goods been touched by fire, or the goods injured in their removal while it was on fire, or in efforts to put out the fire, the loss would have been within the policy, and yet how could this be if the instrument of the destruction must be fire itself? Surely an injury to goods by water thrown to extinguish a fire would not be an injury to the goods by actual ignition, and yet no case can be found where an insurance against damage by fire has been held not to extend to such a case.

The rule undoubtedly is, that insurers are liable only for direct, and not for remote and consequential losses occasioned by any peril in the policy. But what damage is direct, and what consequential, is often a difficult question to determine.

It is said in 1 Phillips on Insurance, 690, that “ a loss comes under a particular risk, not merely when it is a consequence that follows the actual occurring of the risk, but when it can fairly be attributed to the risk, and is occasioned by it, or arises directly on account of it.”

The Supreme Court of the United States, in the case of Peters v. Warren Insurance Company, (14 Peters, 108,) lay down this rule, that “ whenever the thing insured becomes by law chargeable with any expense, contribution, or loss, in consequence of a particular peril, the law treats that peril, for all practicable purposes, as the proximate cause of such expense, contribution, of loss ”; and the same case decides, that whatever loss arises as a natural or necessary consequence of the peril insured against is, within the policy.

The cases are numerous in which recoveries have been had on policies insuring against loss by fire when the injury has not resulted from actual burning. Walters v. Louisville Merchants Insurance Co., 11 Pet. 224; The City Fire Insurance Company v. Corlies, 21 Wend. 367; Pentz v. Receiver, Etna Fire Insurance Company, 9 Paige, 568.

The policy in this case required the plaintiff, in case of exposure to loss or damagé by fire, to use all possible diligence to preserve his goods; and provided, in case of his failure to do so, that the company should not be answerable for any loss sustained in consequence of such neglect. Suppose the front of the Mansion House had taken fire, as there was every probability at one time it would, and it had become impossible after-wards to remove plaintiff’s goods, and they had been destroyed, would the insurance company, under such circumstances, have been liable for their loss, it clearly appearing that the plaintiff neglected to remove them at the time when it could have been done with safety, and the danger of their destruction by fire was imminent. The circumstances, as they existed at the time the removal was made, must determine the necessity for it; and, whatever loss or damage the plaintiff necessarily sustained by the removal of the property insured when the danger of its destruction by fire was so direct and immediate that a failure to have made the removal while he had the power would have been gross negligence on his part, he is entitled to recover in this action. The fire, under such circumstances, may in a just sense be regarded as the proximate cause of the loss.

The evidence offered and excluded was somewhat loose, and may not of itself have been very satisfactory to the jury if admitted, but, in connection with other testimony, it may have have been very important, and we think, under the circumstances of this case, should have been permitted to go to the jmT- _

_ It is not, however, from every loss arising from the removal of goods, to save them from burning, that the company would be liable. Goods may be so carelessly removed, and so wantonly and unnecessarily exposed, as to relieve the company from all liability on account of them injury or loss.

An objection has been urged to the recovery for the loss of goods in this case, for the want of a count in the declaration specially alleging such loss by removal.

In the view taken of the case such a count was unnecessary; as, if a recovery can be had for the loss at all, it must be on the ground that it is to be treated, in a particular point of view, as the natural or necessary consequence of the fire itself.

Judgment reversed, and cause remanded.

Judgment reversed.

Treat, C. J., dissented.


source: Caselaw Access Project

author: Catón, J.

license: Public Domain

text:
    William Carroll, Plaintiff in Error, v. John G. Weld, use of John W. Chickering, Defendant in Error.
    ERROR TO COOK.
    If a party put his name upon the back of a noto, before it is delivered to the payee, he is an original party, and the consideration for the note will be his consideration for his undertaking.
    Such a party is a guarantor, and may be sued in that character.

      The cases of Camden v. McCoy, (3 Scam. 437,) and Cushman v. Dement, (Id. 497,) examined and approved.
    If a party so signing a note, wishes to rebut the presumption, that he put his name upon the note at the time of its execution, as a guarantor, he can do so by showing the true character of his obligation.
    Weld, for the use of Chickering, sued Carroll in the Cook County Court of Common Pleas, in an action of assumpsit.
    The suit was commenced by a capias ad resp. Weld counted upon the following note:
    $416.00 “ Chicago, January 13th, 1851.
    “ Six months after date, we jointly and severally promise to pay John G. Weld, or order, the sum of four hundred and sixteen dollars, for value received.
    (Signed,) “David Pkicket. l. s.
    “ Henry Hawkins, l. s.
    (Indorsed) “ William Carroll.”
    The declaration avers, that the plaintiff, at the special instance and request of the defendant, agreed to give time to the said David Pricket and Henry Hawkins; and, in pursuance of said agreement, did take their promissory note, for the said sum of four hundred and sixteen dollars, signed by said David Pricket and Henry Hawkins, and bearing date, &c.; the said defendant then and there promised the said plaintiff to guarantee the payment of the said promissory note, which said note the said defendant then and there guaranteed, by writing his name upon the back of the same, by means whereof he became liable, &c.
    The declaration contained the proper common counts.
    The defendant filed a demurrer, which was stricken from the files. He then pleaded the general issue, with a notice that the note was obtained by fraud. The proof showed that Weld refused to take the note of Pricket and Hawkins without surety or a guarantor, and that Carroll signed the note with a full understanding of the transaction.
    The cause was heard before M. Skinner, Judge, and a jury, at February term, 1852, of the Cook County Court of Common Pleas, and resulted in a verdict and judgment for the plaintiff.
    Carroll brings the cause to this court by writ of error.

      J. E. Dillon, for plaintiff in error.
    J. N. Abnold, for defendant in error.
   Catón, J.

Pricket and Hawkins executed their note to Weld, for the purchase of some goods. He, not being satisfied with their responsibility, refused to take the note unless Carroll signed it with them. Carroll then put his name on the back of the note, when it was delivered to the payee. Here, Carroll was an original party to the note, and the original consideration for the note was the consideration for his undertaking. It was not necessary that he should participate in or receive any part of the consideration. His undertaking induced the payee to accept the note in payment of the goods sold", and that was sufficient. The only question which was seriously urged upon our consideration in the argument, was as to the character and nature of the liability assumed by Carroll. He was sued, as guarantor of the note, and now he insists that he only assumed the liability of second indorser. This is a question which has been long since settled in this court, and we see no cause to limit the liability as there established. In the case of Camden v. McCoy, (3 Scam. 437,) it was held that, where the name of a party is found on the back of a note, in the hands of the payee, the presumption of law is, that it was put there at the time of the execution of the note, and that, in the absence of proof to the contrary, it is a further presumption that he assumed to guarantee the note; and, in the subsequent case of Cushman v. Dement, (3 Scam. 479) the same rule was adopted and enforced. In these cases, it was also decided, that these presumptions might be rebutted by proof showing the actual character of the transaction. In this case, there is proof sustaining these presumptions of law, or rather showing that the understanding, at least on the part of the payee of the note, was, that the liability of Carroll should be even more than that of a guarantor; for he required that Carroll should become a surety in the note. In the two casesjj^P referred to, this court followed the decisions of the Supreme Courts of New York and Massachusetts, as well as those of several other distinguished tribunals; and now we are asked to retrace our steps, because a different rule for a time prevailed in New York. We have examined the several decisions of the case of Hall v. Newcomb, (3 Hill, and 7 Hill, 416,) and find nothing in them which at all inclines us to change the rule in this court. The last was in the Court of Errors, where the case was twice argued. Upon the first argument, that court was equally divided; and upon the second argument, a very large minority of the court were for adhering to the ancient and true rule upon the subject. In the cases already referred to, in this court, the subject was fully examined, and we do not feel called upon to review the authorities again.

