text:
    Henry Mills v. William Parlin et al.

      Filed at Springfield March 29, 1883.

    1. Chancery jurisdiction—to enjoin use of street for a railroad A court of chancery has no jurisdiction to enjoin a railway company from the use of a public street of a city for a switch, under a permit from the city council, when the fee of the street is in such city, on the ground of injury to private property situate on such street. The party complaining, if he has any remedy, must seek it in a court of law.
    2. Franchise—whether involved in suit. A bill filed to test the authority of a railroad company to use a public street in front of complainant’s residence for the use of its railroad track, does not involve the right, title or validity of a franchise, and an appeal in such case is properly taken to the Appellate Court in the first instance.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Fulton county; the Hon. S. P. Shops, Judge, presiding.
    Mr. Horatio M. Jones, for the appellant:
    The Appellate Court erred in taking jurisdiction of the appeal, because the case involves a franchise, within the meaning of the act regulating appeals from the circuit courts. The right to use a public street for the purpose of operating a railroad over the same is a franchise. Chicago City Ry. Co. v. People, 73 Ill. 541; Chicago and Western Indiana R. R. Co. v. Dunbar, 95 id. 571; Hurd’s Stat. 789, sec. 89.
    The city of Canton can not grant railroad charters, nor can it grant franchises, and this court never intended so to intimate in Truesdale v. Grape Sugar Co. 101 Ill. 561.
    The grant of the city in this case was to Parlin, Orendorff & Co. It was a grant of a private railroad, to be operated by horses, for their own exclusive use. The ordinances granting this privilege are invalid, for want of power on the part of the city to pass them. The city holds the soil of its streets in trust for the purpose of streets, and it has no power to repudiate such trust.
    The remedy by injunction sought by Mills is the only adequate remedy. If he can not obtain it he is without remedy.
    Messrs. Barbers & Grant, for the appellees:
    There is no claim that appellees are not perfectly solvent, and if appellant has sustained any damage he has ample remedy at law. . The switch on Fifth street was placed there under an ordinance of the city, and is so connected with the main track of the Chicago, Burlington and Quincy Bailroad Company as to form and become one of the switches of that company. That company is by ordinance authorized to use such track as a switch or side-track, and to operate the same with steam engines.
    The injury complained of is common to all the owners of property abutting on Fifth street, therefore appellant can not enjoin the use of steam engines thereon. High on Injunctions, secs. 522, 533, 790; G. R. and I. R. R. Co. v. Heisel, 38 Mich. 69.
    The decision of the Appellate Court holding the fee of the streets to be in the city, and that it has the power to give the right to lay clown a railroad track in one of its streets, and operate steam engines thereon, is in harmony with the laws of the State and the prior decisions of this court. Truesdale v. Grape Sugar Co. 101 Ill. 561; Stetson v. C. and E. R. R. Co. 75 id. 74; Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 id. 439; Patterson v. C. and E. R. R. Co. 75 id. 588; Moses et al. v. Pittsburg, Ft. Wayne and Chicago R. R. Co. 21 id. 516; Peoria and Rock Island R. R. Co. v. Schertz, 84 id. 135; Murphy v. Chicago, 29 id. 278; C. and V. R. R. Co. v. The People, 92 id. 170; Chicago R. R. Co. v. McGinnis, 79 id. 269; Quincy v. Chicago, Burlington and Quincy R. R. Co. 92 id. 21; Chicago and Northwestern Ry. Co. v. The People, 91 id. 241; G. R. and I. R. R. Co. v. Heisel, 38 Mich. 69.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by Henry Mills, against William Parlin, William J. Orendorff, William H. Parlin, and the Chicago, Burlington and Quincy Railroad Company, and was to enjoin defendants from running or operating steam engines to propel cars over a track laid by defendants in a street of the city of Canton, which switch or track connects with the railroad track of the Chicago, Burlington and Quincy Railroad Cqmpany. Complainant alleges his dwelling house is situated on the street in which the track is laid, and that the running of steam engines over such track or switch will be a great damage to his property, and will render it useless to complainant and his family, and uninhabitable as a residence. The fee of the • street on which the track or switch complained of is laid, was and is in the city of Canton. Permission was given by ordinance duly enacted by the city council, to defendants to construct the switch and operate cars thereon, either by' steam or horse power. Most generally the cars that have been operated on the track in question have been moved by horse power, but sometimes steam was used as a propelling power. The circuit court granted the relief asked by the bill. On the appeal of defendants that decree was reversed by the Appellate Court, with directions to the court below to dismiss the bill. Complainant brings the case to this court on his appeal.

The fee of the' street being in the city, and the grant to construct the switch or track thereon being one the city had the right to make, the decree of the circuit court was very properly reversed, for the reason the remedy, if any, for the injuries complained of, was at law, and not in chancery. It has been so frequently decided by this court that chancery will not entertain jurisdiction in such cases, it is not necessary to discuss it again as a new question. It is sufficient to refer to a few of the previous cases in this court that control the present decision: Stetson v. C. and E. R. R. Co. 75 Ill. 74; Patterson v. Chicago, Danville and Vincennes R. R. Co. 75 id. 588; Peoria and Rock Island R. R. Co. v. Schertz, 84 id. 135; Truesdale v. Grape Sugar Co. 101 id. 561.

Counsel for complainant objected to the jurisdiction of the Appellate Court to entertain defendants’ appeal, for the reason a franchise is involved, and insists on the same objection in this court. The bill was simply to test the authority of defendants to use a public street in front of complainant’s residence, for the use of their railroad track. The right or title, or the validity of a franchise, was in no way involved, and the appeal was properly taken to the Appellate Court in the first instance. Richards v. The People, 100 Ill. 423.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    William T. Johnson, Collector, v. Thomas R. Lyon, Agent.

      Filed at Ottawa March 28, 1883.

      1. Taxation—non-resident’s property brought into the State after May 1. On the 1st day of May, 1879, the owner of a lot of lumber, being a resident of the State of Michigan, shipped the same to a lumber yard in Cook county, in this State, rented by the owner on May 1, 1879, the lumber being, received at the yard on May 10, 1879: Held, that such lumber was not subject to assessment for taxation for that year’, and its assessment was without warrant of law, and that a decree perpetually enjoining the' collection of the tax was proper.
    2. The statute in providing that “the owner of personal property moving into this State from another State between May 1 and July 1, shall list the property in the town whei'e he resides, ” unless he has been assessed for the property for that year in another State, relates to a case where the owner moves into the State, and not to the moving of the property.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. Consider H. Willett; for the appellant:
    We think the words “moving into the State, ” refer to the property to be taxed, and not to the owner thereof. The assessment is based upon the property. The owner identifies the assessment, and becomes a description of the property assessed. The assessment is just as valid without naming the owner, as when he is erroneously named. Union Trust Co. v. Weber, 96 Ill. 347.
    The statute determines when and where personal property shall be assessed. In California it is taxed where located, with some exceptions. People v. Niles, 35 Cal. 282; Oakland v. Whipple, 39 id. 112.
    A tax will not be enjoined because of a mistake of the assessor in not deducting the proper amount of exemptions, where no fraud appears. (Traders’ Ins. Co. v. Farwell, 102 Ill. 413.) So where it is claimed the property assessed was not within the jurisdiction of the assessor. People v. San Francisco, 50 Cal. 282.
    The complainant should seek his remedy before the town board of review, and having failed to do so can not maintain his bill in equity. Rev. Stat. chap. 120, sec. 86; People v. Big Muddy Iron Co. 89 Ill. 116; Republic Life Ins. Co. v. Pollock, 75 id. 294; Spencer v. People, 68 id. 510; Madison County v. Smith, 95 id. 335; Adsit v. Lieb, 76 id. 198; Peoria v. Kidder, 26 id. 357; Morgan v. Smithson, 4 Gilm. 362.
    Messrs. McCagg & Culver, for the appellee:
    The clause of section 22 which requires the owner of personal property moving into this State, etc., to list the same in the county, city, etc., in which he resides, applies only to cases where the owner moves into this State, and not a nonresident owner whose property may come into the State after May 1. This view is strengthened by sec. 6, chap. 120, Eev. Stat., providing that “every person of full age, etc., being a resident of this State, shall list,” etc. Section 11, of the same chapter, has reference only to personal property in transitu between different places in this- State.
    This is not a case of a merely erroneous assessment, but is one where the assessment is wholly without warrant of law. It is not an irregularity or a mistake in the assessment which appellant brings to the notice of the court, but an entire want of jurisdiction to levy the assessment at all, as against him, during that one year. Drake v. Phillips, 40 Ill. 388; Union Trust Co. v. Weber, 96 id. 346.
   Mr. Justice Dickey

delivered the opinion of the Court:

This case presents the question whether a quantity of lumber, owned by a resident in Michigan on May 1, 1879, and shipped by him to a lumber yard in Cook county (rented by the owner of the lumber) on May 1, 1879, and received at the yard May 10, 1879, was subject to assessment for taxes in Cook county for that year, where the assessment was made before July, 1879.

