author: Mr. Justice Craig

text:
    The People ex rel. Town of Atlanta v. The Town of Oran et al.

      Filed at Springfield September 27, 1887.

    1. Limitations—as applicable to municipal corporations. Municipal corporations, in all matters involving mere private rights as contradistinguished from public rights, as, the liability of one town to another to pay money to or for the other, are subject to the limitation laws to the same extent as private individuals.
    2. Same—in suit to compel contribution for indebtedness of a town from which territory has been taken. In a proceeding by one town from which territory has been taken, against the town to which it was attached, to compel the latter to contribute to the payment of the indebtedness of the former town, the Statute of Limitations of five years may be pleaded as a bar.
    3. If a town having a bonded indebtedness is divided, and part of its territory attached to another town, a proceeding to apportion the indebtedness between the two towns so that each may thereafter pay its proportionate share thereof, must be brought within five years after the right has accrued, or it will be barred. There is no trust in such a case to take the case out of the operation of the statute.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Logan county; the Hon'. Geobge W. Hebdman, Judge, presiding.
    Messrs. Blinn & Hoblitt, for the appellants: ’
    The indebtedness of a town before its territory is detached must he apportioned, and the town to which the territory is attached contribute its part, under the statute. Bev. Stat. chap. 139, sees. 32, 33, 35; Hensley Township v. People, 84 Ill. 554.
    The Statute of Limitations can not he pleaded to defeat a trust, or to any public right of a municipal corporation. 2 Dillon on Mun. Corp. secs. 668, 673; Logan County v. City of Lincoln, 81 Ill. 157.

      Mr. Oscar Allen, for the appellees:
    The Statute of Limitations applies to mandamus. Peoria County v. Gordon, 82 Ill. 435.
    The Statute of Limitations may be pleaded against municipal corporations. County of Piatt v. Goodell, 97 Ill. 84.
    The statute need not be pleaded when the facts are apparent ■on the face of the petition. Ilett v. Collins, 103 Ill. 75.
    Public rights of corporations which are not barred by the Statute of Limitations, are only those which concern the people of the State, generally. Dillon on Mun. Corp. sec. 533; City of Alton v. Transportation Co. 12 Ill. 60; County of Piatt v. Goodell, 97 id. 84; 7 Wait’s Actions and Defences, 23.
    In England only matters not barred are charitable trusts. Grant’s Corp. 560, note 10.
    The applicant for mandamus must show diligence, or the writ "will be refused. Territory v. Potts, 3 Mon. 364; Dillon on Mun. Corp. (2d ed.) see. 694, note, and cases cited.
    This application might have been made as long ago as 1872. Hensley Township v. Bailey, 84 Ill. 544.
    A condition precedent to relief is the giving notice of meeting do apportion. Diligence should be shown or relief will be refused. It was not given for thirteen years in this case. It ■ought to have been given at once. Bev. Stat. 1874, p. 1070, sec. 32; Shelburne v. Robinson, 3 Gilm. 597.

      Laches must be fully explained. Breit v. Yeaton, 101 Ill. 272, and eases cited.
    For other reason than the delay of petitioner, the court was justified in dismissing the petition.
    Messrs. Beach & Hodnett, also for the appellees:
    The Statute of Limitations runs against all trusts except express trusts, and such as are cognizable only in courts of equity. Hayward v. Gunn, 82 Ill. 385 ; Governor v. Woodworth, 63 id. 254; School Directors v. School Directors, 16 Bradw. 651; Angell on Limitations, sec. 166; Wood on Limitations, 436.

      Municipal corporations are within the operation of the Statute of Limitations. Ramsey v. Clinton, 92 Ill. 225; County of Piatt v. Goodell, 97 id. 84; Cincinnati v. Evans, 5 Ohio St. 409; School Directors v. School Directors, 105 Ill. 653 ; Wood, on Limitations, sec. 53, p. 93; Lane v. Kennedy, 5 Ohio St. 42; Cincinnati v. Presbyterian Church, 8 id. 298; School Directors v. Georges, 50 Mo. 194; Dillon on Mun. Corp. (3d ed.)secs. 668-676, and cases cited.
   Mr. Justice Craig

delivered the opinion of the Court:

This, was a petition in the name of the People, on relation of the town of Atlanta, in Logan county, for mandamus, to compel the supervisor and assessor of the town of Oran to meet-with the supervisor and assessor of the town of Atlanta, and. agree as to the amount of indebtedness of the town of Atlanta, which the town of Oran shall assume on account of certain territory being detached from the town of Atlanta and joined to the town of Oran.

It appears from the petition, that in March, 1872, by an order of the board of supervisors of Logan county, six sections-of land were detached from the town of Atlanta and joined to-the town of Oran.. It also appears, that at the time the order was made there wa-s a legal bonded indebtedness existing" against the town of Atlanta, which the people of the six sections had assisted in making, amounting to the sum of $50,000.. It also appeared that the town of Oran had never paid or assumed any portion of such indebtedness, but refused to make-any arrangement with the town of Atlanta in relation thereto.

To the petition the town of Oran pleaded the Statute of' Limitations, as follows: “And for a plea in this behalf, defendants say that the petitioner ought not to maintain the said . petition against them, the said defendants, because they say that the supposed cause of action in said declaration mentioned did not accrue to the petitioner within five years next before the commencement of this suit, in manner and form as petitioner has above complained against them, the defendants; ■and this the defendants are ready to verify.” The petitioner demurred to the plea, but the court overruled the demurrer, and petitioner electing to abide by its demurrer, the petition was dismissed and judgment rendered against it for costs. The judgment of the circuit court was affirmed in the Appellate Court, and to reverse the latter judgment the petitioner brings the record here by appeal.

The petition was filed under sections 32, 33 and 35, chapter 139, of the Revised Statutes of 1874, which statute, it is claimed, required the supervisor and assessor of the town of Oran to meet the supervisor and assessor of the town of Atlanta, on notice, and determine the proportion of the indebtedness to be borne by each town. The three sections of the statute are as follows:

“Sec. 32. When a town possessed of or entitled to money, xights or credits, or other personal estate, shall be divided' or altered, such personal estate, including moneys, shall be apportioned between the towns interested therein, by the super-' visors and assessors of such towns, according to the amount of taxable property in the town divided or altered, as the same •existed immediately before such division or alteration, to be ascertained by the last assessment list of such town; and such •supervisors and assessors shall meet, for the purpose aforesaid, •as soon as may be after the first town meeting subsequently held in such town.
“Sec. 33. Whenever a meeting of the supervisors and as•sessors of two or more towns shall be required in order to carry into effect the provisions of this" article, such a meeting may be called by either of said supervisors; but the supervisor calling the same shall give at least ten days’ notice, in writing, to all the other officers, of the time and place at which such meeting is to be held.
“Sec. 35. Debts owing by a town so subdivided or altered shall be apportioned in the same manner as the personal property of the town, and each town shall thereafter he charged' with its share of such debts according to such apportionment.

As has been 'seen, no steps were taken by the town of Atlanta to require the town of Oran to assume or pay a portion of the debt until more than ten years after the territory was-taken from one town and added to the other, and the question raised by the demurrer is, whether this long delay is a bar to-the proceeding. If, after the territory was detached from Atlanta and added to Oran, the result was that the latter named; town became indebted to the former, or to the bondholders,—that the debt was of an ordinary character, such as one individual or town may owe to another,—no argument is required to show that the Statute of Limitations would run against such-a debt. But it is insisted by counsel for appellant that such is not the nature or character of the debt, but, on the other-hand, the money sought to be recovered is a trust fund, and* hence is protected from the operation of the statute.

There is nothing in the language of the statute indicating-that a debt of this character is a trust fund, or that the relation of trustee and cestui que trust exists between the parties. The statute merely declares that debts owing by a town so-divided shall he apportioned, and each town shall be charged with its share of such debts according to such apportionment. Under the language of the statute, the town of Atlanta had the right, by pursuing the course pointed out in the act, to require-the town of Oran to pay a certain portion of its bonded indebtedness. By accepting the territory it became a debtor, and, was legally bound to pay a certain portion of the indebtedness of the town of Atlanta; but we see nothing in the act or the-transaction from which the conclusion can be reached that the liability thus created established a trust, or that the one town held any money in trust for the other.

But if the transaction assumed the character of a trust, as-contended by appellant, it is not such a trust as is exempt from-the operation of the Statute of Limitations. In Hayward v. Gunn, 82 Ill. 385, this court held: “To exempt a trust front the bar of the Statute of Limitations, it must, first, be a direct trust; second, it must be of the kind belonging exclusively to the jurisdiction of a court of equity; and third, the question must arise between the trustee and cestui que trust.” See, also* Governor v. Woodworth, 63 Ill. 254, and >Vood on Limitations* sec. 215, where the same doctrine is announced. Here all the-elements in the case cited are wanting. It is not a direct or-express trust. It is not of that character belonging exclusively to a court of equity. Nor does the question arise between trustee- and cestui que trust. No such relation exists between the two-towns. We think, therefore, it is clear that there is no such-trust made out by the facts relied upon in this case as to prevent the bar of the Statute of Limitations.

It is also contended that a public right of a municipal corporation is involved, and upon that ground the Statute of' Limitations can not be pleaded as a defence to the action. In County of Piatt v. Goodell, 97 Ill. 84, we had occasion to consider to what extent municipal corporations might be barred by the Statute of Limitations, and we there held that municipal corporations, in all matters involving mere private rights, as contradistinguished from public rights, strictly so called, are subject to limitation laws to the same extent as private-individuals ; but in all matters involving strictly public rights, they are not subject to the limitation laws, as such. See, also* School Directors v. School Directors, 105 Ill. 653.

No public rights are involved in this ease,—the controversy relates solely to two townships. The real question is, whether the town of Atlanta shall recover money from the town of Oran. This matter does not concern the State or the people of the-State. We fail to see how the public can be interested in this, transaction to any greater extent than they would be in an action which one citizen might bring against another to recover ■ money claimed to be due on a contract. The public wül neither-lose nor gain if the town of Atlanta is required to pay all of its-indebtedness, nor will it affect the public if the town of Oran is required to contribute. No public interest being involved, the Statute of Limitations might properly be pleaded.

In the argument much reliance is placed on the case of County of Logan v. City of Lincoln, 81 Ill. 157. In that case the Statute of Limitations was held not to be available as a defence, but the facts in that case are so different from the case, under consideration that the decision can have no bearing here. The same rule of law is, however, declared in that case that was announced in County of Piatt v. Gooclell, swpra, as will be seen from the following language of the court: “Our understanding of the law is, that as respects all public rights, or as respects property held for public use upon trusts, municipal corporations are not within the operation of the Statute of Limitations; but in regard to contracts or mere private rights the rule is different, and such corporations, like private citizens, may plead or have pleaded against them the Statute of Limitations.”

We perceive no ground for disturbing the judgment of the Appellate Court, and it will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    Nathan A. King v. Thorett C. Bushnell et al.

      Filed at Springfield September 27, 1887.

    1. Do web—as to property held in trust. Where a person holds land in trust for another, the husband or wife of such trustee is not entitled to dower in the same.
    2. Statute oe Fbauds—to whom availing—as to cm executed trust. The Statute of Frauds is a defence personal to one making a verbal promise to convey land, and where a mother purchased land with, the money of her children, a conveyance of the land by her to her children, in execution of the trust imposed by law upon her, will be binding upon her husband, and he can not avoid the same.

      Wbit of Bbboe to the Circuit Court of Greene county; the Hon. Cybus Eplee, Judge, presiding.
    Mr. James W. English, and Mr. E. A. Doolittle, for the plaintiff in error:
    In order to constitute a resulting trust, all or a part of the purchase money of the cestui que trust must have been paid on "the purchase at the time of the purchase. Stevenson v. Thompson, 13 Ill. 186; Alexander v. Tams, id. 221; Remington v. Campbell, 60 id. 516; Perry v. McHenry, 13 id. 227; Reeve v. Strawn, 14 id. 94; Williams v. Brown, id. 201; Crane v. Caldwell, id. 468; Greene v. Cook, 29 id. 193; Walter v. Klock, 55 id. 362; Rogers v. Simmons, 55 id. 76; Loomis v. Loomis, 28 id. 456; 4 Kent’s Com. 305.
    The transaction by which Mrs. King acquired the title to the land was so tainted with fraud as against creditors, that a court ■of equity will not assist the parties in obtaining rights under such a transaction. Leggett v. Dubois, 5 Paige, 117; Redmond T. Packenham, 66 Ill. 434.
    Mr. James B. Waed, and Mr. Beane A. Whiteside, for the defendants in error:
    This is an executed trust. Mrs. King is not alive, and a party to this suit, pleading the Statute of Brauds to defeat the just claims of her children. Had she refused, her children could have compelled her to execute the trust. Ferbrache v. Ferbrache, 110 Ill. 218.
    The Statute of Brauds is a defence personal to the party to the contract, and plaintiff in error has not pleaded, and could not, in this ease', avail himself of it. Carpenter v. Davis, 72 Ill. 14; Dock Co. v. Kinzie, 49 id. 289.
    That a trust was created in this ease, which, in equity, protected the defendants in error from any adverse claim by their mother or her husband, is fully sustained by the principles announced in Seaman v. Cook, 14 Ill. 501; Rice v. Rice, 108 id. 199; Scheerer v. Scheerer, 109 id. 12.

      The wife of plaintiff in error having taken a deed in her name to the property in controversy, under the circumstances proven in this ease, the law created her the trustee of her children, and during all the time plaintiff in error was her husband, she, by operation of law, so held the premises in trust.
    It is well settled that where a person holds lands in trust for another, the husband or wife of such trustee is not entitled to dower in such premises. Bailey v. West, 41 Ill. 290.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was á bill filed by the plaintiff in error, Nathan A. King, to recover dower in certain lands of which Ms wife died seized in fee, as he alleges.

The facts disclosed by the record are, that Curtis Bushnell died intestate April 24; 1859, leaving Zerilda J. Bushnell, Ms widow, and four minor children, Ms only heirs-at-law, surviving. Mm. At the time of Ms death Curtis Bushnell was seized in fee simple of four hundred and sixteen acres of land, which included the premises in controversy. Zerilda J. Bushnell was appointed guardian of the minor children during the year 1859, and remained their guardian until June, 1863, when she resigned the guardiansMp, and Nathan A. King, the plaintiff in error, was appointed her successor. On the 23d day of February, 1863, Nathan A. King.was married to Zerilda J. Bushnell, and he continued to discharge the duties of guardian of said minor children until August 19, 1865, when he separated from Ms wife and resigned said guardiansMp. Mrs. Zerilda Jf King was thereupon re-appointed guardian of the said children, and so remained until their majority, when she settled with her wards and' was discharged by the court. She died some time in the year 1880, without issue by plaintiff in error.

The lands of wMch Curtis BusMiell died seized were sold, under decree of court, by the administrator, for payment of ih& debts of the estate. There were two such administrator’s sales, one in 1860, at which Zerilda J. Bushnell became the purchaser of a portion of the premises in controversy, (she giving her note and mortgage on the land purchased, for the purchase money,) and the other sale was in April, 1865, at which S. H. Winchell, the husband of one of the minor children, became the purchaser of the remainder of the premises in controversy, for the purchase money of which he gave his note and mortgage on the land purchased. He, on the same day of the sale, conveyed the land he purchased, to the said Zerilda J. King, as had been previously arranged.

There was testimony to the effect that, prior to the administrator’s sales, there was an agreement between Zerilda J=. Bushnell, the children and the administrator, that she was .to* bid off the lands sold, for the children, and take a deed, and' hold the lands in her name, for the children, until they became* of age, when she would equally divide the land among them,, and convey it to them; that under this agreement she purchased and held the land in trust for the children, which agreement she carried out, in her lifetime, by conveying to her-children when they became of age; that by reason of the understanding that the land was to be purchased for the children, it sold for not more than one-third of its value; that at the-second sale the premises were bid off in the name of Winchell,. instead of Zerilda J. King, to obviate the necessity of her husband, Nathan A. King, from whom she was then separated,, joining in the mortgage for the purchase money; that the notes-given for the purchase money were paid with the children’s money; that after the purchases Mrs. King frequently spoke of the land as the children’s land, admitted that she bid’ it off and held it in her name in trust for the children. The latter (two of them being boys) farmed the land, raised' crops on it,, and the crops were treated as the children’s.. We can not say that -the facts which such testimony tended to* show were not sufficiently established by the evidence, and, upon such, facts, we are of opinion there was sufficient support for the- decree finding for the defendants and dismissing the bill. Where a person holds land in trust for another,- the husband or wife of such trustee is not entitled to dower in such premises. Bailey v. West, 41 Ill. 290.

The Statute of Frauds, which is relied upon, does not appear to be any sufficient answer to the facts set up in defence. In addition to the- objection of the.statute being a defence personal to the party making the verbal promise, of which King could not avail himself, and to the claim of there being a resulting trust from the purchase of the land with the children’s money, it is sufficient that there was an execution of the trust in the lifetime of Mrs. King, by her conveyance of the land to the children.

There is manifestly no force in the objection that the transactions through which defendants in error acquired title to the premises were tainted with fraud toward the creditors of the estate of Curtis Bushnell, deceased, and so their title should not be sustained. There are no creditors of the estate complaining here, and there is nothing in the record to show that such creditors have not been satisfied.

The decree will be affirmed.

Decree affinned.


author: Mr. Justice Magruder

text:
    Robert S. McIntyre, Admr. v. Levi Sholty, Admr.

      Filed at Springfield September 27, 1887.

    1. Insane person—liability for torts. Although, a lunatic or insane person is not punishable criminally, he is liable in a civil action for any tort he may commit.
    2. Same—evidence in an action for an injury by the tort of a hmatic. In an action by the personal representative of a person wrongfully killed, against the estate of the party killing, to recover compensation for the death, evidence of the insanity of the latter party at the time of his wrongful act causing the death, is inadmissible when offered in defence of the action.
    3. Same—measure of damages—in torts by a lumatie. A lunatic having no will of his own, and his acts lacking the element of intention, the only proper measure of damages in an action against him for a wrong, is the mere compensation of the party injured. Punishment is not the object of the law when persons unsound in mind are the wrongdoers.
    4. Practice—trial by court—proposition of law. If the defendant in an action on the case to recover for the death of plaintiff’s intestate, on a trial by the court without a jury, desires to save the question of the negligence of the deceased as a defence, he should submit to the court a proposition, to be held as law, embodying his theory of contributory negligence as applicable to the facts of the case, in accordance with section 41 of the Practice act. In the absence of such a proposition the question i^ill not properly arise in this court.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court, of McLean county; the Hon. 0. T. Beeves, Judge, presiding,
    Messrs. Blades & Neville, for the plaintiff in error:
    On the question of the liability of an insane person for his torts, see Taylor’s Principles and Practice of Medical Jurisprudence, (ed. 1883,) 463; Hammond’s Diseases of the Nervous System, 316, 317; Cooley on Torts, 341, 80, and cases cited; Sedgwick on Damages, (ed. 1858,) 481; note to Vincent v. Stinchour, 29 Am. Dec. (7 Vt. 62.) 146; Goodwin v. Cherely, 4 H. & N. 631.
    Messrs. Kerrick, Lucas & Spencer, and Messrs. Tipton & Beaver, for the defendant in error:
    Lunatics are liable, civilly, for all torts or wrongs committed by them, except for slander while totally deranged. (Bryant v. Jackson, 6 Humph. 199.) This is the exception. The following authorities declare the rule: Weaver v. Ward, Hob, 134; Cross v. Andrews, Cro. Eliz. 622; Cross v. Kent, 32 Md. 531; Krom v. Schoonmaker, 3 Barb. 649; Williams v. Cameron. 26 id. 172; Harfield v. Roper, 21 Wend. 615 ; Morse v. Craw
      ford, 17 Vt. 499; Bush v. Pettibone, 4 N. Y. 300; Behrens v. McKenzie, 23 Iowa, 333; v. Moore, 78 Pa. St. 407; Ex parte Leighton, 14 Mass, 207; Ewell’s Leading Cases, 635; 2 Saunder’s Pl. and Ev. 318,1163; 1 Chitty’s PL 76; Cooley on Torts, 99; Shearman & Redfield on Negligence, 51, 57; Broom’s Com. 684, 857.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of trespass brought by defendant in error against plaintiff in error in the circuit court of McLean county under the “Act requiring compensation for causing death by wrongful act, neglect or default,” being chapter 70 of the Revised Statutes, entitled “Injuries.” (Hurd’s Rev. Stat. 1885, p. 695.) Jury was waived by agreement and the case was tried, without a jury, before the judge of the circuit court, who gave judgment for the plaintiff for $2500. This judgment has been affirmed by the Appellate Court, and is brought before us for review by writ of error to the latter court.

Hannah Sholty was the wife of Levi Sholty, a farmer living in McLean county near Bloomington. About February 17, 1886, a workingman upon Levi Sholty’s farm discovered a man in the barn, who, to all appearances, had been concealing himself there for some time. The person so concealed is proven to have been defendant’s intestate, Benjamin D. Sholty, a brother of Levi Sholty. Some effort seems to have been made on February 17 or 18 to get the officers of the law in Bloomington to go out to the farm and arrest Benjamin D. Sholty, called by the witnesses David Sholty. This effort, however, failed. Accordingly, Levi Sholty and his hired man and a number of his neighbors gathered at his house on the afternoon of February 18, 1886, for the purpose of watching for the intruder and getting him out of his hiding place. The barn was forty or fifty feet wide and from eighty to one hundred feet long. It was situated about one hundred and fifty or two hundred feet north-west from the house. The granary was in the western end of the barn, and, hence, in the end that was farthest from the house.

About six o’clock in the evening David Sholty was discovered in the granary by his brother Levi and one McCoy, who were -on watch just outside of the granary door. He shot at them twice with a pistol while they were trying to prevent his escape and to capture Mm. Others, who were waiting in the house, came to them assistance. A rope was obtained with the intention of tying him, if captured. Presently there was a cry of fire and flames were seen to be breaking out at the .eastern end of the barn, being the end nearest towards the house. At tMs time Mrs. Hannah Sholty, plaintiff’s mtestate, went from the house towards the barn and had advanced about half of the distance between the two, $vhen David Sholty appeared in the door at the eastern end of the barn with a shot-gun. He was plainly visible in the light made by the fire that had broken out. He called upon Mrs. Sholty and her daughter, Mary, who was with her, to stop. They stopped, -turned and had advanced a few feet on their way back towards the house, when David Sholty fired at them with the gun in Ms hand. Both were shot. The daughter was wounded in the wrist and the mother was killed. This action is brought by her husband, ás administrator of her estate, to recover damages for her death agamst the administrator of the estate ■of David Sholty, who is said to have perished in the flames of the burning barn.

The defendant introduced no testimony, except that the examination of one witness was begun and abandoned after a few preliminary questions, on account off the ruling of the court, as hereafter stated.

The defence proposed to show by the witness on the stand and by others there present in court, that defendant’s intestate, Benjamin D. Sholty, was msane .at the time Mrs. Sholty was killed. The court refused to receive evidence of his msanity and exception was taken to the ruling. The question presented relates to the liability of an insane person for injuries committed by him.

It is well settled that, though a lunatic is not punishable-criminally, he is liable in a civil action for any tort he may commit. ■ However justly this doctrine may have been originally subject to criticism on the grounds of reason and principle, it is now too firmly supported by the weight of authority .to be disturbed. It is the outcome of the principle, that, in ¡¡trespass, the intent is not conclusive. Mr. Sedgwick, in his-work on Damages, (marg-. page 456,) says that, on principle, a lunatic should not be held liable for his tortious acts. Opposed to his view, however, is a majority of the decisions and text writers.

There eertainlyocan be nothing wrong or unjust in a verdict, which merely gives compensation for the actual loss resulting from an injury inflicted by a lunatic. He has properly no will. His acts lack the element of intent or intention. Hence, it would seem to follow, that the only proper measure-of damages in an action against him for a wrong is the mere compensation of the party injured. Punishment is not the object of the law when persons unsound in mind are the-wrongdoers.

There is, to be sure, an appearance of hardship in compelling one to respond for that which he is unable to avoid for want of the control of reason. But the question of liability in these cases is one of public policy. If an insane person isx not held liable for his torts, those interested in his estate, as relatives or otherwise, might not have a sufficient motive to- : so take care of him as to deprive him of opportunities for-inflicting injuries upon others. There is more injustice in denying to the injured party the recovery of damages for the wrong suffered by him, than there is in calling upon the relatives or friends of the lunatic to pay the expense of his confinement, if he has an estate ample enough for that purpose. The liability of lunatics for their torts tends to secure a more-efficient custody and guardianship of then persons. Again, if parties can escape the consequences of their injurious acts upon the plea of lunacy, there will he a strong temptation to simulate insanity with a view of masking the malice and revenge of an evil heart. The views here expressed are sustained "by the following authorities: Cooley on Torts, 99-103 ; 2 Saunder’s PI. and Ev. 318; Shearman & Bedfield on Negligence, sec. 57; Weaver v. Ward, Hob. 134; Morse v. Crawford, 17 Vt. 499; Behrens v. McKenzie, 23 Iowa, 333; Krom v. Schoonmaker, 3 Barb. 647, also cases in note to said case in Ewell’s Leading Cases, 642. In the light of the principles, thus announced, we find no error in the ruling of the circuit court upon this subject.

Plaintiff in error also contends that there should have been no recovery in this case because of alleged contributory negligence on the part of Mrs. Sholty. It is claimed that she knew of her brother-in-law’s madness and that he was armed when she started to go from the house towards the stable, and that, by doing so under the circumstances, she was guilty of a want of proper care and prudence. We forbear to express-any opinion as to whether or not there could he any such thing as contributory negligence in a case of this kind and under such circumstances as are herein disclosed. It is sufficient to say, that there is a considerable amount of evidence in the case bearing upon this question. If it could be properly raised, the facts necessary to do so were fully developed in the-testimony presented to the court by the plaintiff below. Therefore, plaintiff in error should have submitted to the trial court a proposition to he held as law, embodying his theory of contributory negligence as applicable to the facts of the case, in accordance with section 41 of the Practice act. (Hurd’s Bev. Siat. 1885, p. 904.) He did not do so, and hence the question is not properly before us for our consideration.

The judgment of the Appellate Court is affirmed.

Judgment affirmed..


author: Mr. Justice Scholfield

text:
    The People of the State of Illinois, for use, etc., v. James H. Leaton et al.

      Filed at Springfield September 27, 1887.

      1. Clerk of cibouit court—approving appeal bond—powers of clerh, ■■and of Ms liability. A circuit clerk can, under the law, only approve the •sufficiency of the security of an appeal bond. ■ The sufficiency of the bond, -in no other respect, is left to his determination.
    2. The clerk, by approving the security on an appeal bond which omits 'the name of one of the appellees, and transmitting the same to the Appellate Court, there being no question as to the sufficiency of the security executing the same, will not become liable', on his official-bond, for the omission of the name of one of the appellees.
    3. The clerk’s approval of the security to an appeal bond has no effect ■on the sufficiency or insufficiency of the bond, or upon the rights of the respective parties to the judgment appealed from.
    Writ- of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. Blades & Neville, for the plaintiffs in error:
    Appeal bonds are amendable. Starr & Curtis’ Stat. chap. 110, sec. 69; Rev. Stat. 1884, chap. 79, sec. 69; Sess. Laws, 1853, p. 125; Hinman v. Kitterman, 40 Ill. 253; Wear v. Killeen, 38 id. 259.
    An informal or insufficient bond operates to perfect the appeal. Miller v. Machine Co. 79 Ill. 450.
    Being amendable, are not void. Bassett v. Bratton, 86 Ill. 152.
    Messrs. Herrick, Lucas & Spencer, and Mr. John J. Morrissey, for the defendants in error:
    It is not claimed that the clerk was guilty of any willful wrong, but that he is unconditionally bound to see that the bond was good.

      Prior to the enactment of the statute, only the court could approve of either the bond or the securities on the bond. Mining Co. v. Pulling, 89 Ill. 58; Burke v. Howard, 15 Ind. 219; Parker v. Wills, 57 Miss. 766.
    Therefore, if it were not in the power of the court to delegate the authority of approving the bond to the clerk, it follows, as •a matter of course, that for taking an informal bond, “with .good security,” he would not be liable, if the security was good, when that was the only question for him to pass on, in the absence of any intentional or willful wrong.
    There is a material distinction between approving the bond ■and approving the security thereon. Sulton v. McCoy, Wright, (Ohio,) 95.

    As the bond was defective in form, and never had been approved by the court, who alone could approve it, it did not stay the issuing of an execution. Tucker v. State, 11 Md. 322; Johnson v. Goldsborough, 1 H. & J. 499; Orchard v. Hughes, 1 Wall. 73; Hudgins v. Kemp, 18 How. 530; Robinson v. Gill, 12 C. B. 191.
    If execution was not stayed, then appellants were not injured, and have no right of action here.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is debt, upon the bond of a circuit clerk. The breach alleged is, that an appeal was prayed from a judgment of the ■circuit court to the Appellate Court for the Third District, and allowed, upon condition of the appellants filing bond in the sum of §2000, with security to be approved by the clerk, within thirty days from the date of the rendition of the judgment; that a bond was executed, omitting the name of one of the appellees as a payee therein, and the clerk, without the form of said bond having been, in the first instance, approved by the circuit court, received the bond and approved the security, and transmitted the bond to the clerk of the Appellate Court for the Third District. A demurrer to the declaration was sustained hy the circuit court, and that judgment, on appeal to the Appellate Court for the Third District, was affirmed by that court, and the record is now here by appeal from this judgment of affirmance.

It is provided by section 67, of chapter 110, of.the Revised Statutes of 1874, that the appellant shall “give and file in the office of the clerk of the court from winch the appeal is prayed, bond, in a reasonable amount, to secure the adverse party, to-be fixed by the court, with sufficient security to be approved by the court.” And section 68 of the same chapter is: “The clerk of the court may, by order of the court, made at the time of praying the appeal, and entered of record, approve of the security offered upon such bond.” Before the enactment of these provisions, the circuit court had no authority to refer the question, of the approval of the security to the clerk. (Abraham v. Huntington, 19 Ill. 403; Mining Co. v. Pulling, 89 id. 68.) Sections-67 and 68, supra, are, in substance, re-enacted, and made applicable to appeals, etc., from the circuit court to the Appellate-Court, by the “Act to amend an act in regard to practice in courts of record,” in force July 1, 1877. (Laws of 1877, p, 149.) It is thus quite clear that the only question left to the determination of the circuit clerk, in the instance of which complaint is here made, is the sufficiency of the security offered. His judgment upon that question can, by no possibility, affect-the bond in any other respect, because its sufficiency ,is not, in any other respect, left to his determination. If the bond is-insufficient, his judging the security to be sufficient did not make, the bond insufficient, nor did that determination of his-preclude appellants from taking any action in the premises-which they would otherwise have taken.

It is said the bond was amendable. That may be, but the approval of the security by the clerk did not make it so when otherwise it would not have been entitled to be amended. The clerk did not, by placing his approval of the security upon the bond, and certifying it, give it a currency, other than as respects the sufficiency of the security, which it did not otherwise have.

The security upon the bond being sufficient, and approved by the clerk, the parties appealing were then either entitled to an appeal, as a matter of right, or the bond was insufficient to take the ease into the Appellate Court. In neither view was the clerk authorized to do any act to control or materially affect the rights of the respective parties, and any unauthorized act in that respect, if there was any such, was without legal effect.

We think the demurrer was properly sustained. The judgment is affirmed.

Judgment affirmed.