Let the judgment be affirmed. Judgment affirmed.


author: Treat, C. J.

text:
    William Neely, Plaintiff in Error, v. The People of the State of Illinois, Defendants in Error.
    EEEOE TO STEPHENSON.
    If a juror has made up a decided opinion respecting "the merits of the controversy, either from personal knowledge of the facts, from the statements of witnesses, from the relations of the parties, or from rumor, he is disqualified from trying the case, if challenged for cause.
    Neely was tried at the September term, 1851, of the Stephenson Circuit Court, Sheldon, Judge, presiding, upon an indictment for committing a rape. On the calling of the jury, the' following named persons were drawn by the clerk of the court as jurors; and, being examined as to their competency, Peter Rue testified, that he had heard statements which he believed; and from those statements he had formed an opinion; that, if the evidence should turn out as he had heard, he had an opinion; that if the evidence should be different, he would be governed by the evidence in finding a verdict in said cause. Jared Sheetz, on his examination as to his competency, testified, that he had formed an opinion from statements he had heard; that at the time he heard the statements, he believed them. James Denure, on his examination, testified, that he had formed an opinion in said cause, from statements-, he had heard; did not know if he had heard the statements from any witness in the cause; had an opinion, if the evidence should turn out as he had heard; if different, then he had no opinion. P. C. Shaffer testified, that he had frequently heard the case spoken of; was at Mount Carroll shortly after the examination was had before the justice; that he had been told by one person present what the evidence in the case was; that, if the evidence should turn out as he had been told, he had an opinion; if not, then he had no opinion. Each of the said four jurors testified, that he had formed an opinion as to the guilt or innocence of the defendant, from statements, in regard to the case, which he had heard, and which he believed to be true. R,ue testified, that he had formed his opinion from statements which he believed, and still believes, to be true. Sheetz testified, that the statements he had heard came from such a source that he believed them to be true. Denure testified, that he believed the statements he had heard to be true; that he did not know whether he received them from witnesses in the cause or not; that he should believe the statements till disproved; that, if proved to the contrary, he did not know that the opinion formed would influence him. Shaffer testified, that he was at Mount Carroll just after the examination of the defendant before the magistrate; that a person then related to him what was sworn to on such examination; he had talked with another person from Mount Carroll about the case; he had heard statements in regard to the case from one of the counsel in it; he had formed an opinion in the cause from the statements he had heard, and he believed them to be true. The counsel for the defendant asked this juror whether, from all he had heard of the evidence and facts, he had formed such an opinion as would prevent him, after hearing the evidence in the cause, from rendering a fair and impartial verdict between the people and the defendant ? to which he answered, it would not; that he had no bias that would not yield to testimony.
    All of which said jurors, on the motion of the attorney prosecuting, the court set aside, and excluded said jurors for cause. To which ruling and setting aside of said jurors by the court, the defendant then and there excepted.

      The above is a copy of the bill of exceptions, as presented by the record, in reference to the jurors excluded. The point submitted to this court by the defendant, on the writ of error, was the propriety of excluding the above-named jurors from sitting on the trial of the cause.
    J. Turner, for the plaintiff in error.
    B. C. Cook, District Attorney, for the people.
   Treat, C. J.

We have no doubt about this case. It was held in Smith v. Eames, (3 Scam. 76,) that, if a juror has made up a decided opinion respecting the merits of the controversy, either from a personal knowledge of the facts, from the statements of the witnesses, from the relations of the parties, or from rumor, he is disqualified from trying the case, if challenged for cause. The rule was adhered to in the cases of Gardner v. The People, (3 Scam. 83); Vermum v. Harwood, (1 Gilm. 659); and Baxter v. The People, (3 Gilm. 368,) and must now be considered as the settled doctrine of this court. Applying this test to the present case, the jurors were clearly incompetent, and the court properly allowed the challenges for cause. Each of the jurors had formed a definite opinion, as to the guilt or innocence of the prisoner, based upon information as to the facts of the case, which he believed to be true. His opinion was of a positive, and not of a hypothetical character, tie would have entered the jury-box with a fixed opinion, as to the question to be determined, which would have controlled his action as a juror, unless the testimony disclosed a state of facts materially different from what he already believed them to be.

The judgment is affirmed. Judgment affirmed.


text:
    Benjamin F. O’Reer, Plaintiff in Error, v. Wilson Strong, Defendant in Error.
    ERROR TO JO DAVIESS.
    Where, in a contract for the sale of a grist-mill house, wheels, irons, holts, &e., attached to said mill-house, the purchaser sought to recover the value of a bolting-cloth, which had been removed prior to the sale: —

      Held, that the bolting-cloth formed no part of the property sold. Parol proof was inadmissible to show that the contract was designed to embrace this article.
    Where the contract of the parties is reduced to writing, the writing affords the only evidence of its terms.
    Assumpsit is not the proper remedy, to recover the value of the bolting-cloth in this case, unless upon proof that the cloth had been converted into money or its equivalent, or the delivery of it had been refused.
    In awarding costs on appeal from justices of the peace, where the judgment is affirmed, if the plaintiff below appeal, the Circuit Court should charge him with the costs of appeal.
    O’Reer sued Strong before a justice of the peace in Jo Daviess county, ,by attachment, for the sum of $51.32, and recovered judgment for $25.15 damages, and for $3.10 costs. O’Reer appealed to the Circuit Court of Jo Daviess county, and at September term, 1851, Sheldon, Judge, presiding, the cause was tried by a jury, and resulted in a verdict and judgment, for precisely the same amount that was recovered before the justice. The defendant Wilson, insisted that the costs should be taxed against the plaintiff in both courts ; the Circuit Court, rendered judgment accordingly. O’Reer brings the cause to this court.
    J. P. Stevens, for plaintiff in error.
    Higgins & Strother, for defendant in error.
   Treat, C. J.

