author: Mr. Justice Craig

text:
    William H. Rhawn et al. v. Thomas A. Pearce et al.

      Filed at Ottawa May 19, 1884.

    1. Conflict of laws—insolvency laws of another State. The courts of this State will not enforce the insolvent laws of another State by giving effect to a statutory assignment of the effects of a debtor residing in such other State, even as against an attaching creditor of the same State of the debtor.
    2. Neither the law of another State or country, nor the adjudication of the courts thereof, by which trustees are appointed to take the property and effects of an insolvent debtor and distribute the proceeds, can have any extraterritorial effect. They are strictly local, and affect nothing more than they can reach. An assignment in mrotum, by virtue of or under a foreign law, does not operate upon a debt or right of action as against a person in this State or suing here.
    ■3. Same—assignment under Insolvent Debtor's act—how far subject to equities. Assignees or trustees of an" insolvent debtor appointed by the courts under the provisions of a statute, take under the assignment, subject to every equity belonging to foreign creditors, and subject to the remedies provided by the laws of the foreign country where the debt is due.
    4. Under a domestic attachment in a court in the State of Pennsylvania, trustees of the estate of the debtor were appointed by such court in accordance with a statute of that State, which statute vested them with all the estate of the debtor, including all debts and things in action from the date of such attachment. Creditors of such debtor, residents of the State of Pennsylvania, brought an action by attachment against him in this State, and garnisheed persons residents of this State, who were indebted to such non-resident debtor; and thereupon the trustees appointed in the State of Pennsylvania sought to defeat the attachment here by interpleading and claiming the debts garnisheed, by virtue of their appointment and the laws of that State: Held, that such trustees took subject to the remedies provided by the laws of this State, where the fund had its existence, and that the creditors suing here obtained the right to have such fund applied on their judgment.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

      Mr. Melville W. Fuller, for the appellants:
    The comity of this State will permit an assignment in insolvency in another State, in pursuance of the laws of such other State, to have full effect upon the property of the insolvent, here, at the time of the assignment, except so far as it may conflict with the rights of our own citizens, or be inconsistent with the positive laws or public policy of Illinois Story on Conflict of Laws, secs. 420, 929, 938; Bank v. Erle, 13 Pet. 589; Rorer on Inter-State Law, 138, 139; Thurston v. Rosenfeld, 42 Mo. 474; Bethel v. Bethel, 54 Ind. 428; DeWolf v. Johnson, 10 Wheat. 368.
    The situs of a debt is the residence of the creditor,—not of the debtor. Wharton on Conflict of Laws, sec. 363; Guillander v. Howell, 35 N. Y. 657; Greene v. Van Buskirk, 7 Wall. 151; Goodwin v. Holbrook, 4 Wend. 379; Kirtland v. Hotchkiss, 100 U. S. 491; Taylor v. Life Association, 13 Fed. Rep. 496; Wilkins v. Ellett, 9 Wall. 740; Goodlet v. Anderson, 7 Lea, 286.
    To sustain the proposition that an attaching creditor is precluded from contesting the validity of an assignment good by the law of the State of the domicile of such creditor, which is at the same time the domicile of the debtor, Mr. Wharton cites: Hall v. Boardman, 14 N. H. 38; Hoag v. Hunt, 21 id. 106; Smith v. Brown, 43 id. 44; Dunlap v. Rogers, 47 id. 287; Kidder v. Tufts, 48 id. 125; Whipple v. Thayer, 16 Pick. 25; Richardson v. Forepaugh, 7 Gray, 546; May v. Wannemacher, 111 Mass. 202; Atwood v. Insurance Co. 14 Conn. 555; Plestero v. Abraham, 1 Paige, 236; Abraham v. Plestero, 3 Wend. 540; Moore v. Bonnell, 2 Vroom, (N. J.) 90; Richardson v. Leavitt, 1 La. Ann. 430; Einer v. Deynoodt, 39 Mo. 69; Thurston v. Rosenfeld, 42 id. 474; Warren v. Van Buskirk, 35 N. Y. 658; Ward v. Morrison, 25 Vt. 593.
    The interest of the equitable owner of a judgment can not be defeated by attachment against the nominal plaintiff and garnishment of the judgment debtor. Hodson v. McConnel, 12 Ill. 170.
    The general rule is, that an equitable assignment will prevail when the creditor has notice before suit. Drake on Attachments, sec. 527.
    A creditor resident in the place in which an assignment is made is not permitted to assail it in a foreign jurisdiction. Moore v. Bonnell, 31 N. J. L. 97; Einers v. Best, 32 Mo. 240; Richardson v. Forepaugh, 7 Gray, 546; Burlock v. Taylor, 16 Pick. 335; Smith v. Brown, 43 N. H. 44.
    Insolvent and bankrupt laws will be enforced in foreign jurisdictions as against creditors who reside in the State where the insolvent or bankrupt proceedings are had. Einers v. Best, 32 Mo. 240; Milne v. Martin, 6 Binn. 653; Mullikin v. Auginbaugh, 1 Pa. 117; Lowery v. Hall, 2 W. & S. 130; Whipple v. Thayer, 16 Pick. 25; Hoyt v. Thompson, 1 Seld. 339.
    Mr. S. S. Gregory, for the appellees :
    The situs of the debt garnisheed was in this State, and as the laws of one State have no force outside the limits of the State where enacted, it is plain that the statutes of Pennsylvania could not operate in this State to vest in appellants title to the fund in controversy. Booth v. Clark, 17 How. 322; Willetts v. Waite, 25 N. Y. 577; Hoyt v. Thompson, 5 id. 320; Osgood v. Maguire, 64 id. 524; Warren v. Union Nat. Bank, 7 Phila. 166; Burrill on Assignments, sec. 303; City Ins. Co. v. Commercial Bank, 68 Ill. 348; Story on Conflict of Laws, 413; Quincy Railroad Bridge Co. v. Adams County, 88 Ill. 615; Gardner et al. v. Commercial Nat. Bank, 95 id. 298.
    Non-resident creditors, or creditors resident of the State of the debtor, may enforce the collection of their demands by attachment of the debtor’s effects in this-State, notwithstanding an assignment of the debtor’s effects by virtue of a statute of his State. Such creditors are protected the same as resident creditors. Paine v. Lester, 44 Conn. 196; Upton v. Hubbard, 28 id. 275; Kidder v. Tufts, 48 N. H. 121; Abraham v. Plestero, 3 Wend. 538; Johnson et al. v. Hunt, 23 id. 87; Taylor v. Geary, Kirby, 313; Wallace v. Patterson, 2 Har. & McH. 463; Hibernia Nat. Bank v. Lacombe et al. 84 N. Y. 367; Harrison v. Sterry, 5 Cranch, 289; Greene v. Van Buskirk, 7 Wall. 139.
    Assignees in bankruptcy, or in insolvency, are in the same situation as the bankrupt himself in regard to foreign debts. They take subject to every equity belonging to foreign creditors, and subject to the remedies provided by the laws of the foreign country where the debt is due. Story on Conflict of Laws, sec. 412.
    The right of a foreign creditor to sue in a State court the same as a resident creditor, is secured by the Federal constitution. Darris v. Pierce, 7 Minn. 13; Corfield v. Coryell, 4 Washb. 380; McFarland v. Butler, 8 Minn. 116; Jackson v. Butler, id. 117; Kincaid v. Francis, Cooke, 49; Lemmon v. People, 20 N. Y. 607; Ward v. Maryland, 12 Wall. 418; Williams v. Bruffy, 96 U. S. 176; Ducat v. Chicago, 48 Ill. 172; Fellows v. Lewis, 65 Ala. 343.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, by attachment, brought by appellees, against John Landenberger, a resident of Pennsylvania. The writ was issued on the 17th day of January, 1883, and served on John V. Farwell & Co., of Chicago, as garnishees, on the day following. The garnishees answered, showing an indebtedness from them to Landenberger of $4259.91. On the 13th of February judgment was rendered against Landenberger, and in his favor for the use of appellees, against the Farwells, for the sum admitted due by the answer. At a subsequent day the judgment, on motion of appellants, was vacated, and on the 23d day of February they filed an interpleader, in which they alleged that plaintiffs herein, Thomas A. Pearce and Martin Landenberger, have for many years last past been, and were at the time of the issuing of the writ of attachment in this case, and still are, citizens and residents of the State of Pennsylvania, of which State said John Landenberger, the principal defendant herein, was at said time when said writ of attachment was issued, and prior thereto, also a citizen; that on the 4th day of January, A. D. 1883, a certain writ of domestic attachment was sued out of the Court of Common Pleas No. 1, for the county of Philadelphia, and State of Pennsylvania, by the National Bank of the Republic, a corporation organized under the laws of Congress in that behalf, and located in the city of Philadelphia, in the State of Pennsylvania aforesaid, against the said John Landenberger, defendant, (who is the same John Landenberger who is defendant herein,) and Martin Landenberger, Jr., Charles H. Landenberger, William H. Carpenter and Thomas A. Pearce, garnishees, (which said Martin Landenberger, Jr., and.Thomas A. Pearce, are plaintiffs herein,) which said writ of attachment was duly executed January 6, 1883; that thereupon such proceedings were had that on the 29th day of January, 1883, William H. Rhawn, Daniel B. Cummins and David Faust were, by the order and judgment of said court, duly in accordance with the statutes of Pennsylvania in that behalf, appointed trustees of the estate of said John Landenberger, under the writ of domestic attachment issued in the above case, and for the .benefit of said John Landenberger’s creditors, and duly qualified as such on the 30th day of January, 1883, who thereupon became vested with all the estate of said John Landenberger at the time of the issuing of said writ of domestic attachment, to-wit, on the 4th day of January, A. D.1883, according to the laws of the State of Pennsylvania, including all debts and things in action due or belonging to said John Landenberger at the date of said attachment or afterward, with capacity to sue therefor in their own names. To the interpleader appellees interposed a general demurrer, which the court sustained, and rendered a judgment in their favor against the garnishees. From this judgment the interpleaders appealed to the Appellate Court, where the judgment of the Superior Court was affirmed, and the trustees, the interpleaders, bring the record here by appeal.

There is no controversy on this record in regard to the facts, and all matters of form are waived by stipulation. The record, therefore, presents nothing but a pure question of law for our decision.

The Pennsylvania statute, relied upon by the appellants, was made a part of the interpleader by stipulation, and where an attachment has been issued, as was done in Philadelphia against Landenberger, as set out in the interpleader, section 17 of the statute provides: “On the return of the writ the court shall appoint three honest, discreet men, not being creditors of the defendant, to be trustees of the defendant. ” Section 23 declares: “The trustees aforesaid shall be deemed to be vested with all the estate of the debtor at the time of issuing the said attachment, subject to all liens existing at that time; and it shall be their duty to take into their possession- all the said estate, whether attached as aforesaid, or afterwards discovered by them, and all books, vouchers and papers relating to the same; and they shall be capable of suing for and recovering in their own names all the said estate, and all debts and things in action due or belonging to such debtor at the date of the attachment, or at any time thereafter. ” Appellants having been appointed trustees under this statute, can they, as such, hold the property in question as against appellees, who are residents of the State of Pennsylvania, but who have brought their action in the courts of this State and garnisheed the fund ?

It is not claimed that Landenberger made a voluntary assignment,' and that the debt due from Farwell & Co. was in that manner transferred to appellants, but they predicate their rights upon the statute of Pennsylvania, in connection with the order of the court in that State appointing them trustees. On the other hand, appellees claim as attaching creditors under and by virtue of the laws of this State. It is not denied in the argument that if appellees were residents of the State of Illinois they might hold the fund garnisheed as against the claim of appellants; but being residents of the State of Pennsylvania, which is also the residence of the debtor and appellants, the laws of that State must control the rights of the parties. We have been favored with able arguments in this case, in which many authorities have been cited and reviewed, but we have not the time, and it would extend this opinion to an unnecessary length, to cite and comment upon all the eases referred to in the argument. We shall therefore content ourselves with a reference to a few of the cases which, in our judgment, settle the law involved in the ease.

If appellees had commenced their action in the courts of the State of Pennsylvania, there is no doubt but the proceedings set out in the interpleader would have been a complete bar to the action, and they would have been concluded by the laws of that State; but can -the law <5f Pennsylvania, or the adjudication in that State under the law by which appellants were appointed trustees, have any operation here,—in other words, can the laws of Pennsylvania he extended beyond the limits of that State into the State of Illinois and control an action in the courts of this State brought by citizens of the former State ?

A question similar in principle arose, at an early day, in New York, in Abraham v. Plestero, 3 Wend. 538, where a bankrupt had absconded from England, bringing certain property with him to New York, which was there attached by creditors' resident of England, and the assignee, under a foreign commission of bankruptcy, sought the aid of our courts to enforce his claims to the property. The right of the assignee to hold the property was denied. In the decision of the case Senator Oliver said: “The question here is, whether the comity of nations,—or, in other words, the enlightened and liberal principles of jurisprudence,—require that we shall enforce the Bankrupt law of a foreign nation by giving effect to a statutory assignment. * * * On the whole, I subscribe to the opinion of Ch. J. Marshall, in 5 Cranch, 289, that the Bankrupt law of a foreign country is incapable of operating a legal transfer of property in the United States. * * * The obligation of a contract is universal, and may be enforced wherever the contracting party may be found. Not so a municipal law, which no country other than that which enacted it is bound to enforce.” Senator Stebbins said: “It has been determined by the Supreme Court of the United States, and by -the State courts of Connecticut, Massachusetts, Pennsylvania, Maryland, and both the Carolinas, that an assignment under the Bankrupt law of England does not operate as a legal transfer of the personal property and choses in action of the bankrupt, in this country. ” It will not be necessary to quote further from the opinion of the court, but upon an examination of the ease it will be found that the court decided, in clear and direct terms, that the laws of England could not be given extra-territorial effect.

The doctrine of Abraham v.Plestero was affirmed in Johnson v. Hunt, 23 Wend. 87, in an elaborate opinion delivered by Justice Cowen. Referring to the Abraham case, it is said: “The current of the decision, as I understand it, is, that an assignment in invitum, under the laws of one State or nation, has no operation in another, even with respect to its own citizens. ”

Hibernia National Bank v. Lacombe et al. 84 N. Y. 367, (a case decided in the Court of Appeals in 1881,) is a case in its facts quite similar to the case under consideration. The question involved a contract between an attaching creditor and commissioners in insolvency, all residents of Louisiana, as to certain funds in New York, and the court decided in favor of the attaching creditor. In the decision of the question it is said: “The remaining question relates to the claim made by Messrs. Lacombe and others, commissioners appointed by the court in Louisiana. Neither the law nor the adjudication under which they were appointed can have any operation here. They are strictly local, and affect nothing more than they can reach, for the rule, as we conceive, is well settled that an assignment by virtue of or under a foreign law, does not operate upon a debt or right of action as against a person in this State. The plaintiff, as we have seen, although a foreign creditor, is rightfully in our courts, pursuing a remedy given by our statutes. It may enforce that remedy to the same extent, and in the same manner, and with the same priority, as a citizen. Any other construction would make the permission of the statute a form without a benefit,—a formality, and not matter of substance,—a mere delusion. Once properly in court and accepted as a suitor, neither the law, nor court administering the law, will admit any distinction between the citizen of its own State and that of another. Before the law, and in its tribunals, there can be no preference of one over the other. (Citing Abraham v. Plestero, and Johnson v. Hunt, above commented on, and other cases.) The plaintiff, by the process of our courts, has acquired a right of which no principle of national comity requires us to deprive it. ”

In the case cited it was argued, as here,’ that the assignment made in the State of Louisiana was operative and binding between citizens of that State beyond the limits of the State, but the court rejected that view, and held that the attaching creditors, regardless of their residence, had the right to enforce the collection of a debt in the State of New York, upon an equal footing with persons resident in the State of New York. We regard this as the correct doctrine. Under our laws the courts of this State are open alike to the citizens of every State for the enforcement of legal rights, and when a non-resident invokes the aid of our courts to enforce a legal right, inter-State comity does not demand that our courts should give the laws of another State extra-territorial effect here, and adopt their laws in the administration of justice. (See, also, Paine v. Lester, 44 Conn. 196, and Kidder v. Tufts, 48 N. H. 121.) Indeed, we have a constitutional guaranty “that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, ” and the Supreme Court of the United States, in Greene v. Van Buskirk, 1 Wall. 139, in discussing the question of comity, said: “But the right, under the constitution of the United States and the laws of Congress, which Green invoked to his aid, is not at all affected by the question of citizenship. We can not see why, if Illinois, in the spirit of enlightened legislation, concedes to the citizens of other States equal privileges with her own in her foreign attachment laws, that the judgment against the personal estate, located in her limits, of a non-resident debtor, which a citizen of New York lawfully obtained there, should have a different effect given to it under the provisions of the constitution and the law of Congress, because the debtor against whose property it was recovered happened also to be a citizen of New York. ”

We have been referred to cases decided in Massachusetts, among others Burlock v. Taylor, 16 Pick. 335, where it was held that an assignment of personal property by an insolvent debtor, in New York, which was valid under the laws of that State, is valid against a subsequent attachment by a citizen of New York of property in Massachusetts belonging to the debtor. While we recognize the high standing and ability of the court where these decisions were made, still we are not inclined i to follow the rule there adopted, as we believe the rule established in New York and other States to be the better one, and one more likely to mete out justice to all parties ! in such cases. It will, however, he observed that the trans-I ’ ’ | fer relied upon in Massachusetts was a voluntary one, and ! not one by operation of law merely, as is the case here; and | there are cases, as is Willetts v. Waite, 25 N. Y. 577, which (hold that a distinction is to be drawn,—that where a transfer is claimed by operation of law merely, it is only operative where such law prevails.

We have also been referred to Einers v. Best, 32 Mo. 240, where the court decided that where the plaintiffs and defendants were citizens of Louisiana, and defendants had made an assignment of their property in accordance with the law's of that State, for the benefit of their creditors, and an-assignee had been appointed to collect and distribute the assets of the insolvents, one of the creditors, a citizen of and residing in the same State, could not obtain a preference over the remaining creditors in his own State by process of attachment against the property and assets of the insolvent in this State. But while the decision is in favor of the view of appellants, at the same time the court quote, with approval, from Story on Conflict of Laws, 411, as follows: “There is a marked distinction between a voluntary conveyance of property by the owner and a conveyance by mere operation of law in cases of bankruptcy in invitum. Laws can not force the will, or compel any man to make a conveyance. In place of a voluntary conveyance of the owner, all that the legislature of a country can do, when justice requires it, is to assume the disposition of his property in invitum. But a statutable conveyance, made under the authority of any legislature, can not operate upon any property except that which is within its own territory. ” If this quotation is held to be a correct view of the law, it would seem to follow that the statute of Pennsylvania did not operate upon the debt in this State, and it was liable to the garnishee process sued out by appellees; and while the court, for which we entertain a high respect, arrives at a different conclusion, we are not inclined to follow the rule there adopted.

In Story on Conflict of Laws, sec. 414, the following rule is laid down in regard to an assignment like the one in question: “The most convenient and practical rule is, that statutable assignments, as to creditors, shall operate intra-territorially only. If our citizens conduct themselves according to our laws in regard to the property of their debtors found within our jurisdiction, it is reasonable that they should reap the fruits of their diligence, and not- be sent to a foreign country to secure such a dividend of their debtor’s effects as the foreign laws allow.” In section 412, the author, in speaking of the manner in which the assignee takes the property, says: “They take the property under the assignment subject to every equity belonging .to foreign creditors, and subject to the remedies provided by the laws of the foreign country where the debt is due. ”

Much has been said in the argument in reference to the situs of this debt, and it is contended that its situs was the residence of Landenberger in Philadelphia, to whom it was payable. Whether the debt was constructively within the State of Pennsylvania or not, at the time the insolvency proceedings were instituted, we do not regard of any particular moment. The parties owing the debt were residing in this State. The fund was here, and was liable, under the laws of this State, to the process of attachment, and the trustees in the State of Pennsylvania could only take, as declared by Story, subject to the remedies provided by the laws where the fund had an actual existence.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Nicholas Ritzman v. The People of the State of Illinois.

      Filed at Ottawa May 19, 1884.

    1. Obiminal law—encouraging commission of unlawful act, resulting in homicide—liability for consequences. Several persons of a party passing along a highway got out of the wagon in which they were traveling and went into an orchard without permission. The owner ordered them to leave, which they refused to do, when others from the wagon entered the orchard, armed with clods of dirt, and assaulted the owner, using very offensive language to him, and one of the party struck the owner, with a clod, upon the back part of the neck, felling him to the ground, from which blow death ensued in a few minutes. It appeared that one of the intruders, who was tried separately, took a part in the affray, and tried to kick the deceased while lying prostrate from the blow. It was held, that it was not necessary to show that he threw the missile which caused the death, in order to sustain his conviction for manslaughter. It was sufficient that he was present, encouraging the perpetration of the offence, to make him equally guilty with the party who struck the fatal blow.
    2. Evidence—exclamation of one of several persons who had committed an unlawful act. Several persons, including one who was put upon trial for murder, while traveling along the road entered an orchard by the road side, when, without justification, in a difficulty with the owner, who had ordered them to go out of his orchard, some one of the party, by a blow with a clod, killed the owner, and they all then got into the wagon and started toward their homes. A party in pursuit of them, seeking to have them arrested, passed the wagon, when some one of them called out, “Hello, good-looking fellow!” or something like that, but such witness so addressed could not say the defendant was in the wagon at that time. It appeared, however, from the defendant’s own testimony, that he did not get out of the wagon until after they reached the next point where they stopped: Held, that the court properly refused to strike out of the testimony the words so spoken to the witness.
    3. Same—cross-examination—latitude allowed. Great latitude should always be allowed in cross-examination, especially in a capital case, and the court should never interpose except where there is a manifest abuse of the right.
    4. Where a witness, on a second examination as to a particular transaction, states an important fact omitted in his previous account of the matter, his attention, on cross-examination, may properly be called to the fact, and he be required to explain why the omission was made in his first statement.

      5. So, on the trial of one for murder, the death having been caused by a blow with a clod from the hand of some one of several trespassers, a witness who was present at the time of the killing, stated, on his examination in chief, that the defendant then being tried, during the transaction called the 'deceased “a son of a bitch,”—on cross-examination the witness was asked if in his former examination he had made any such statement as that. On objection, the court below held that the inquiry should be limited to the questions actually asked and the answers given in the former examination, and that the question was improper: field, that the rule laid down by the court was rather stringent. The inquiry might well be made, with the view to ascertain the motive of the witness in omitting the statement on his examination in chief, in case it should turn out he had done so.
    6. Error will not always reverse—exclusion of evidence. Although the court, on the trial of a cause, may err in the exclusion of evidence, or in refusing to allow certain questions to be put on cross-examination, yet if this court is fully satisfied, under the facts of the case, that the error could not have affected the result, the error will afford no ground of reversal.
    7. Instructions—whether sufficient as a whole. It being impracticable to require absolute, literal accuracy in instructions, it is therefore sufficient if the instructions, considered as a whole, substantially present the law of the case fairly to the jury.
    Writ of Error to the Criminal Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Messrs. Moore & Purnell, for the plaintiff in error:
    There was error in admitting proof of the words of some one in the wagon, to Barry, when he passed the party. Devine v. The People, 100 Ill. 290.
    The evidence shows that several persons were present, not acting in concert, and that some one of them threw the clod. In the absence of proof as to who did the fatal act, all must go acquit. Wharton on Crim. Evidence, 3, note; The People v. Moody, 15 Cal. 289; Campbell v. The People, 16 Ill. 17; Commonwealth v. Riley & Stewart, Thatcher’s Crim. Cases, 471.
    Before Bitzman is responsible for the act of the person who struck the blow causing the death, something must be shown in his conduct indicating a design to encourage or incite the doing of the act. 1 Wharton on Crim. Law, sec. 211, note 1, and cases; 1 Hale, 439; Foster, 350; Connaughty v. The State, 1 Wis. 169; The State v. Farr, 33 Iowa, 553; Clem v. The State, 33 Ind. 418; 42 id. 420.
    No matter whether Ritzman was present at the homicide' of Lovett willfully or unexpectedly, such mere presence can not make him liable for the act. Nor would it even if he knew it was being done, and passively consented thereto. Clem v. The State, 33 Ind. 418; Wade v. The State, 71 id. 535; Wharton on Crim. Law, sec. 214, note 5; Butler v. Commonwealth, 2 Duv. 435; Plummer v. Commonwealth, 1 Bush, 76; The People v. Ah Ping, 27 Cal. 489; The People v. Woodward, 45 id. 493; King v. The State, 21 Ga. 220; Walrath v. The State, 8 Neb. 80; White v. The People, 81 Ill. 333; 4 Ga. 465; 65 Mo. 29; 12 Wis. 532; 6 Texas App. 23; 40 Ill. 488.
    If the defendant had cooperated in any general felonious plan, or any plan in which a collision might reasonably have been expected, he would be liable', in the second degree at common law, and the first degree by our statute, to any crime committed as the result of and in the execution of the plan, and not otherwise. Wharton on Crim. Law, secs. 213, 214, 220, 397, 1404; Wharton on Crim. Evidence, sec. 440; Lamb v. The People, 96 Ill. 76; 72 id. 303; 6 Jones, (N. C.) 21; 7 Iowa, 350; 6 Texas App. 23.
    But such participation must be concerted. Wharton on Crim. Law, sec. 213; Stephens on Crim. Law, 27; Rex v. Manners, 7 C. & P. 801; 1 Chitty on Crim. Law, *258; Commonwealth v. Knapp, 9 Pick. 496; Norton v. The People, 8 Cow. 137; Breese v. The State, 12 Ohio St. 146.
    And even where parties confederate to do a certain thing, no one is liable for the acts of another, who acts independent of the general plan. Thus, if they are disturbed, and escape, and one commits a homicide, he alone must answer. Rex v. Collins, 4 C. & P. 565; Rex v. Howell, 9 id. 437; Wharton on Crim. Law, sec. 214, note 1, p. 244.

      Confederates in a riot are not responsible for collateral collisions in no way contemplated or encouraged by those not actively engaged in such collisions. Wharton on Crim. Law, sec. 214, note 4; Rex v. Murphy, 6 C. & P. 103; Rex v. Skeet, 4 F. & F. 941; Rex v. Price, 8 Cox’s C. C. 96; United States v. Jones, 3 Washb. 209; Commonwealth v. Campbell, 7 Allen, 541; Watts v. The State, 5 West Va. 532; The State v. Calcup, 1 Ired. 30.
    Mr. Luther Laflin Mills, and Mr. Charles B. Morrison, for the People:
    The joint responsibility of rioters for each other’s misconduct rests on the principle that when an act is committed by a body of men engaged in a common enterprise, such act is treated as if specifically committed by each individual. Wharton on Homicide, (2d ed.) sec. 201.
    The mere presence of rioters may make one responsible for the acts of all the rioters, provided he was a member of the rioting party. Wharton on Homicide, (2d ed.) sec. 203.
    Individuals who, not specifically parties to the killing, are present, and consenting to the assemblage by whom it is perpetrated, are all guilty of the crime. 1 Wharton on Crim. Law, (8th ed.) sec. 396.
    Bishop lays down the law in this manner: “Where death is unintentionally inflicted by rioters, who use deadly missiles, as, where one throws a stone at random, whereby a man is killed, all are guilty of murder. ” 2 Bishop on Crim. Law, (9th ed.) sec. 691.
    We call the court’s attention to the section of our statute on accessories. Rev. Stat. Crim. Code, sec. 274.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The plaintiff in error, Nicholas Ritzman, and William Spies, were indicted in the Criminal Court of Cook county, at its September term, 1883, for the murder of Charles Lovett. At the following December term Ritzman was tried separately, before the court and a jury, upon said charge. The trial resulted in his conviction for manslaughter, the jury fixing the term of his confinement in the penitentiary at eight years. The usual motions for a new trial and in arrest of judgment having been made,-considered and overruled, the court thereupon entered final judgment in pursuance of the verdict, to reverse which Ritzman has brought this writ of error.

The errors assigned question the rulings of the court upon questions of evidence, and upon the giving and refusing of instructions. It is also claimed the evidence is insufficient to sustain the conviction, and a reversal is asked on these several grounds.

The circumstances under which the homicide occurred are as follows: About five o’clock in the afternoon of August 5, 1883, the accused, together with ten other young men, were returning to Chicago, by way of Grand avenue, from a picnic which they had attended that day on the Desplaines river, and when within some ten or eleven miles of their destination they came opposite the premises of the deceased, on the north side of the avenue. Here some of the party left the express wagon in which they were traveling, and entered an uninclosed apple orchard, being a part of- said premises. The dwelling of the deceased was about twenty feet north of the road, and on the west side of the orchard. Just at this time the deceased was passing from his house through the orchard, in an easterly direction, -when he encountered those of the party who had entered the orchard. Upon discovering them he ordered them off the premises, which attracted the attention of those who remained outside, whereupon others of the party, arming themselves with hard clods of earth, also entered the orchard, going in the direction of the deceased. Mrs. Lovett, and a young man by the name of Barry, who was boarding with the deceased at the time, being informed of the difficulty by the children of the deceased, left the house and proceeded in haste to where the parties were, Barry being somewhat in advance. He swears, in substance, that when he got there he saw a clod, or what he supposed to be a clod, bound off Lovett’s shoulder; that he then ran to Lovett as fast as he could, and as he came up to him Lovett fell; that Spies being nearest to the deceased, witness “made for him, ” when the former stepped back and struck at witness; that at this juncture of affairs witness discovered Eitzman, the accused, standing near or over deceased, and in the act of kicking him, when witness jumped over and shoved Eitzman back; that Lovett died in about five minutes after he fell; that witness saw as many as three of the party in the orchard, and there might have been more; that they used profane and foul language both to the deceased and witness; that witness next morning picked up a clod of dirt close to where Lovett lay the evening before; that the party having proceeded on their way, were pursued and overtaken, and all arrested that evening, except the accused and one other, who succeeded, for the time being, in eluding arrest.

The testimony of Mrs. Lovett is substantially the same as Barry’s, so far as the transaction in the orchard is concerned. She positively identifies the defendant as being in the orchard at the time her husband was killed, and actively participating in what was done. She says: “Defendant was trying to kick my husband after he fell. Barry was standing near my ■ husband, and he pushed this young man (referring to the accused) back when he tried to kick my husband while he lay on-the ground, dead; I saw other-persons there, but his face is the only one I looked at that I recognize. * * * While defendant stood over my husband he called him a God damned son of a bitch, and tried to kick him at the same, time. I looked him in the face and said, ‘you have killed him.’ He looked at me. I heard some one say, ‘you have killed a man,’ and he started and ran.” Mrs. Lovett also identifies two clods of dirt as having been picked up near where her husband lay, which were produced in court on the trial, and with which the medical testimony shows the wounds causing Lovett’s death might have been produced. She also locates the wounds from which he died, on the right side of the neck, back of his ear, and Dr. Bluthardt swears that Lovett died from the wounds described by her.

Cleaver, one of the party, admits he was in the orchard, and says the accused was there also, and near the deceased when he fell, though he did not see the deceased receive any blow. He further says when they returned to the wagon and got into it, Spies remarked: “My first one didn’t count, but my second one did. ” To which Bitzman replied: “My second one counted; my first one didn’t hit, and my second one counted.” To which Spies rejoined: “Will you stick to that?” and Bitzman said he would. The witness, on cross-examination, states that he understood from this conversation that Spies and Bitzman had thrown something at Lovett.

The case thus made by the People is met almost exclur sively by the simple denial of the accused, who testified on his own behalf. The defendant himself admits he was present when Lovett was killed; that his death occurred at the time and place fixed by the other witnesses, and also that it was caused by a, blow given by one of the party to which he belonged, without any excuse or justification whatever. He further admits that he, in company with Cleaver, without any authority entered the orchard of the deceased for the purpose of getting apples, and that they were ordered out by.Lovett. So far there is no material controversy. The accused, however, claims that when he and Cleaver were ordered out of the orchard, Spies jumped out of the wagon, picked up two lumps of dirt and threw them at the deceased, the first one missing him and the second taking effect and causing his death, as stated by the other witnesses. While he denies the language attributed to him by Cleaver in the conversation which occurred after the parties had returned to the wagon, with respect to throwing at the deceased, yet he admits there was such a conversation, but claims that it was between Spies and Cleaver, and not between Spies and himself. He also corroborates the statement of Barry to the effect that Spies assaulted Barry while in the orchard. Thus it will be seen the case made by the People, in several essential features, is greatly strengthened by the testimony of the defendant himself. There is other evidence we have not commented upon, or even so much as adverted to, for the reason we do not consider it of sufficient importance to demand special notice. Taking it as a whole, we think the evidence not referred to rather strengthens the case made by that part of the testimony specially noticed.

From the foregoing outline it satisfactorily appears that on the 5th of August, 1883, while the deceased was at home, quietly and peaceably attending to his own affairs, his premises were unlawfully invaded by a party of trespassers, the accused being one of the number; that when ordered off the premises, instead of leaving, as they should have done, they set upon him, and wantonly slew him in the presence of his own family, without a shadow of justification or excuse,—and yet we are told there can be no conviction in this case, because the evidence does not show, beyond a reasonable doubt, the very hand that hurled the fatal missile which sent him into eternity without a moment’s warning. So far as the accused is concerned, under the proofs in this case we think it wholly immaterial whether the missile in question was thrown by the hand of the accused or of some one of his co-trespassers. That the defendant was present,—and, to say the least of it, encouraging the perpetration of the offence,— can not be denied, unless we are prepared to set aside the testimony of Mrs. Lovett and Barry, two wholly disinterested witnesses, and accept the unsupported statements of the accused, which, of course, we can not do. And if the defendant was so present encouraging the perpetration of the offence, it is hardly necessary to say that by the express provisions of our statute he is made a principal, and equally guilty with the one who personally gave the fatal blow. Both these witnesses, as we have already seen, swear positively he was not only present, using abusive, profane and obscene language, but even after the deceased was knocked down, and while in a dying condition, Barry had to interpose to prevent the defendant from kicking his prostrate form,—and yet we are, in effect, asked to say he was not present aiding or encouraging the offence. This we can not do. N

It appears that Barry, as already stated, immediately after the homicide, went in pursuit of the party, passing them on the way, some fifteen minutes afterwards, between- Lovett’s and Whisky Point, where the arrest was made. Witness says all of the party that he saw were in the wagon when he passed them, but he could not say that he noticed the defendant, or whether he was in the wagon or not; that in passing, one of the party hallowed out, “Hello, good-looking fellow! ” or something like that. The court was asked to strike this out of the testimony and exclude it from the jury, on the ground it did not affirmatively appear the accused was present, which the court refused to do, and this is assigned for error. There is no error in the ruling of the court on this, question. The evidence clearly shows that the accused got into the wagon at Lovett’s, and he swears himself that he was with the party, and got out of-the wagon at Whisky Point, so that he must have been present when the language complained of was used. There is nothing in the objection. Indeed, it seems frivolous.

The next objection relates to the exclusion of evidence. Barry having stated, on his examination in chief, that Ritz-man, during the altercation in the orchard, called Lovett a “son of a bitch,” was asked, for the purposes of impeachment, if, in his former examinations, he had made any such a statement as that. On objection by the People, the court ruled, in effect, that the inquiry should be limited to the questions actually asked and the answers given in the former examinations, and that the question, therefore, in the form put, was improper. Wé are of opinion the rule, as laid down by the court, is rather stringent. Great latitude should always be allowed in cross-examination, especially in a capital case, and the court should never interpose, except where there is a manifest abuse of the right. The right of cross-examination is justly esteemed one of the most efficient means of eliciting the truth, and of exposing fabrication and falsehood. We think, where a witness, on a second examination, as to a particular transaction, states an important fact omitted in his previous account of the matter, his attention, on cross-examination, may properly he called to the fact, and he be required to explain why the omission was made in his first statement. If, in such ease, the fact in question was forgotten, or omitted through inadvertence, and the attention of the witness was not directed to it, as it often happens, the witness, of course, would so state, and that would end the matter. But if the discrepancy was intentional, the cross-examination, as a general rule, would develop the fact, and in such ease it would, and properly should, affect the witness’ credit before the jury. While we think, as already indicated, the ruling of the court on this subject was not sufficiently liberal, yet we are fully satisfied, under the facts in this case, the error in question could not have affected the result, and it therefore affords no ground for reversal.

One or two other objections of a similar character are made by plaintiff in error, which, for the reason just stated, must be disposed of in the same way.

Numerous exceptions have been taken, and elaborately argued, to the instructions of the court, most of which we regard as highly technical, and affording no reason for a reversal or even just criticism. It has often been said, and we repeat here, that to require absolute, literal, technical accuracy in instructions, would, as a general rule, defeat the ends of justice, and bring the administration of the criminal law into disrepute and just contempt. It is sufficient when the instructions, considered as a whole, substantially present the law of the case fairly to the jury. That, we think, has been done in this case. The criminal laws of this State must be enforced. And if it is not already understood, it is high time it should be, that where a case is clearly made out against the accused, and the jury have so found, this court will not reverse for a mere technical error, which it can see could not have affected the result.

The judgment will be affirmed.

Judgment affirmed.


text:
    Andrew Katz v. Catharine Moessinger, Admx.

      Filed at Ottawa May 19, 1884.

      1. Parties—suit for use of another—death of nominal plaintiff—substitution of his administrator. The nominal plaintiff in an action of assumpsit, which appeared from the face of the declaration to have been brought for the use of another, having died pending the suit, the name of his administrator was substituted as plaintiff. Before judgment the declaration was amended, and the name of the person for whose use the suit appeared to have been brought was stricken out, and so far as appeared he had no interest in the cause of action. Upon objection that the name of the administrator was improperly substituted as plaintiff, because the declaration as originally filed alleged that the suit was brought for the use of the person named, it was held, there was no error in that regard.
    ■ 2. Surety—remedies to reimburse himself for money paid for his principal. "Where a surety has paid the amount of a judgment rendered against himself and his principal, he may, in order to his reimbursement, either keep the judgment alive, for his benefit, by procuring it to be formally assigned to some third person, or he may treat the judgment as satisfied and discharged, and resort to his action against his principal; and in the event of his choosing to pursue the latter course, it will not matter that there is an existing formal assignment of the judgment, which he had procured to be made. Notwithstanding such assignment, the surety may still treat the judgment as discharged, and resort to his action.
    3. Bankruptcy—nets promise. A discharge in bankruptcy will not avail as a defence against a creditor of the bankrupt, if the latter, after his discharge, makes an unconditional promise to his creditor to pay him. But the promise to pay must be express and direct,-—the mere expression of an intention to pay will not avail.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Moses & Newman, for the appellant:
    The new promise of a discharged bankrupt to pay the debt must be distinct, unambiguous and certain. The expression of an intention to pay the debt is not sufficient. There must be a promise before the debtor is bound. Shoekey v. Mills, 71 Ind. 290; Moseley v. Caldwell, 59 Tenn. 208; Randidge v. Lyman, 124 Mass. 361; Stern v. Nussbaum, 77 How. Pr. 489; Dearing v. Moffit, 6 Ala. 776; Stewart v. Reckless, 24 N. J. 427; Church v. Winkley, 73 Mass. 460; Yoxtheimer v. Keyser, 11 Pa. 364.
    In St. John v. Stephenson, 90 111. 82, it was ruled, as claimed by our instruction which was refused, that the promise must be clear, distinct and unequivocal, citing Allan v. Ferguson, 18 Wall. 1; Porter v. Porter, 31 Me. 169; Merriam v. Bailey, 1 Cush. 77.
    The new promise must be an express promise, and must be absolute and unconditional. If there is anything like a condition in the promise, it must be removed by testimony, and placed on the footing of an absolute undertaking, to entitle the creditor to a recovery,—as, if the bankrupt should say that he would pay when he was able, the creditor must show an- ability to pay. Yates v. Hollingsworth, 5 H. & J. 216; Brown v. Collier, 8 Humph. 510; Mason v. Hughart, 9 B. Mon. 480; LaTourrette v. Price, 28 Miss. 702; Branch Bank v. Boykin, 9 Ala. 320.
    As to the right of the surety to bring his action, and the keeping of the judgment on foot for his benefits Burns v. Parish, 3 B. Mon. 9.
    In Brown v. Long, 1 Ired. Eq. 192, (approved of in Hamer v. Douglas, 4 Jones’ Eq.) it was held that “such arrangement (assignment of judgment) does not amount to a payment, for to avoid any possible inference of the sort an assignment is taken to a third person, which has been held sufficient to keep the security on foot.” Hodges v. Armstrong, 3 Dev. & Bat. 253; Sherwood v. Collier, id. 380.
    So say the court in Briley v. Sugg, 1 Dev. & Bat. 368: “If a surety had taken an assignment of the judgment against the principal and himself to a stranger, and did not intend satisfaction, then the judgment would not have been extinguished.”
    Mr. Francis Lackner, for the appellee:
    Even conceding the new promise to pay was only a promise to pay when the debtor was able, that does not make the promise a conditional one. The words, “as soon as possible,” or, “as soon as I am able,” are too uncertain to amount to a condition. They do not point to any future event capable of proof. Norton v. Shepard, 48 Conn. 141.
    In Cummings v. Gassett, 19 Vt. 308, a judgment was sustained on a promise “that he would pay it as soon as he could, ” without showing ability to pay.
    But the question came up directly in the ease of First Congregational Society v. Mullen, 15 N. H. 520, where the court say: “In the present case the defendant said he had not the money, but would pay as soon as he could. The words following the promise to pay are too uncertain and indefinite to constitute a condition.” However, the same court, in Butterfield v. Jacobs, 15 N. H. 140, states that “where a person, on being applied to for payment of a debt, declares his inability to pay it, but promises to pay it when he shall become able, the happening of the contingency is, in its nature, susceptible of being proved. ”
    The action in this case was well brought. The judgment was paid. Payment of a judgment extinguishes it, at law, unless an actual assignment is made to a third party, and a surety can keep it alive, if at all, only in equity. Bailey v. Gregg, Dev. & Bat. Eq. 368; Elam v. Rawson, 21 Ga. 141.
    The whole transaction virtually amounted to a request on the part of the surety to leave the judgment standing on record, in the hope that there might be opportunity to enforce it. When Moessinger paid the judgments his right of action immediately arose, and nothing further was to be done by him to acquire it. Shepard v. Ogden, 2 Scam. 257.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, brought by Charles Moessinger, against Andrew Katz, to recover money paid by the plaintiff in satisfaction of a judgment rendered against Katz and Moessinger upon two certain promissory notes which the plaintiff had signed as surety for Katz. The declaration contained the common counts, to which the defendant pleaded in bar of the action, first, the general issue; second, a discharge in bankruptcy; and third, the Statute of Limitations of five years. To the second plea plaintiff replied a new promise after defendant was adjudicated a bankrupt, and to the third plea a replication was interposed alleging a promise of the defendant within five years. Issue was joined on these replications, and upon a trial before a jury the plaintiff recovered a judgment for the amount claimed, which was affirmed in the Appellate Court.

During the pendency of the cause the death of Moessinger was suggested, and his administratrix was substituted as a party plaintiff, and it is claimed that this was error, because the declaration, as originally filed, alleged that the suit was brought for the use of Schumacher. Before judgment, the declaration was amended, and the name of Schumacher was eliminated from the record, and so far as appears he had no interest whatever in the cause of action, and it was proper, upon the death of Moessinger, the plaintiff in the action, (the only person in whose name the action could be maintained,) to substitute his legal representative,—the administratrix of his estate.

It seems that when Moessinger paid the judgment he was advised not to discharge it of record, and under this advice the holder of the judgment made an assignment, in writing, to one Winthe, but delivered it to Moessinger, and it is contended that the legal title to the judgment stands in the assignee or his legal representative. Winthe paid nothing for the assignment, never had it in his possession, and had no interest in it or knowledge that the judgment was assigned to him. Under such circumstances, we do not think he had any interest whatever in the judgment. Moessinger being a surety on the notes upon which the judgment was founded, when he paid the judgment he had the right to keep it alive for his own benefit by an assignment to a third party, or regard it as paid and discharged, as might best subserve his own interest. He elected to treat the judgment as paid and discharged, and brought his action on this theory, and we do not regard the formal assignment as of any importance whatever.

From a close examination of the record it is apparent that the real bone of contention in the' case was, whether the promise to pay, made by Katz after he was adjudged a bankrupt, was a conditional promise, or an absolute, unconditional promise. This was a question of fact for the jury to determine from the evidence, and they found in favor of the plaintiff. That finding was affirmed in the Appellate Court, and under our statute the decision of the Appellate Court upon a question of this character is not reviewable here. If, then, the law involved in the case was properly given to the jury by the instructions of the court, the judgment will have to be affirmed.

On behalf of plaintiff the court gave two instructions. The first announces the well known rule that a discharge in bankruptcy will not avail as a defence against an indebtedness if the bankrupt, after he has-been adjudged a bankrupt, makes an unconditional promise to his former creditor to pay him. As to the second instruction, it is said “that it does not submit the issue of a new promise, but the repayment of notes.” We think the instruction, when closely examined, will be found to be free from objection. The fact that the instruction speaks of the payment of the notes upon which judgment was rendered, instead of the payment of the judgment, is a matter of no consequence. The real point at issue was, whether an unconditional promise had been made by the defendant, after he was adjudged a bankrupt, to pay the debt. Whether it was called a judgment, or the notes upon which the judgment was rendered, could not mislead the jury.

The court gave eight instructions on behalf of the defendant, but instruction No. 14 was refused, and this decision of the court is relied upon as error. The instruction, in substance, declares that a mere declaration of an intention to pay a debt discharged by bankrupt proceedings will not be sufficient to create a new obligation,—it must be an express, direct promise to pay. In instructions Nos. 2 and 4, given for defendant, the jury were, in clear and emphatic language, directed that the defendant could not be held liable except upon an unconditional new promise to pay. This, in substance, is -all that the refused instruction contains, and it has often been held not to be error to refuse to give duplicate • instructions. Indeed, upon reading the instructions given for defendant, the jury were so fully instructed in his behalf that there is no just ground for complaint, so far as instructions are concerned.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Russell Crossett v. Sallie G. Owens et al.

      Filed at Mt. Vernon June 13, 1884.

    1. Highway—oath of commissioners to survey and locate a road— necessity therefor. A special act of the legislature appointing three commissioners to locate a certain road, required the commissioners, or a majority of them, to meet at a place named, before the first day of August thereafter, and after being duly sworn before some justice of the peace faithfully to view, mark and locate the road, proceed to lay out and locate the same: Held, that in order to show a legal road under such act by the action of the commissioners, it was necessary to prove that they took the oath before proceeding to make the location.
    2. Same—recital in commissioners’ report as to talcing the oath—its sufficiency. In such case, a recital in the commissioners’ report that they were duly sworn, without stating they were sworn to perform the duties imposed by the act, or to perform any duty whatever, is insufficient to prove that the commissioners were legally sworn before acting, and fails to show their authority to locate the road and make the field notes or report.
    3. Evidence—certificate of justice—how proven, out of his county. The certificate of a justice of the peace that certain commissioners appointed by the legislature to survey, mark and locate a road, were duly sworn before him, according to law, is not, without other proof, admissible in evidence out of such justice’s' county. To entitle it to be read in evidence, there should have been proof that he was a justice of the peace of his county. The statute provides that the county clerk’s certificate of that fact shall be evidence that such person was a justice of the peace, duly commissioned, etc.

      Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.
    This was a hill in equity, filed by appellees, to enjoin appellant from removing the fence on the opposite sides of a field, where it is claimed a road enters and passes through the field. Complainants deny that there is any regular, legally laid or established road that passes through the field, and defendant claims there is, and justifies his acts on the ground that he is a road commissioner, and has a right, and that it is his duty, to remove the fence as an obstruction, and keep the road open and free to travel by the public. These are the grounds of the controversy.
    Mr. M. Schæffer, and Mr. T. E. Merritt, for the appellant.
    Mr. Henry C. Goodnow, and Mr. Wm. Walker, for the appellees.
   Mr. Justice Walker

delivered the opinion of the Court:

This case was previously before us, and is reported in 105 Ill. 354. Appellant relies for a reversal on the proposition that there was a road established by user; that a road was, in 1842, located and established by commissioners regularly appointed by the county commissioners of Marion county, and by commissioners appointed under the act of the General Assembly of the 27th of February, 1847, (Sess. Laws, p. 93,) at the places where the fence was opened; that the road thus obstructed passed over the land of appellees ; that they fenced it and closed up the road; that appellant, as road commissioner, removed the fence at the two places thus obstructed, as it was his duty to do.

As to the question whether a public road ivas acquired by user, or was proved to have been established by commissioners appointed by the order of the county commissioners of Marion county, the evidence does not differ materially from that in the record when the case was here before. If there is anything additional, it is more favorable to appellees than it then was. We shall therefore not discuss, these questions.

On the question whether it became a legally laid out road by the commissioners appointed by the act of 1847, there is much additional evidence; but it is urged that there is still a want of evidence to prove a legally established road under that act. The second section of the act required the commissioners, or a majority of them, to meet at Keysport on some day previous to the first day of August next thereafter, and after being duly sworn before some justice of the peace faithfully to view, mark and locate the road, should proceed to do so, as above described. It is insisted that there is no evidence that the commissioners met within the limited time. The county clerk of Clinton county produced a certificate, purporting to be that of a justice of the peace of that county, which, he testified, after thorough and diligent search was all he was able to find in his office referring to the location of the road. Omitting the venue, it is this:

“I, James Russell, a justice of the peace of said county, do certify that on the 26th of July last, Alexander Myatt, Thomas Keys and William McAdams, commissioners appointed by the. legislature of Illinois to survey, mark and locate a road from Salem, in Marion county, by Keysport and McAdam’s mill, in Clinton county, to Highland, in Madison county, were duly qualified before me, according to law.
“Given under my hand and seal, this 6th day of September, A. D. 1847.
James Russell, J. P. [Seal.] ”

This certificate was read in evidence, over the objections of complainant. It was offered in' evidence in another county than that in which he is claimed to have been a justice of the peace, and to entitle it to be read and considered as evidence there should have been evidence that he was a justice of the peace of Clinton county. The 17th section of chapter 51 provides for the manner in which proceedings before a justice of the peace may be authenticated to be used in another county. It requires for such purpose that the county clerk shall certify that the person was at the time a justice of the peace, duly commissioned. Accompanying this certificate there is no certificate of the county clerk, as required by the statute, to entitle it to be read in evidence.' It is, however, insisted, that what purports to be a report of the commissioners recites they were duly sworn. They, however, fail to state that they were sworn to perform the duties imposed by the act, or to perform any duty whatever. This recital we regard as insufficient to prove that ‘requirement was performed. In the case of Durham v. Mulkey, 59 Ill. 91, which was a case for the assignment of dower, a recital in the report that the commissioners were duly sworn in open court, was held not to be sufficient,—that the statute prescribed duties that they should swear they would perform, and it must appear they took the oath as prescribed by the statute, and for want of a certificate that they had taken the required oath their report was held insufficient. In the case of Tibbs v. Allen, 27 Ill. 119, it was held that inasmuch as the commissioners did not swear that they would make partition “in accordance with the judgment of the court as to the rights and interests of the parties, ” the oath was insufficient,—that it was not a compliance with the requirements of the statute. The act of 1847, like the partition statute, requires the commissioners to take an oath that they will perform specified acts; and inasmuch as the proceeding is summary, all material requirements must appear to have been complied with to render the proceeding binding. The commissioners were not empowered to act until they took the prescribed oath, and to sustain a summary proceeding of this character it must appear that this essential requirement was performed. This is the doctrine of the cases referred to above.

But it is said that the case of School Directors v. School Directors, 73 Ill. 249, sustains the recital that the commissioners were sworn. In that case, on the formation of a new school district, it was held that the failure to file a plat of the school districts in the township was not an essential requisite to the valid organization of' the district,—that it was necessary to enable the clerk to extend the school taxes on the property in the district, but not as to the legal organization of the new district. That was unlike this case. That was an act required to be performed after all the legal steps had been performed necessary to organize a new school district ; but here the requirement was the first step necessary to authorize the commissioners to proceed to lay out the road. The two acts are wholly and essentially different.

Even if this paper purporting to be a report,.and the paper purporting to be field notes, were filed as required, were lodged in the office by some unknown person, at an unknown time and for some unknown purpose, and were in other respects unobjectionable, it fails to appear that the commissioners were sworn as the statute specifically required, and if not, they were not authorized to locate the road, or make the field notes or report.

Perceiving no error in the record, the decree of the court below must be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Chicago and Eastern Illinois Railroad Company v. Dennis Geary.

      Filed at Ottawa June 13, 1884.

    1. Master and servant—negligence of fellow-servant—respondeat superior—and herein, who are fellow-servants. Where one servant is injured by the negligence of his fellow-servant, the duties of both being such as to bring them into habitual consociation, so that they might exercise an influence upon each other promotive of proper caution, and the master is guilty of no negligence in the employment of the servant causing the injury, the master will not be held liable for the injury.
    2. Where it was to some extent the duty of a servant of a railway company, as night watcher, to note and report upon the conduct of the foreman of a night crew, whose duty it was to make up trains, etc., to his superior, and the night watcher could in no event perform his duty without constantly watching the engine and ears of the night crew while at or upon a crossing of a public street, it was held, that the night watcher and the foreman of the night crew were fellow-servants, within the legal meaning of that term, and that the common master was not liable to the night watcher for an injury received in consequence of the negligence of the foreman of the night crew in the discharge of his duties in switching cars on one of the tracks over the crossing.
    3. Same—when servant assumes rislcs by remaining in service. Where an employe, after having an opportunity to become acquainted with the risks of his situation, accepts the same, he can not complain if subsequently injured by such exposure. A party may, if he chooses, contract to take the risks of a known danger. Presumptively, in such a case he charges in proportion to the risk, or rather for the risk.

      4. Burden of proof—in showing negligence. In an action by an employe of a railway company to recover for a personal injury from being run over by a car while it was being switched, if the negligence of the company in the employment of the foreman or conductor engaged in moving the car, or in furnishing proper appliances, etc., is relied on, the burden of proving such negligence by a preponderance of evidence rests upon the plaintiff.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

      Mr. William Armstrong, for the appellant:
    The plaintiff in this case was a fellow-servant with those in charge of the switch crew, and can not recover of the master for an injury resulting to him through the negligence of a fellow-servant. C. and T. R. R. Co. v. Simmons, 11 Bradw. 147; Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302; Valtez v. Ohio and Mississippi R. R. Co. 85 id. 500; Chicago and Alton R. R. Co. v. Murphy, 53 id. 336.
    The plaintiff and all the men in the yard at work with him were fellow-servants. Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302; Valtez v. Ohio and Mississippi R. R. Co. 85 id. 500; Chicago and Alton R. R. Co. v. Murphy, 53 id. 336; Chicago and Alton R. R. Co. v. May, Admx. 108 id. 288; Chicago and Northwestern Ry. Co. v. Moranda, id. 576.
    A servant can not recover for an injury caused by the use of defective machinery in the business, after he has had knowledge of its defects. If he continues in the service after such knowledge, he will be deemed to have assumed the risk of such defects. Camp Point Manf. Co. v. Ballou, 71 Ill. 417; Chicago and Alton R. R. Co. v. Munroe, 85 id. 25; Chicago and Northwestern Ry. Co. v. Donohue, 75 id. 106; Moss v. Johnson, 22 id. 633; Illinois Central R. R. Co. v. Cox, 21 id. 20; Midland R. R. Co. v. Barber, 5 Ohio St. 541; Wright v. New York Central R. R. Co. 25 N. Y. 562; Shearman & Redfield on Negligence, sec. 94; Chicago and Northwestern Ry. Co. v. Taylor et al. 69 Ill. 461.
    Messrs. Monroe & Leddy, for the appellee:
    Appellee assumed no peril incident to the service, which the appellant, by the exercise of reasonable care, could have avoided. Wood on Master and Servant, sec. 359.
    Appellant was bound to exercise reasonable care in reference to all the instrumentalities of its business, and is liable to appellee for running this train on this particular occasion without a sufficient equipment of men, lights and signals. Flike v. Boston and Albany R. R. Co. 53 N. Y. 549; Chicago and Northwestern Ry. Co. v. Taylor et al. 69 Ill. 469.
    The position of appellee not being necessarily hazardous, and the danger not patent, he had a right to presume appellant would discharge his duty. Michigan Central R. R. Co. v. Dolan, 32 Mich. 510; Buzzell v. Laconia Manf. Co. 48 Maine, 113.
    The men employed on this switch train were the instrumentalities employed by appellant to operate it. If they were insufficient in numbers, for any reason, appellant is liable. Chicago and Northwestern Ry. Co. v. Taylor et al. 69 Ill. 461; Flike v. Boston and Albany R. R. Co. 53 N. Y. 549.
    The evidence shows that, as matter of fact, appellee was not a fellow-servant with those operating the switch train. There was no such consociation as would make him a fellow with those operating the train. Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302; Chicago and Northwestern Ry. Co. v. Taylor et al. 69 id. 461.
    Appellee had no power or opportunity to exercise any influence over the persons operating the train. This is the distinctive test. Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was an action on the case, by Dennis Geary, against the Chicago and Eastern Illinois Railroad Company, for injuries alleged to have been sustained by the former in consequence of the negligence of the latter. Judgment was rendered in the circuit court in favor of Geary, and on appeal to the Appellate Court for the First District, it was affirmed. The railroad company is the appellant here, asking a reversal of the last named judgment because of certain errors claimed to have occurred in the rulings of the circuit court, and repeated by those of the Appellate Court, which we shall hereafter consider.

The following statement of facts, which we have taken, ill a slightly abridged form, from the brief of the appellant, presents all that we deem material in the evidence to a full and accurate comprehension of the case: Appellee entered the employ of appellant in. September, 1881, as night watcher of tracks used by it at their crossing of Thirty-fifth street, in the city of Chicago, and continued therein until after he received the injuries to recover for which he brings this suit. At that point, prior to and during this employment, appellant used tracks lying west of the tracks of the Western Indiana Eailroad Company, numbering from one, which was next to the tracks of the Western Indiana, consecutively, westward, until No. 18, which was the last. There was, during that time, also a night crew, consisting of an engineer, fireman, foreman of the .crew, (called conductor,) and a helper or assistant of the foreman or conductor. They had charge of an engine, and operated at and below Thirty-fifth street, commencing about six or seven o’clock in the evening, and working all night, and until six or seven o’clock next morning. Their duties were, in cooperation with another like crew working northwardly, to switch cars up and down these tracks in making up trains going south, and in taking apart trains coming from the south. There was likewise, during that time, a freight train running from appellant’s yards, over these tracks, south, to Danville, known as “No. 25,” the departing time of which was 10 :20 P. M. This train was made up by the night crew operating there, on track No. 1, commencing at six or" seven o’clock P. M., and continuing until the train was made up, which was never much sooner than its departing time, and sometimes it was a little later. If, while this train 'was being made up, a train came in from the south, it crossed Thirty-fifth street on track No. 2. Appellee occupied a flag-house to the east of track No. 1. His duties were to watch these eighteen tracks from six o’clock in the evening until six o’clock in the morning, see that the street was not obstructed, and warn any one desiring to cross, of the approach of engines or trains of cars on these tracks. When the street would get blocked, he was required to report to the foreman or conductor of this night crew, and it was the duty of the foreman or conductor then to at once remove the cars from the street. If this was not done, it was the' duty of appellee to report the fact to the yard-master, who was the immediate superior of this foreman or conductor. The engine of this night crew, with or without cars attached, was passing and repassing every few minutes throughout the night. On the evening of March 6, 1882, a freight train came from the south, and crossed Thirty-fifth street on track No. 2. When it was crossing the street, appellee came out of his flag-house with a lantern in his hand, walked over to track No. 1, where he stopped, and commenced conversing with a brakeman who had just got off the train coming from the south on track No. 2. At that time the night crew making up the train for No. 25, were backing north, slowly, a few empty coal cars, and the car at the rear—the extreme north end of the train—struck appellee, knocking him down, and the wheels ran over and crushed his elbow. There was no light on the rear end of the train, and no one there to warn persons of its approach. The foreman or conductor was, at the time, off the cars, taking the numbers of cars.

The case made by the evidence is clearly one wherein one servant is injured by the negligence of his fellow-servant, within the legal meaning of that term. The evidence all shows,—and there is no evidence tending to show differently,—that the usual duties of appellee and the foreman or conductor of the night crew, “brought them,” in the language of the rule laid down in Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302, “into habitual consociation, so that they might exercise an influence upon each other promotive of proper caution.” Indeed, as we have seen, the evidence goes beyond this, and shows that, to some extent, appellee’s duty was expressly to note and report upon the conduct of the foreman or conductor of the night crew, to his superior; and in no event could appellee perform his duty without constantly watching the engine and cars of the night crew, while ,at or upon this crossing of Thirty-fifth street. There is no proof that appellant was guilty of negligence in the employment of this foreman or conductor of the night crew, or of any of those who composed that crew, nor is there any proof that appellant was ■ guilty of negligence in furnishing appliances, machinery, etc., -and if negligence in either of these respects was relied upon' by appellee, the burden was upon him to prove it by a preponderance of evidence. Columbus, Chicago and Indiana Central Ry. Co. v. Troesch, 68 Ill. 545.

Appellee, however,—tacitly, at least, conceding this position,—contends that appellant was guilty of negligence in not furnishing an additional helper or assistant to the foreman or conductor of the night crew, so that he could have placed a man on the rear end of the train while it was being backed and he was off taking the numbers of cars, to warn persons of its approach. To this, appellant replies that this crew wa's, at the time appellee received his injury, precisely the sainé, in all respects, that it had been during the entire time that appellee had been in the employ of appellant. No reduction had been made in its numbers, and no addition had been made to its duties; that he knew, all the time, the character of the duties discharged by the crew, the number, efficiency and fidelity of those composing it, and voluntarily continued in his position, taking the risk of the danger incident to it, and that the negligent act of the conductor or foreman of the crew in leaving the cars while being backed, without a man on the rear end, was no more to be anticipated by appellant than it was by appellee,—it was simply the negligence of a fellow-servant. The rule is, as contended by counsel for appellant, namely, when an employe, after having the opportunity to become acquainted with the risks of his situation, accepts them, he can not complain if he is subsequently injured by such exposure. One may, if he chooses, contract to take the risks of a known danger. Presumptively, he charges, in such cases, in proportion to the risk, or rather for the risk. Camp Point Manf. Co. v. Ballou, 71 Ill. 417; St. Louis and, Southeastern Ry. Co. v. Britz, 72 id. 257; Chicago and Alton R. R. Co. v. Munroe, 85 id. 25; Pennsylvania Co. v. Lynch, 90 id. 333; Wharton’s Law of Negligence, sec. 214.

The ease of Flike v. B. and A. R. R. Co. 53 N. Y. 551, cited and relied upon by counsel for appellee, did not present this point. In that case the point was not made, nor, as we understand the report of the case, would it have had any foundation in the evidence, that the trains had previously, for a series of months, with the knowledge of the plaintiff, been sent out with the same inadequate force with which they were sent out on the day he was injured,—and this is essential to make the cases analogous, even if it be conceded the relation of fellow-servants there existed, within the rule of the Moranda case, supra, which may be questionable.

- The court below was requested to instruct the jury, on the point we have been considering, substantially in accordance with the view we have here expressed, but declined to do so. Under the evidence, the issue was properly before the jury, and the court erred in not so instructing.

The judgment is reversed, and the cause remanded.

Judgment reversed.