The general rule in our revenue laws subjects the owner of personal property to taxation upon so much of such as he owns on May 1, of each year, either in the town where the owner resides, or the town in which is the place of business, where such property is used for business purposes; but it is also provided that “the owner of personal property moving into this State from another State between May 1 and July 1, shall list the property in the town where he resides, ” unless he has been assessed upon the property for that year in the other State; also, property in transitu, if intended for business, must be listed at the place where such property is required to be listed. It is clear this case does not come under the general rule, for the owner resided in the State of Michigan. It also seems plain it does not fall within the rule relating to moving into this State. That section relates to the moving of the owner of the property, and not to the moving of property into this State. The property in this case was not in transitu on the 1st day of May, 1879. The owner of this property, therefore was not subject to taxation upon this property for that year. The act of the assessor in assessing the same was without lawful authority, and inoperative.

The decree of the court enjoining the collection, of the tax was not erroneous, and is therefore affirmed.

Decree .affirmed.

Mr. Justice Walker, dissenting.


author: Mr. Justice Walker

text:
    Union Mutual Life Insurance Company v. Owen White.

      Filed at Springfield March 29, 1883.

    1. Mortgage—deed of trust as a mortgage. A deed of trust is, in almost every respect, a mortgage. It, like a mortgage, is a mere security for money, or for the performance of certain undertakings by the grantor. It is a mere incident to the debt it secures, and upon which it depends and follows. When the debt is paid the mortgage is satisfied, but as long as the debt remains the mortgage exists, unless actually released.
    2. Same—once a mortgage always a mortgage. The rule of law is, that a conveyance once a mortgage is always a mortgage, until the debt is satisfied and extinguished or the equity of redemption foreclosed or released. In equity the mortgage still exists whatever form the parties may give the transaction, unless it is intended by both parties that it shall be released or extinguished.
    3. Same—deed absolute in form—when a mortgage. In equity a deed absolute in form is but a mortgage, if made as a security, and it will be treated and enforced as a mortgage, though the agreement for redemption therefrom rests only in parol, notwithstanding the Statute of Frauds.
    4. Same—extending time of payment after foreclosure—effect as giving the character of a mortgage to the title under the foreclosure. The holder of a debt secured by deed of trust assured the debtor, though not in writing, that he might have further time to pay the debt after foreclosure, and thereby induced him to let the property be sold, when, but for such assurance, the debtor might have redeemed before the sale. The creditor acquired the legal title at the foreclosure sale at less than one-fourth of the actual cash value of the premises. It was held, the creditor would still hold such title as a mortgage for the payment of the debt, the same as before the foreclosure, and the debtor might, in equity, redeem the property by paying the sum due, with costs, etc.
    5. Statute of Frauds—not allowed to protect a fraud. The Statute of Frauds was not intended to facilitate the perpetration of or to protect fraud, but to prevent it; and the courts will not permit the statute to be used as an engine of fraud.
    6. Corporations—of their private rules and regulations concerning the powers of their officers and agents—effect on the rights of strangers. A foreign insurance company doing business in this State will be bound by the acts and contracts of its president and general agent here, in respect to persons in this State dealing with such corporation, when the acts of such officer or agent are within the powers of the company or within the scope of his apparent power, notwithstanding such officer or agent has no power to do such acts or make such contract under the private rules and regulations of the company. In such case, the company, as to strangers having no notice of its private rules and regulations, will be estopped to deny the power of its president or general agent.
    7. Same—power of the president to hind hy his contract. As a general rule the president of an insurance company has the power to bind the company within the scope of its powers, and any one not connected with the company will not be presumed to have notice of any by-law or rule limiting the apparent power of such officer.
    8. Laches—in filing hill to redeem from, sale under a deed of trust. Where land was sold under a deed of trust, and purchased by the creditor, an insurance company, -under an agreement on the part of the purchaser to hold the trustee’s deed as a further security for the debt, and to give the debtor further time in which to redeem, a delay of three years in filing a bill by the debtor to set aside the trustee’s deed, and for redemption, was held not to be such an unreasonable delay as to bar the relief sought.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Swett & Haskell, for the appellant:
    The arrangement, as it is pretended, for an extension of time, is obnoxious to the Statute of Frauds. Here, too, was a corporation, and the disposition of its property was vested in a finance committee. Mr. Warfield had authority, as agent, to collect this deed and to foreclose the mortgage, but not to arrange with White that he might, at any indefinite time, redeem the property. It was the duty of White, if he arranged with Warfield, to ascertain his powers. If he did not he must suffer the consequences of his want of authority to bind the corporation.
    Messrs. Monroe & Ball, for the appellee:
    The rule in equity, once a mortgage always a mortgage, applies here. No act or artifice of the parties is allowed to nullify this rule. Any agreement or stipulation cutting off the right of redemption has always been held utterly void.

      While a promise to extend the time of redemption beyond the period named in the mortgage, if made after the time limited has passed, will have no effect if not founded on a legal and sufficient consideration, if made before such limited time expires, though without consideration, it will be enforced by the courts. 2 Jones on Mortgages, sec. 1053; Chase v. McLellan, 49 Maine, 375; Ross v. Sutherland, 81 Ill. 275; Davis v. Dresbach, id. 393; Dodge v. Brewer, 31 Mich. 227; Stephens v. Illinois Mutual Fire Ins. Co. 43 Ill. 327; Pensoneau v. Pulliam, 47 id. 58.
    It is claimed that the agents of the corporation had no power to make such arrangement. Having held the agent out as having such power, the corporation can not urge its private rules and regulations to defeat the rights of strangers dealing with such agents acting within the apparent scope of his authority. Herman on Estoppels, secs. 538, 509.
    Mere delay in filing a bill for relief, short of a period fixed as a bar by the Statute of Limitations, will not preclude the assertion of an equitable right. Gibbons v. Hoag, 95 Ill. 45.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a suit in equity to set aside a sale of real estate by a trustee, and to redeem the property from the trust deed. It appears that on the 4th day of June, 1875, the insurance company loaned to White $18,000, for five years, at nine per cent interest, the interest payable semi-annually; that White secured the loan by a deed of trust on the land sought to be redeemed by this bill, conveying it to L. D. Boon, with the usual powers contained in such deeds. Default was made in the payment of the interest after the 4th of June, 1877, and also in paying taxes on the land. The trustee, on the application of the insurance company, advertised and sold the property, and it was bid in at the sum of $10,000, by the company, and a conveyance was made to the company. The bill was not filed until about three years after the sale of the premises. On a hearing in the court below the relief asked was granted, and a redemption decreed on the £>ayment of the principal, advances for taxes, etc., with interest on the entire amount thus due the company. From that decree the company appeals, and the record is brought to this court, and various errors are assigned.

It is insisted in affirmance of the decree, that previous to the sale it was agreed that appellee should have a reasonable time afterward to redeem. This appellant denies, and insists that if it is proved the agreement is not in writing, the contract is void under the Statute of Frauds. Appellee testified that when DeWitt, the president of the company, was in Chicago, in June previous to the sale, such an arrangement was made between them. This is denied by De Witt. Their evidence is clearly and positively contradictory, and to determine which has sworn truthfully we must look to the attending circumstances that may corroborate the one or the other, and also to the testimony of other witnesses who testified in the ease. DeWitt is to some extent corroborated by Gallery, who testifies he was a clerk in the office of the company, and testifies that he was present at the interviews between IDeWitt and appellee, and that he heard no such agreement made. He states he believes he heard all the conversation between them, but heard nothing of the kind. On the other hand, Warfield, the general agent of the company for this State, largely corroborates the statement of appellee. He testified he heard them conversing on the subject, and DeWitt'said to appellee that he did not want to report this loan to twenty-seven States with so much over-due interest,—that he preferred to report it as real estate. He said the company did not want the property,—did not want to speculate on appellee’s misfortunes. All the company wanted was the money due, but he could not report it with so much over-due interest, —that he must foreclose, and perfect the title. He also testified that DeWitt said to appellee he did not want a loan showing so much hack interest, and therefore he must foreclose. Appellee asked, in that ease, how long a time De Witt would give to redeem, and he replied: We won’t agree to carry this forever, but if you come in within a reasonable time with your money, you can have the land. We do not want it, nor do we want to make money out of your misfortunes. ” The witness further says, before the sale it was his understanding that appellee would come within a reasonable time and pay up. This scarcely leaves a doubt that appellee’s version of the matter is the true one, and there was an arrangement that he might redeem within a reasonable time after the sale.