O’Reer brought an action of assumpsit against Strong, before a justice of the peace, and obtained a judgment for $25.15. He prosecuted an appeal to the Circuit Court, where a verdict was returned in his favor, for the same amount. He made a motion for a new trial, which was refused; and judgment was then entered for him, for the amount of the verdict, and he was adjudged to pay all the costs of the case. He now brings the record into this court. It appeared, on the trial, that the defendant was indebted to the plaintiff in the sum of $25.15. The only controversy was about a bolting-cloth, the value of which the plaintiff claimed to recover. He read in evidence a bill of sale, bearing date the 27th of July, 1850, by which the defendant sold the plaintiff a certain “ grist-mill house, wheels, irons, stones, bolts, and all other the furniture and fixtures contained in or attached to said mill-house.” A witness testified that defendant told him before the date of the bill of sale, that he had taken the bolting-cloth in question, out of the mill "into his possession, for safe keeping, and that it was a very good one; witness understood the term bolt to include the bolting cloth, and the price of a common bolting-cloth, was from $40 to $60. Another witness testified that in September, 1850, he heard a conversation between the parties, at plaintiff’s house near the mill, in which plaintiff asked defendant if he had brought down the bolting-cloth, and defendant replied that he had not, but was soon going up to the Platte, (which was twenty miles distant,) and would then bring it to him. Another witness heard defendant say, in the fall of 1850, that he had sold plaintiff a bolting-cloth, and would bring it to him in a few days. The suit was commenced in February, 1851.

The plaintiff was not entitled to recover the value of the bolting-cloth. It did not pass to him by the bill of sale. The sale was of the mill-house, and the furniture and fixtures contained in, or attached thereto. Thé cloth had been removed prior to the sale, and was not at the time of the sale contained in, or attached to, the mill. It consequently formed no part of the property sold. Nor was it competent to prove, by parol, that the bill of sale was designed to embrace this article. The contract of the parties was in writing, and the writing afforded the best evidence of what they intended. A contract cannot rest partly in writing, and partly in parol. If it is reduced to writing, the writing affords the only evidence of its terms. It cannot be varied or contradicted by parol evidence. This principle is too well established, to require any reference to authorities. The parol evidence, introduced for the purpose of showing that the bolting-cloth was included in the sale, was admitted in clear violation of the rule, and the plaintiff has no reason to complain because it was disregarded by the jury.

But if the bolting-cloth was really included in the sale, and the consideration was advanced by the plaintiff, we should not be inclined to disturb the verdict. In such event, it may well be doubted whether he could recover in this form of action,' without proof, either that the defendant had converted the article into money or its equivalent, or had refused to deliver it according to the contract. In the first case he might be entitled to recover the price, as so much money had and received by the defendant to his use; in the latter case, his damages for not delivering the property, might be its value, at the time it should have been delivered. The evidence did not tend to show that the defendant had sold the property; nor did it appear that he was bound by the terms of the contract to deliver it at the residence of the plaintiff. If he was not thus bound to deliver the article, it was the duty of the plaintiff to call for it; and only on the refusal of the defendant to deliver it, could an action of assumpsit be maintained against him for the value. The evidence was not of such a character, as necessarily to compel the jury to find against the defendant. The giving of certain instructions is assigned for error, but as the record fails to show that they were excepted to when given, they will not be further noticed.

The court erred in its disposition of the costs. The plaintiff obtained a judgment in the first instance, and that judgment was affirmed in the Circuit Court. He had therefore a good cause of action, and was entitled to recover the costs incurred in asserting it. He was the successful party before the justice, but the unsuccessful party in the Circuit Court. The appeal was causelessly prosecuted, and he ought to be charged with the costs. As respects the appeal, the defendant was the successful party, and he ought to recover the costs incurred in defending it. The 17th section of the 26th chapter of the Revised Statutes must be understood as applying to cases in which the unsuccessful party before the justice, prosecutes an appeal that results in an affirmance of the judgment.

The judgment of the Circuit Court will be reversed with the costs of this writ of error; and the cause will be remanded to that court, with directions to enter a judgment in favor of the plaintiff, for the amount of the verdict, and the costs before the justice, and. also to enter a judgment in favor of the defendant for the costs of the appeal.

Judgment reversed.


author: Treat, C. J. Trumbull,

text:
    Lorenzo D. Dana et al., Plaintiffs in Error, v. Benjamin C. Adams, Defendant in Error.
    ERROR TO McHENRY.
    A defendant has a right to withdraw a plea, but cannot withdraw his appearance without leave of the court.
    A court may allow an appearance to be withdrawn, which has been entered through fraud or mistake; but a special application must be made and leave obtained for that purpose.
    If a defendant withdraws his plea and appearance, it will be understood as an abandonment of the defence previously interposed.
    This was an action of assumpsit, commenced in the McHenry Circuit Court by Adams, against L. D. Dana and another. Process was returned, served on L. D. Dana, Lorenzo Dana not found, at the January term, 1852, of that court. At the return term, the defendants both appeared by counsel, and filed a plea of non assumpsit, and also a special plea. To the plea of non assumpsit, the plaintiff added the similiter, and filed a demurrer" to the special plea. The cause was continued to the March term, of the Circuit Court. At the March term, 1852, Wilson, Judge, presiding, the following order was entered.
    And now comes the plaintiff by Church & Willard his attorneys, and thereupon come the defendants by Smith, and withdraw the pleas filed herein by the said defendants, and also their appearance, and the said defendants being called come not, nor any one for them, but fail and make default herein, which is ordered to be entered of record. It is therefore on motion of the plaintiff’s attorneys, that plaintiff have judgment for his damages, but because these are uncertain and unknown to the court, this suit being brought upon an instrument of writing, for the payment of money only, it is therefore ordered that the clerk assess the same, and he having assessed and reported to the court, the sum of eight-hundred and sixty-eight dollars and thirty-six cents, which is ordered to stand confirmed and approved. It is therefore ordered and considered, that the plaintiff have and recover of the defendants, the sum, &c., &c., his damages so assessed, as also his costs and charges herein expended, and that he have execution therefor.
    From this judgment the Danas sued out this writ of error, and assign for error, — that the court erred in rendering final judgment against both of the defendants, when process had been served on but one of them.
    C. McClure, for plaintiffs in error.
    Church & Willard, for defendant in error.
   Treat, C. J.

This was an action of assumpsit, brought by Adams against L. D. & L. Dana. But one of the defendants was served with process. Both appeared at the return term, and pleaded to the declaration. At the next term, a judgment by default was rendered against both, for the amount of the promissory note declared on. The entry of judgment was prefaced by this recital. “And now comes the plaintiff, by Church & Willard, his attorneys, and thereupon, come the defendants, by Smith, and withdraw the pleas filed herein by the said defendants, and also their appearance.”

It is insisted, that the plaintiff was not entitled to judgment against both defendants. Both were before the court by the filing of pleas. They had a right, as a matter of course, to withdraw the pleas, for the withdrawal could not operate to the prejudice of the plaintiff. Ayers v. Kelly, 11 Ill. 17. But they had no such right to withdraw their voluntary appearance to the action. Leave of the court should have been obtained. A court may properly allow an appearance to be withdrawn, which has been entered through fraud or mistake. But a special application must be made to the court, and the leave obtained, before the appearance can be withdrawn. The record fails to show that any such leave was granted in this case. It does not even show that an application was made for the purpose. It only recites, that the defendants withdrew their pleas and appearance. This must be understood as an abandonment of the defence previously interposed, and also of any right further to appear in the case. In Michew v. McCoy, 3 Watts & Sergeant, 501, the appearance was withdrawn by the leave of the court. The case of Lodge v. The State Bank, 6 Blackford, 557, seems to proceed on the ground, that a defendant has a right, as a matter of course, to withdraw a voluntary appearanee,—a principle that we cannot for a moment sanction.

The judgment is affirmed. Judgment affirmed.

Trumbull,

Justice, Dissenting. That an attorney has the right, by leave of the court, to withdraw an appearance inadvertently entered, cannot admit of doubt. Cases often happen, in which the appearance of a party has been entered by an attorney through mistake, and the grossest injustice might be done, if, in such a case, and when the rights of the plaintiff could not be prejudiced thereby, such appearance could not, in the discretion of the court, be withdrawn, so as to leave the parties in the same situation as if it had never been entered.

Whether the appearance of the defendant not served with process in this cause, was entered through' mistake, the record does not show, nor is it important, as we are bound to presume the Circuit Court would not have allowed it to be withdrawn without sufficient cause.

But it is said, that the record does not show that leave was given to withdraw the appearance. The record recites, “ and thereupon come the defendants, by Smith, and withdraw the pleas, filed herein by the said defendants, and also their appearanee,” and then, in the same order, immediately follows the judgment by default against both the defendants.

As a party cannot withdraw his appearance when entered, except by leave of the court, and as the record shows the withdrawal, the presumption of law is, that it was done by permission of the court, upon the principle, that the action of the Circuit Court is always presumed to be right, till the contrary be affirmatively shown.

Suppose the judgment in this case had been only against the defendant served with process, and he had brought the case here, alleging that fact as error, as it would have been if both parties were before the court, would this court then have held, that the entry upon the record, that the defendant not served with process came and withdrew his appearance, amounted to nothing, because it did not state that he had the leave of the court for so doing, and have reversed the judgment, because it was not against both defendants ? Such must have been the result, according to the decision now made.

There is, to my mind, another conclusive answer to the suggestión that the record does not state in so many words, that the appearance was withdrawn by leave of the court.

It will be observed that pleas had been filed; These pleas could no more be withdrawn without the leave of the court, than the appearance ; for although the court may have no discretion to refuse leave to withdraw a plea, under certain circumstances, yet a plea can never be withdrawn without such leave.

If, therefore, the withdrawal of the appearance amounted to nothing for want of a recital, that it was done by the permission of the court, it is equally clear that the attempt to withdraw the pleas was ineffectual, and the judgment by default in that event was clearly erroneous.

The Supreme Courts of Indiana and Pennsylvania have both decided the precise point involved in this case: and I apprehend a case can nowhere be found establishing a contrary doctrine.

In Dodge v. State Bank, 6 Blackf. 557, the action was against four defendants, two of whom only were served with process. A plea of non assumpsit was filed by all the defendants, and the cause continued in that situation for two terms. At the third term, the following entry appeared of record: “ The parties come and the defendants withdraw their plea, and also their appearance by them heretofore entered,” &c.“ The plaintiff contended, that as all the defendants appeared and pleaded to the action, the objection as to want of service on any of the defendants was waived, but the court said, “the record, however, shows that the appearance and plea were withdrawn, which, left the case as if there had been no appearance and plea.”

In the report of the case of Mechen v. McCoy, 3 Watts & Sergeant, 501, no copy of the entry on the record is given. The syllabus of the case is this: “ If an attorney appear for a defendant and plead to issue, and afterwards the appearance and pleas be withdrawn by leave of the court, the cause stands as if there had been no appearance.” Gibson, C. J., in delivering the -opinion of the court, uses this language: “ The court permitted the defendant’s attorney to withdraw his appearance and plea at the trial, and instantly gave judgment for the plaintiff.”

How the withdrawal was entered upon the record we cannot know, as no copy is given; but I imagine, the original record from Pennsylvania would show no more than appears in the Indiana case, or the one now before us. The court in Indiana might, with propriety, have used the same language in reference to the withdrawal of the plea in that case, that Chief Justice Gibson did, because the presumption is, when the record states the withdrawal of an appearance that it was done by permission of the court.

It was urged, in the case of Michew v. McCoy, that the withdrawal of the appearance and plea, was understood at. the time, to be a confession of judgment. But the court said, “ No such understanding is apparent in the ease, as it stands on the record, by which alone we must be guided. There certainly was no confession before the attorney’s appearance was withdrawn; and he was incompetent to bind the defendants after he had ceased to represent them.”

In this case, the withdrawal of the defendant’s appearance not served with process, left the case, as. to him, in the same position as if his appearance had never been entered, and in my opinion, the judgment against him was erroneous.


text:
    William Thomas, Plaintiff in Error, v. The People, Defendants in Error. The Same v. The Same.
    ERROR TO IROQUOIS.
    A writ of scire facias, upon a recognizance, should clearly show before what court the recognizance was entered into, and for what offence the principal in the recognizance was indicted; also, that a judgment of forfeiture had been entered.
    These cases were commenced by proceedings by scire facias, in the Iroquois Circuit Court. The causes were heard before Henderson, Judge, at the October term, 1850, of the Iroquois Circuit Court.
    The writs of scire facias, after stating that the parties entered into a recognizance on the 2d day of November, 1849, which is recited, then aver, that the said James Ellis (the party indicted) having failed to appear at the said term of said court, to answer to the said indictment, as we by the suggestion of the people aforesaid by their State’s attorney have understood, the recognizors were summoned to be and appear, &c., to show cause, if any they had, why the people, &c., ought not to have execution against them in the said sum of one hundred dollars, for which they are respectively bound, according to the force, form, and effect of the said recognizance, and further to do and receive whatever the said court should then and there consider and adjudge against them in that behalf.
    The writs were served on William Thomas, the other defendants were not found.
    George B. Joiner, for plaintiff in error.
    Charles Gardner, for the people.
   Catón, J.

These two cases are alike, and but one opinion need be filed in the disposition of both. They are judgments upon two writs of scire facias entered by default, and although several objections were taken upon the argument, we only deem it necessary to notice one. The writs ,6f scire facias are altogether insufficient to authorize judgments upon them. They do not clearly show before what court the recognizances were entered into, nor for what offences the principal in the recognizances was indicted. These should have been shown by averments in the writs of scire facias. But, above all, they do not show that any judgment pf forfeiture had ever been entered upon the recognizances. They merely show the non-appearance of the principal cognizor according to the exigencies of the recognizances. After setting forth the recognizances, the writs of scire facias proceed, “And the said John High having failed to appear at the said term of the said court to answer to the said indictment, as we by the suggestion of the people aforesaid by their States-attorney have understood; We therefore command you,” &c. Now here is no judgment of forfeiture whatever, but merely the recital of a state of facts, which would have authorized the court to enter such judgment. We cannot look to the orders of the court, which were made at the time of the defaults, which seem to be embodied in the records, and which might have justified the proper averments in the writs of scire facias, for the question arises upon the sufficiency of these pleadings themselves. They should have shown judgments upon which executions could be awarded.

The judgments of the Circuit Court must be reversed.

Judgments reversed.


text:
    John Schwab, Plaintiff in Error, v. John Gingerick, Garnishee, &c., Defendant in Error.
    ERROR TO PEORIA.
    "Where the finding of a jury is manifestly against the evidence before them, a new trial should be granted.
    On an issue between the plaintiff and a garnishee, the answer which the garnishee has made under oath should go before the jury, who may give it such weight as they may believe it entitled to, in connection with all the circumstances of the case.
    The facts of this case are stated in the opinion of the court,

      The cause was heard before Kellogg, Judge, and a jury, at the March terra, 1852, of the Peoria Circuit Court.
    N, H. Purple, for plaintiff in error.
    -O. Peters, for defendant in error.
   Treat, C. J.

