author: Mr. Justice Scholfield

text:
    Nathan Chambers v. The People of the State of Illinois.

      Filed at Mt. Vernon January 31, 1883.

    1. New trial—when the evidence is contradictory—instructions. Where the evidence is conflicting and contradictory in a criminal ease, so that if the jury had been properly instructed this court would not feel it its duty to interfere with a verdict finding the defendant guilty, yet if there is enough evidence favorable to the defendant to raise a reasonable doubt whether the jury would have returned such verdict if properly instructed, and they have not been so instructed, a new trial will be granted.
    2. Witness—credibility of defendant in a criminal case. On the trial of one for an assault \with intent to commit a rape, where the prosecuting witness and the defendant both testified, and their testimony was directly contradictory, the court instructed the jury that they were not bound to believe the evidence of the defendant in a criminal ease, and treat it the same as that of other witnesses, but that they might take into consideration the fact that he was defendant, and give his testimony such weight as, under all the circumstances, they thought it entitled to: Held, that the instruction was calculated to mislead, and erroneous.
    3. Under the statute making a defendant charged with crime a competent witness, his testimony is subjected to the like tests, for the purpose of determining the reliance to be placed upon it, as that of other witnesses. In all cases the interest or bias which may sway a witness to pervert the truth may be taken into consideration, for the purpose of determining what credit shall be given to his evidence.
    4. Such a person, when introduced as a witness in his own behalf, is to be examined and cross-examined precisely as other witnesses, and he may likewise be impeached in precisely the same mode. The accused, as a witness, differs from other witnesses only in the fact that he is the defendant charged and being tried for crime, which may be taken into consideration by the jury in passing on his credibility, but his testimony must be treated the same as that of any other witness; nor can it be treated, as a matter of law, as not having the same effect and weight as that of other witnesses. "Whether it should or not, is a question of fact for the jury to decide,—and this is the rule in regard to all the other witnesses.
    5. Same—corroborative evidence giving additional weight to evidence. The fact that one prosecuting for an assault upon her with intent to commit a rape, is of good fame, or presently discovered the offence, and showed circumstances and signs of injury, and that the one accused flees, the authorities say, .will give greater probability to her testimony than it otherwise would have; but to say, “these and the like are concurring circumstances, which give great probability to her evidence,” is stating the rule of law too strongly in an instruction.
    6. Instruction—assuming facts not proved or controverted. Where the facts are not proved, or are controverted, and the evidence is conflicting, the court, in instructing the jury, can not assume them to be true without usurping the province of the jury, and it is error to do so. The facts should be submitted, on the evidence, to the jury. The fact that the -court states the law applicable to particular states of the case, is of itself an assumption that such states of case exist, it not being presumed a court will state the law to the jury in reference to questions not before them. Neither is it proper that an instruction should, even hypothetically, give a one-sided or partial view of the facts.
    7. ■ The use of the word “if" before each statement, of fact in an instruction stating facts, but failing to state how any qucere thereby raised is to be solved, whether by reference to the evidence or otherwise, and not even referring the solution of it to the jury, will not render the instruction free from the objection that it assumes the facts stated, to exist.
    8. On the trial of one for an assault with intent to commit a rape, the court instructed the jury “that any fact and circumstance that concurs with the testimony of the prosecutrix, such as, that if she be of good fame, or if she presently discover the offence; if she showed circumstances and signs of injury; if the offender fled,—these and the like are concurring circumstances, which give great probability to her evidence.” There was no evidence that the prosecutrix .showed signs and circumstances of injury, it not being pretended that she ever received or claimed to have received any injury from the defendant, and the evidence was conflicting whether she presently discovered the offence, and left it very doubtful whether the defendant fled when charged: Held, that the instruction was calculated to mislead, and was erroneous.
    Writ of Error to the Circuit Court of Jasper county; the Hon. William C. Jones, Judge, presiding.
    Mr. J. M. Honey, Mr. J. H. Halley, and Mr. D. Trexler, for the plaintiff in error:
    The court erred in instructing the jury that “they are not bound to treat the evidence of defendant the same as the evidence of other witnesses.” The defendant in a criminal case, as a witness, is to be tried and treated as any other witness. Gulliher et al. v. People, 82 Ill. 145; Bulliner v. People, 25 id. 394; Fleter v. State, 49 Ind. 124.

      The second of the People’s instructions tells the jury that any fact and circumstance that concurs with the testimony of the prosecutrix, (meaning a number of circumstances not proven.,) give great probability to her evidence. The circumstances cited, if proved, only give probability, not great probability, to her evidence. Thompson v. State, 38 Ind. 39; Waterman’s United States Crim. Digest, 523, secs. 68, 74, 524.
    The instruction gives undue prominence to this group of circumstances assumed to be proven, and was unfair and highly prejudicial to the defendant, and invaded the province of the jury. Shaw v. People, 81 Ill. 150; Chicago, Milwaukee and St. Paul R. R. Co. v. Hall, 90 id. 42; City of Aurora v. Pennington, 92 id. 564.
    The court, in a criminal case, can not instruct as to a combination of facts assumed to be proven. Weyrich v. People, 89 Ill. 99; Coon v. People, 99 id. 371.
    Where the evidence is conflicting, the jury should determine the facts without the interference of the court. Swan v. People, 98 Ill. 610; Coon v. People, 99 id. 368.
    Mr. James McCartney, Attorney General, for the People:
    The instruction as to the credence to be given to defendant’s testimony is in accord with the statute. Criminal Code, sec. 426; Bulliner v. People, 95 Ill. 394.
    The other instruction complained of as invading the province of the jury, does not come within the objections in the cases of Swan v. People, 98 Ill. 610, and Coon v. People, 99 id. 368. Nothing is assumed in it as proven, but the jury are directed “to give such credit to the testimony of each witness as, under all the circumstances, such witnesses ' seem to be entitled to. ”
    Mr. Geo. W. Fithian, State’s Attorney, and Mr. John P. Heap, also, for the People.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Plaintiff in error was convicted in the court below of the crime of “an assault with intent to commit rape.” The only-witnesses of the acts alleged to constitute the offence were the prosecutrix and plaintiff in error. Both were examined as witnesses, and the evidence they gave as to the fact of such assault having been committed, was directly contradictory.

Although it is quite probable that if the.jury had been fairly and accurately instructed as to the law, and still have found as they did, we should not feel it to be our duty to interfere with the verdict, yet there is enough evidence in the record favorable to plaintiff in error to raise in our mind reasonable doubts whether, if the jury had been so instructed, they would have returned the same verdict, and hence we can not say that the objections to which we conceive certain of the People’s instructions obnoxious, did no injustice to plaintiff in error.