But if that was not sufficient, the attending circumstances remove all doubt. Before the sale the company had the property valued by two experts, and one of them fixed the value at $45,000, and the other at $48,000, and the debt, interest and advances in' payment of taxes, etc., at the time of sale did not exceed $27,000, all told. Appellee had made arrangements with Moran to advance the full amount of the debt, interest and costs, and buy the property at the trustee’s sale, and give appellee time to redeem; but on conversing with Warfield, the general agent, he said he would carry out the arrangement appellee had made with DeWitt, when Moran replied the terms were better than he could give appellee, and he would not purchase. With this understanding between appellee, Moran and Warfield, the latter was permitted to bid in the property at $10,000, to save commissions to the trustee on the sale. In view of these facts, with our knowledge of human nature, is it possible for any sane man to believe that appellee would have stood by, when Moran was present, ready, and fully prepared to bid and pay the full amount, and lose $20,000, .and leave an indebtedness of about $17,000 on this debt against him, when it could and would have been prevented, unless he had assurances of time to redeem, on which he believed he could rely ? It is incredible he would not have prevented such sacrifice on the property, and leave such a debt hanging over him, when Moran was there ready, willing, and fully prepared to prevent it, had not the necessary assurances been given that appellee should have a reasonable time to redeem. Moran went to the sale to see his friend obtained such assurances, or purchase the property and prevent the disastrous results that would have followed an unconditional purchase by the company, even in full satisfaction of the debt.

Again, Warfield, on repeated occasions after the sale, when applied to by persons desiring to purchase the property, referred them to appellee as having an interest in it. He, also, through a friend of appellee, endeavored, after the sale, to purchase a release of the equity of redemption, and procure appellee’s release. Can any one believe that a business man of the most limited capacity would have thus acted, and much less the general agent of the company for the State, employed for his superior skill and business capacity, unless there was such an agreement as appellee claims? These acts, of themselves, would seem to prove there was an agreement that appellee might redeem after the sale. They seem-to settle the question beyond all cavil.

All the circumstances considered, in connection with what the witnesses testify was said, we are irresistibly impelled to conclude that there was the agreement made as appellee claims. If there was no such agreement, then the officers of the company committed an egregious fraud on appellee and Moran in inducing them to believe there was such an agreement, for the purpose of obtaining property worth from $45,000 to $48,000 for $10,000. One or the other proposition is inevitably true, and we believe the former the true state of facts. But if either is true it leads to the same con- ■ elusion.

But it is claimed that conceding such an agreement was made, it was not in writing, and is invalid, and can not be enforced. A deed of trust is, in almost every respect, a mortgage. It is, according to the modern doctrine, like a mortgage, a mere security for the payment of money, or the performance of certain agreements or undertakings hy the mortgagor. It has been repeatedly held by this court that the debt is the principal, and the mortgage the incident depending upon and following the debt. When the debt is paid the mortgage is satisfied, in law. As long as the debt remains the mortgage exists, unless actually released; and the rule of law is, that once a mortgage always a mortgage, until the debt is satisfied and extinguished, or the equity of redemption is foreclosed or released. In equity the mortgage still exists, whatever form the parties may give the transaction, unless it is intended by both parties that it shall be released and extinguished.

It is the doctrine of all courts of equity that a deed absolute in form is but a mortgage if made as a security, and it will be treated and enforced as such. As early as in the time of Lord Nottingham, it was held where a man had procured a deed for land under an agreement to give back a defeasance, but refused, that the court would afford relief, and treat it as though the defeasance had been executed, notwithstanding the Statute of Frauds was pleaded. (5 Viner’s Abridgment, 523; Brown on Frauds, sec. 441.) It was not intended by the adoption of the statute to facilitate the perpetration of and to protect fraud, but to prevent it, and the courts have never lent themselves to assist or protect fraud, which the statute did not sanction by its adoption. The courts will not permit the statute to be used as an engine of fraud, as its purpose was its suppression.

In the case of Reigard v. McNeil, 38 Ill. 400, it was held that where a debtor in execution procured another to purchase his land at the execution sale, and pay the money, with an agreement that the debtor should have time to redeem, but the purchaser refused to permit a redemption, he only obtained the title as a security, and a redemption was decreed,—and this was on a verbal agreement between the purchaser and the debtor.

In Schoonhoven v. Pratt, 25 Ill. 457, where a party held a deed of trust on land to secure a debt, and agreed with his debtor if he would pay him a sum larger than the interest that he would extend the time of payment, and the money was offered and refused in the absence of the debtor, but according to the terms of the agreement, and the land was sold under the deed of trust, and purchased by the' creditor, on a bill the sale was set aside and a redemption allowed; and the case was placed on the grounds that the debtor was induced to rely on the promise of the creditor, and was thereby prevented from making a redemption within the time limited, and the creditor would not be permitted to profit by his breach of the agreement.

Again, in the case of Pensoneau v. Pulliam, 47 Ill. 58, where parties held mortgages on their debtor’s lands, it was agreed that there should be a foreclosure and the mortgagees should bid in the lands, and the debtor should have time to redeem, but no specific time was fixed when he should redeem. It was held the agreement was binding, and it was enforced in equity,—and this, like the last case, was a verbal agreement. It was there held that the foreclosure and sale did not change the relation of the parties, and they were still mortgagor and mortgagees,—that the foreclosure and purchase was intended merely as a security for the debt, and not to bar the equity of redemption. To the same effect are the cases of Stephens v. Illinois Mutual Fire Ins. Co. 43 Ill. 327, and Davis v. Dresback, 81 Ill. 393, and other cases in this court might be cited in support of the doctrine; and this must follow, where it is held that a deed absolute in form may -be shown by parol to be a mortgage. Nor is this tribunal alone in holding this doctrine, as it obtains in other jurisdictions, and has been announced by other respectable courts. It then follows, as there was a sufficient contract to extend the time for a redemption, there was no error in the decree allowing it, unless appellee is precluded on some other grounds.

It is urged that under the hy-laws of the company neither DeWitt, the president, nor Warfield, the general and contracting agent for this State, had power to make this arrangement,—that such power was alone in the board of directors. If there are such rules and regulations they can not bind persons having no knowledge'of their existence. The home office is in a distant State. Its rules and by-laws are in their possession, and not open to inspection by the public, and persons not connected with the company are not presumed to know what their private books and journal contain. As a general rule the president of a corporation has power to bind it, within the scope of its powers. In this case, Warfield had been the general agent of the company, superintending all its business in this State, making loans and collections, without any apparent limit on his power. This arrangement was manifestly within the power of the company, and when acting through its president and general agent, within the scope of what was their apparent power, the company is estopped to deny they had power. To permit the denial of such power, under such circumstances, would enable such bodies to perpetrate monstrous frauds and injustice. Courts can never tolerate such a claim, after holding out such agents as possessing power to perform such acts.

It is also urged that the suit was not brought in a reasonable time after the sale. We do not regard the delay, under the circumstances, as unreasonable. The purpose of the organization of the company was to transact an insurance business, with incidental power to loan money to accumulate funds to meet losses. Its purpose was not to buy, sell and speculate in real estate, or to hold real estate, except where, from necessity, it was compelled to purchase to prevent loss. Here, the company will, on redemption, receive every cent of principal, expenditures and costs, with full interest on all appellee equitably owes the company. It has made no improvements on the property, but it remains in the same condition as when the company purchased. Thus it is seen that it has sustained no loss, but gets the full amount to which it is entitled, under each and every agreement made with appellee. The company having acted in bad faith with appellee, it is in no condition to demand hard, prompt or rigorous terms.

The entire record considered, we perceive no error that should reverse the decree, and it must be affirmed.

Decree affirmed..


author: Mr. Justice Mulkey

text:
    Theodore Gardner v. The People of the State of Illinois.

      Filed at Springfield March 29, 1883.

    1. Cbiminaxi law—plea of guilty in capital case—of the right to withdraw the same. A young man, about nineteen years of age, who had lately come to this country from Germany, and who was entirely ignorant of the English language, was indicted for murder, and, without the appointment and advice of counsel, confessed to the court the killing, through an interpreter, who informed the court that the accused acted and talked almost like an idiot, and stated that he did not believe the accused fully comprehended his real situation and hazard, whereupon the court entered a plea of guilty, and pronounced sentence of death, and afterward refused an application of the defendant to withdraw his plea of guilty. It was held, that the court erred, under the peculiar circumstances of the case, in accepting and entering the plea of guilty, and also in refusing to allow its withdrawal.
    2. If a man of mature age, familiar with our language and institutions, and fully understanding the nature of the charge against him and the perilous situation in which' he stands, should plead guilty to an indictment for murder, upon which sentence of death is pronounced, it would be within the discretion of the court to allow the plea to be withdrawn and a plea of not guilty to be entered, and this court, under such circumstances, would not feel at liberty to interfere if the court should deny the application to withdraw such a plea.
    3. SAME'—entering plea of guilty without appointment and advice of counsel. Where a person who stands indicted for murder is not of mature age, and is wholly ignorant of our language and institutions and the perilous situation in which he stands, and is without sufficient understanding to act intelligently for himself, it is the duty of the court to appoint him counsel, and not to enter a plea of guilty without the concurrence of such counsel.
    4. Same—examination of prisoner on Toeing called on to plead. The calling on one to plead to an indictment for murder can not be made the occasion for extracting from him criminating evidence against himself, and such a course is irregular and unwarranted. The court, under no circumstances, ought, on such occasion, to proceed to examine the accused with a view of determining whether the killing was murder or some other offence.
    5. Same—effect of admissions made on such an examination. The admission of one charged with murder, drawn out in answer to questions put to him by the court on such an examination, that he committed the act of killing in a quarrel, in which the deceased threatened to shoot him, without any more satisfactory account of the attendant circumstances or details of the transaction, even if the court was justified in thus extracting the statements of one wholly ignorant of the language, and not of sufficient intelligence to comprehend the relation or situation in which he stood, is not sufficient to authorize the court to accept and enter a plea of guilty, made without the advice of counsel.
    Writ of Error to the Circuit Court of Mason county; the Hon. George W. Herdman, Judge, presiding. On the motion to withdraw the plea of guilty, the Hon. Lyman Lacey presided.
    Mr. Hugh Fullerton, Mr. W. H. Campbell, and Mr. H. R. Nortrup, for the plaintiff in error:
    The prisoner should have had the assistance and advice of counsel in the first instance, before the entry of a plea of guilty. Bishop on Crim. Procedure, see. 301; Cooley’s Const. Lim. 332, note 1.
    Under the circumstances of this case, the defendant being wholly ignorant of our language and institutions, and not comprehending the jeopardy in which he was placed, the admissions extorted from him can not be accepted or regarded as a confession to support a plea of guilty. In order to have that effect, so as to justify .the senténce of death, it must be deliberately made, under the deepest solemnities, with the advice of counsel, and under the protecting care of the judge. Burrill on Circumstantial Evidence, (2d ed.) 497; Greenleaf on Evidence, secs. 215, 217.
    If the privilege of counsel is denied the prisoner, it is a sufficient reason for discrediting any damaging statements he may make. Rex v. Ellis Ry. Z. Mood, 432; Cooley’s Const. Lim. 313; McKinney v. People, 2 Gilm. 550.
    On the trial of a deaf and dumb person, in Massachusetts, we find that he was arraigned through a sworn interpreter, his incapacity having been first suggested to the court, and the trial thereupon proceeded on a plea of not guilty. Commonwealth v. Hill, 14 Mass. 207. See Wharton on Criminal Law, (3d ed.) 245.
    The prisoner did not plead guilty. After the interpreter had partially explained the indictment he said he was guilty, but the interpreter said he had not fully explained the same. This was the only time the prisoner plead guilty. It is true he afterwards said he killed Mary Welter, but at no time did he say he was guilty as charged in the indictment. There was no issue formed, and he was improperly sentenced. (Hoskins v. People, 84 Ill. 87; Johnson v. People, 22 id. 377; Bishop on Crim. Procedure, sec. 798; Wharton on Crim. Pl. and Pr. sec. 414.) If he did, it was through simplicity and ignorance, and should not have been received. 2 Best on Evidence, 689, marginal; Wharton on Crim. Evidence, sec. 638.
    The prisoner, after having counsel appointed, asked to withdraw his plea. Under the circumstances this should have been allowed. The court had the power to allow this privilege. Edwards v. Irons, 73 Ill. 583; 20 Ga. 674.

      Mr. Thomas Mehan, State’s Attorney, for the People:
    The prisoner entered the plea of guilty after having the indictment explained to him, and receiving a copy in German, and after being admonished by the court of the consequences, of such plea. After this the court could do nothing but render judgment thereon. Bishop on Crim. Procedure, secs. 729, 795; 4 Blackstone’s Com. 329.
    The request of leave to withdraw the plea of guilty came too late, as judgment had already been passed. State v. Cotton, 4 Foster, 143; 1 Bishop on Crim. Procedure, sec. 798.
    The prisoner waived his right to have counsel appointed by his plea of guilty, for there was nothing for counsel to defend. A prisoner in a capital case can waive a constitutional privilege. Bishop on Criminal Law, sec. 840; State v. Gurney, 37 Maine, 156.
    Counsel also discussed the facts oh which he relied for an affirmance.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 23d day of November, 1882, Theodore Gardner, a young man between nineteen and twenty years of age, of German nationality, was indicted by the grand jury of Mason county for the murder of Mary Welter, the killing having occurred on the 14th of the same month. At the time of the homicide young Gardner lived in the family of John B. Welter, the husband of the deceased, who was also the uncle of the accused. The prisoner had but a short time before come over from Germany to this country, and was unable to speak or understand the English language. On the 25th, the day following the returning of the indictment into court, the accused, being formally arraigned, plead guilty to the charge, and was duly sentenced by the court to be hanged on the 12th of January, 1883. During this proceeding the accused seems to have been without counsel, or any one to consult or advise with as to what he should do under the trying circumstances.' Later in the term,—to-wit, on the 14th of December, 1882,—and while a judge other than the one who tried the cause was presiding, the prisoner, by counsel then appointed for that purpose, made application for leave to withdraw the plea of guilty, which was overruled by the then presiding judge, on the ground he had not tried the case. Under the peculiar circumstances of this case we are of opinion this application should have been allowed, and that it was error to refuse it. Had the accused been a man of mature age, familiar with our language and institutions, and nothing in the record to create a doubt as to whether he fully understood the' nature of the charge against him, and the perilous situation in which he was placed, quite a different question would be presented. In such a case, assuming everything had proceeded regularly, we would not feel at liberty to interpose. Within the limits, stated it would be a matter within the discretion of the court trying the case.

But in this case, outside the eohsideratioris already mentioned, we regard the course adopted by the court in its examination" of the accused, with a view of determining whether the plea of guilty should be entered or not, as irregular, and are of opinion that the facts thus elicited, when considered as a whole, in connection with the manner in which they were obtained from the prisoner, did not warrant the court in entering the plea or in pronouncing the sentence of death. It appears that upon the arraignment of the prisoner, H. B. Nortrup, a member of the bar, was, on the suggestion of the State’s attorney, appointed by the court an interpreter to read the indictment to the prisoner in German, and explain to him the nature of the charge. Nortrup being sworn as an interpreter, and having read the indictment to the prisoner in German, the following colloquy occurred between him and the court:

Court: “You may read to the prisoner the indictment translated into German.
Nortrup: “Do not know that I can readily read to the prisoner the indictment translated in German, on account of the technical phrases and law terms, hut I can give him the substance of it.
Court: “Very well; you may do so.
(Nortrup then explained the indictment to the prisoner.)
Nortrup: “I have explained, as best I could, the three counts in the indictment; he says he understands the charge.
Court: “You may ask him whether be is guilty or not.
Nortrup: “The prisoner says he is guilty.
Court: “Ask him if he killed Mary Welter.
Nortrup: “He says he did.
Court: “Does he understand the nature of the charges against him?
Nortrup: “He says he does; but in talking with him I did not explain so fully to him the charges as I could to write it out in German. ”

The court then ordered the indictment to be copied and translated into German, which was done by Nortrup. After having made out the copy, and endeavored to explain to the accused, in German, the nature of the charge, as well as he could, Nortrup, under the sanction of an oath, made a report to the court in these words:

“Your Honor—I have given the prisoner a translation of the indictment, and yet it is not literal copy of it; contains the substance of it, but it is not a perfect translation of the indictment. I made it up as best I could, and gave him that copy. I have talked with the prisoner in his native tongue, and from the way he answers me, and from the statements he makes, I would suggest, as a friend of the court, that your honor appoint him counsel. I can concede that he will answer so you can enter the plea of guilty, but from the state of his mind, and the way he appears to me in talking with him, I dp not believe he understands his situation. I am satisfied he does not understand the relation of things, is wholly unacquainted with our institutions, and does not understand enough to act intelligently during the proceeding. I am satisfied that if the State’s attorney had put a count for arson in the indictment he would plead guilty to that, too, he is that ignorant, and the way he answers me satisfies me that he is not in frame of mind to act for himself. ”

Under these circumstances, notwithstanding the killing was confessed, we are of opinion it was the duty of the court to at least have appointed the prisoner counsel, and not have entered the plea of guilty without his concurrence. But the more proper course would have been to have entered the plea of not guilty for him, as in the case of one whose sanity is questionable, or of one standing mute, and to have appointed counsel to take charge of his defence.

After some further colloquy between the court and Nortrup, the latter, being impressed with the conviction the prisoner did not fully comprehend the nature of the charge against him or fully realize his perilous situation, declined to interrogate the prisoner further, or otherwise act as an interpreter, ' and thereupon the court appointed L. Bings torff to act as such. A number of questions were then asked the accused, under the direction of the court, eliciting answers admitting the killing, and also that he understood the charge, being substantially the same answers he had given before. After which the following passed between the court and Bingstorff, the interpreter:

Court: “Ask him why he killed her.
Interpreter: “He says they quarrelled.
Court: “What about?
Interpreter: “He says she said he wrote a letter, ”—interpreter, puzzled, continuing,—“something about his clothes. I can not make out what he means.
Court: “Did the woman have any weapons ?
Interpreter: “He says not; he says she threatened to shoot him. She said, if I did not leave she would shoot me.
Court: “Ask him how he killed her.
Interpreter: “He says he grabbed her by the neck in a handkerchief she had around her neck, then he threw her on the floor, and she was dead.
Court: “What did he tie the handkerchief around her neck for ?
Interpreter: “He says he did not do that, ” etc.
During this examination of the accused, Ringstorff, referring to the prisoner, remarked to the court: “He talks and acts like a half idiot. ”

As already indicated, this inquisitorial process to which the prisoner was subjected was irregular and unwarranted. The calling on one to plead to an indictment can not be made the occasion for extracting from him criminating evidence against himself. If, under peculiar circumstances like the present, the court has doubts as to whether the accused understands the nature of the charge, the court, if able to communicate with the prisoner, should explain to him the nature of the charge, as well as the consequences of a plea of guilty; but if, by reason of being unable to speak the language of the prisoner, the court can not do so, it should appoint competent counsel for the accused, to see that the character of the charge and consequences of the plea are fully understood, before accepting such a plea,—and if, after availing itself of all these precautions and safeguards, the court is still in doubt, then, as before suggested, the plea of not guilty should be entered, and the cause submitted to a jury. Under no circumstances ought the court, in such case, to proceed to examine the accused, as seems to have been done here, with a view of determining whether the killing was murder or some other offence. This was, in effect, trying the prisoner by the court, which, of course, is wholly incompatible with the safeguards which the law has thrown around one charged with a capital offence. We have no doubt the accused understood he was charged with the killing of the deceased, and also that he did not wish to deny that fact; yet, at the same time, we think it highly improbable that he understood the difference between a charge of murder and a mere charge of taking life, or that one might be proved guilty of killing another and yet not be guilty of any offence at all, or at least of the offence of murder. Even admitting the court would be justifiable in entering a plea of guilty upon admissions thus obtained, (which we have just seen it would not,) it is clear the admission of the accused in this case that he killed the deceased, without a more satisfactory account of the attending circumstances, was not sufficient to authorize the entry of that plea. The killing, as is well understood, standing alone, does not constitute the crime of murder, but, rather, a single link in the chain of testimony to establish that crime.

This case well illustrates the great danger there would be in any system of law that would allow a plea of guilty to be entered up. on criminating evidence thus obtained. From the evidence thus extracted from the prisoner, if his statements are all to be relied bn, the killing occurred in a quarrel, in which it is evident most of the details are as yet undisclosed, but in the little that does appear, taking his statement as true, the deceased, pending the quarrel, and as part of it, threatened to shoot him. There may be no truth in this 2D art of his statement, and we do not wish to be understood as intimating any opinion on that subject. But this we do say, that if admissions thus obtained could be used for such a purpose, common justice would say that the prisoner should have the benefit of his statement taken as a whole.

For the error indicated the judgment of the court below is reversed, and the cause remanded, with direction to the circuit court to permit the prisoner to withdraw the plea of guilty and to enter a plea of not guilty, and to proceed with the trial of the cause as in other cases.

Judgment reversed.


author: Mr. Justice Sheldon

text:
    A. B. Searing et al. v. Thomas Heavysides et al.

      Filed at Springfield March 29, 1883.

      Taxes—when enjoined in equity. Where an assessor assesses personal • property against one who was not the owner of the same on the 1st day of May, in the year for which the assessment is made, and who had no possession or control over the same at that time, and had no interest therein, the taxes levied on such assessment will be without warrant of law; and if the town board of review and county board refuse to give relief on application and proof, a court of equity will restrain the collection of such tax.
    Appeal from the Circuit Court of Ford county; the Hon. Owen T. Beeves, Judge, presiding.
    This was a hill hi chancery to enjoin the collection of a tax alleged to have been assessed against the complainants upon personal property owned by another person.
    The bill alleges that complainants reside in Livingston county, in this State; that the assessor for the township of Mona, in Ford county, Illinois, for the year 1880, on June 26, 1880, assessed complainants, in Mona township, $3300 on “all kinds of grain, ” as belonging to and owned by complainants in that township; that on May 1, 1880, or at the date of said assessment, complainants did not own, possess or control in Mona township to exceed 3000 bushels of grain of all kinds; that the assessor, fraudulently and illegally, without the knowledge of complainants, assessed to them 20,000 bushels of corn in cribs in said township of Mona, numbered 1, 2 and 3; that said corn, so assessed to them, was not their property, nor in their possession, nor under their control, on May 1, 1880, or June 26, 1880,—the time of said assessment,—but that on February 9, 1880, the same had been sold and delivered to J. & E. Buckingham, of which sale and delivery the assessor, prior to said assessment, was notified; that the assessor also added a penalty of fifty per cent to said 20,000 bushels of corn, which, with the 3000 bushels complainants did then own, made 33,000 bushels of grain which the assessor assessed to the complainants, as named above; that orators, having learned of the «assessment, went before the town board of Mona township, on the fourth Monday of June, 1880, and made proof of the facts stated, but the board refused to correct the assessment; that at the July session, 1880, of the board of supervisors of Ford county, they made proof of said facts, and that boa,rd passed an order that said penalty should be subtracted from the assessment, but refused to take any other action; that taxes were extended against complainants on such assessment, of $3300, less $550 of a deduction, which was supposed to represent said added penalty, but that such deduction did not, in fact, represent said penalty, which was about $1000; that the tax against complainants on the whole of said property is $75, but on the portion of it exclusive of the said 20,000 bushels of corn, only $23,—which last sum complainants have paid to the tax collector; that said collector has in his hands the tax books, with the tax warrant for the taxes of 1880, and insists upon the payment by complainants of all-of said tax so assessed against them, and threatens to levy on and sell complainants’ property to make all the residue of said tax unpaid. The bill prays for an injunction against the collector to restrain the collection of the residue of said tax.
    The circuit court sustained a demurrer to the bill, and dismissed the same for want of equity, and the complainants appeal.

      Mr. A. Sample, for the appellants:
    The abstract presents the facts, which raise the legal question whether A can, by injunction, restrain the collection of a tax fraudulently assessed to him on property which actually belonged to B. It will be observed that the property on which such fraudulent assessment was made did not belong to, and had not been in the custody or control of, complainants from February 9, 1880. Our court seems to have settled the question in the case of Irvin v. New Orleans, St. Louis and Chicago R. R. Co. 94 Ill. 105. See, also, Union Trust Co. v. Weber, 96 Ill. 346.
    In the case at bar, then, the tax was assessed and levied without authority of law, and in such cases an injunction will always lie. Town of Lemont v. Singer & Talcott Stone Co. 98 Ill. 94; Kimball v. Merchants' Savings, Loan and Trust Co. 89 id. 611; Chicago, Burlington and Quincy R. R. Co. v. Cole, 75 id. 591; Gage v. Evans, 90 id. 569.
    Mr. F. L. Cook, for the appellees:
    The Revenue law affords an ample remedy, and appellants having sought the forum provided, are concluded by its decision. Belleville Nail Co. v. The People ex rel. 98 Ill. 399; City of Peoria v. Kidder, 26 id. 357; Adsit v. Lieb et al. 76 id. 198; Evans v. Gage et al. 1 Bradw. 202.
    Appellants appeared before the town board of review, who refused to change the assessment. They then went before the board of supervisors, at their July session, 1880, who, as provided by law, reviewed the assessment and corrected the same. While it may be true that they were not obliged to make these applications for relief, I submit that having done so they are bound to abide the result. The question then becomes res judicata, and can not be reviewed by this proceeding. The tax is personal, and if illegal the remedy at law is complete.

      In no event will an injunction lie unless it is clearly made to appear that the party has been wrongfully assessed, and will sustain irreparable injury unless the collection of the tax be enjoined. Porter et al. v. Rockford, Rock Island and St. Louis R. R. Co. 76 Ill. 561.
   Mr. Justice Sheldon

delivered the opinion of the Court:

By the showing of the bill the property which was the subject of taxation in this case at the time it was assessed, or liable to assessment, was not the property of the complainants, but was the property of J. & B. Buckingham, the complainants having no interest whatever in the same, and it not being in their possession or under their control. There was, then, no authority of law, as appears by the bill, for assessing a tax upon this property against the complainants. They were liable to taxation only on their own property, and not for the property of another person.

But although the tax be illegally assessed, it is insisted by appellees that there is no ground of equitable jurisdiction for enjoining the collection of the tax; that the remedy at law is adequate; that if payment should be made of the tax the amount might be recovered back; that if proceedings should be taken to enforce collection of the tax by distress and sale, it would be but the case of an ordinary trespass, to prevent the commission of which a court of equity will not interfere, and for which, if committed, there would be full redress at law. The general rule upon the subject is as insisted by appellees; but under the decisions of this court there are certain well recognized exceptions to that rule where a court of equity will take jurisdiction to afford relief against the collection of taxes, one of which is, when a tax has been imposed where the law has not authorized it to be levied. Chicago, Burlington and Quincy R. R. Co. v. Frary, 22 Ill. 36; Drake v. Phillips, 40 id. 388; Vieley v. Thompson, 44 id. 9; Kim ball v. Merchants’ Savings, Loan and Trust Co. 89 id. 611; Lemont v. Singer & Talcott Stone Co. 98 id. 94.

The tax in question is one levied against the complainants without warrant of law, and so comes within that class of cases in which we have admitted the jurisdiction of a court of equity to restrain the collection of a tax. Irvin v. New Orleans, St. Louis and Chicago R. R. Co. 94 Ill. 105.

Being of opinion that the demurrer was improperly sustained to the bill, the decree will be reversed and the cause remanded.

Decree reversed.

Mr. Justice Walker : I am unable to hold that equity has power or jurisdiction to review the decision of the boards of review, which heard evidence, and held the property was properly assessed. ■ I hold that remedy having been given by statute, it is conclusive when employed.-


author: Mr. Justice Scholfield

text:
    Theodore Siegel v. The People of the State of Illinois.

      Filed at Springfield March 29, 1883.

    1. Sale of intoxicating liquor to a minor—of a gift, as distinguished from a sale—variance. The offence of selling liquor to a minor is distinct from that of giving such liquor to a minor; and a count in an indictment for the one will not be sustained by proof of the other.
    2. Same—sale to an adult, who treats a minor—whether an offence under the Dram-shop act prohibiting the sale of liquor to minors. The sale of three glasses of beer to an adult by a saloon keeper, the adult paying therefor, and giving one of the glasses of beer to a minor, who drinks the same, does not make the seller liable under section 6 of the Dram-shop act, although the minor may have furnished the money with which to procure the same, the seller having no knowledge of that fact, and there is nothing to lead him to suspect that such is the case.

      3. Where a sale of liquor is made to an adult, it is of no consequence that the bar-keeper sees a minor present, and understands he is to participate in drinking the same. In such case, while he is letting a minor have liquor, he is not guilty of either selling or giving liquor tó a minor.
    4. A case might arise where the bar-keeper ought to know, from the circumstances, that the person purchasing liquor is being used by a minor as a screen to conceal his own participation, and in such case the vendor would be liable under the statute. But the question whether such fact exists should be submitted to the jury on the evidence.
    5. Same—construction of the Dram-shop act limited to its terms. A court will not extend the terms of a criminal statute beyond their clear legal meaning. So the word “sell,” in section 6 of the Dram-shop act, prohibiting sales of liquor to minors, will not be construed to mean something different from its ordinary legal import. The prohibition is only as to the excepted class, and no liability of a criminal nature is imposed upon the vendor on account of the motives with which the vendee shall purchase, or the uses to which he shall afterward apply the liquor. The meaning of the word is to be determined by the settled rules and principles of the common law, there being in the statute no definition of what shall be held to constitute a sale to a minor, nor any specification of what shall be sufficient evidence of such sale. To constitute such a sale, the seller is only bound by that to which he and the purchaser knowingly assent.
    6. Contract—whether made with the principal or his agent. Where a person contracts or purchases as agent, or he is known by the vendor to be such, the contract is with the principal; but when one contracts as an individual, and the other party has no knowledge of his agency, the contract, so' far as it affects the latter, is with the agent alone, unless, after knowledge of the fact of agency, he ratifies the contract as having been made with the principal.
    Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Plaintiff in error was indicted and convicted of selling liquor to a minor. Upon the trial, James Cantner testified: “I will be twenty on the 10th of April next. Know defendant when I see him. Know his place of business. It is in Champaign county, Illinois. He is a saloon keeper. His place of business was there prior to October, 1880. I was there but once prior to October 9, 1880. I did not obtain' anything there to drink. The next time I was in his place of business was on the 3d day of July last, 1880. Marion Roach and Charles Schlorff were with me. I don’t remember whether the defendant was in the saloon or not. I obtained beer there. It was lager beer. It is termed malt beer. I drank twice. Me and Charles Schlorff and Marion Roach went in and sat down at a table, and we gave Roach the money, and we went up and he called for the drinks, and' we got it. The beer was put on the counter. I was standing at the west end of the counter. Schlorff and Roach were on the east side of me. We were standing close together. Roach called for three glasses of beer. We drank it. I did not know the man behind the counter. The man behind the counter was in his shirt sleeves, and selling beer. I expect there were twenty people in the saloon. Marion Roach paid for the beer. When I was drinking, the bar-keeper was not very far from me. He was waiting on other persons. He set the glasses of beer out on the counter in a row. After we drank the beer we went to a table, sat down and talked awhile, and then went up and got three more glasses. We gave Roach the money. I think it was fifteen cents. He was ‘broke.’ We gave him fifteen cents each time. After we gave him the second fifteen cents we went up to the bar. He called for three glasses of beer. The bar-keeper gave them and we drank them as before. ” Upon cross-examination he testified: ■ “I suppose Roach was about twenty-two or twenty-three years old. I don’t mean to say that the barkeeper saw us give Roach the money. As far as I know he didn’t know anything about that. ” The plaintiff in error was a witness in his o.wn behalf, and testified that he did not know Cantner before the finding of this indictment; that he never saw witness in his saloon, and that he had a bar-keeper at the time of the alleged commission of the offence.

      This was all the evidence. And the court thereupon, at the instance of the People, instructed the jury as follows,— to which plaintiff in error, at the time, excepted:
    “The court instructs the jury, that if they believe, from the evidence, beyond a reasonable doubt, that James Oantner, the witness, and Charles Schlorff and Marion Roach, went into the saloon of the defendant and obtained from the barkeeper of the defendant, if he then and there had a barkeeper, lager beer, and that it was malt liquor, and they drank the same in the presence of said bar-keeper, and if the proof shows that James Oantner was a minor, then you should find the defendant guilty on as many counts as the proof shows, beyond a reasonable doubt, such sales were made, and in such case it makes no difference whether the bar-keeper is paid for such malt liquor by the minor witness or by an adult in his presence, provided you believe, from the evidence, that at the time of the alleged sale the alleged liquor was handed out by defendant’s bar-keeper, to be drank by the person who paid directly for it, if the proof shows it was paid for, and also to be drank by the alleged minor, James Oantner, and that the alleged" liquor was then and there paid for.”
    The following instruction, asked by the plaintiff in error, was refused by the court,—to which ruling plaintiff in error also excepted:
    “The court instructs the jury, that in order to constitute a sale there must be an intention to sell, and to constitute a sale to the witness, Cantner, in this ease, it is necessary that the defendant or his agent should intend to sell to him. ”
    Motion for new trial was made by plaintiff in error, and overruled by the court,—and to this, also, plaintiff in error excepted.
    This case was taken by writ of error to the Appellate Court for the Third District, and that court, at its November term, 1882, affirmed the judgment of the circuit court. This writ of error is on the last named judgment.
    Messrs. Rubens & Hiestand, for the plaintiff in error:
    Section 6 of the Dram-shop- act creates two distinct and different offences with reference to minors : First, it is made an offence to sell, intoxicating liquor to a minor; and second, it is made an offence to give such liquor to a minor.. These are distinct and separate offences, and proof of one will not sustain a charge of the other. Humpeler v. People, 92 Ill. 400.
    A sale is a transfer of the absolute or general property in a thing for a price in money, and mutuality is a necessary element of every sale. (Benjamin on Sales, secs. 1, 38, 39, 50.) Therefore, a mistake as to the person with whom the contract is made will avoid the sale. A party has the right to select who he will contract with. Benjamin on Sales, sec. 58; Holt’s Nisi Prius, 253; Boulton v. Jones, 2 H. & N. 564; Mudge v. Oliver, 1 Allen, 74; Higgons v. Burton, 26 L. J. Ex. 342.
    In sales of intoxicating liquors the identity of the vendee is of the utmost importance. A sale to an adult who is sober and temperate is lawful by one having a license to sell, while to a minor, without .the proper consent of the parent, etc., will subject the vendor to fine, and perhaps imprisonment.
    The statute in question is highly penal, and should be strictly construed. A nevf trial ought to be granted if the evidence leaves a reasonable doubt of the guilt of the defendant. Stuart v. People, 73 Ill. 20; Otmer v. People, 76 id. 149.
    Mr. E. L. Sweet, also for the plaintiff in error:
    An intent is necessary to constitute a sale, here, as in any criminal case,—not an intent to sell to a person of a particular character, as, to a minor or drunkard, but an intent to sell to the individual who is alleged to have purchased. Criminal Code, div. 2, secs. 9, 10.
    The instruction for the prosecution took an important question of fact from the jury,—whether the sale was in fact made to the minor,—and this was error. Kirby v. Watt, 19 Ill. 393; Hart v. Wing, 44 id. 141.
    Mr. W. W. Mathews, State’s Attorney, for the People, argued that the sale to the adult who was accompanied by the minor was a sale to the minor, within the meaning of the Dram-shop act.
   Mr. Justice Scholfield

delivered the opinion of the Court:

No question arises here whether plaintiff in error is guilty ' of having given liquor to a minor,—the offence for which he was tried, and of which he was convicted, was selling liquor to a minor; and we have heretofore held a count for the one will not be sustained by proof of the other offence. Humpeler v. The People, 92 Ill. 400.

The circuit court, by its ruling in giving the instruction asked by the People, and in refusing that asked by plaintiff in error, in effect decided that if a minor give an adult money wherewith to buy beer for the two, and the adult accept it and therewith buy beer, which is drank by the two, the vendor of the beer is guilty of a sale to the minor, within the meaning of the 6th section of the Dram-shop act, (Rev. Stat. 1874, chap. 43,) notwithstanding he did not, at the time, know that the adult had been furnished with money by the minor, and had no reason to suppose he was acting as agent for the minor,—in short, that the vendor made a contract he did not intend to make, and that he had no reason to suppose he was making. So much of that section of the statute as is material reads as fallows: “Whoever, by himself or his agent or servant, shall sell or give intoxicating liquor to any minor, without the written order of his parent, guardian or family physician, * * * shall, for each offence, be fined, ” etc. There is no definition of what shall be held to constitute a sale to a minor, nor is it specified what evidence shall be deemed sufficient proof thereof, but the question is left to be determined by settled common law principles. The word “sell” has a well known legal signification, and in the absence of' anything to the contrary appearing in the statute, we must assume that it is here intended to have that signification. There is nothing exceptional in a sale that distinguishes it from other contracts, as respects the concurrence or coming together of the minds of the parties; and so in general, if not universally, in cases of sales, parties are only bound by that to which they, in fact or in legal presumption, knowingly assent. If A propose to buy of B, and B agree to sell to A, B does not thereby become bound to sell to C; and, for like reason, if such contract be consummated as thus made, it must amount to a sale to A, and can not be held to be a sale to C. Upon the plainest and most obvious principles of natural right, as respects private property, when the question is unaffected by a public duty, an individual may contract to sell to whom he pleases, and he can not be obligated to a person, or by terms which he did not have, and could not- reasonably have had,- in contemplation when he contracted. Undoubtedly, a person may buy through an agent, and in such case, there being no question of the fact of agency, although the dealing is with and the delivery to the agent, in legal effect the sale is to the principal. The rule is, where a person contracts as agent, or he is known to be such, the contract is with his principal; but where he contracts as an individual only, and the opposite party has no knowledge of his agency, the contract, so far as it affects the opposite party, is with him alone. (Story on Agency, sec. 266 ; Chit.ty on Contracts, (11th Am. ed.) 308; 2 Kent’s Commentaries, (8th ed.) 620, *631; Wharton on Agency, secs. 431, 496; Huntington v. Knox, 12 Q. B. 311; Win chester v. Howard, 97 Mass. 303.) In such case, the principal, by virtue of his contract with his agent, may, as between themselves, be entitled to the benefit of the contract,—but this is as between themselves, only, and in nowise affects the opposite party, unless, indeed, he, after knowledge, ratifies the contract as one with the principal, in which event he would be bound by his ratification. (See authorities supra.)

We are not unmindful of the general principle that where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation,—instances of which are, acts' declaring forfeiture of ship for having smuggled goods on board, and other kindred fiscal laws; acts prohibiting intrusion into office; acts prohibiting marriage while former husband or wife is still living; and acts prohibiting seduction of females under specified ages, etc. (3 G-reenle.af on Evidence, sec. 21; 1 Wharton on Crim. Law. (7th ed.) sec. 83.) And on this principle we held, in a prosecution like the present, that the vendor of liquor is bound to know whether the person to whom he sells is a minor or an adult. (McCutcheon v. The People, 69 Ill. 601.) But here it is not ignorance of the facts or state of things contemplated by the statute, (i. e., the kind of liquor sold, the age of the party to whom sold, etc.,) but it is the nonexistence of the prohibited act,—the fact that the person to whom the liquor was sold was not the minor alleged in the indictment, but a different person, and one who was an adult, —that constitutes the defence. It is as if, in the case of the smuggled goods, it were shown the smuggled goods were not, and had not been, on board the ship sought to be forfeited ; or, in the case of the prohibited marriage, the person married was not, in fact, the husband or wife of a living person, but some other and unobjectionable person; or, in the case of intrusion into office, there had been, in fact, no attempt to assume its duties; or, in the case of the seduction, the person seduced was, in fact, a different person from that alleged, and above the prohibited age. Had the statute prohibited all persons from letting minors have liquors, and plaintiff in error had been convicted of that offence, (as in State v. Munson, 25 Ohio St. 318,) a very different question would be presented from that now before us. In that event there would have been great force in the position that the act prohibited had been done by plaintiff in error, and whether intelligently or otherwise was immaterial.

We can not extend the terms of a criminal act beyond its clear legal meaning. We can not construe the word “sell,” in such a statute, to mean something different from its ordinary legal import, and we can therefore only understand' a prohibition against persons selling to minors to extend to those who, in legal estimation, occupy the position, and are under all the obligations of contractors with minors. The prohibition against selling is only as to the excepted class, and no liability of a criminal nature is imposed upon the vendor on account of the motives with which the vendee shall purchase, or the uses to which he shall apply the liquor.

We do not regard it of controlling consequence, under this statute, whether the bar-keeper saw Cantner, and understood he was to participate in drinking the liquor, or not. It is true, in such case he would be letting a minor have liquor, and if that were prohibited he would be amenable therefor. But he would neither be selling nor giving to a minor,—he would simply be selling to an adult. To illustrate: Three men step up to a bar of a saloon, and one of them calls for three glasses of beer. The bar-keeper sets them out, and the person calling for them pays for them. Bach of the three then drinks one of the glasses of beer. There is, here, surely, only a sale to the one calling for the beer, and he, in popular language, is “treating” the other two. Whether he drinks the three glasses himself, or gives one to each of the other two, or to two other persons, can not concern the barkeeper. It is impossible that, by the mere act of one person’s drinking liquor ordered and paid for by another, a liability can be imposed on the vendor, under the section before us, which would not have existed if that person .had not drank. Suppose, in the case before us, Eoach, after ordering the beer, had changed his mind and drank it all himself, or Cantner, after coming up to the bar, had refused to drink, could there be any pretense that the question to whom the sale was made would have been thereby affected ? And yet* as disclosed by the-rulings before us, so far as concerns the plaintiff in error, the only circumstance tending to fasten upon him the charge of selling to Cantner is, Cantner drank one of the glasses of beer,—the idea that plaintiff in error had any reason to suppose that Cantner furnished the money wherewith to buy the beer, being excluded by the character of the question arising upon the rulings. A case might oftentimes exist, undoubtedly, where the bar-keeper ought to know, from the circumstances, that the person purchasing is being used by a minor simply as a screen to conceal his own participation, and in such case the vendor should be held responsible. He may not close his eyes to obvious facts, and then plead his ignorance of what all others knew; but in such case the fact should be left to the jury, to be determined from the evidence. As before observed, no such question was here submitted.

We think the ruling of the court below was erroneous in respect of the questions we have remarked upon, and for that error the judgment must be reversed, and the cause remanded for a trial de novo.

It may be conceded, as claimed by counsel for the People, that this view shows that the section under consideration may be easily violated, without probability of the punishment of the violator. But that only proves the necessity for its amendment. It furnishes no excuse for supplying, by judicial construction, what is palpably omitted.

Judgment reversed.


author: Mr. Justice Craig

text:
    Joseph Leonard v. W. T. Patton.

      Filed at Springfield March 29, 1883.

    1. Appeals—reviewing controverted questions of fact. In a suit upon a note, in which usury is pleaded, and evidence introduced on both sides as to the issue, when the Appellate Court affirms the judgment of the trial court the judgment of the Appellate Court is conclusive upon this court as to the fact of usury, when so found, as well as upon all other controverted questions of fact.
    2. Practice—withdrawal of plea. The practice is well settled that a defendant may, in the discretion of the court, abandon any part of his defence during the trial, and hence there is no error in allowing a defendant to withdraw his plea of the general issue in assumpsit, and rely on his special pleas.
    3. Usury—what constitutes usury. If a contract exists, whether express or implied, at the time of or subsequent to the entering into the agreement, to take or reserve more than lawful interest, it is such an agreement as is within the provisions of the statute. To constitute usury from the taking of interest upon interest, it is not necessary to prove that there was an agreement made in advance for the payment of such interest.
    4. An agreement to give a given sum in excess of the legal rate of interest in consideration of an extension of the time of payment, is as much in violation of the statute against usury as an agreement to pay twenty per cent interest. The statute can not be evaded by any shift or device. The law looks to the substance, and not the form of the transaction.
    5. Same—measure of recovery. If usury is reserved in a note, the payee will only be entitled to recover the amount due him when the contract for usury was made.
    6. Same—effect of subsequent promise to pay. After a contract to pay more than the legal rate of interest has been made, a subsequent promise to pay will not relieve the contract of the taint of usury, or prevent the defence of usury from being interposed.
    7. Same—proof in avoidance of plea of usury. In a suit on a note in which usury and usurious payments are pleaded, there is no error in instructing the jury, for the defendant, that if the plaintiff relies upon an agreement to pay compound interest, he must prove such agreement by a preponderance of the evidence.
    8. Tendee—of the proper judgment. If the amount due on a note is tendered before suit is brought thereon, and the tender is kept good by bringing the money into court, the defendant is entitled to a verdict on that issue when the tender is pleaded.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Ford county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Charles H. Wood, and Mr. Calvin H. Frew, for the appellant:
    The evidence does not make out a case upon which usury can be predicated. Daniels v. Wilson, 21 Minn. 530; Kellogg v. Hickcok, 1 Wend. 521.
    If a borrower, without an original agreement, instead of paying the legal interest agrees to pay interest thereon, as well as on the principal, for further forbearance, it is legal, ánd not usurious. Haworth v. Huling, 87 Ill. 23; Rodes v. Blythe, 2 B. Mon. 335.
    A note given for interest on arrears of interest is not usurious. Stewart v. Petrie, 55 N. Y. 621; Camp v. Bates, 11 Conn. 487; Wilcox v. Howland, 23 Pick. 167; Edgerton v. Weaver, 105 Ill. 43.
    Again, there must be a previous corrupt agreement to constitute usury. (McGill v. Ware, 4 Scam. 21.) And there must be an intention of the party to take usury to make the contract usurious. (Cooper v. Nock, 27 Ill. 301.) Both these elements are wanting in this case.
    We claim the refused instruction, that “to constitute usury by taking interest upon interest, it must appear that there was an agreement made in advance for the payment of such interest, and if none has been shown in this case, then, even if interest • upon interest was reckoned in the note given in 1876, this would not constitute usury, ” is the law, and that the refusal to give it was error. Edgerton v. Weaver, 105 Ill. 43.
    Mr. Thomas F. Tipton, and Mr. A. Sample, for the appellee:
    Usury may be by contract, express or implied, at the time or subsequent 'to the original agreement, to take or reserve more than lawful interest. Peddicord v. Connard, 85 Ill. 102.
    A note given in renewal of a previous one, for a greater sum than was legally due, is usurious. Loveland v. Ritter, 50 Ill. 54.
    Any contract or assurance for the loan or forbearance of money or other thing, upon which a greater rate of interest has been, directly or indirectly, reserved, is usurious. Delano et al. v. Rood, 1 Gilm. 690; Hewitt et al. v. Dement, 57 Ill. 501; Gates v. Hackethal, id. 534; Hardin v. Eames, 5 Bradw. 154; Jenkins v. Bauer et al. 8 id. 634.
    An arrangement to pay a certain sum of money for the extension of time on a note, in addition to the legal interest, is usurious. Ferner v. Scott, Admr. 17 Iowa, 578; Payne v. Waterson, 16 La. Ann. 239.
    The rule in this court is, that usury paid with the principal can not be recovered back, but so long as any portion of the principal remains, out of or in connection with which the usurious interest accrued, it may be deducted from or set off against such principal. Howle v. Snydaker, 86 Ill. 197; Mitchel v. Lyman, 77 id. 525; Peddicord v. Connard, 85 id. 102; Jenkins v. Greenebaum, 95 id. 11; House v. Davis, 60 id. 367; Hadden v. Innes, 24 id. 381; Farwell v. Meyer, 35 id. 41; Sayler v. Daniels, 37 id. 331; Jenkins v. International Bank, 97 id. 568. And further, see Wright v. Elliott, 1 Stew. (Ala.) 391; First Nat. Bank v. Plankington, 27 Wis. 177; Vickery v. Dickson, 27 id. 184; Berlin v. Mapes, 38 How. 288.
    Counsel complain that appellee was allowed to withdraw the general issue. This, if not a matter of right, was clearly within the discretion of the court, and can not be assigned for error. Ayres v. Kelley, 11 Ill. 17; New England Fire and Marine Ins. Co. v. Wetmore, 32 id. 221; Leigh v. Hodges, 3 Scam. 15; Fitzgerald v. Furgeson, 25 Ill. 138.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, to recover the amount of a promissory note executed by the defendant and Davis Patton, on the 4th day of June, 1877, for $7054.56, payable to Joseph Leonard, six months after date. The defendant pleaded the general issue, usury, and tender, upon which issue was taken. A trial of the issues before a jury resulted in a verdict and judgment for the defendant. The plaintiff appéaled to the Appellate Court, w'here the judgment was affirmed, and to reverse that judgment he has brought this appeal.

Whether the transaction was usurious was a question of fact, upon which evidence was introduced before the jury by both parties; and while the evidence to sustain the plea of usury is not as convincing in its character as we might require if that was a question properly before us, yet the judgment of the Appellate Court affirming the judgment of the circuit court, under the statute is conclusive upon all questions of controverted fact which were before the jury, and such questions can not be considered .here.

On the trial the defendant asked and obtained leave to withdraw the plea of the general issue, and this is assigned for error. The practice is well settled, in this State at least, that a defendant may, in the discretion of the court, abandon any part of his defence during the trial. (New England Fire and Marine Ins. Co. v. Wetmore, 32 Ill. 221.) The court, therefore, did not err in allowing the plea to he withdrawn.

It is next claimed that the decision of the court in refusing plaintiff’s instruction No. 10 was erroneous. The instruction in substance declares: to constitute usury by taking interest upon interest, it must appear that there was an agreement made in advance for the payment of such interest. The substance of this instruction was given to the jury in instructions Nos. 1 and 2, and the court was not required to repeat the same thing in a different form. But if we are not correct in this, the instruction was in conflict with the law as declared in Peddicord v. Connard, 85 Ill. 102, where it is said: “If an usurious contract is made, whether express or implied, at the time of or subsequent to the entering into the agreement, to take or reserve more than lawful interest, it is such an agreement as is within the purview of our statute. ”

The next error assigned is, that the court erred in giving instructions Nos. 7, 8, 9, 10, 11 and 12. These were the only instructions given on behalf of the defendant,—the others, from 1 to 6, inclusive, having been refused. No. 7 merely informs the jury that if plaintiff relies upon an agreement to pay compound interest, he must prove such agreement by a preponderance of the, evidence,—and, so far as we can see, it is unobjectionable. "No. 8 directs the jury that if they find, from the evidence, that there was usury in the note, plaintiff was only entitled to recover the amount due when the contract for usury was made,—and in this it conforms to our statute. No. 9 directs the jury that if they should find, from the evidence, that defendant promised to pay the note in full, yet if they find that there is usury in the note, then such promise is not binding. After a contract to pay more than the legal rate of interest has been made, we do not understand that a subsequent promise to pay will relieve the contract of the taint of usury. If it did, the statute could easily be evaded. No. 10 was given to guide the jury on the question of tender, and merely announces the familiar rule on the subject that if the amount due was tendered to plaintiff before the commencement of the suit, and the tender was kept good by depositing the amount in court, then they will find the issues for defendant. No. 11 is in substance like-No. 9. No. 12 in substance directed the jury, if they find, from the evidence, that the note in suit was given for $150 more than was' due from defendant to plaintiff, and in consideration of the excess in the note time of payment was extended six months, then the transaction is usurious. We perceive no substantial objection to this instruction. An agreement to pay a given sum in excess of the legal rate of interest in consideration of an extension of the time of payment, is as clearly in violation of the statute as if the agreement was to pay fifteen or twenty per cent interest'. The statute can not be avoided by any shift or device which may be resorted to by the parties. The form of the transaction is not material, but whenever it clearly ' appears that more than the legal rate of interest has been exacted, the contract will be held to be usurious. Doubtless a party may lawfully contract to pay interest on interest past due, as announced in the instruction; but a contract to take a gross sum in excess of the legal rate of interest, or in excess of interest on interest past due, can not be sustained.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.