Schwab recovered a judgment against Schultz before a justice of the peace, for §79.31, on which an execution was issued, and returned unsatisfied. He then sued out garnishee process against Gingerick and Webster, who appeared and admitted that they owed Schultz §100 on two promissory notes, and judgment was entered against them for the amount of the judgment against Schultz. The garnishee appealed to the Circuit Court, and it there appearing that the notes were assigned before the service of the garnishee process, the plaintiff dismissed the proceeding as to Webster. Gingerick having'denied all indebtedness, a jury was impanelled to inquire what amount was due from him to Schultz. The plaintiff proved by a witness, that after the service of the garnishee process, and on the same day, Gingerick admitted to him several times that he owed Schultz §20 besides the notes, and that the plaintiff would be sure of that át all events. A similar admission was proved by a witness called by the garnishee. The garnishee introduced some testimony that was wholly unintelligible, without reference to his answer to the interrogatories propounded by the plaintiff previous to the trial. The garnishee then offered" to introduce the answer to the jury, which the court excluded. The jury found in favor of the garnishee, and the court refused a new trial.

‘The finding of the jury was manifestly against the evidence before them, and the court should have granted a new trial. It clearly appeared that the garnishee was indebted to the judgment debtor in the sum of §20, arid the plaintiff was entitled to a verdict for that amount. The judgment must therefore be reversed.

As the same question may arise on another trial, it will not be improper to intimate an opinion as to the admissibility of the answer of the garnishee. He is called on to make true discovery on oath, and has a right to have his answer before the jury. They are to give it such weight as they may believe it entitled to in connection with all the circumstances of the case. If, upon a consideration of the whole case, they come to the conclusion that the garnishee was not indebted to the judgment debtor when the process of garnishment was served; their finding must be in favor of the garnishee; otherwise, it should be against him for the amount of the indebtedness. This is the principle of the ease of Kergin v. Dawson, 1 Gilm. 86.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    James Dufield, Appellant, v. Elisha A. Cross, Appellee.
    APPEAL PROM McHENRY.
    Where a bill of exceptions is settled several days after the trial of a cause, and states that “ the plaintiff asked for the following instructions, to the giving of which the defendant excepts,” the court will not consider the instructions, but will suppose the exception to them was not taken on the trial.
    Where there is a conflict of testimony, the Supreme Court will not disturb a verdict, unless it is manifestly against the weight of evidence.
    Cross sued Dufield in assumpsit, for work and labor, laying his damages at one thousand dollars. Dufield filed the general issue, to which there was a joinder.
    The cause was submitted to a jury, Wilson, Judge, presiding, at March term, 1852, and resulted in a verdict and judgment against Dufield for $140 and costs. Whereupon Dufield prayed for an appeal, and brought the cause to this court.
    The opinion of the court contains a statement of all the facts necessary to a full understanding of the case.
    T. L. Dickey and E. McClure, for appellant.
    Loop and Hurlbut, for appellee.
   Treat, C. J.

No .question arises on the instructions. The bill of exceptions was settled several days after the trial; and, in reference to this branch of the case, states, that “the plaintiff asked for the following instructions, to the giving of which the defendant excepts.” The exception was not taken on the trial, and therefore came too late. See Dickhut v. Durnell, 11 Ill. 72, and the cases there cited.

The record presents the question, whether the verdict was authorized by the evidence. The testimony established the following facts: That the plaintiff, while a minor, went into the service of the defendant to remain until he should arrive at age, with a promise on the part of the defendant to give him a horse, saddle, and bridle; that he continued in the service of the defendant until March, 1849, when he received a horse, saddle, and bridle, and a few dollars in money, and left for Wisconsin; that he returned in June following, and worked for the defendant till July or August, 1850; and that his services from the fall of 1847, were worth from $10 to $12 per month. So far, there was no conflict in the testimony. One of the plaintiff’s witnesses testified, that the plaintiff’s vote was challenged at the presidential election in November, 1848, when the defendant said that he was twenty-one years of age the fall before, and upon that statement his vote was received. Another witness understood the defendant to state on that occasion, that the plaintiff was of age the year before. A witness called by the defendant testified, that the plaintiff told him on his way to the election, that he was not yet of age, but intended to vote. Two witnesses introduced by the defendant proved admissions made by the plaintiff in September, 1850, to the effect that a settlement had taken place between him and the defendant, by which the latter was to pay him $20 then, and $55 in the faU of 1851. A witness called by the plaintiff proved an admission of the defendant, that he had settled with the plaintiff for the work done after his return from Wisconsin; that the plaintiff thought he ought to have something for the work done previously, but defendant" did not consider himself bound to pay him any thing for it. It appeared in evidence that defendant paid plaintiff $20 in September, 1850, and $55 in February, 1852. On this state of facts, the jury found a verdict in favor of the plaintiff for $140.

It is very evident that a settlement was made by the parties after all the services were rendered, and that the amount found due to the plaintiff has been fully paid. The settlement unquestionably . embraced the labor performed after the plaintiff returned from Wisconsin, and the only question is whether it included the labor done previously. It is a fair inference from the declarations of the plaintiff that the settlement was general, embracing all the dealings between the parties; while the declarations of the defendant tend to show that it was partial, relating only to the work done by the plaintiff after his return from Wisconsin, and leaving unadjusted any claim for services rendered before that time. On this testimony, the extent of the settlement was peculiarly a question for the jury; and we are not prepared to say, that they erred in the conclusion that the settlement was a partial one.

Whether the plaintiff was entitled to recover for the labor performed before he went to Wisconsin, depends on the question when he became of age. On this point, the testimony was also conflicting, consisting wholly of admissions of the parties. The plaintiff, on his way to the election, stated that he was not then of age; while the defendant declared at the polls, that he was of age a year previous. If the statement of the former was true, the damages were excessive; if the declaration of the latter was true, the verdict was right. Whatever may be the truth of the case, we cannot say that the finding of the jury was manifestly against the weight of evidence, and the verdict must stand.

The judgment is affirmed.

Judgment affirmed.


author: Trumbull, J.

text:
    Charles Jacks, Plaintiff in Error, v. Liberty Stimpson, Defendant in Error.
    ERROR TO ROCK ISLAND.
    In. an action for a malicious prosecution, it must be shown, that the defendant instituted the prosecution against the plaintiff, maliciously and without probable cause; and the two must concur. If the prosecution was malicious and unfounded, but there was probable cause for its institution, the action cannot be maintained.

      What constitutes the probable cause, which will justify the prosecution of a person, for a criminal offence, is a question of law; and it may be laid down as a rule, that an honest belief of the guilt of the accused, founded on circumstances tending to show that he has committed a criminal offence, negatives the idea of a witnt of probable cause for the prosecution.
    The mere belief of a prosecutor, that he had good cause for commencing criminal proceedings, is not a sufficient defence, if all the facts and circumstances under which he acted clearly show, that there was no probable cause for his acts, and that his belief was groundless, and could not have been formed without the grossest ignorance and negligence.
    This was an action on the case for malicious prosecution, brought by Stimpson against Jacks, in the Henry County Circuit Court, and taken, by change of venue, to Rock Island; where it was tried at the November term, 1851, of the Circuit Court of that county, before Wilkinson, Judge, and a jury, and judgment was rendered against Jacks for $500 damages.
    The plaintiff below proved, on the trial, that Jacks procured a warrant to be issued by one Griffin, a justice of the peace, for Stimpson, on a charge of larceny, for taking some cattle from the inclosure of said Jacks; under which warrant Stimpson was arrested and discharged, upon an examination before the justice; he also proved actual damages resulting to himself from such arrest.
    He also gave in evidence the following contract:
    “ Henry County, III., August 26,1848.
    “ Received of .L. Stimpson forty dollars, in part, for four four-year-old steers and four three-year-old steers, to be delivered when called for. Due eighty dollars. The said steers being at the risk of said Stimpson, the balance due to be paid in October, and the cattle received then. Charles Jacks.”
    It was also proved that, on or about the tenth day of November following, Stimpson tendered Jacks eighty dollars, as the residue of the purchase-money due on said cattle; that Jacks refused to receive it, alleging that Stimpson had forfeited the cattle; that, finally, Jacks did take the money, but said he would not take it for the cattle, and that Stimpson should not have the cattle. Stimpson took the cattle from the field of Jacks, and put them, into a drove with other cattle belonging to Stimpson.
    Motions for a new trial, and in arrest of judgment, were made, and overruled by the court, and the defendant excepted.
    J. Manning, for plaintiff in error.
    N. H. Purple, for defendant in error.
   Trumbull, J.

This was an action on the case for a malicious prosecution. Jury-trial, verdict and judgment against the defendant below for $500 damages.

To maintain an action for a malicious prosecution, it must be shown that the defendant instituted the prosecution against the plaintiff maliciously, and without probable cause; and the two must concur. If the prosecution were malicious and unfounded, but there was probable cause for its institution, the action cannot be maintained.

What constitutes the probable cause which will justify the prosecution of a person for a criminal offence, is a question of law, the determination of which must necessarily depend, in a great measure, upon the facts of each particular case; but it may safely be laid down as a rule, that an honest belief of the guilt of the accused, founded on circumstances tending to show that he has committed a criminal offence, negatives the idea of a want of probable cause for the prosecution. Foshay v. Ferguson, 2 Denio, 617.

Tested by this rule, it is clear that the Circuit Court erred in refusing the third instruction asked by the defendant. That instruction was as follows: “ In order to show probable cause, it is not necessary to exhibit proof of guilt in respect to the party accused, but a belief of guilt on the part of the accused (accusing) party against the accused, founded upon circumstances tending to show guilt, is sufficient evidence to show probable cause.” There is a verbal inaccuracy in the instruction ; but in substance it amounts to this, that a belief of guilt, founded on circumstances tending to establish that fact, is sufficient evidence in an action for a malicious prosecution to show that such prosecution was not instituted without probable cause. "Unless this be the law, no man would feel safe in entering a complaint against another for a criminal offence; for, unless the prosecution should result in a conviction, he would be liable to an action for damages; the fact, that he acted upon circumstances tending to show the accused guilty of the imputed offence, and that he really believed him so, affording him no, protection. ■

Such is not the law, and public policy forbids that it ever should be. While the law secures every person from unfounded arrests, maliciously instituted against him without probable cause, it at the same time protects the honest citizen, who discharges his duty to the community by the prosecution of one whom he has probable cause for believing criminally guilty.

The .other error principally relied on was the refusal of the Circuit Court to give the seventh instruction, which reads as follows: “ If the jury find that the defendant Jacks actually believed that he had good cause to prosecute Stimpson before the magistrate, the want of probable cause then furnishes no evidence of malice.”

That the inference of malice, arising from the want of probable cause may be rebutted, is not denied; but it is not necessarily overcome, as the instruction would imply, by simply showing, if such a thing be possible, that the defendant believed there was probable cause, when all the facts and circumstances under which he acted clearly show that there was none; that his belief was utterly groundless, and could never have been formed without the grossest ignorance and negligence. As was said by Lord Ellenborough, in Brooks v. Warwick, (2 Starkie’s Rep. 390,) a commitment may be pressed under circumstances showing such a crassa ignorcmtia, as to amount to malice.

The mere belief of the prosecutor is no defence; he must have had probable cause for his belief. Winebiddle v. Porterfield, 9 Barr, 137; Hall v. Suydam, 6 Barb. Sup. Ct. Rep. 84; Wills v. Noyes, 12 Pick. 324; Wood v. Weir, 5 R. Monroe, 544.

Judgment reversed, and cause remanded.

Judgment reversed.


author: Per Curiam.

text:
    William W. Satonstall et al., Plaintiffs in Error, v. Canal Commissioners, Defendants in Error.
    ERROR TO COOK.
    Where an order is made, that a bill of exceptions be filed in vacation, it will be understood to mean the next ensuing vacation of the court at which the order is made.
    During the term in which the judgment in this case was entered, an order was made on the record that the bill of exceptions be filed in vacation. It was filed after two terms of the court had intervened. The defendant in error entered his motion to exclude it from the record.
    J. N. Arnold, for the motion.
    J. C. Champlin, contra.
   Per Curiam.

The motion must prevail. The order must be understood to mean the vacation immediately succeeding the term at which the judgment was rendered. The order did not extend to any other vacation.

By any other construction, there might not be any limitation fixing the time for filing the exceptions.


text:
    John Gillilan et al., Appellants, v. Daniel S. Gray et al., Appellees.
    APPEAL FROM KANE.
    A variance in names between the obligatory and conditional parts of an appeal bond are fatal.
    The Supreme Court has no authority to allow an amendment of an appeal bond from the Circuit Court.
    The appellees, Daniel S. Gray and Ralph Gray, recovered a judgment in the Kane Circuit Court, at the August term thereof. against John Gillilan and Horace Hubbard; who then prayed an appeal, which was allowed, upon condition that they should give the usual bond, with Henry E. Hunt as surety. The recital in the condition of the bond is, that said Daniel S. Gray and Edward Gray recovered a judgment; whereas the obligatory part of the bond described the parties who recovered the judgment as Daniel S. Gray and Ralph Gray. A motion was made by appellees to dismiss the appeal for the foregoing defect. The appellants entered a cross motion for leave to amend the bond.
    Church & Willard, for appellees.
    C. McClure, for appellants.
   Per Curiam.

The motion to dismiss the appeal is sustained. The variance between the obligatory and the conditional parts of the bond is fatal to it. The cross motion of the appellants, asking leave to amend the appeal bond, is overruled.

This court has no authority to allow an amendment of an appeal bond, taken in the Circuit Court, as preliminary to the-removal of a cause for examination here.


text:
    John Rankin, Plaintiff in Error, v. Charles Ballance, Defendant in Error.
    ERROR TO PEORIA.
    Where a judgment has keen reversed on appeal and stands for hearing de novo in the Circuit Court, a writ of error will not lie to hear exceptions to the same judgment.
    Ranicin recovered a judgment against Ballance, at the May term, 1851, of the Peoria Circuit Court. Ballance prosecuted an appeal to the succeeding June term of this court, during which the judgment was reversed and the cause remanded. Prior to the hearing of the case on the appeal, Rankin sued out a writ of error to the Circuit Court, returnable to the present term, of this court. Ballance now enters a motion to dismiss the writ of error.
    Ballance, pro se, for the motion.
    N. H. Purple, contra.
   Per Curiam.

The motion must prevail. There is now no judgment to be affirmed or reversed. The various rulings of the Circuit Court have in effect been set aside. The cause is now pending for trial de novo in that court. If the judgment had been affirmed on the appeal, the plaintiff in error might still prosecute his writ of error, and have his exceptions considered. But the exceptions fell with the judgment. The writ of error will be dismissed.


text:
    Jesse Flanders et al., Plaintiffs in Error, v. Franklin Whittaker, Defendant in Error.
    ERROR TO McHENRY.
    A defendant who has been ruled to plead by a particular day, cannot file a plea after the expiration of the rule, without special leave for that purpose; and if a plea is put on the files without first obtaining such leave, the court may disregard the plea, and render judgment.
    The judgment, to reverse which this writ of error is brought, was rendered by Wilson, Judge, at the April term, 1851, of the McHenry Circuit Court.
    The facts of the case will be found in the opinion of the court.
    C. McClure, for plaintiffs in error.
    Church & Willard, for defendant in error.
   Treat, C. J.

This was a proceeding by scire facias to foreclose a mortgage. The defendant was ruled to plead by a particular day. He filed a demurrer to the scire facias, after that day had passed. A judgment by default was subsequently entered against him. The rendition of that judgment is now assigned for error. The defendant had no right to plead after the expiration of the rule, without the special leave of the court. The demurrer was put on the files without first obtaining such leave, and it was very properly disregarded by the court. The plaintiff was as much entitled to a judgment by default when the demurrer was filed, as he was at the moment the rule to plead had expired.

The judgment is affirmed. Judgment affirmed.


text:
    Dennis Blakeley, Appellant, v. George C. Bestor, Appellee.
    APPEAL FROM PEORIA.
    It is competent to avoid-the evidence of a tax-title set up by the defendant in ejectment, by proving that the defendant was in a position while the tax-title was maturing, which made it Ms duty to pay the taxes. But it does not necessarily follow, from the fact that the defendant was in possession of the premises when the taxes were assessed, that he was bound to pay them.
    The court has no right to reject a tax-title from the evidence, on the ground that the evidence shows it to have been acquired at a time when it was the duty of the party seeking to avail himself of it, to pay the taxes, without affording such party an opportunity to contradict or explain such evidence.
    The construction of a tax-deed in respect to the description of the land conveyed, must be the same as if such description were used in a deed between private individuals. The doctrine of strict construction, as applied to the execution of naked statutory powers, has no application in such case.
    Where a tax-deed purported to convey part of a town lot, “ viz.: 20 feet on Main street, commencing 40 feet from Alley, undivided half, Lot No. six, in block No. seven, in the town of Peoria,” it was
    field, that it must be construed as embracing a parcel of land twenty feet wide, extending back from Main street the whole depth of the lot, whatever it might be.
    This was an action of ejectment commenced in the Circuit Court of Peoria county, by George C. Bestor against Dennis Blakeley. A trial was had at the August term, 1851, of that court, upon the general issue; which resulted in a verdict for the plaintiff, and the defendant appealed.
    The facts of the case are fully stated in the opinion of the court.
    O. Peters and George S. Blakeley, for appellant.

      First. The description in the deed, judgment, and precept, are certain enough to pass the estate. Its exact locality can be easily ascertained, “ twenty feet on Main street, commencing forty feet from the alley,” &c. The plaintiff below introduced the plat, and our deed, judgment, and precept are to be construed as aided by that plat, “ Commencing forty feet,” &c., is a plain starting point; it conveys an undivided part of the lot, that is, the part of the lot which is “ twenty feet on Main street.” The parties intended something, and they could have intended nothing else. The deed is to be so construed as to give it effect, if it can be done without violation of positive rules of law. City of Alton v. Illinois Trans. R. Co., 12 Ill. 54. A deed that is ambiguous must be construed most strongly against the grantor. 12 Ill. R. 58, supra.

    The collector or sheriff is the grantor; he stands in the place of the owner of the land; the owner, from neglect of duty to the government, or rather by reason of his duty and obligation to the government, becomes indebted to it, and the law, by its proper officer, proceeds to do what he ought to have done, viz. raise his dues to the government, and subject his property to sale and conveyance for his default. The officer acts for him, and he should be estopped from relying upon an ambiguity, to avoid the deed. Whitaker v. Sumner, 9 Pick. R. 311; Olcott v. The People, 5 Gilm. 490. It is sufficient, if the locality of the land can be ascertained.

      Second. If there is ambiguity and uncertainty in the deed, it is aided by the other parts of the record.
    The assessment and all subsequent proceedings were offered, and are now in the case, as part of it, and each and all are muniments of title. The revenue laws do not exclude these as evidence, but excuses their production. The party may rely on the judgment, precept, and deed; but he is not required to do so.
    The assessment is regular, and contains a full description, “ twenty feet on Main street, by seventy-two feet deep ” — the returns of the delinquent lands, the judgment, precept, and deed, in connection with the plat, follow the assessment so nearly as to make the designation certain. We cite authorities not to establish, but to illustrate the principle of construction. Allen v. Bates, 6 Pick. R. 460; Birch v. Depeyster, 2 Eng. C. L. R. 86; 12 Ill. Rep. supra.

      Third. Courts will receive aid in the construction of a deed, by extrinsic evidence, either from written documents or parol evidence, when the language of the deed is ambiguous, indefinite, or may" have two significations, or a local signification or meaning. This rule is well settled, and the only difficulty is in its application. Clayton v. Gregson, 31 Eng. C. L. R. 342; Brown v. Brown, 8 Met. R. 576; Astor v. Union Insurance Co. 7 Cow. R. 202 - 214; Union Insurance Co. v. Breed, 1 Sumn. R. 159; The King v. Mashiter, 33 Eng. C. L. R. 36; McGregor v. Brown, 5 Pick. R. 170; 1 Mason R. 11; Doe v. Needs, 2 M. & W. 138; Doyle v. Teas, 4 Scam. R. 254, and authorities there cited; 1 Greenl. Ev. §§ 280, 286, 287, 288, and p. 659, 660.
    The parol evidence we offer, .is not to alter, or change, the terms of the deed, but to show what the parties intended by the language used; to show, not what was the meaning of words, but a phrase, a 'collocation of words; not the meaning of the words “twenty feet,” but of the phrase, “twenty feet on Main street; ” not its ordinary, general meaning, but its local meaning as fixed by its local usage. A “ foot,” as used in Peoria, as bordering oñ a street, has a very different meaning from what it would have in New York or Boston, when similarly used. In Peoria it means, a foot on the street running across the lot; in New York or Boston, it means a square foot.

      Fourth. This deed should have a construction like other deeds; the same as if it had been made by the owner of the land. The courts have gone far enough to defeat titles acquired in good faith, under the revenue laws. The faith of the government is pledged to those who pay their money for its support, that they shall be treated like other purchasers; twenty-five years of legislation have been had, reasonably to protect purchasers of property under the faith of its laws, and to insure the collection of its revenue. Legislation has been liberal to protect the purchaser. The construction of those laws has been quite rigorous enough. All our late legislation has been of a remedial character, and hence, if not the most liberal, at least a liberal construction should be given to those laws; they, and the proceedings under them, should be as liberal as other laws, which determine rights between parties. Atkins v. Hinman, 2 Gilm. R. 452, 453; Chesnut v. Marsh, 12 Ill. R. 180; Bestor v. Powell, 2 Gilm. R. 128; Hinman v. Pope, Id. 141, 142; Graves v. Bruen, 11 Ill. 437; Vann v. Schuyler, 1 Gilm. R. 162; Messinger v. Germain, 1 Gilm. R. 634.
    H. O. Merriman, for appellee.
   Trumbull, J.

This was an action of ejectment commenced in the Peoria Circuit Court, by Bestor against Blakeley. A trial was had upon the general issue, at the August term, 1851, when a verdict was rendered for the plaintiff, and the defendant appealed to this court.

In lieu of a bill of exceptions, the parties filed an agreement containing a statement of the facts which appeared on the trial of the case in the Circuit Court. From this it appears that Bestor deduced a title to himself from the United States to the part of the lot in the declaration mentioned, viz.: “ certain premises situated in the city of Peoria, in the county of Peoria, and State of Illinois, known and described as that part of Lot No. six (6,) in Block No. seven (7,) in said city, bounded as follows, to wit: beginning at a point on Main street, in said city, forty feet southeasterly from the corner of said lot, and the alley dividing said block, running thence southeasterly along the line of said lot on Main street, twenty feet; thence oh a line parallel with said alley, northeasterly seventy-two (72) feet across said lot; thence along the dividing Ene between said Lot No. six and Lot No. seven (7) in said block northwesterly towards said alley twenty feet; thence on a line parallel to said alley to the place of beginning, being twenty feet front on Main street by seventy-two feet deep, and forty feet southeasterly from said alley.”

The plaintiff also gave in evidence a plat of that part of the city of Peoria, showing the location of the premises in question, as follows:

It was proved that the defendant had been in possession of the premises for the last ten years, and that he was in possession at the time of the service of the declaration.

The defence set up, was a tax title in Eussell Blakeley. To sustain this the defendant offered in evidence the assessment book of the assessor of said county for the year 1842, in which lot 6, in block 7, was listed for taxation as follows:

In the same connection, the defendant offered ine vidence the notice and return of the collector for the taxes of the year 1842 ; the judgment of the Circuit Court of Peoria county, against lands, &c. for the taxes of the same year, rendered May term, 1843; the precept or order issued to the sheriff on said judgment, and a sheriff’s deed to said E. Blakeley. In all these proceedings and in the deed, the description of the premises in controversy is the same as in the assessment, except that the words and figures “ by 72 deep ” are omitted in all of them. In connection with the foregoing documentary and record evidence, the defendant called a witness “ who testified to the court, that whenever lands or lots, in the city of Peoria are sold, and any given number of feet on any particular street is mentioned in the description, it was understood to mean so many feet wide across the lot; as if twenty feet on Main street is mentioned in the description, it would be understood a part of the lot running across the lot twenty feet wide.”

The court rejected all of defendant’s testimony, except the parol evidence offered to the court.

The rejection of the documentary and parol evidence offered in support of the tax-title, presents the only question in the case.

It is first insisted, that the defendant is not in a position to avail himself of an outstanding tax-title, be it ever so regular, for the reason that he is shown by the record to have been in the possession of the premises at the time the taxes accrued, and the sale took place, wherefore it is said it was his duty to have paid the taxes, and that he ought not to be permitted to avail himself of a tax-title acquired through his default. This may or may not be so. It does not necessarily follow, that because a person is in possession of premises, he is bound to pay the taxes assessed upon them. He may occupy them as a tenant under an agreement that his landlord shall pay the taxes, and in such case there would be ho obligation on the tenant to pay them, particularly, if, in pursuance of the agreement, they were listed for taxation in the landlord’s name. Supposing the tax-title to have been regular, the defendant had the right, primé facie, to introduce it in evidence. When introduced it would be competent for the plaintiff to avoid it, by proving that the defendant occupied a position, while it was maturing, which made it his duty to have paid the taxes, and which forbids his taking advantage of a title acquired through his default. This proof, the person seeking to avail himself of the tax-title should have an opportunity to rebut or explain by other evidence.

The court has no right to reject a regular tax-title, on the ground, that the evidence shows it to have been acquired at a time when it was the duty of the party seeking to avail himself of it, to have paid the taxes, without affording such party an opportunity to contradict or explain such evidence.

Some objection was taken on the argument, to the abbreviations, such as 11 pt” for part, “frm” for from, and “ft” for feet, used in describing the premises in the various tax-title proceedings ; but the objection was not much relied upon, and is scarcely worthy of serious consideration. Such abbreviations are well understood, and no one is misled by them. The objection mainly urged as fatal to the tax-title was, a supposed defect in the description of the premises in the judgment, precept, and sheriff’s deed. The description is in substance and almost verbatim the same in the three instruments, and the defect consists in omitting to state the depth of the lot, or how far back the twenty feet extend. It is insisted that this omission renders the whole proceedings void for uncertainty in the description of the premises, or if not void, that the deed only conveys a right or mathematical line of twenty feet in length, without any breadth, on Main street. Such a construction would make the deed wholly inoperative, and is not to be adopted unless clearly required by its terms. It is the duty of courts to give effect to instruments of writing so as to carry out the intentions of parties, whenever it can be done consistently with the rules of law.

In the assessment, that part of lot six in controversy, is described as being twenty feet on Main street, by seventy-two feet deep, commencing forty feet from the alley; and there is no difficulty in tracing the boundaries by this description, or in ascertaining the quantity of land embraced within them. But the judgment, precept, and deed all omit to state the depth of the lot.

In common parlance, when twenty feet of a lot on a particular street is spoken of, it is understood to mean a strip of land twenty feet in width, running back the whole distance through or across the lot, be the same more or less. If this were an Ordinary deed between individuals, no one would doubt that it was their intention to convey by it something more than an imaginary line of land twenty feet long; and the construction to be put upon the deed under consideration as to the description of the premises, must be the same as if it were a deed between private individuals. The doctrine of strict construction, as applied to the execution of naked statutory powers, has no application to a question like this.

If, then, the description used in the deed, precept, and judgment, would be understood in ordinary conversation, and in a deed between private persons, as embracing a parcel of land twenty feet on Main street, by the depth of the lot, whatever it might be, which we have no doubt would be the case, it must receive the same construction in the records and deed under consideration; and when so construed, the description is perfect and complete.

Judgment reversed, and cause remanded.

Judgment reversed.