The first instruction, given at the instance of the People, is as follows: °

“The court instructs the jury, for the People, that they are not bound to believe the evidence of the defendant in a criminal case, and treat it the same as the evidence of other witnesses, but the jury may take into consideration the fact that he is defendant, and give his' testimony such weight as, under all the circumstances, they thipk.it entitled to.”

. The language of the statute is: “No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime,”—thus expressly placing the defendant and all other witnesses, as respects competency, on an equality; “but,” the statute proceeds, “such interest or conviction may be shown for the purpose of affecting his" credibility, ”—so, also, in this respect as in others, subjecting his evidence to like tests, for the purpose of determining the amount of reliance to be placed upon it, as those to which the evidence of other witnesses is subject, for, in all cases, the interest or bias which may sway a witness to pervert the truth is to be taken into consideration, for the purpose of determining what credit shall be given his evidence.' The law contemplates, by allowing persons charged with crime to become witnesses, that they may tell the truth, and if, in a given case, the jury shall believe such a witness does tell the truth, it must have precisely the same effect as if told by any other witness; and, on the other hand, if the jury shall believe that he does not tell the truth, they are not at liberty to give more or less credence to it than to the evidence of any other witness whom they disbelieve. Such a person, when introduced as a witness, moreover, is to be examined and cross-examined precisely as other witnesses, and he may, likewise, he impeached in precisely the same modes. It is, therefore, manifest that there is one respect only in which his evidence differs from that of any other witness, and this is in the fact that he is defendant,—the party being tried for the crime. That fact is to be taken into consideration in determining what reliance is to he placed upon his evidence, and, of course, can not be in any case where the witness is not the defendant charged with crime. The effect of the fact that the witness is the defendant charged with the crime, in disparaging or impeaching his evidence, all experience teaches, will vary with varying circumstances to be disclosed upon the trial, sometimes requiring disbelief and entire disregard of his evidence, while at others not sensibly disparaging it; and hence sometimes the jury will be required to treat it differently from the evidence of other witnesses whom they believe, but not then 'differently from the evidence of other witnesses whom they disbelieve,—and so, necessarily, the only difference between this and other evidence is, not in the way in which it shall be treated, but in the credence that shall be given it, and that is, in all cases and with regard to evidence given by all other witnesses, precisely the difference between evidence that ■is unquestioned in every respect, and that which is claimed to be discredited by any circumstances presumptively impairing the probability of its accuracy. It can not, therefore, be true that the evidence given by the defendant charged with crime is not to be treated the same as the evidence of other witnesses. It could not even be true, as a universal proposition, that, as matter of law, it is not to have the same effect as the evidence of other witnesses. Many times it certainly can not have that effect, but there are times when it can and should,—and of this the jury are made the judges.

Counsel for the People contend this instruction is sanctioned by Bulliner v. The People, 95 Ill. 406. Expressions in this instruction are, doubtless, copied from language used in the opinion in that case, but there is nothing there that sanctions the feature in this instruction which we regard as erroneous and prejudicial to the plaintiff in error, namely, that which tells the jury they are not bound to treat the evidence of plaintiff in error as the evidence of other witnesses. There the defendant asked this instruction: “Under the law the evidence of the defendants is just as proper for your consideration in determining their guilt or innocence, as the evidence of other witnesses.” This was modified by the court, and made to read thus: “Under the law the evidence of the defendants is proper for your consideration in determining their guilt or innocence, and should receive such weight' as you think it entitled to.” In reply to an objection of counsel for the defendants in criticizing this modification, to the effect that it allowed the jury to disregard the evidence of the defendants, we used the language relied upon by counsel here, saying: “This modification is entirely unobjectionable. The jury are not bound to believe the evidence of defendants, and may take the fact that they are defendants into consideration, and give their evidence such weight as, under all the circumstances, they think it entitled to. ” It was not said and not intended the jury were to consider the evidence of the defendants in a manner different from that in which they considered the evidence of other witnesses, nor that they might arbitrarily or capriciously disregard it. They were not compelled to believe them, but were to take the fact that they were defendants into consideration, and give their evidence such weight, under all the circumstances, as they thought it entitled to,—and this would be precisely their duty in the case of all other witnesses. If discrediting facts existed, it would be the duty of the jury to =take them into consideration, and give their evidence, under all the circumstances, (i. e., under all the circumstances in legal presumption affecting the credibility and weight of evidence,) such consideration as they should think it entitled to receive,— meaning, manifestly, that consideration to be based upon and regulated by their belief under all the facts and circumstances in evidence.

Hirschman v. The People, 101 Ill. 568, also cited by counsel for the People, is not analogous.

The law contemplates, and a fair trial requires, that the jury shall enter upon the consideration of the evidence, (which, of course, includes the credit to be given to the several witnesses,) with unbiased and inquiring, and not with biased or prejudicate, minds. This instruction violates that principle by a sort of first blush condemnation of the evidence given by the plaintiff in error. The jury are not even told that it is competent, but at the outset they are warned that they are not bound to believe it, (which is undoubtedly true,) nor to treat it the same as the evidence of other witnesses, (which, as has been seen, we think is not true.) If they are not to treat it the same as the evidence of other witnesses, how are they to treat it? The inference of the jury would most probably be, that in legal presumption it is inferior, under all circumstances, to other evidence, and of hut little importance in ascertaining the truth, whereas it is for the jurors themselves to determine, under all the circumstances legitimately before them, the relative importance and weight it shall have in each particular case. The question is one of fact, and not one of law. The necessary tendency of the-instruction.was to mislead the jury, and it was error to give it.

The second instruction given by the court, at the instance of the People, was as follows:

“That any fact and circumstance that concurs with the testimony of the prosecutrix, such as, that if she be of good fame, or if she presently discover the offence; if she showed circumstances and signs of injury; if the offender fled—these and the like are concurring circumstances, which give great probability to her evidence.”

The language of this instruction is too strong. The authorities do not say the circumstances here recited, when they exist, give “great” probability to the evidence of the prosecutrix, but that if she be thus corroborated they give greater probability to her evidence,—i. e., than it would otherwise have. But this is a matter of minor importance, and perhaps, alone, would hardly vitiate the instruction,—at all events, we shall not now rest our judgment on that ground. It was not conceded upon the trial, but was contested, as the record sufficiently shows, that the facts were as recited in this instruction, and we can not say the jury were bound, by the evidence, to find that such were the facts. Indeed, as to the assumption that the prosecutrix showed circumstances and signs of injury, there is nothing in the evidence to sustain it. It is not pretended that, in point of fact, the prosecutrix received, or that she ever claimed to have received, any injury from plaintiff in error. Whether the prosecutrix presently discovered the offence, is a question upon which there is a conflict in the evidence, and if, as seems to us a fair construction of the language employed warrants, the assumption that the offender fled is to be understood as meaning immediately after the alleged commission of the offence, and before any charge was made against him, the evidence, if it does not fail entirely to sustain it, certainly is not beyond question in that regard.

We do not, however, intend to express any opinion as to the weight of the evidence upon any of these questions of fact, which may, in any degree, affect, a future trial, our purpose being simply to point out that they could not, without usurping the functions of the jury, be assumed by the court to be true, and the facts being controverted, to be determined from the evidence, should have been submitted to the jury, and it is error to assume their existence, as is done in the instruction. At common law the judge summed up the evidence, and made such comments upon it as he deemed necessary to show its connection and hearing. (1 Archbold’s Criminal Practice and Pleading, (6th ed.) 171, *171; Best on Evidence, (1st Am. ed.) sec. 82.) And he might express to the jury his own opinion in regard to the weight of evidence. (Commonwealth v. Child, 10 Pick. 252; The People v. Rathbun, 21 Wend. 509; Swift v. Stevens, 8 Conn. 431; Ware v. Ware, 8 Greenlf. 42.) But all this is changed by our statute, which provides, “the court, in charging the jury, shall only instruct as to the law of the case.” (Rev. Stat. 1874, p. 781, sec. 52.) And we have consequently held it is error for the court to assume or intimate, in instructions to the jury, what the evidence is upon any controverted question. (Coon v. The People, 99 Ill. 368; Yundt v. Hartrunft, 41 id. 9; Shaw v. The People, 81 id. 150; Wilson et al. v. Bauman et al. 80 id. 493; Waldron et al. v. Marcier, 82 id. 550; Olsen v. Upsahl, 69 id. 273; Illinois Central R. R. Co. v. Benton, id. 174.) So, also, we have held it is error to state the law to the jury, in instructions, on a one-sided or partial presentation of the facts. (Chicago, Burlington and Quincy R. R. Co. v. Griffin, 68 Ill. 499; Evans v. George et al. 80 id. 51; Weyrich v. The People, 89 id. 90.

But counsel for- the People contend the instruction. does not assume the existence of any facts, but leaves it hypothetical, and for the j ury to determine whether there are such facts. If this were true, it hardly meets the objection that it is a one-sided and partial vieiy of the' facts, excluding from consideration, by implication, the countervailing proof. But we do not yield our assent to its correctness. The fact that the court assumes to state the law applicable to particular states of case, is, of itself, an assumption that those states of case exist, for it is not to be presumed a court would give the law to a jury while trying a ease, with reference to questions not believed to be before them. The jury were here told that certain facts were concurring circumstances, which gave great probability to the evidence of the prosecutrix, and they were therefrom authorized to conclude the court supposed such facts were in proof before them, or that the court would otherwise not have alluded to them. Nothing is left to be found by the jury from the evidence on the subject. It is true the word “if” precedes each statement of fact, but it is not stated -how any query thereby -raised is to be solved, whether by reference to the evidence, or otherwise, nor is it referred to the jury to solve it. It was said in Sherman et al. v. Dutch, 16 Ill. 286: “Instructions should be drawn upon a supposed state of facts to be found by the jury, and not assume the facts as determined. If the fact is so, the law is so, leaving the jury to find the fact. ” See, also, Eames v. Burkhart, 12 Ill. 195. And again, in Ewing v. Runkle, 20 Ill. 448, it was said: “A jury should be permitted to believe nothing, except that belief bg occasioned by the evidence, and their minds should always be directed to that, and that alone, as the ground of their belief. ” We are therefore of opinion "this instruction was calculated to mislead the jury, and it was error to give it, also.

It is unnecessary to express any opinion in regard to the other questions discussed in the brief of plaintiff in error, since, for the errors' pointed out, there must be a reversal of the judgment, and a new trial, and upon that, in all probability, these questions will not again arise.

The judgment of the court below is reversed, and the cause remanded to that court for a new trial.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    William A. Golder et al. v. Peter Bressler.

      Filed at Ottawa January 31, 1883.

    1. Evidence—as to proof of acceptance by State Bank of act of 1847, to close up its affairs. Section 3 of the act of 1847, for closing the affairs of the State Bank of Illinois, required the bank to signify its acceptance of the provisions thereof within three days from its passage, by a writing signed by the president and cashier, under the seal of the bank. To prove such acceptance a copy of an order to that effect of the board of directors, taken from the minutes of their proceedings, duly certified by the president and cashier, under the seal of the bank, was given in evidence, over an objection: Held, that while it might have been more formal to have simply certified the fact of acceptance, without showing the acceptance itself, as was done, yet the course adopted was a substantial compliance with the act.
    2. Same—official appointment—how shown. The certificate of the Secretary of State that it appears, from the records of his office, that the Governor on a certain day appointed A, B and G trustees, to take charge of the assets of the State Bank, as provided by law, is clearly inadmissible to prove the fact of such appointment. The Secretary of State should have certified to a transcript of the record showing the appointment.
    3. Same —presumption and burden of proof as to appointment to office. "Where it is made to appear in a collateral proceeding that one is acting in some public or quasi public capacity or employment, under color of an appointment, it will be presumed, in the absence of any proof to the contrary, that his appointment is legal and valid. This presumption has the effect of shifting the burden of proof upon those who seek to assail his title. This doctrine clearly applies to the trustees of the State Bank, to sustain their acts done in pursuance of law.
    4. Same—secondary, o/ lost unrecorded deed. Where the existence of an original deed is clearly shown by one witness, and its loss is shown by two witnesses, who prove that diligent search has been made for it among the papers and files of a bank, where they had every reason to suppose it would be found, and where it naturally would be left, and that they were unable to find or produce it, this will be sufficient to admit secondary evidence of its contents.
    5. Same—sufficiency of proof of contents of lost deed. To prove the contents of a lost deed made by the State Bank of Illinois to the assignees thereof, one of the grantees testified that in a minute-book of the bank, under a given date, would be found, in his handwriting, a copy of such deed, and that it was a true copy, which he made from the original conveyance, and it was stipulated that an exhibit was a true and correct copy of the deed so spread upon the minute-book, so far as the body of the deed was concerned. It appeared that the witness, in making the transcript of the original deed upon the minute-book, omitted the name of the president, and also failed to make any scrawl or other impression to indicate the seal, both of which, however, the evidence showed were on the original: Held, that the mere execution of the deed was sufficiently proved, without reference to the copy, and that the exhibit, with the stipulation, proved the contents of the deed.
    6. Officers de facto—assignees of the State Bank—questioning their authority in a collateral proceeding. In the strict technical sense of the word, an assignee or trastee of the State-Bank, appointed by the Governor under the act of 1847, is not an officer, nor is he such within the meaning of the statute relating to informations in the nature of a quo warranto, but he is to be regarded as an officer, so far as the rights of the public and third persons are affected by his acts, in so'far that in a collateral proceeding it is sufficient to show him to be an officer de facto, in protection of those rights. The rule as to officers de facto applies equally to persons acting in a public or quasi public fiduciary capacity.
    7. The appointment of an administrator or conservator of an insane person can not be questioned in a mere collateral proceeding, and the same rule applies to the assignees of the State Bank. In all such cases, so far as the rights of third persons are concerned, it is sufficient to show, in a collateral proceeding, that one claiming to sustain such relation under color of appointment is acting as such, or did act as such.
    8. Trusts and trustees—assignees of the State Bank—of the public character of their trust—former decision. The State of Illinois being a large subscriber to the capital stock of the old State Bank, and interested in the winding up of its affairs, the office and duties of the trustees appointed for that purpose were of a public nature, and not private. Expressions to the contrary in the case of The People ex rel. v. Ridgely et al. 21 Ill. 65, are to be regarded as made in arguendo merely. •

      9. Same—manner of filling vacancy. The general rule is, that the author of a trust has the right to say in what manner a vacancy in the office of a trustee shall be filled, and where this has been done through the deed creating the trust, the vacancy can not be filled in any other way, unless there is a failure on the part of the remaining trustees to perform this duty, in which case a court of chancery will interpose.
    10. Same—filling vacancies in the trusteeship of the State Bank. But where assignees of the State Bank of Illinois were appointed by the Governor under the provisions of a statute, which required all vacancies to be filled by the remaining assignees, and the bank, by deed of assignment, conveyed all its property and assets to such assignees, in which it was provided that vacancies should be filled by a court of chancery, such assignment having been made in pursuance of the requirements of the same statute, it was held, that a vacancy was properly filled by the remaining assignees.
    11. Same—the statute construed as to filling vacancies in board of assignees. The act of 1847, (section 2,) relating to the State Bank of Illinois, and providing for the appointment of assignees to close its affairs, provided that they should be governed in doing so by the provisions of the act of 1845, so far as its provisions were applicable. Section 13 of the last named act required the remaining assignees to fill all vacancies, etc.: Held, that section 13 of the act of 1845 must control the filling of vacancies in the board of trustees, under the act of 1847, to the same extent as if it had in terms been embodied in the latter act.
    12. Same—divestiture of title—and vesting title in new trustee. The general rule is, that the mere appointment of a new trustee in the place of one who has resigned, does not, per se, divest the latter of his legal interest in the trust estate, nor does it confer any title thereto on his successor.
    13. But where a trustee is appointed under an act of the legislature, which expressly declares that upon the appointment of a new trustee to fill a vacancy, the title to the trust shall vest in him in the same manner and to the same extent that it did in the original trustee whose vacancy he is appointed to fill, no conveyance is required to clothe such new trustee with the title to the trust estate, but in such case he will become invested with the title by operation of law.
    14. Same—death of one of several trustees — the survivor holds the estate. By the common law, as well as by statute, the estate of trustees is held in joint tenancy, and hence upon the death of one of several trustees nothing passes to his heir or personal representatives, but the whole estate devolves upon the survivors.
    15. Same—conveyance by part of trustees only—when good. The title to trust property can only be conveyed by the act of all the trustees having an interest in it. Such interest is an entirety, and can only pass as a whole; hence all the trustees living having an interest in the property must join in the conveyance, otherwise it will be wholly inoperative. But where one of the trustees dies, a deed by the survivors, representing the entire title, will be good, even though they are authorized to fill the vacancy. It is only where the terms of the power creating the trust imperatively require the vacancy to be filled, that the acts of the survivors will be held invalid.
    16. Same—decree, whether releases from trust. A decree of the United States Circuit Court against the assignees of the State Bank of Illinois, directing them to pay over to the master in chancery all the assets of the bank then in their hands, except certain amounts, the object of the bill in such case not being to remove the assignees, but only to reach the assets in their hands, will hot be held to relieve such assignees of their trust, or prevent them from selling and conveying real estate of the bank afterwards, where such land was not involved in the suit, and no order of court was made in reference to it.
    Writ of Error to the Circuit Court of Whiteside county ; the Hon. William Brown, Judge, presiding.
    Messrs. Manahan & Ward, for the plaintiffs in error
    Messrs. C. J. & C. C. Johnson, for the defendant in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Peter Bressler, the defendant in error, claiming to be owner in fee of the one undivided third part of block 43, in the town of Sterling, Whiteside county, brought his bill in the circuit court of that county for the ¡Dartition thereof, making William A. Golder and Moses Dillon defendants. Mary Wallace, claiming to be the owner of the property, appeared, and filed a cross-petition, in which she set up title to the whole of the premises. Answers were filed by Golder and Dillon, denying the averments of the original bill, and by Bressler, denying the allegations of the cross-petition of Mary Wallace. Replications were filed to the answers, and the cause was heard upon the pleadings and proofs, resulting in a decree finding that Bressler was the owner in fee, as tenant in common with the other claimants, of one undivided third part of so much of said block 43 as lies in section 21, being about one half of the block, and that he had no interest in the remaining portion of said block, which lies in section 28. Plaintiffs in error not being satisfied with this decree, bring the case here for review.

As the controversy in the case is confined exclusively to the competency and sufficiency of the testimony offered by Bressler in support of his .title, it will be unnecessary to consider the propriety of the decree so far as it relates to the interests of the other parties.

It is conceded that Nelson Mason was the patentee of the whole of the land in controversy, and that he conveyed to Thomas Mather an undivided third part of the block in question, who subsequently sold and conveyed the same to the State Bank of Illinois, through which Bressler, by mesne conveyances, claims title. At the hearing, Bressler, for the purpose of deducing title from the bank to himself, offered in evidence, first, an act of the legislature entitled “An act supplemental to an act to reduce the public debt one million of dollars, and to put the Bank of Illinois into liquidation, ” approved February 28, 1845; and second, the act of 1847, entitled “An act for finally closing the affairs of the State Bank of Illinois, ” approved March 1, 1847.

By the 3d section of 'the act first above mentioned, the bank, if it accepted its provisions, was required, within thirty days from the date of such acceptance, to make an assignment of all its effects, both real and personal, to certain specified trustees, to be by them administered and accounted for under the provisions of the act. By the 10th section the assignees were authorized to make conveyances of lands acquired or held by them as such assignees. The 13th section provides, that should any person named in the act as assignee die, resign or refuse to act, the vacancy might be filled by the remaining assignees, and that upon such appointment all rights and titles conferred by the act should vest in the assignee so appointed.

By the 1st and 2d sections of the act of 1847, above mentioned, the charter of the bank was extended to the 1st of November, 1848, and it was provided that if its affairs should not be closed before that time, “the Governor should appoint three trustees, whose duty it should be to take charge of all the effects of said bank, and wind up its affairs, they to be ■ governed in so doing by the provisions of the act” of the 28th of February, 1845, above mentioned. The 3d section made it the duty of the bank, within three days of the passage of the act, to signify its acceptance of the provisions thereof by a writing, signed by the president and cashier, under the seal of the bank.

The defendant in error, for the purpose of showing a compliance on the part of the bank with the several provisions of the above acts of the legislature, offered in evidence, in the third place, a copy of an order of the board of directors taken from the minutes of their proceedings, and duly certified by the president and cashier, under the seal of the bank, showing an acceptance of the provisions of the act of 1847 within the time prescribed by the 3d section of that act. It is objected by plaintiffs in error that the instrument offered is not sufficient as an execution of such authority,—that it is a mere “certificate of the authority itself.” This objection, as we understand it, is highly technical, and we perceive but little force in it. It would possibly have been a more formal compliance with the literal language of the act to have simply certified the fact of acceptance, without showing the acceptance itself, as was done. We regard the course adopted as a substantial compliance with the requirements of the act, and hence there was no error in admitting the certificate in evidence.

For the purpose of showing the appointment of trustees by the Governor, as. provided by the 2d section of the act of 1847, the defendant in error then offered in evidence a certificate of the Secretary of State, setting forth merely that it appeared, from the records of his office, the Governor, on the 1st day of November, 1848, appointed N. Bidgely, Uri Manly, and John Calhoun, Esqs., trustees, to take charge of the assets of the bank, as provided by law, without certifying, as should have been done, a transcript of the record itself showing such appointment. The court admitted the certificate in evidence; against the objections of the plaintiffs in error, and this 'is one of the grounds upon which a reversal is asked. We are aware of no statute authorizing the admission of such a certificate in evidence, and it is clear that by the general principles governing the production of testimony it was not admissible. (1 Greenleaf’s Evidence, 501; Freeland v. Board of Supervisors of Jasper County, 27 Ill. 303.) It follows, therefore, that if the evidence, exclusive of the certificate, is not sufficient to sustain the decree, it should be reversed for this error.

If this were a direct proceeding attacking the legality of the appointment of these trustees, and the evidence tended to show the provisions of the statute authorizing such appointment had not. been complied with, then it is clear enough the trustees, or those claiming under them, would be bound to show a substantial compliance with the act. But that is not the case here. When this case was first before us for consideration, it was said, in substance, that so far as the public or those dealing with the trustees were concerned, it was not necessary to show they were officers de jure, but that it was sufficient to show they were acting as such,—or, in other words, that they were officers de facto. To this it is now replied that they were not officers at all, and in support of this position they cite People ex rel. Kœrner et al. v. Ridgely et al. 21 Ill. 65. The language used in that case must, of course, be construed in reference to the facts and circumstances then before the court, and the object and purpose of the proceeding the court was then reviewing. That was a proceeding by the People, in the nature of a quo warranto, against these same trustees, for the purpose of ousting them from their alleged office of trustees. It appears the Governor had made an order removing- them as trustees of the bank, and appointing othérs in their stead, and that upon their refusal to acquiesce in the action oh the Governor, an information was filed against them for the purpose above stated. The-question upon which the case turned was, whether the position of the trustees of the bank, or the privileges conferred upon them by the act of the legislature, constituted an office or franchise, within the meaning of the statute relating to informations in the nature of a quo ivarranto, and it was held, as we think properly, they did not.

But it does not necessarily follow that the well recognized rule, that so far as the rights of the public or third parties are concerned it is sufficient to show, in a collateral proceeding, that one has acted in a public office, or, in. other words, is an officer de facto, is not equally applicable to 'persons acting in a public or quasi public fiduciary capacity, such as the trustees in this case. The doctrine is well settled, at least so far as this court is concerned, that the appointment of an administrator can not be questioned in a mere collateral proceeding. (Wight v. Wallbaum, 39 Ill. 563; Duffin v. Abbott, 48 id. 18.) And so it is held that the legality of the appointment of a conservator of an insane person can not be collaterally inquired into. (Dodge, Conservator v. Cole et al. 97 Ill. 338.) It is sufficient in all such cases, so far as- the rights of third parties are concerned, to show, in a mere collateral proceeding, that one claiming to sustain such relation under color of appointment is acting as such. And yet there is no more propriety in calling the conservator of an insane person, an administrator or guardian, an officer, or his position an office, than there is in calling one of these trustees an officer. In an extended sense of the term it is not at all improper, in speaking of the position and functions of an executor, administrator or other trustee, to characterize them as the office of the one sustaining such a relation. Thus, iiothing is more common in the text books and reports, than to speak of the office of an executor, trustee, etc.; but there is a marked legal distinction, for many purposes, between a mere .trustee and an officer, in the. strict technical sense of-that term, but so far as the rule of evidence under consideration is concerned, it applies equally to both classes of persons. In using the expressions “officer de facto,” and “officer de jure, ” as was done on a former occasion in connection with this case, we did not intend to be understood as thereby holding that these trustees are officers, within the meaning of .the statute relating to informations in the nature of a quo warranto, for to so hold would be in direct conflict with the case of The People ex rel. v. Ridgely et al., supra, which, as already stated, we regard as properly decided.

It is in effect replied to the view here taken, that the office and duties of these'trustees are not of a public or quasi public character; that the interests which they represent and the duties required of them are of a strictly private nature, and that the public is in no sense affected by or concerned with them. Although expressions are to be found in the opinion in The People ex rel. v. Ridgely et al. supra, which seem to warrant this position, yet it is manifestly untenable. These trustees are not of a strictly private character, as is the ease where one private person appoints others to take charge of his effects, and administer them for the benefit of his creditors, or for other legitimate purposes. The State ,Bank of Illinois was chartered by a public act, in 1835, and by an amendatory act, in 1837, the Governor was authorized and required to subscribe for and on behalf of the State, $100,000 of the capital stock of the bank, which had been reserved under the original act for that purpose, and under the amendatory act of 1847, as we have already seen, it was made the duty of the Governor, upon the acceptance of the provisions of the latter act by the bank, to appoint three trustees, for the purpose of winding up its affairs. And the evidence shows the provisions of this act were formally accepted by the bank, and that shortly thereafter N. Bidgely, TJri Manly, and John Calhoun, claiming to have been so appointed by the Governor, assumed to act and discharge the duties imposed by law upon them as trustees. It will be thus seen that the whole people of the State, by reason of the State having become a subscriber to its capital stock, were, at least for a while, directly interested in the bank’s management, and that the appointment of the trustees, their powers and duties, were expressly provided for and regulated by statutory provisions, and in this respect they were clearly as public as any other agents acting under statutory powers. The expressions in the opinion above referred to not in harmony with what is here said, were not at. all essential to the decision in that case, and were made in arguendo merely, and should not, therefore, have a controlling, influence upon the question as now presented.

But suppose we admit the right of plaintiffs in error to question in this proceeding the regularity or legality of the appointment of these trustees, (and we concede there are authorities which sanction such a course,) still it does not follow that the failure of defendant in error to show they were' legally appointed, is fatal to his title. That depends entirely upon whom, under the circumstances, the burden of proof rested. It is believed to be a well recognized rule that where it appears, in a proceeding like this, one is acting in some public or quasi public employment under color of an official appointment, it will be presumed, in the absence of any proof to the contrary, his appointment is legal and valid. This presumption, therefore, has the effect of shifting the burthen of proof upon those who seek to assail his title. 2 Best on Evidence, sees. 355, 356.

In speaking of official appointments, this author says : “It is a general principle that persons acting in a public capacity is prima facie evidence of their having been duly authorized so to do, and even though the office .be one the appointment to which must have been in writing, it is not, at least in the first instance, necessary to produce the document, or account for its non-production. ” Again, in section 357, the same author says: “This presumption is not restricted to appointments of a strictly public nature. It has been held to apply to constables and watchmen appointed by commissioners under a local act, and to trustees empowered by act of parliament to raise money to build a church.” The same doctrine is laid down by Wharton in his work on Evidence, see. 1315.

That the principle under consideration is clearly applicable to these trustees we have not the slightest doubt, and that such is the case is fully shown by the authorities referred to by the authors above cited. It follows, therefore, the failure of defendant in error to show a valid appointment by the Governor is a matter of no consequence, as, under the facts before us, it will be presumed they were legally appointed.

It is also contended that the original conveyance from the bank to the trustees is not satisfactorily established; that in the first place, a sufficient foundation was not laid for the introduction of secondary evidence of its contents; that in the next place, the secondary evidence, when admitted, was insufficient to prove such a conveyance. We do not think either of these positions is well taken. The testimony of Bidgely clearly shows the existence of the original deed, and his and Campbell's testimony proves its loss, and also that diligent search was made by them for it among the papers and files of the bank,—the only place where they had any reason to suppose it would be found,—and that they were unable to find or produce it. This, we think, was sufficient. The evidence offered to establish the contents of the deed we also regard as equally sufficient. Bidgely, in the course of his testimony, says: “In a book of the minutes of the proceedings of the directors of the State Bank of Illinois, under date of October 31, 1848, will be found, in my handwriting, a copy of such deed, and that it is a true copy, which copy I made from the original conveyance. ” It was stipulated on the trial, that “Exhibit B” was “a true and correct copy of the deed spread, upon the minute-books of the bank, so far as the body of the deed was concerned.”. Under this stipulation “Exhibit B, ” which also contained the name of the president, and a representation of the seal of the bank, was admitted in evidence. It appears that Bidgely, in making a transcript of the original deed upon the minute-books of the bank, omitted the name of the president, and also failed to make any scroll or other impression to indicate the seal, both of which, as the evidence shows, were on the original; and it is now said by plaintiffs in error, in effect, that “Exhibit B” is the only evidence offered for the purpose of showing the contents of the deed, and if that is to be accepted as a true copy of the original as it appears on the records of the bank, it fails to show an execution of the deed by the president of the bank, or any one else authorized to bind it,—or, in other words, it affirmatively shows the original to have been a mere blank. The argument is specious in this, that it overlooks the fact which appears from the testimony of Bidgely, independently of the copy in question, that the bank made to him and the other trustees a deed of assignment of its joroperty; that he believed the seal of the bank was affixed to the same, and that while he could not swear positively unless he could see it, he had no doubt of the fact. The making of the deed was, therefore, sufficiently shown, so far as the mere execution of it is concerned, without reference to the copy as it appeared on the records of the bank. It is but fair to say, in the light of the stipulation, that both parties understood, at the time, the copy was put in evidence for the sole purpose of showing the contents of the body of the deed. Bo far as the formal execution of the deed was concerned, there was but one proper way of doing that, hence in transcribing it the seal and signature of the president were omitted.

The evidence further shows, that on the 31st of March, 1859, Calhoun resigned his position as trustee, and James Campbell was-.appointed 'by Manly and Bidgely, the remaining trustees, in his stead. Some objections are made as to the sufficiency as well as the relevancy of the evidence showing these facts; but we perceive no force in them, and they therefore require no discussion at our hands.

. It is also objected that the original deed of assignment by the bank to these trustees expressly provides that in the event of the death, resignation.or removal of any one of the trustees, the vacancy thus occasioned should be filled by a court of chancery, and hence it is concluded that there was no power in the remaining trustees to make the appointment of Campbell. If the bank in making this assignment, and •the trustees in executing its provisions, had not been acting under special statutory provisions requiring vacancies of the kind to be filled in the manner adopted, the objection would clearly be well taken, for the general rule unquestionably is, that the author of a trust has the right to say in what manner vacancies of this kind shall be filled, and when this has been done through the deed creating the trust, such vacancies can not be filled in any other way, unless there is a failure on the part of the trustees to perform this duty, in which case chancery will interpose; but the 2d section of the act of 1847, under which these trustees were appointed, provides that “the Governor shall appoint three trustees, whose duty it shall be to take charge of all the assets of the bank, and wind up its affairs, they being governed in doing so by the provisions of” the act of 1845, above referred to, so far as said provisions are applicable. The 13th section of the latter act declares, that “should any of. the persons named in this act die, resign or refuse to act, the vacancies may be filled by the remaining assignees, and on their failure or refusal so to do, the Governor shall fill such vacancy. ” It will not be pretended that the provision of the act of 1845 with reference to filling of vacancies is not just as appropriate to one set of trustees as the other, and hence it can not be said with propriety the provision in question is not applicable to the trustees under the'act of 1847. We are therefore of opinion it was the intention of the legislature that the provision in question should regulate and control the filling of vacancies in the board of trustees under the act of 1847, to the same extent as if it had in terms been embodied in the latter act. Such was the view taken of this question in the Ridgely case, supra. It was there said: “The act of 1847, under which the defendants were appointed, refers to the act of 1845, specially applicable to the Bank of Illinois, at Shawneetown, which act is to govern in winding up the bank, as far as applicable. By the 13th section of that act, on a vacancy occurring in the board of assignees, it was to be filled by the remaining assignees; if they fail to fill it, then the Governor is to fill it. ”

It is further objected, that conceding this to be the proper view of the matter, and that the vacancy occasioned by the resignation of Calhoun was properly filled by the appointment of Campbell in the manner we have seen, nevertheless it was necessary that Calhoun, the retiring trustee, should have reconveyed his interest in the trust estate in such manner as to vest the same in Campbell, his successor; that the mere resignation on his part, and the appointment of his successor, did not, ip>so facto, transfer to the latter such interest; and that defendant in error, not having traced his title through Calhoun, has failed to make it out. It is conceded the general rule is, that the mere appointment of a new trustee in the place of one who has resigned, does not, per se, divest the latter of his legal interest in the trust estate, nor does it confer any title thereto on his successor. But there is one well recognized exception to this rule, and the present case, we are of opinion, is brought directly within it. Where such an appointment is made under an act of the legislature, as was done in this case, which expressly declares that upon the appointment of a new trustee to fill a vacancy, the title to the trust estate shall vest in him in the same manner and to the same extent that it did in the original trustee whose vacancy he is appointed to fill, no conveyance will be required to clothe such new trustee with the title to the trust estate, but in such case he will become vested with the title by operation of law. (1 Perry on Trusts, 284.) The 13th section of the act of 1845, under which the present appointment was made, contains, in effect, just such a provision, and hence we hold that upon the appointment and qualification of Campbell, he, by operation of law, became seized and possessed of the same interest and estate in the trust property which were theretofore owned and held by, Calhoun, and that the latter thereupon, by the same means, became divested of all title and interest in or to the same.

It further appears that Manly died in 1864, and that Campbell and Ridgely, without having filled the vacancy occasioned by Manly’s death, on the 18th of May, 1868, conveyed the property in controversy to Joseph Miller and Fred H. Kent, the grantors of defendant in error, and plaintiffs in error now claim that no interest or title passed by that deed, and to sustain this position they invoke the familiar doctrine that where several trustees are appointed by name, and all qualify, and take upon themselves the execution of the trust, they must act as a body, otherwise their acts will be inoperative,—that as the power creating them requires them to so act, a conveyance made by one, or any number less than all, is unauthorized,. and consequently no title passes. We do not question this doctrine at all—on the contrary, we admit it to the fullest extent. But we do not think it has any application to the facts of this ease. The question here presented is, are the acts of the surviving trustees, who, having a power to fill vacancies, have neglected to do so, absolutely void, or will a conveyance made by them in the due course of business, for value, and without fraud, pass to their grantee the title of the property conveyed ?

It is clear that by the .common law, and also by an express provision of the statute, the estate of trustees is held in joint tenancy, and hence upon the death of one of several trustees nothing passes to his heir or personal representatives, but the whole estate devolves upon the survivors. It is evident, then, that upon the death of Manly the entire legal interest in the property passed to Campbell and Bidgely, the survivors, and no reason is perceived why this interest or title would not pass by their conveyance. Had Manly been living at the time of this conveyance, of course nothing would have passed by it, for the reason, as just shown, that the title to trust property can only be conveyed by the act of all the trustees having an interest in it. Such interest is an entirety, and can only pass as a whole, hence all the trustees 'living who have accepted the trust must join in the conveyance, otherwise it will be wholly inoperative. In the case before us the entire interest was represented by the surviving trustees who executed the conveyance, and consequently the title to the property passed to their grantees. Nor will the fact that the surviving trustees, in cases Of this kind, are required to fill, from time to time, as they shall occur, any vacancies in their number, make any difference in this respect. Notwithstanding such requirement, the conveyance of the survivors will be valid. It is only when the terms of the power creating the trust imperatively require the vacancy to be filled, that the acts of the survivors will be held invalid. Hill on Trustees, side page, 187.

Holding, then, as we do, that the one undivided third of so much of the block of ground in controversy as lies in section 21, passed by the deed of Campbell and Bidgely to Miller and Kent, from whom the defendant in error deduces title in himself, by two separate deeds legally .sufficient to pass the title, it is unnecessary to consider the remaining questions discussed by counsel relating to the appointment of another trustee, and the subsequent conveyances growing out of such appointment.

It is finally urged, with great apparent confidence, that by-reason of a certain decree of the circuit court of the United States; rendered at Springfield on the 18th of June, 1866, to which Campbell and Ridgely were parties, directing them to pay over to the master in chancery of that court all the assets of the bank then in their hands, less certain amounts which they were authorized to retain for particular purposes therein specified, Campbell and Ridgely were thereby relieved of their trust, and from thenceforward ceased to be trustees of the bank. The object of the bill in that case was not to remove them as trustees or to relieve them of their trust, but simply to reach the assets in their hands for the payment of the debts of the bank. It is not claimed or pretended this particular piece of land was involved in that suit, or that any order was made by the court with reference to it, and consequently the title in the trustees was unaffected by those proceedings. To the suggestion that the bank having ceased to exist by limitation of its charter, and all its real estate undisposed of reverted to its grantor, without stopping to inquire whether the principle in question has any application to a case like this, where a corporation’s real estate, standing in the name of trustees, has, after such supposed dissolution, been sold for a valuable consideration to an innocent purchaser, it is sufficient to say, when the grantors of the bank or their representatives interpose a claim to this property on account of the supposed reverter, it will be time enough to consider this question. Certainly, as between the parties now before the court, there is no merit in the claim.

Upon the whole we think the decree of the court below is right, that none of the objections urged against it are well founded, and that it should therefore be affirmed.

Decree affirmed.


author: Mr. Chief Justice Scott

text:
    Xavier L. Otis, Admr. v. Jefferson Gardner et al.

      Filed at Ottawa January 31, 1883.

    1. Assignment—of stock in corporation—when passes equitable title. The charter of a private corporation provided that the stock of the company should be transferable in such manner as the directors might determine, and the by-laws of the company provided that the secretary should keep a book upon which all transfers of stock should be made by the holder or holders, or by his or their attorney, duly constituted, in writing. The legal holder of certificates of stock in the company, on a loan thereof, transferred and delivered the same, with a blank assignment and power of attorney indorsed thereon, to the borrower, which power of attorney authorized the assignee to have the stock transferred on the books of the company, but no such transfer was ever made on the books. These certificates,, in this ’ condition, were transferred by the borrower as collateral security for.a note given for the loan of money by a third person, which note was indorsed by the borrower of the certificates: Held, that while the legal title never passed by the transfer of the certificates, for want of an assignment on the books of the company, yet, after the pledge by the holder under such blank indorsement to an innocent party, without notice of the rights of the original holder, the pledgee acquired an equitable title to the same, as a security for the money loaned by him, of which he could not be divested by the original owner or his administrator.
    2. Same—assignor can have no relief against equitable transfer of stock. A court of equity will give the assignor no relief against the bona fide sale of stock in a corporation merely for the reason that the assignee may have failed to have the stock transferred to him upon the books of the corporation, as required by law. It is .no concern of the assignor whether the assignee ever becomes invested with the legal title, or the right of membership in the corporation. Such stock may be regarded as a chose in action; the equitable title of which, as between the parties, may be transferred without observing the requirements of the charter or by-laws of the company as to the mode of transfer so as to pass the legal title.
    3. Same—assignee may sell or pledge, if not limited. Where certificates of stock in a private corporation are assigned in blank, with a power of attorney authorizing the transfer of the stock on the books of the corporation, with no limitation as to their use by the assignee, the assignee or holder will be authorized, as to persons dealing with him without notice of any defect of power in him, to make any legitimate use of them a rightful owner might, and a sale or pledge of such certificates by him, in the usual course of business, to a party taking in good faith for value, will be valid and binding on the original owner or assignor, though the legal title may not have passed, for want of a transfer on the books of the corporation.
    4. Contract—where one of two persons must suffer loss. If the owner of property or chases in action voluntarily clothes another with the indicia of ownership, by which the latter is enabled to sell or pledge the same, for his own benefit, to an innocent party for value, the former can have no relief against such act to the prejudice of the pledgee or vendee. Where one of two or more persons must suffer loss, it must fall upon him whose conduct made it possible for loss to occur.
    5. Costs—discretionary, in chancery. Under the statute the costs in a chancery suit are within the discretion of the 'court.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Herbert, Quick & Miller, for the appellant,
    made the following among various other points:
    The transaction between Sheridan and Bowen is at most only a power to make a transfer of the stock, and is not a transfer until executed. Boydv. Rockport Mills, 7 Gray, 406.
    No title to the stock passes until a transfer has been made upon the books of the company, as the stock was, by the charter and by-laws of the company, transferable only on its books. Fisher v. Essex Bank, 5 Gray, 373; Stebbins v. Phœnix Fire Ins. Co. 3 Paige, 350; Sabin v. Bank of Woodstock, 21 Vt. 353; Pinkerton v. Railroad Co. 42 N. H. 424; Shaw v. Spencer, 100 Mass. 382; Pittsburg and Connellsville R. R. Co. v. Clarke, 29 Pa. St. 146; Union Bank v. Laird, 2 Wheat. 391; Kellogg v. Stockwell, 75 Ill. 68; People’s Bank v. Gridley, 91 id. 457; 1 Am. Railway Cases, *154, Redfield’s note.
    The transfer on the books is the originating and essential act in the change of title. Oxford Turnpike Co. v. Bunnell, 6 Conn. 552; Marlborough Manf. Co. v. Smith, 2 id. 579; Northrop v. Newtown Turnpike Co. 3 id. 544; Dutton v. Con

      necticut Bank, 13 id. 493; Pittsburg and Connellsville R. R. Co. v. Clarke, 29 Pa. St. 146; Union Bank v. Laird, 2 Wheat. 390.
    Certificates of stock have none of the qualities of negotiable paper,—they are mere choses in action. Shaw v. Spencer, 100 Mass. 382; Sewell v. Boston Water Power Co. 4 Allen, 282; Mechanics’ Bank v. New York and New Haven R. R. Co. 13 N. Y. 599; Weaver v. Borden, 49 id. 286; Covell v. Tradesmen’s Bank, 1 Paige, 131; Kellogg v. Stockwell, 75 Ill. 68; People’s Bank v. Gridley, 91 id. 457.
    The certificates carried notice to Gardner that the title to the stock was in Wait. Anon. Freeman’s Ch. 137; Vattier v. Hinds, 7 Pet. 252; Shaw v. Spencer, 100 Mass. 382; Sergeant v. Ingersoll, 7 Pa. St. 340.
    The title which Bowen had, appearing and being but an equitable one, Gardner could take no greater interest than Bowen had, and took subject to all the infirmities of Bowen’s title. Poillon v. Martin, 1 Sandf. Ch. 569; Maybin v. Kirby, 4 Rich. Eq. 105; Fortier v. Darst, 31 Ill. 212; Walker v. Dement, 42 id. 272; Olds v. Cummings, 31 id. 188; Sumner v. Waugh, 56 id. 531; Covell v. Tradesmen’s Bank, 1 Paige, 135; Stebbins v. Phœnix Fire Ins. Co. 3 id. 350; Cutts v. Guild, 57 N. Y. 229; Weaver v. Borden, 49 id. 286; Schafer v. Reilly, 50 id. 61; Green v. Warnick, 64 id. 220.
    Where the equities of the parties are equal, the legal title must prevail. Story’s Eq. Jur. sec. 64.
    Costs are never allowed against one suing as administrator, or otherwise in auter droit, except under very special circumstances. 1 Hoffman’s Ch. Pr. 73; Goodrich v. Pendleton, 3 Johns. Ch. 520.
    Mr. Howard Henderson, for the appellees:
    Where the owner of certificates'of stock indorses them in blank, and allows them to fall into the hands of an innocent holder for value, the original owner will not be allowed to reclaim them. (Leavitt v. Fisher, 4 Duer, 1; Field on Corporations, 128; Fatman v. Lobach, 1 Duer, 354.) And if he, by his voluntary act, through misplaced confidence, confers the apparent right of property in stock upon a third party, a bona fide purchaser of such stock from such party will be protected against any secret trust in favor of the real owner. Bank v. Lanier, 11 Wall. 369; Bridgeport Bank v. New York and New Haven R. R. Co. 30 Conn. 270; Bridgeport Bank v. Schuyler et al. 34 N. Y. 30; Weaver v. Borden, 49 id. 288; Field on Corporations, 148, sec. 133.
    A provision requiring transfers of stock to be made on the books of the corporation, is solely for the protection of the corporation, and does not prevent title from passing by indorsement in blank, and delivery of the stock certificate. