author: Mr. Justice Scholfield

text:
    The Canadian Bank of Commerce v. Samuel H. McCrea et al.

      Filed at Ottawa November 20, 1882.

      1. Negotiable instruments—warehouse receipts. The statute in relation to negotiable instruments does not embrace warehouse receipts or bills of lading, and instruments of that class. Such instruments are not thereby placed on the same footing, as respects the title vested in the assignee in case of assignment, as bills of exchange and promissory notes. The ruling in Burton v. Curyea, 40 Ill. 320, on this question is adhered to.
    2. Same—the statute construed as to what instruments are negotiable. The statute relating to negotiable instruments does not embrace covenants or agreements for the performance of individual services in and about property,—mutual, dependent and conditional covenants and agreements to pay money or deliver property upon uncertain contingencies and events,—but applies only to absolute and unconditional promises to pay money or deliver property, or to instruments payable at some time certain, absolutely.
    3. In order to impart to the paper the quality of negotiability, within the statute, the promise or undertaking must be restricted to the payment of money or the delivery of property at a time that will certainly happen, although it may be unknown in advance when that will be. And although it may be within the power of the party to whom the promise is made to render it certain, by his subsequent act, that the time will happen, this will not be sufficient. It can not depend on his will or pleasure.
    4. Same—natv/re of the contract evidenced by a warehouse receipt, as depriving it of the qualities of negotiable paper. A warehouse receipt is strictly but the written evidence of a contract between the depositor of grain and the warehouseman. It is an acknowledgment by the latter that he has received and holds in store for the former the amount and description of grain named in the receipt, and from this acknowledgment the law implies certain duties as devolving upon the warehouseman, which become as much a part of the contract as if written at length in the receipt. The liability of the warehouseman, as resulting from these duties, depends upon certain conditions, which are recognized both by the common law and the statute, and under which it may be the liability will never accrue, and this element of uncertainty in that regard operates to prevent the character of negotiability from attaching to a warehouse receipt.
    5. Same—what effect to be given to assignment of a warehouse receipt, under the statute. By section 24 of the act of 1871, regulating public warehouses, etc., the indorsement of a warehouse receipt is made evidence of a transfer of the grain it represents, the same as the actual delivery of the property itself. But neither of these acts implies that a title which the seller does not possess shall pass. The receipt is made the symbol or representative of the property therein named, and its assignment and delivery by the rightful owner will pass his title to the property. But this statute, making such receipts assignable by indorsement, does not change their nature, and put them, in all respects, on the same footing with instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes.
    6. Same—subsequent holder of warehouse receipt-—rights of the real owner of the grain it represents. A warehouse receipt stands in the place of the grain it represents, and the possession of the receipt is regarded as the possession in law of the grain itself, and as the warehouseman is not required to surrender the grain until the return of the receipt and the payment of charges, one who obtains it under such circumstances as would charge him with notice of a want of title in his assignor, the real owner may recover of him, in trover, the value of the grain on his refusal to surrender the receipt to him.
    7. So where grain in store was sold for cash, and the warehouse receipts representing the same were indorsed and delivered upon a check upon a bank, in payment, which was dishonored, and the purchaser indorsed the warehouse receipts to the bank upon which the check was drawn, under such circumstances as to lead the bank to a knowledge that the purchase was for cash, and the hank refused to accept and pay the check or to surrender the receipts to the seller, it was he,ld, that the seller and former owner of the grain was entitled to recover, in trover, of the bank the value of the grain.
    8. Sale oe pebsonad pbopebty—/or cash—rights of the seller in case of non-payment. Where personal property, other than commercial paper, is by contract sold for cash, to be paid for on delivery, the payment and delivery are to be concurrent acts, and in such case, if the goods are put into the possession of the buyer in expectation that he will immediately pay the price, and he does not do it, the seller will be at liberty to treat the delivery as conditional, and he may at once reclaim the goods.
    9. Payment—by check which is dishonored. An attempted payment by a draft or check which is dishonored, is no payment, and goods sold for cash, and delivered on such check, may be reclaimed.
    10. Tboveb—when it lies. Trover lies for the recovery of goods sold, the possession of which is obtained by an attempted payment by check which is dishonored.
    11. Constbuotion oe a statute changing the common law. It is a familiar rule of construction, that a statute is not to be construed as changing the common law further than its terms expressly declare.
    12. Judgment in tboveb brought against wrongful holder of warehouse receipt. A warehouse receipt stands in the place of the grain it represents. Possession of the receipt is regarded as the possession, in law, of the grain itself, and the warehouseman is not required to surrender the grain until the delivery of the receipt and the payment of charges. So, in trover against a subsequent holder of a warehouse receipt, whose possession is wrongful, as against the plaintiff, the suit to recover the receipt is in effect for the grain the receipt represents; and in recovering for the receipt, therefore, the recovery will be for the value of the grain,—that for which the receipt stands.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    On Monday, the 20th of September, 1880, appellees sold to H. C. Ranney & Co., upon the board of trade of Chicago, 1737 bushels of No. 2 spring wheat, for $1616.02, cash. Delivery of the wheat was made by means of three warehouse receipts issued to appellees, and by them indorsed, calling, respectively, for 488, 864 and 385 bushels of No. 2 spring wheat. The receipts were all in substantially the same form as that for the 488 bushels, which, together with its indorsement, was as follows:
    “Armour, Dole & Co.
    No. B, 4230. Chicago, Sept. 16th, 1880.

      O. B. é Q. Elevator.

    “Received in store from 232-
    Four hundred and eighty-eight bushels of No. 2 spring wheat, subject only to the order hereon of S. H. McCrea & Co., and the surrender of this receipt, and payment of charges.
    C This grain is subject to our 1 ( advertised rates of storage. J
    “It is hereby agreed by the holders of this receipt, that the grain herein mentioned may be stored with other grain of the same quality by inspection; loss by fire or heating at owner’s risk.
    (Signed,) Armour, Dole & Co.
    (Countersigned,) ' Armour.
    488 Bush.
    (Indorsement.) In store,
    S. H. McCrea & Co.

      Per Jennings.”

    Ranney & Co., at the same time, gave appellees their check of that date for the price to be paid for the wheat, drawn on the appellant, for $1616.02. Appellees deposited this check in the usual course of their business, and on Tuesday, September 21, 1880, it was presented to appellant through the clearing house, and payment was refused.
    Ranney & Co. had been doing business on the board of trade in Chicago, being chiefly engaged in shipping grain, during the month of September, 1880. They kept a - bank account with appellant, and the usual course of business, as claimed by appellant, was, when they were making up a cargo for shipment, that they be allowed to overdraw their account, and as soon as the cargo was shipped they should draw against it, attach the bill of lading as security, and discount the draft at the bank, and have the proceeds placed to their credit, thus paying the advances made by the bank. On Monday morning, September 20, Banney & Co. took away from the bank warehouse receipts representing 10,000 bushels of wheat, and in the afternoon, between half-past two and three o’clock, carried back receipts for about 5800 bushels of wheat, the value of which, with a deposit made during the day, made their account good. Among the receipts thus carried back were those now in controversy. Appellees claim that appellant received these receipts under such circumstances and with knowledge of such facts as were sufficient to put it upon inquiry as to the title of Banney & Co. In the afternoon of the day on which payment of Banney & Co.’s check to appellees was refused, appellees went with the check to appellant, and demanded that it either pay the checks or return the warehouse receipts in controversy. Appellant refused either to pay the check or return the receipts. Other facts material to an understanding of the questions discussed are referred to in the opinion.
    Thereupon appellees instituted the present action in the circuit court, which was finally tried as an action of trover, resulting in a verdict and judgment in their behalf, which judgment, on appeal to the Appellate Court for the First District, was affirmed. This appeal is from the last named court.
    The circuit court gave to the jury, among others, the following instructions, to which exception was taken:
    “4. The jury are instructed that if they find, from the evidence, that the defendant received the warehouse receipts in question from Banney & Co., and that at the time it so received them it had knowledge of such facts and circumstances as would put a prudent person upon inquiry as to the title of said Banney & Co., then the defendant will be deemed, in law, to have had notice of all such facts touching the title of Banney & Co. to said receipts, as it might, by the exercise of ordinary and reasonable diligence, have ascertained upon inquiry and investigation.
    “5. If the jury believe, from the evidence, that the defendant, at the time it received the warehouse 'receipts in controversy from H. C. Ranney & Co., knew, or with the exercise of ordinary prudence had reason to know or believe, from facts and circumstances then within, or at that time, or any time previous to that time, brought to its knowledge, that the wheat called for in said receipts had been sold to plaintiffs for cash, and that the purchase money for said wheat had not been paid, then the defendant is not an innocent holder of said receipts.”
    And the court refused to give the following instruction, asked by appellant, to which ruling also there was exception:
    “The jury are instructed that it is not enough for the plaintiffs to satisfy the jury, by a preponderance of evidence, that there were connected with the taking of the grain receipts in question, or growing out of the previous dealings between the bank and H. C. Ranney & Co., circumstances which would excite the suspicion of a prudent man, or some circumstances which would make the bank guilty of gross negligence in the taking of the grain receipts, but it is necessary for the plaintiffs to go further, and to satisfy the jury, by a preponderance of evidence, that the bank had actual knowledge that the grain receipts had been sold by the plaintiffs to H: C. Ranney & Co. for cash, and had not been paid for, or such notice that the grain receipts had been sold for cash and not paid for, as -would make the taking of the grain receipts by the bank an act of positive bad faith upon its part, and a fraud upon the plaintiffs.”
    The errors assigned present the questions discussed in the opinion.

      Messrs. Grant, Swift & Brady, for the appellant:
    Under the statute of this State warehouse receipts are governed by the law of promissory notes and bills of exchange, so far as the same is applicable. Hurd’s Stat. 1881, chap. 114, sec. 142; Burton v. Curyea, 40 Ill. 320.
    As to the contracts made negotiable the same as bills of exchange, by the statute, (chap. 98, secs. 3, 4,) counsel cited Sappington v. Pulliam, 3 Scam. 385; Bradley v. Morris, id. 182; Bilderkack v. Burlingame, 27 Ill. 338; Stewart v. Smith, 28 id. 406; Archer v. Claflin, 31 id. 315; Hunt v. Devine, 37 id. 143.
    The possession of a warehouse receipt by one under an assignment from the person to whom it was issued, is evidence of the holder’s title to the property specified in the receipt, and one dealing for the property with such holder without notice of any defect in his title, or of facts to put a prudent person on inquiry, will be protected. Chicago Dock Co. v. Foster, 48 Ill. 507.
    The rule that the purchaser of a chattel acquires no better title than his vendor, has no application to negotiable paper. Murray v. Lardner, 2 Wall. 110; Hotchkiss v. National Bank, 21 id. 354.
    The verdict and judgment were for the value of the grain, whereas the suit was for the value of the warehouse receipts.
    Messrs. Stiles & Lewis, for the appellees:
    As between appellees and Banney & Co., the title never passed to the latter. Where personal property, other than commercial paper not due, is sold for cash, the title does not vest in the purchaser until payment is made, even though the property is delivered to the purchaser. 2 Schouler on Personal Prop. 292-300; Paul v. Reed, 52 N. H. 156.
    The taking of a check for the price of goods sold is not a payment, but a means whereby to obtain the money, and when the check is dishonored, as between the buyer and seller the property, though delivered, will not pass. King v. Strong, 35 Ill. 9; Matthews v. Cowan, 59 id. 341.
    The transfer of warehouse receipts is governed hy the same rules in respect to notice of the rights of third parties, as obtain in the transfer of chattel property. When chattels are sold and delivered under such circumstances that the title remains in the vendor until the performance of some condition, a bona fide purchaser for value from such vendee will acquire a good title thereto. But if the latter purchaser has notice of the rights and equities of the original vendor, his title will be subject to such rights and equities. Smalley v. Ellett, 36 Ill. 500; Barnard v. Campbell, 58 N. Y. 73.
    The delivery of a warehouse receipt has the same, and no greater, effect' than the delivery of the property itself. Burton v. Curyea, 40 Ill. 320.
    The statute does not make such receipts negotiable as commercial paper, with all the incidents attending the transfer of bills of exchange. Shaw v. Railroad Co. 101 U. S. 557.
    The bank, when it took the receipts from Banney & Co., had constructive notice of Banney & Co.’s want of title thereto, and therefore took no better title than they had.
    The receipts represent the grain, which can not be obtained without a surrender of the receipts, properly indorsed. (Sec. 11 of Warehouse act.) Their conversion, therefore, is equivalent to a conversion of the grain, and the measure of damages is the value of the grain.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The question is presented by the ruling of the circuit court in the giving and refusing of instructions, whether warehouse receipts are placed on the same • footing, as respects the title vested in the assignee in case of assignment, as bills of exchange and promissory notes; and this is the question most elaborated by counsel in argument, and the first in order for consideration.

The contention of counsel for appellant is, the language of our statute in relation to negotiable instruments, (Hurd’s Stat. 1881, chap. 114, sec. 142,) comprehends warehouse receipts. They admit that this court, in Burton v. Curyea, 40 Ill. 320, (which was decided in 1866,) laid down a contrary doctrine, and that our statute in relation to negotiable instruments has since, or for many years prior to, that decision received no material change,—that if it now includes warehouse receipts, it did then; but they contend that that decision was wrong, and should not be adhered to. We might content ourselves by saying stare decisis, for Burton v. Curyea was argued by able counsel, and, as the opinion shows, the case was carefully considered by the court. But in our opinion it is demonstrably certain that the language of our statute in relation to negotiable instruments does not comprehend warehouse receipts or bills of lading, and instruments of that class. Its precise- phraseology, as applicable to this question, is: “Promissory notes, bonds, due bills, and other instruments in writing, made or to be made by any person, body politic or corporate, whereby such person promises or agrees to pay any sum of money or articles of personal property, or any sum of money in personal property, or acknowledges any sum of money or article of personal property to be due to any other person. ”

It is a familiar rule of construction that a statute is not to be construed as changing the common law farther than its terms expressly declare. (Cadwallader v. Harris, 76 Ill. 372; Thompson v. Weller, 85 id. 197.) We are not, therefore, at liberty to declare that this statute embraces covenants or agreements for the performance of individual services in and about property,—mutual, dependent and conditional covenants and agreements, or covenants and agreements to pay money or deliver property upon uncertain contingencies or events,—but must hold that it applies only to absolute and unconditional promises to pay money or deliver property. Such was the character of each one of the cases cited by counsel for appellant. Without referring to and analyzing these cases separately and at length, we simply call attention to the fact that in every ease in which this court has held an instrument negotiable by virtue of our statute in relation to negotiable instruments, the instrument is payable at some time certain,—absolutely,—and embraces no covenant or agreement other than for the payment of money or the delivery of property. On the other hand, it has been repeatedly held, where instruments embraced covenants or agreements for personal services, and where instruments for the payment of money or delivery of property provided for such payment or delivery only upon some uncertain or contingent event, that they were not negotiable under the statuté. Thus, in Beezley v. Jones, 1 Scam. 34, Beezley covenanted, by deed with Jones, to lease him a house, carding machine and apparatus, for a specified time, and further agreed to be at the expense of repairing the machine in case of any failure. Jones, on his part, covenanted to pay $170 rent, by installments, and at the expiration of' the term to return the machine, etc., in the same order he received them, the common wear excepted. The deed was assigned by indorsement to the plaintiff, who sued for a breach of the covenant to pay rent. It was held the assignee could not maintain a suit in his own name, and the court, referring to the statute in relation to negotiable instruments, said: “Neither the language of the statute nor the policy that occasioned its enactment, embraces instruments in writing for the conveyance of land, or for the performance .of personal duties, and the legislature never intended to impart a negotiable quality to a written agreement for the performance of perhaps twenty stipulations of different characters, merely because it contained one for the payment of money, or the delivery of an article of personal property. ”

In Kelley v. Hemmingway, 13 Ill. 604, the instrument sued on was one wherein David Kelley acknowledged there to be due to Henry D. Kelley $53, “when he is twenty-one years old. ” It was held to be not a negotiable instrument under our statute, because the event upon which it was to become due might never occur.

Smalley v. Edey, 15 Ill. 324, was an action to recover upon an instrument in writing, whereby Smalley agreed to pay Edey $148.27, provided he did not settle said amount with Bichard Hoover, and Edey was compelled to pay the same to Hoover. It was held this was not a promissory note, because it was payable on a contingency that might never happen.

In Gillilan v. Myers, 31 Ill. 525, the instrument sued upon was this:

“Algonquin, June 8, 1857.
“Mb. Myebs : Sir—You will please take up my note, payable to Samuel Smith, for $202, with ten per cent interest from the first of April, and it will be right, as we talked.
John Gillilan. ”

It was held this was not a bill of exchange—that it was a mere letter of request, and payable on the contingency that Smith should present the note, which he might never do.

In Kingsbury v. Wall, 68 Ill. 311, we held an order drawn on another, and accepted by him, for the payment of a certain sum in goods, payable on condition the payee shall have in his hands, ready to be delivered to the drawer, a deed from the payee and wife for certain property described, and making the delivery of the goods and the deed simultaneous acts, is not assignable either at common law or under the statute, as the contingency upon which payment is to be made might never happen. And we held in Husband v. Epling, 81 Ill. 172, an undertaking to pay a specified sum when an estate named is settled up, is not negotiable under the statute, since the estate might never be settled up.

Other cases illustrating the principles involved might be referred to, but we deem these sufficient. They render it clear that the promise or undertaking must be restricted to the payment of money or delivery of property at a time that will certainly happen. It may be unknown, in advance, when it will be, but it must be absolutely certain that it will be some time; and although it may be within the power of the party to whom the promise is made to render it certain, by his subsequent act, that the time will happen, this will not be sufficient,—it can not depend upon his will or pleasure.

The warehouse receipt .is, strictly, but the written evidence of a contract between the depositor of grain and the warehouseman. It is an acknowledgment by the latter that he has received and holds in store for the former the amount and description of grain named in the receipt, and from this acknowledgment the law imposes certain duties upon the warehouseman, which become as much a part of the contract as if written at length in the receipt. At common law the duty of the warehouseman was, that he should take common and reasonable care of the commodity intrusted to his charge, but he was not obliged, at all events, to return the property, nor in the same condition and quality. If he took common and reasonable care of it, and still it was stolen, or destroyed by rats, or otherwise materially damaged, he was not responsible. (Story on Bailments, sec. 442.) And by our present statute, “no public warehouseman shall be held responsible for any loss or damage to property by fire while in his custody, provided reasonable care and vigilance be exercised to protect and preserve the same; nor shall he be held liable for damage to grain by heating, if it can be shown' that he has exercised proper care in handling, ” etc. (Bev. Stat. 1874, ch. 114, sec. 16.) Nor is the warehouseman required to deliver the property for which his receipt is given until the “return of such receipt, properly indorsed, and the tender of all proper charges upon the property represented by it.” (Id. sec. 11.) It is therefore impossible that it can, in advance, be known with absolute certainty that the warehouseman will ever be required to deliver the wheat. It is precisely as if the promise were to deliver it upon condition that none of these things allowed as excuses for non-delivery should intervene, as well as upon the further condition actually written in the receipt—the return of the receipt and the payment of all charges upon the property.

Waiving this point, however, counsel for appellant claim that the General Assembly, to meet the decision in Burton v. Curyea, and establish the law otherwise than as there declared, enacted, by section 12 of an act entitled “An act regulating warehousemen, and authorizing connections of railroads with warehouses, and for other purposes, ” approved February 16, 1867, that “all receipts for grain issued by any warehouse shall be negotiable, by indorsement in blank or by special indorsement, in the same manner and to the same extent as bills of exchange and promissory notes are. ” But this act is repealed by “An act to regulate public warehouses, and the warehousing and inspection of grain, and to give effect to article 13 of the constitution of this State, ” approved April 25, 1871, which act is incorporated in the revision of 1874, and is the law in force at the time of the transactions out of which the present suit grew. If, therefore, it be true, which we do not concede, that the legislature intended, by section 12 of the act of 1867, to enact a different rule with regard to the effect of the assignment of warehouse receipts, the same logic proves that by section 24 of the act of April 25, 1871, the General Assembly intended to restore the rule as announced in Burton v. Curyea, for in that section, instead of making warehouse receipts negotiable by indorsement, “in the same manner arid to the same extent as bills of exchange are, ” this language is substituted: “Warehouse receipts for property stored in any class of public warehouses, as herein described, shall be transferable by the indorsement of the party to whose order such receipt may be issued, and such indorsement shall be deemed a valid transfer of the property represented by such receipt, and may be made either in blank or to the order of another. ” Thus, the indorsement of the symbol is made evidence of a transfer of that which it represents—nothing more. If, instead of the warehouse receipt, the property is present, and, upon sale, is actually delivered to the purchaser, this is evidence of a valid transfer of the property. The receipt, in the absence of the property, enables the parties, through its indorsement, to effect the same thing they could effect if the property were present, by its actual delivery,—namely, a valid transfer. But this neither authorizes nor implies that a title which the seller does not possess, shall pass in the one case any more than in the other.

A very satisfactory case, to us, on this question, is Shaw v. Railroad Co. 101 U. S. (11 Otto,) 557. In that case the question was on a bill of lading issued in Missouri on property to be carried from St. Louis, in that State, to Philadelphia, in Pennsylvania. The court deems it unimportant whether the statute of Missouri or that of Pennsylvania shall be regarded as affecting the contract, since there is, in its opinion, no substantial difference between the statutes of the two States in that regard. The language of that of Pennsylvania is, they—i. e., bills of lading—“shall be negotiable, and may be transferred by indorsement and delivery, ” while that of Missouri is, “they shall be negotiable by written indorsement thereon and delivery, in the same manner as bills of exchange and promissory notes. ” The court holds that the words in these statutes relating to the negotiability of bills of lading apply only to the transfer of the instrument, and do not determine that the rights of assignees shall be the same as the rights of assignees of bills of exchange, etc., after transfer. It is said in the opinion: “A bill or note past due is negotiable if it be payable to order, or bearer, but its indorsement or delivery does not cut off the defences of the maker or acceptor against it, nor create such a contract as results from an indorsement before maturity, and it does not give to the purchaser of a lost or stolen bill the rights of the real owner. It does not necessarily follow, therefore, that because a statute has made bills of lading negotiable by indorsement and delivery, all these consequences of an indorsement and delivery of bills and notes before maturity ensue, or are intended to result from, such negotiation. ” The court then proceeds to show that bills of exchange and promissory notes are exceptional in their character, and the reason why the bona fide purchaser of a bill, etc., for value, is not bound to look beyond the instrument, and then adds: “The reason can have no application to the case of a lost or stolen bill of lading. The function of that instrument is entirely different from that of a bill or note. It is not a representative of money, used for the transmission of money, or for the payment of debts, or for purchases. It does not pass from hand to hand, as bank notes or coins. It is a contract for the performance of a certain duty. True, it is a symbol of the ownership of the goods covered by it,—a representative of those goods; but if the goods themselves be lost or stolen, no sale of them by the finder or thief, though to a bona fide purchaser for value, will divest the ownership of the person who lost them, or from whom they were stolen. Why, then, should the sale of the symbol or mere representative of the goods have such an effect?” Again, it is said in the opinion: “Bills of lading are regarded as so much cotton, grain, iron, or other article of merchandise. The merchandise is very often sold or pledged by the transfer of the bills which cover it. They are, in commerce, a very different thing from bills of exchange and promissory notes, answering a different purpose, and performing different functions. It can not be, therefore, that the statute which made them negotiable by indorsement and delivery, or negotiable in the same manner as bills of exchange and promissory notes are negotiable, intended to change totally their character,—put them, in all respects, on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes. ”

But counsel for appellant make the point that if the sale made by appellees to Banney & Co. was made of non-effect by the failure to pay the check, and appellant had such notice as would charge it as the purchaser of chattel property, and the warehouse receipts gave appellant no better title than if it had taken the grain itself, then the title of the grain was in appellees, and they could not recover its value from appellant. The answer to this is, the receipts stand in the place of the grain. Their possession is regarded as the possession, in law, of the grain itself, and the warehouseman, as has been seen, is not required to surrender the grain until the delivery of the receipts and the payment of charges. The suit, therefore, is in effect for the grain the receipts represented, and in recovering for them, therefore, the recovery was properly for the value of the grain,—that for which they stand.

Another point insisted upon by counsel for appellant is, that to enable appellees to defeat the title of Banney & Co. to the receipts, it was necessary to show that the sale was for cash, and that a check was given therefor which was not paid,—that to defeat the title of appellant it was necessary for appellees to prove that appellant knew, or had some reason to believe, that the sale was for cash, and that a check was given therefor which had not been or would not be paid, and that there is no evidence whatever that appellant knew, or had reason to believe, that the sale was for cash. It is, in our opinion, sufficient to say these are purely questions of fact, upon which the finding of the Appellate Court is conclusive. Bridge Co. v. Comrs. of Highways, 101 Ill. 518; Fitch v. Johnson, 104 id. 111.

The objection that questions of law and fact are submitted to the jury by certain of appellees’ instructions, we do not deem well founded. The whole case proceeds upon the theory that appellees were owners of the warehouse receipts, and continued to be such until, and unless, their ownership was divested by the sale to Banney & Co. There is no controversy, either in the evidence or in the arguments of counsel, in this regard. In the first and second instructions, given at the instance of appellees, the jury were fully instructed as to the law, on appellees’ theory of the case, relating to the sale, the effect whereof being, that if the facts were as claimed by appellees, then Banney & Co. had no title, and, by necessary consequence, appellees still remained owners. These instructions precede those complained of by appellant’s counsel, so when, by those, the jury were instructed that if they found Banney & Co. had no title, etc., —and if they found appellees were owners, etc.,—they ought to have understood, and we think it should be presumed they did understand, it was meant, if, under the rule laid down in the preceding instructions, they found that Banney & Co. had no title, and if, under such rule, they found appellees were owners, etc. They had been placed under the duty of being governed by the rules laid down by these instructions in passing upon these facts, and there is nothing from which they could have assumed they were to be released therefrom in making the findings contemplated in the instructions objected to. We think, as here presented, the instructions should be considered as announcing a series of consecutive and dependent propositions in a single charge.

The objection to the modification of appellant’s second instruction is without merit. The law is, undoubtedly, correctly laid-down in the'instruction as modified, and, therefore, even if it be conceded the instruction would have been correct without that modification, the modification could do no harm.

It is not contested, in argument, that the law is, where personal property, other than commercial paper, is, by contract, sold for cash, to be paid on delivery, the delivery and payment are to be .concurrent acts, and, therefore, if the goods, are put into possession of the buyer in expectation that he will immediately pay the price, and he does not do it, the seller is at liberty to regard the delivery as conditional, and may at once reclaim the goods. (See Schouler on Personal Prop. 292-300; Paul v. Reed; 52 N. H. 136.) And an attempted payment by a draft or check which is dishonored is no payment. (Mathews v. Cowan, 59 Ill. 341.) And in such ease trover lies for the recovery of goods, possession of which is obtained by such attempted payment. (Id.)

We perceive no substantial reason for disturbing the judgment below. It is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    The Wabash, St. Louis and Pacific Railway Company v. Anton Binkert et al.

      Filed at Springfield March 29, 1883.

    1. Statute—rule of construction. In construing a statute the courts are not confined to the words employed, but may look to the preceding law and other statutory provisions relating to the same subject. The plain literal reading of language may be departed from when it is required to avoid an absurd consequence, or to carry out the manifest intention.
    2. Taxation—road and bridge tax—to- be extended on current year’s assessment. The bridge tax provided for in section 119 of the Eoad and Bridge act of 1879, is not required to be extended upon the assessment valuation of the preceding year, but upon the assessment for the current year. It is meant by that section that such tax shall not exceed forty cents on the one hundred dollars, according to the assessment of the previous year; but when the sum to be levied is thus fixed by reference to the preceding assessment, the clerk of the county court is required to extend that sum upon the property of the town according to the assessment for the current year.

      Appeal from the Circuit Court of Christian county; the Hon. Jesse J. Phillips, Judge, presiding.
    Mr. Frank W. Burnett, for the appellant.
    Mr. Anthony Thornton, for the appellees; Mr. John G. Drennan, also for the appellees Jordan, Binkert, etc.; Mr. C. W. Brown, for the collector of Will county; Mr. R. W. Hilscher, for appellee Hamilton.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, brought against the collectors of taxes for some twenty-three counties in this State, to restrain the collection of certain road and bridge taxes levied by highway commissioners in the respective counties for the year 1881, upon the ground that the taxes were levied on the assessment of the then current year, (1881,) instead of on that of the previous year, (1880,) the assessment in the latter year being lower than that for 1881. The court below sustained a demurrer to the bill, and dismissed it, and the complainant appealed.

The suit involves the construction of section 119 of the Boad and Bridge act of 1879, (Laws 1879, p. 257,) which section is as follows: “The highway commissioners of each town shall annually ascertain, as near as practicable, how much money must be raised by tax on real and personal property for the making and repairing of bridges, etc., * * * during the ensuing year, commencing on Tuesday next preceding the annual town meeting, which tax shall be extended on the tax boohs according to the assessment of the previous year, and shall levy a tax on all the real and personal property in said town, not exceeding forty cents on the one hundred dollars; and they shall give to the supervisor of the township a statement of the amount necessary to be raised, and the rate per cent of taxation, signed by said commissioners, or a majority of them, on or before the Tuesday next preceding the annual September meeting of the board of supervisors, who shall cause the same to be submitted to said board for their action at such September meeting of said board. ” These highway commissioners do not extend the tax on the tax books, but that is done by the county clerk, as the next section (120) of the same act provides, as follows : “According to the amount certified as aforesaid, the county clerk, when making out the tax books for State and county taxes for the collector, shall extend the necessary tax in a separate column against each tax-payer’s name, or taxable property, as other taxes are extended, which shall be collected the same as State and county taxes. ”

The controversy arises upon the phrase in section 119, • “which tax shall be extended on the tax books according to the assessment of the previous year, ” and more particularly as to the meaning of the words, “according to the assessment of the previous year, ”—whether the tax is to be extended upon the assessment made in the current year,—the year in which the highway commissioners meet to make the levy,—or upon the assessment made in the year previous.

The impression upon the reading of the section certainly is that the extension of the tax is to be upon the assessment of the previous year. Such seems to be the literal reading. But for the ascertaining of the real meaning we are not to be confined to the words employed, but may look to the former law, and to other statutory provisions. The first provision for this distinct road and bridge tax appears to have been by the statute of-1874. (Bev. Stat. 1874, p. 932, sec. 120.) The law of 1874 upon the subject is the same as this present law of 1879, section 120 of the former corresponding to section 119 of the latter, except that in the latter the additional clause which is italicized in the above citation of section 119 is inserted, and the provision in respect to this tax being that the highway commissioners shall levy a tax on all the real and personal property in the town, “not exceeding forty cents on the one hundred dollars, ” being silent as to what valuation was to be adopted. Section 16 of the law of 1874 provided for a distinct district road tax, and required the highway commissioners to assess a road tax on all real and -personal property to any amount they might deem necessary, not exceeding forty cents on each one hundred dollars worth, “as valued on the assessment roll of the previous year, ” and section 120, as to the road and bridge tax, required that the commissioners should levy it on all the real and personal property in the town, not exceeding forty cents on the one hundred dollars, not naming any manner of ascertaining the valuation.

In the statute of 1877, (Laws 1877, page 196,) these two sections, 16 and 120, of the law of 1874, providing for these two distinct taxes,—the district road tax, and the road and bridge tax,—were combined in one section,—section 81. That section (81) provides:

“First—The commissioners of highways of each town shall annually ascertain, as near as practicable, how much money must be raised by tax on real and personal property for the making and repairing of roads only, to any amount they may deem necessary, not exceeding forty cents on each one hundred dollars worth, “as valued on the assessment roll of the previous year, ” and certify the same as hereinafter provided. * * *
“Second—They shall annually ascertain, as near as practicable, how much money must be raised by tax on real and personal property for the making and repairing of bridges, etc., * * and shall levy a tax on all the real and personal property in said town, not exceeding forty cents on the one hundred dollars.”

So far, no statute speaks of extending this road and bridge tax on the tax books according to the assessment of the previous year. The statute of 1874 said merely that the tax should be levied, “not exceeding forty cents on the one hundred dollars. ” Section 16 of that act, providing for the district road tax, did name how the valuation was to be got for that tax, saying the tax was not to be exceeding forty cents on each one hundred dollars worth of property, “as valued on the assessment roll of the previous year. ” Now, section 81 of the statute of 1877 combining those two sections into one section, says, the highway commissioners shall, first, determine a the amount of the district road tax, not exceeding forty cents on each one hundred dollars, “as valued on the assessment roll of the previous year; ” second, they shall ascertain and levy this road and bridge tax, “not exceeding forty cents on the one hundred dollars. ” Although it is not right here named how this last valuation is to be got, yet we think, from the manner in which these two clauses are coupled together, that it is to be taken as having reference to the first clause, and to be the same valuation as there named, viz, “as valued on the assessment roll of the previous year; ” that there should be the same basis of valuation in both the cases, no reason being perceived for any difference, and that, being named in the first clause, it was not deemed necessary to repeat it in the second clause. It was not contemplated that the commissioners of highways should themselves value the property, and they must necessarily take the valuation of some one year made by the assessor. They can not take the' assessment of the current year, as that will not have been made until a long time after their action,—they must take the assessment of some previous year. In the first clause of this section 81, for the district road tax, it is specifically named that it shall be the valuation of the previous year*, and we think that same valuation was to be taken in the second clause for the road and bridge tax, so that we find the true reading of section 81 of the law of 1877 to be, that this road and bridge tax was to be levied on all property in the town, not exceeding forty cents on the one hundred dollars, “as valued on the assessment roll of the previous year.”

This, then, was the law in 1879, when the present amendment came to be made. This act of 1879 divides section 81 of the law of 1877 into two sections again, as was the case in 1874, section 119 of this act of 1879 providing for the road and bridge tax, and section 16 for the district road tax. As before remarked, the only change which section 119 makes from section 120 of the law of 1874, in providing for the mode of the ascertainment and levy of this road and bridge tax, and from section 81 of the law of 1877, is in the italicized words referred to, to-wit: “commencing on Tuesday next preceding the annual town meeting, which tax shall be extended on the tax books according to the assessment of the previous year. ” Fixing the time of the commencement of the township year is a fresh provision, not appearing before in the legislation on the subject, and one very properly to be made. There is the first mention, here, in this section 119, of an extension of the tax on the tax books according to the assessment of the previous year, or of any extension on the tax books whatever, in connection with the action of the highway commissioners. The assessment roll of the previous year had been spoken of in the two former statutes, but it was for the purpose of limitation of the amount to be raised by taxation. We can not think it was the legislative intention here to introduce this anomaly into our system of taxation, of levying these taxes on the assessment of the previous year. There is no reason for it, as the assessment of the current year is always made, and on the tax books, when the county clerk comes to extend the road and bridge tax on the tax books for collection. We are of opinion that the only change intended to be made in this amendment by section 119, was the division of section 81 of the law of 1877 into two sections, so as to provide in them separately for these two species of taxes, and to fix the time of commencement of the township year. We have found that, at the time of this amendment, the law was, by section 81 of the law of 1877, as we construe it, that these taxes were to be levied so as not to exceed forty cents on the one hundred dollars, as valued on the_ assessment roll of the previous year. We believe, from the examination of the previous statutes, that this was the idea which was intended to be expressed in this section 119, but which was not very happily done by the words used, which might come from the confusing and disconnection of language caused in the breaking up of section 81 in the act of 1877 into two sections, by the displacing of words out of their proper connection. The transposition of the words “according to the assessment of the previous year,” to the end of the words “one hundred dollars,” so as to read not exceeding forty cents on “the one hundred dollars, according to the assessment of the previous year, ” would express what we regard as the intended meaning, and make the clause consistent and harmonious throughout.

According to this construction, then, the meaning of the clause in question in section 119 is not to designate which assessed valuation shall be placed upon the tax books, from which the tax shall be calculated, but to designate the manner of ascertaining the value of property at the time the commissioners meet to make the levy. The extension of the tax on the tax books has no proper place in section 119. The commissioners of highways have nothing to do with that extension. The subject of that section provides for the tax, and the determination of its amount, and the certifying of it. The next section (120) is devoted to the particular subject of the extending of the tax on the tax books, and that is the section which we would naturally look to for the manner in which the tax is to be extended. That section provides, that “according to the amount certified as aforesaid, the county clerk, when making out the tax books for State and county _ taxes for the collector, shall extend the necessary tax in a separate column, against each tax-payer’s name, or taxable property, as other taxes are extended.” This section 119 requires that the tax shall be levied “on all the real and personal property in said town. ” In the town at what time ? Manifestly, at the time, or at least in the year, the commissioners of highways meet to make the levy. The levy was here made in the year 1881, for that year,’.—the expenditures for that year. The assessment for 1880 would be upon property in the town on May 1, 1880, assessments being made with reference to property owned on that day. To levy the tax on the assessment of the previous year, 1880, would be levying it on the property which was in the town on May 1, 1880, instead of in the year 1881. Personal property is of a transitory nature, and more or less of such property in existence May 1, 1880, would necessarily have perished, or have been consumed or removed from the town, before the time of the levy of the tax in 1881. The general Bevenue law provides for an annual assessment of property, and an extension of taxes 'on such assessment. The county clerk extends the taxes on the tax books upon the valuation of the assessor, as made in each year. The county clerks annually make out tax books for the collectors. The form of the book is prescribed by that law, what it shall contain, and, according thereto, it has upon it the valuation of the current year-alone, and not of any former year, and the county clerk extends the taxes on the valuation of the current year contained in the tax book. The county clerk, by the Boad and Bridge act, is directed to extend .this road and bridge tax in the tax books, as other taxes are extended. To do this would seem to require the tax to be extended upon the assessment of the current year, other taxes being so extended,—and the tax book, made out as prescribed, does not contain the assessment of the previous year.

These considerations confirm the construction arrived at from the reading of the former acts upon the subject,—that it is the assessment of the current year, and not that of the previous year, upon which the tax is to be extended.

It is not unfrequent, in the interpretation of statutes and written instruments, that the plain, literal reading of language is departed from, where it is required to avoid an absurd consequence, or to carry out the manifest intention. (See Perry County v. Jefferson County, 94 Ill. 214; People v. Hoffman, 97 id. 234.) The legislative intention which we here find is not derived from speculation and conjecture, but from considering the clause in question in connection with the previous acts upon the same subject, with other provisions of the same act, and with the provisions of the Eevenue law, upon which the tax is dependent for its collection, and of which, as a system, this act forms a part. This is a legitimate way of ascertaining the law-maker’s intention.

Being of opinion that the taxes were rightly extended upon the assessment of the current year’, the decree will be. affirmed.

Decree affirmed.


text:
    Thomas Mayes v. The People of the State of Illinois.

      Filed at Springfield March 29, 1883.

    1. Indictment fob mubdee—whether sufficient. A count in an indictment for murder alleged that the defendant, with a glass which he in his right hand held, in and upon M. feloniously did make an assault, and with such glass to and against M. did cast and throw and strike, and with such glass defendant a certain lamp, with oil and wick therein, which M. held in her hand, then and there lighted and burning, did break and destroy, and by means of such breaking of the lamp so held by M., and being so lighted and burning, the oil of said lamp was spread and poured upon the said M., and by reason thereof the clothing and garments of the said M. were fired and burned on her person, and by reason of such burning the body, face, neck, head and limbs of said M. were greatly burned, and thereby she received five mortal burns upon the neck, face, body, head and limbs, by reason of the said casting, throwing and striking with the said glass by the defendant, and the breaking of said lamp so containing oil, and being lighted, as aforesaid, from which mortal burns said M. did die: Held, that the count was substantially good, and there was no error in refusing to quash the same. It was not essential to aver specifically “that the oil was fired by the flame of the wick of the lamp, then filled with oil and burning, and held by the deceased in her hand,” in order to show the cause of death. The words “by reason thereof, ” as used by the pleader, refer as well to the preceding words “lighted and burning,” as to the words “spread and poured upon the said Kate Mayes. ”
    2. Mubdeb—of the intent—what necessary to constitute the crime. Where an act, unlawful in itself, is done with deliberation, and with intention of mischief or great bodily harm to some particular person, or of mischief indiscriminately, fall where it may, and death ensues from such act, against or beside the original intention of the party, it will be murder.
    3. So in this case, where the defendant, in an angry and excited state of mind, threw a beer glass at his wife, which struck a lamp she was carrying, breaking the same and causing the oil therein to take fire and burn her, from which burns she died, it was held immaterial whether he intended the glass should strike his wife, or his mother-in-law, or his daughter, who were also in the same room, or whether he had any specific intent, but acted from general malicious recklessness, disregarding any and all consequences,—in either case he was guilty of murder.
    4. When the act is in itself lawful, or even if unlawful is not dangerous in its character, and death ensues to another from such act, without any intent to injure the person killed, a different rule obtains. But when the act is unlawful, and manifests a reckless, murderous disposition on the part of the person charged, or, in the words of the old law book, “A heart void of social duty, and fatally bent on mischief, ” the presumption of law is that the mind assented to what the hand did, with all the consequences resulting therefrom.

      5. One good count—will sustain general conviction. If any one count of an indictment be good, it will sustain a general verdict of guilty.
    6. Pbaotice—improper remarks of State’s attorney must be objected to and preserved in bill of exceptions. If one on trial for a criminal offence desires to assign for error in this court unwarranted statements of fact made by the State’s attorney in his closing argument, he should call the matter to the attention of the court at the time, and embody the objectionable statement in the bill of exceptions, otherwise this court can not consider the assignment of error. It is not sufficient to embody such statement in the defendant’s affidavit filed in support of a motion for a new trial.

      Writ of Error to the Circuit Court of Jersey county; the Hon. Albert G. Burr, Judge, presiding.
    _ Mr. W. H. Pogue, for the plaintiff in error.
    Mr. James McCartney, Attorney General, for the People.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Plaintiff in error, by the judgment of the court below, was convicted of the crime of murder, and sentenced to the penitentiary for the term of his natural life. The several objections urged against that conviction will be passed upon in the order of their presentation by counsel for plaintiff in error.

First—It is contended the court erred in refusing to sustain the motion to quash the indictment. The indictment, contains three counts, but inasmuch as if any one be good it will sustain the general verdict of guilty, (Curtis v. The People, Breese, 256, Lyons v. The People, 68 Ill. 271, Sahlinger v. The People, 102 id. 241,) we deem it only necessary to particularly notice the third, which we think is clearly good. It is as follows:

“And the grand jurors do further present, that the defendant, with a certain glass which he, the said Thomas Mayes, in his right hand held, in and upon the said Kate Mayes feloniously, etc., did make an assault, and with the glass aforesaid to and against the said Kate Mayes did cast and throw and strike, and. with the said glass so held and thrown, he, the said Thomas Mayes, a certain lamp, with oil and wick therein, which she held in her hand, then and there lighted and burning, did break and destroy, and by means of such breaking of such lamp so held by said Kate Mayes, and being so lighted and burning as aforesaid, the oil of said lamp was spread and poured upon the said Kate Mayes, and by reason thereof the clothing and garments of the said Kate Mayes were fired and burned on the person of the said Kate Mayes, and by reason of such burning the body, face, neck, head and limbs of the said Kate Mayes were greatly burned, and thereby then and there she, the said Kate Mayes, received five mortal burns upon the neck, face, body, head and limbs of her, the said Kate Mayes, by reason of the said casting, throwing and striking with the said glass by him, the said Thomas Mayes, as aforesaid, and the breaking of said lamp so containing oil, and being lighted as aforesaid, and of which said mortal burns the said Kate Mayes languishing, did die, ” etc.

The objection taken to this count is, that it should have been specifically averred “that the oil was fired by the flame of the wick of the lamp, then filled with oil and burning, and held by the deceased in her hand. ” This would, doubtless, have been more lucid, and, therefore, preferable; still, we are of opinion such averment was not indispensable. We can not concur with counsel that the words “by reason thereof, ” refer only to the preceding words, “spread and poured upon the said Kate Mayes, ” and do not refer to the words “lighted and burning.” We think the plain, ordinary meaning of the language is, plaintiff in error threw a glass at and against Kate Mayes, and thereby broke a lamp having oil and wick therein, which were then lighted and burning, which she held in her hand, and by means of such breaking of said lamp the oil of said lamp, which was lighted and burning, was spread and poured upon the said Kate Mayes, “and by reason thereof, ”—i. e., by reason of the spreading and pouring of the lighted and burning oil upon the said Kate Mayes,—“her clothing and garments and person were fired and burned. ” When it is said a lamp, with oil and wick therein, lighted and burning, is broken, and by means of the “breaking of said lamp so lighted and burning as aforesaid, the oil of said lamp was spread and poured,” etc., it would seem impossible to understand that the oil was not lighted and burning, and that “the oil of such lamp does not mean the oil which is lighted and burning. ” It is not the wick of the lamp alone, but the oil of the lamp, together with the wick, as a unit, that is said to be “lighted and burning, ” and necessarily, therefore, when it is repeated that the oil was “spread and poured, ” etc., it must mean the lighted and burning oil was spread and poured, etc. The objection is hypercritical, and the motion to quash was properly overruled.

Second—It is contended the facts proved do not constitute murder. They are, briefly, these: The deceased was the wife of plaintiff in error, and came to her death by burning, resulting from plaintiff in error throwing a beer glass against a lighted oil lamp which she was carrying, and thereby breaking the lamp and scattering the burning oil over her person. Plaintiff in error came into the room where his wife, his mother-in-law and his young daughter were seated around a table engaged in domestic labors, about nine o’clock at night. He had been at a saloon near by, and was, to some extent, intoxicated,—not, however, to the degree of unconsciousness, for he testifies to a consciousness and recollection of all that occurred. When he sat down, the deceased, noticing that one side of his face was dirty, asked him if he had fallen down. He replied that it was none of her business. She then directed the daughter to procure water for him with which to wash his face, which being done, he washed his face, and he then directed the daughter to procure him a clean beer glass, which she did. He had brought some beer with him from the saloon, and he then proceeded to fill the glass with the beer and handed it to the deceased. She took a sup of it, and then offered it to her mother, who declined tasting it. The deceased then brought plaintiff in error his supper, but he declined eating it, and was about to throw a loaf of bread at the deceased when she took it from his hands and returned it to the cupboard. After this, having sat quietly for a few minutes, he asked for arsenic. No reply was made to this request, and thereupon he commenced cursing, and concluded by saying that he would either kill deceased or she should kill him. He wanted a fire made, hut deceased told him it was bed time and they did not need any fire. He then picked up a tin quart measure and threw it at the daughter. Thereupon deceased started, with an oil lamp in her hand, toward a bed-room door, directing the daughter to go to bed, and as the deceased and daughter were advancing toward the bed-room door, he picked up the beer glass, which is described as being a large beer glass, with a handle on one side, and threw it with violence at the deceased. It struck the lamp in her hand and broke it, scattering the burning oil over her person and igniting her clothes. Plaintiff in error made no effort to extinguish the flames, but seems to have caught hold of the deceased, temporarily, by her arms. This occurred on Monday night, and on Saturday of that week she died of the wounds caused by this burning.

The plaintiff in error claims that he was only intending to pitch the beer glass out of doors—that he did not design hitting the deceased, and that the striking of the lamp was therefore purely an accident. In this he is positively contradicted by his daughter and mother-in-law, the only witnesses of the tragedy besides himself. He says, to give plausibility to his story, that the door leading into the yard was open, and that deceased and daughter had to pass between him and that door in going to the bed-room, and that deceased was near the edge of the door and moving across the door when he pitched the glass. They both say this door was closed, and that he threw the glass. The language of his mother-in-law, in regard to the throwing, is: “He threw at her with vengeance a heavy tumbler; ” and his daughter’s language is: “ He picked up a tumbler and threw it with such force that it struck the lamp.” We can not say the jury erred in believing the mother-in-law and daughter, and disbelieving plaintiff in error.

Third—The plaintiff in error asked the court to instruct the jury, “that to constitute a murder there is required an union of act and intent, and the jury must believe, beyond a reasonable doubt, both that the weapon used was thrown with the intent to inflict bodily injury upon the person of Kate Mayes, and if they have a reasonable doubt as to whether his intent was to strike his wife or not, the jury should give the prisoner the benefit of such doubt, and acquit him. ” The court refused to give this as asked, but modified it by adding: “Unless the jury further believe,.from the evidence, beyond a reasonable doubt, that all the circumstances of the killing of Kate Mayes, (if the evidence shows that she was killed by defendant,) shows an abandoned and malignant heart on the part of the defendant, ” and then gave it. Plaintiff in error then also asked the court to instruct the jury as follows:

“The court instructs the jury, for the defendant, that intention to commit a crime is one of the especial ingredients of an offence, and the People are bound to show, beyond a reasonable doubt, that the defendant threw the glass in question at the deceased with the intention to do her bodily injury, and if you believe, from the evidence, that there is a reasonable doubt as to the defendant having thrown said glass with intent to do her bodily injury, the jury will give the defendant the benefit of said doubt, and acquit the defendant. ”

This, also, the" court refused to give as asked, but modified it by adding: “Unless all the circumstances of the killing of Mrs. Mayes (if she is shown, beyond a reasonable doubt, to have been killed by defendant,) show an abandoned and malignant heart on the part of the defendant, ” and then gave it. Exceptions were taken to the rulings in these modifications, so the question whether they were erroneous is properly before us.

We perceive no objection to these rulings. Malice is an indispensable element to the crime of murder. But our statute, repeating the common law rule, says: “Malice shall be implied when mo considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.” (Rev. Stat. 1874, p. 374, sec. 140.) And hence it is said: “When an action, unlawful in itself, is done with deliberation, and with intention of mischief or great bodily harm to particulars, or of mischief indiscriminately, fall where it may, and death ensue, against or beside the original intention of the party, it will he murder.” (Wharton on Homicide, 45.) And as illustrative of the principle, the author says: “Thus, if a person, breaking in an unruly horse, willfully ride' him among a crowd of persons, the probable danger being great and apparent, and death ensue from the viciousness of the animal, it is murder. * * * So, if a man mischievously throw from a roof into a crowded street, where passengers are constantly passing and repassing, a heavy piece of timber, calculated to produce death on such as it might fall, and death ensue, the offence is murder at common law. And upon the same principle, if a man, knowing that people are passing along the street, throw a stone likely to do injury, or shoot over a house or wall with intent to do hurt to people, and one is thereby slain, it is murder on account of previous malice, though not directed against any particular individual. It is no excuse that the party was bent upon mischief generally. ” To like effect is, also, 1 Russell on Crimes, (7th Am. ed.) 540, *541; 1 Wharton on Grim. Law, (7th ed.) sec. 712b. So, here, it was utterly immaterial whether plaintiff in error intended the glass should strike his wife, his mother-in-law, or his child, or whether he had any specific intent, but acted solely from general malicious recklessness, disregarding any and all consequences. It is sufficient that he manifested a reckless, murderous disposition,—in the language of the old hooks, “A heart void of social duty, and fatally bent on mischief. ” A strong man who will violently throw a tin quart measure at his daughter—a tender child—or a heavy beer glass in a direction that he must know will probably cause it to hit his wife, sufficiently manifests malice in general to render his act murderous when death is the consequence of it. He may have intended some other result, but he is response ble for the actual result. Where the act is, in itself, lawful, or, even if unlawful, not dangerous in its character, the rule is different. ¿In cases like the present, the presumption is the mind assented to what the hand did, with all the consequences resulting therefrom, because it is apparent he .was willing that any result might be produced, at whatever of. harm to others. In the other case, the result is accidental, and, therefore, not presumed to have been within the contemplation of the party, and so not to have received the assent of his mind.

Fourth—The last objection to be noticed is, that the State’s attorney, in his closing argument to the jury, made certain unwarranted statements of fact. This is not shown by proper recital in the bill of exceptions, as it should be if it is to be considered by us, but appears only in an ex parte affidavit of the prisoner, made and presented in support of the motion for a new trial. If the fact occurred, it is to be presumed the judge knew it, and there was no need of an affidavit to bring it to his attention. It is not even shown by the bill of exceptions that the attention of the judge was called to the subject upon the trial, or that the judge had forgotten or did not know what then occurred, and, after the trial, was asked to hear evidence as to what did actually occur upon the trial. The ex parte affidavit of a defendant can not thus be made to override the recitals of the bill of exceptions as to what occurred upon the trial of a criminal cause. For aught that here appears, the judge may have disregarded this affidavit because he knew it to be untrue. But, in addition to this, it does not appear, even by the affidavit, that the judge’s attention was called to this conduct of the State’s attorney; and we have held that if a party sits silently by and permits such conduct to pass unchallenged, he can not be allowed to assign it for error. Earll v. The People, 99 Ill. 123.

Perceiving no cause to disturb the judgment, it is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Joanna E. Wallace, Ex’x. v. Alfred Gatchell.

      Filed at Springfield March 29, 1883.

    1. Administration of estates—exhibiting a claim—what so regarded—to prevent the two years’ limitation. The filing of a copy of a claim against an estate with the clerk of the county court within two years after the grant of letters of administration, is an exhibition of such claim to the county court so as to take the case out of the Limitation law of two years, although no summons or notice is issued or given to the executor or administrator within that period, and the creditor in such case will not be restricted to subsequently discovered or non-inventoried assets for its payment, although allowed after the expiration of the two years.
    2. Same—when notice should be given to personal representative—and of its purpose. The county court has the power or jurisdiction to receive claims presented for adjustment, without notice or summons to the administrator of the estate. When such a claim is filed after the adjustment term appointed by the administrator, the purpose of the issuing and service of summons on him is to notify him that such claim has already been exhibited, and also to give the court jurisdiction of the person of the administrator, and authorize it to adjudicate the claim.
    3. • Same—costs as to claim not presented on adjustment day. Where a claim is exhibited against an estate after the time fixed by the administrator for the presentation of claims, the claimant will be liable for all the costs in the county court that might have been avoided by presenting the claim at the adjustment term, which will include at least the costs of the issuing and service and return of the summons against the administrator.
    4. Same—county court always open for probate business. By an express provision of the statute county courts are always open for probate purposes, which includes the presentation or exhibiting of claims against estates.
    5. Practice—time to make objection—permitting error to intervene. A party has no right to sit by and permit a judgment to be entered up against him which is erroneous in some trifling respect, not affecting the merits of the matter in controversy, without calling the attention of the court to it; and if he does, he can not avail of such error in a court of review. But the rule is different if the error affects the merits of the controversy.
    6. If an administrator, on appeal from an order allowing a claim against the estate he represents, appears and contests the allowance in the circuit court on the merits, and there makes no objection as to the judgment for all costs against the estate, as, when the claim had not been presented at the proper adjustment term of the county court, the error in the judgment as to the costs will be regarded as waived when presented for the first time in a court of review.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Messrs. Marsh & McFadon, for the appellant:
    By the law of administration in force up to July 1, 1872, two distinct steps were necessary to get a claim before the court itself. The first had for its object the saving of the two years Statute of Limitations, and consisted in exhibiting a claim against an estate in some one of several ways permitted by law. (Rev. Stat. 1845, p. 561, “Wills,” secs. 115, »116.) By the second step, a claim exhibited against an estate within two years was to be brought before the court, or,- as the statute has it, “presented to the court. ” This was done by the claimant giving ten days’ notice to the executor of the trial day, and that day might or might not happen within the two years. Rev. Stat. 1845, p. 561, sec. 118.
    The law of July 1, 1872, requires a claimant to take both these steps within the two years. The claim must be “exhibited to the court” within two years. The word “exhibited” means “presented, ” and it can not be asserted that a claim is presented to the court until notice has been given to the executor by a summons served on him. Rev. Stat. 1874, “Administration,” secs. 61, 71.
    We insist that the issuing of the summons is the commencement of the suit as in other cases, (Darling v. McDonald, 101 Ill. 381,) and that summons must issue within two years to entitle the claimant to share in the estate inventoried. Hales et al. v. Holland, 92 Ill. 500. See, also, Wernse v. Hall, 101 Ill. 428, construing the Missouri statute.
    The Appellate Court erred in its judgment as to costs of that court. Dye v. Noel, 85 Ill. 290; Russell v. Hubbard, 59 id. 339.
    Messrs. Davis & Poling, for the appellee:
    The filing of a copy of the claim with the clerk of the county court within two years from the issuing of letters to the executor or administrator, followed by an adjudication of the claim, is a sufficient exhibiting of the same to prevent the running of the two years’ limitation. Rev. Stat. 1874, chap. 3, secs. 61, 70.
    In support of this view we refer to the following cases: Wells v. Miller, 45 Ill. 33; Mason v. Tiffany, id. 392; Miller v. Miller, 82 id. 463; Blanchard v. Williamson, 70 id. 647; Darling et al. v. McDonald, 101 id. 370.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 21st of September, 1878, letters testamentary were issued out of the Adams county court to Joanna E. Wallace, the appellant, on the estate of Joel Eiee, deceased, and she thereupon assumed the duties and office of executrix. Within six months from the date of her letters she appointed a term of the county court for the presentation and adjustment of claims against the estate, and gave due notice thereof, as required by statute. The claim of appellee, hereinafter stated, was not presented for allowance at the term of the court thus fixed by her.

On the 14th of September, 1880, less than two years from the date of letters, Alfred Gatchell, the appellee, filed with the clerk of said court a claim against said estate for the sum of $1416.10, the justness of which is not questioned. No notice or summons, however, was issued to the executrix on this claim until the first day of June, 1881, being more than two years from date of letters; nor did she at any time waive the issuing of summons or notice on said claim. On this state of facts the county court allowed the claim as a seventh class claim, “to be paid out of non-inventoried estate.” From this order appellee appealed to the circuit court of Adams county, where, upon a rehearing of the cause, the claim was ordered to be paid as a seventh class claim in due course of administration, and this order, on the executrix’s appeal, was affirmed by the Appellate Court for the Third District, and she brings the case to this court by further appeal.

It will be seen, from this brief statement, that the vital question involved in the present controversy is, whether this claim should have been ordered to be paid, as it was, as a seventh class claim in due course of administration, or whether its payment should have been limited to subsequently discovered or non-inventoried assets.

By section 70, of the Revised Statutes of 1874, all claims against the estate of a deceased person are required to be “exhibited to the court” within two years from the granting of letters, and all demands not so exhibited within that period are declared forever barred, “unless the creditors shall find other estate of the deceased not inventoried or accounted foi by the executor or administrator, in which case their claims shall be paid pro rata out of such subsequently discovered estate, ” etc. The ultimate question to be determined in this case then is, was the claim in controversy, in the sense of the statute, “exhibited to the court” within two years from the grant of letters? The answer to this question of course depends upon what constitutes the exhibiting of a claim to the court within the meaning of the statute. Appellee insists that the filing of a copy of the claim with the clerk of the county court within the two years, as was done in this case, is all that the statute requires to take a case out of the limitation of two years, and that it is no objection that the actual adjustment or allowance of it, or that the issuing of notice thereon occurred afterwards, and in this view of the matter we concur. Counsel for appellant, however, contend that the creditor must, in addition to the filing of the claim with the clerk, sue out a summons against the executor or administrator, and that such summons must be served before the court is clothed with jurisdiction to consider the claim, and that until the court thus acquires jurisdiction of the cause there can be no such a thing as the exhibiting of a claim to the court. We are unable to perceive anything in the statute or the previous decisions of this court bearing on the question that warrants this view. The exhibiting of a claim to the court we understand to be nothing more than the formal presentation of it in the court for allowance, which is done by filing the same with the clerk of the court, and this may be done in vacation as well as in term time. By an express provision of the statute county courts are always open for probate purposes, including the presentation or exhibiting of claims against estates.

The issuing and service of process upon the filing of a claim against an estate is not for the purpose of conferring power or jurisdiction upon the court to have a claim presented or exhibited to it for allowance, as is supposed, but, on the contrary, to notify the executor or administrator that such a claim has already been exhibited or presented, and also to give the court jurisdiction of the person of the executor or administrator, and to authorize it to adjudicate the claim. The presentation of a claim for adjustment, and the actual adjudication of such claim, are two very different things. The court is always open ’ for the one, hut not for the other. The exhibiting or presentation of a claim to the court gives' the court jurisdiction of that particular claim, and sets the court in motion. If the executor or administrator is present, and it is general adjustment term, the court may proceed at once to adjudicate the claim, but if the time of general adjustment has already passed, and the executor or administrator will not waive the issuing of a summons and submit to the jurisdiction of the court, the requisite summons must be issued and served before the court will be authorized to proceed to an adjudication. The position that the presentation of a claim, and causing the same to be filed in the county court for allowance, is, within the meaning of, the statute, a sufficient exhibiting of it to the court, is fortified by the reasoning of the court in Barbero v. Thurman, Admr. 49 Ill. 284.

It is further objected that the circuit court erred in taxing appellant with the costs in the county court. It is clear this objection is well taken as to all costs in that court which might and would have been avoided by presenting the claim at the adjustment term, which would include, at least, the costs of the issuing, service and return of the summons; but we do not think, under the circumstances, the case ought to be reversed for that reason. An examination of the record shows that appellant was present by her counsel, and contested this claim in the circuit court, and that the objection now urged was' made for the first time in the Appellate Court. Had she moved for an apportionment of the costs, or in some manner called the attention of the court to the matter, the error now complained of would doubtless have been avoided. A party has no right to sit by and permit a judgment to be entered up against him, which is erroneous in some trifling respect not affecting the matter in controversy, as in the present case, without even so much as calling the attention of the court to it, and then afterwards avail himself of such error in a court of review, and thereby deprive his adversary of the entire fruits of the litigation. If the error complained of affected the merits of the controversy, which it clearly does not, the case would be altogether different. Under the circumstances, we think the error should be regarded as waived.

The conclusion reached by the circuit and Appellate courts being in conformity with the views here expressed, the judgment must be affirmed.

Judgment affirmed.

Mr. Justice Craig, dissenting.


author: Mr. Chief Justice Scott

text:
    David McConneaughey v. Charles Bogardus et al.

      Filed at Springfield March 29, 1883.

    1. Sale under power in mortgage—in a county other than that in which the premises are situate—as to mortgages executed before the statute on that subject took effect. The 14th section of chapter 95, Rev. Stat. 1874, entitled “Mortgages, ” which provides that no sale of real estate under a power of sale in any mortgage, or trust deed in the nature of a mortgage, shall be made except in the county in which the premises are situated, has reference only to mortgages, or trust deeds in the nature of mortgages, “executed after the taking effect” of that act. Hence a mortgage executed before the passage of that act authorizing a sale in a different county from that in which the land is situated, upon notice, for a default of payment, is not affected by it, and such a sale is valid.
    2. Where a power of sale was given in a mortgage which was executed and delivered before the act of 1874 took effect, and the time of payment was extended by mutual agreement from year to year, until after that act went into effect, such extension will not bring the mortgage within the act, so as to preclude a sale under a power therein from being made in a different county from that in which the land is located.

      3. Same—whether a sale is made for cash—giving a check for the purchase price. A sale of mortgaged premises under a power to sell for cash is satisfied by a sale, where the purchaser at the sale gives his check for the price bid by him, which would have been paid if presented. What the parties do with the check afterward is no concern of the purchaser, or any one holding under him.
    Appeal from the Circuit Court of Ford county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Calvin H. Frew, for the appellant:
    By the extension of the time of payment the deed of trust was brought within the provisions of section 14, chapter 95, of the Revised Statutes. The trustee was empowered to sell for cash only, and had ño power to accept a check on a bank. The terms of the power must be strictly pursued. ' 2 Wash-burn on Real Prop. 73, 78, 79, 81; 2 Jones on Mortgages, secs. 1778, 1772, 1822.
    Mr. A. Sample, and Mr. C. H. Wood, for the appellees:
    There was no agreement to extend the time of payment, as alleged in the bill.
    The trustee’s or mortgagee’s deed relates back to the execution of the mortgage. Farrar v. Payne, 73 Ill. 82.
    The sale was made for cash, as the check was good for the money. It is no objection that the requirement to sell for cash has not been literally complied with where no injury is done to the mortgagor. 2 Jones on Mortgages, 1868; Ballanger v. Bourland, 87 Ill. 513.
    If there had been an extension of the time of payment on the note, it could in no manner affect or change the mortgage.
    A mere postponement could not extinguish the power of sale. To hold otherwise would violate that canon which forbids a retrospective effect to be given to statutes, unless that intention is manifested by the most clear and unequivocal expressions. In re Fuller, 77 Ill. 99; People v. Mathers, 95 id. 109; People v. Peacock, 98 id. 172; United States Mortgage Co. v. Gross, 93 id. 483.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

On the 1st day of September, 1868, Alexander H. Hanley, and Elizabeth K. Hanley, his wife, made and delivered to Selwin Easton and J. Lester Easton their mortgage deed, conveying to them a tract of land therein described, to secure indebtedness of Hanley to them, which was evidenced by certain notes therein described. A portion of the indebtedness secured was paid, and a part of the mortgage security was released. The interest on the remainder of the indebtedness was paid from time to time for several years after it became due, and no effort seems to have -been made to foreclose the mortgage.

Subsequently, the note secured by the mortgage was assigned to and delivered to Charles B. Hosmer, and the same not having been paid, he advertised the property for sale under the power contained in the mortgage, and on the 20th day of October, 1879, he sold the property to Anson W. Jenks, who afterward conveyed it to defendant Charles Bogardus. Soon after the property was sold under the mortgage, David McConneaughey, claiming to be the owner of the equity of redemption that was in Alexander H. Hanley, gave notice of his intention to contest the validity of the sale, and by his attorney offered to pay to Hosmer the full amount of the Hanley indebtedness, with interest thereon, and that being refused, he brought his bill to set aside the mortgagee’s deed to Jenks, and the latter’s deed for the same property to Bogardus, and for leave to redeem the property by paying the balance of the mortgage indebtedness remaining unpaid. The circuit court dismissed the original and amended bills, and complainant brings the case to this court on appeal.

The mortgage provided that in case default should be made the property might be sold in the city of Chicago, after giving twenty days’ notice of the time and place of sale. That was done. The land embraced in the mortgage is situated in Ford county, and it is insisted in argument that since the passage of the act of 1874, in relation to foreclosing real estate mortgages under a power of sale, it was not legal to sell the property elsewhere than in the county where the land is situated. On turning to that act, section 14, chapter 95, Bev. Stat. 1874, it will be seen it has reference only to mortgages, or trust deeds in the nature of mortgages, “executed after the taking effect” of the act. The mortgage in this case was executed long before the passage of the act of 1874, and of course it is not within its terms, and is not affected by it. But it is insisted, as the time for the payment of the mortgage indebtedness was extended by mutual agreement from year to year, until the act of 1874 took effect, that fact brought this mortgage within the operation of the statute, and no sale could legally be made under it, except in the county where the land is situated. This position has nothing in its support. The power of sale contained in the mortgage was a valid contract when made, and the mere fact the time for the payment of the mortgage indebtedness was extended from time to time, did not render it invalid. It was a power coupled with an interest in the property itself, and it is apprehended nothing but payment of the indebtedness secured could render it inoperative.

Another irregularity insisted upon is, that the property was not sold for cash, as the mortgage provided it should be. It is certain it was not sold on a credit. The purchaser at the sale gave his check on a bank for the amount of his bid. It is in proof the check was good. The money could have been had on it at any moment, and that is equivalent to selling for cash. What the parties did with the check after-wards, or with the proceeds, if anything, was no concern of the purchaser, or of any one holding under him. There was no agreement the check should not be presented for payment. The holder was at liberty to present it at any time, and had he done so the proof is it would have been promptly paid.

But it is said complainant paid the interest, on March 3, 1879, on the balance of the principal, with the distinct understanding the time for payment of the unpaid principal should be extended for another year, and it was therefore unlawful for the mortgagee to sell the property, as he did, before the expiration of that period. There is no satisfactory evidence in the record of any extension of the time for the payment of the principal after the 3d of March, 1879. On the receipt of the $230, sent, perhaps, on the 3d of March, 1879, Hosmer wrote to complainant that the interest on the Hanley loan was paid to January 1, 1879, and in the same letter said, “We should, personally, have been willing to give another year’s time, but this matter is in our hands only as agents. ” It does not appear the testimony of complainant was taken, and there is no denial by the testimony that he did not receive Hosmer’s letter informing him no extension of the time of payment would be allowed. The sale was not made until October thereafter, and complainant was given ample time in which to have made arrangements to redeem the land from the mortgage indebtedness. That he did not do when he had the legal right to do so, and it is now too late.

The decree of the circuit court will be affirmed.

Decree affirmed.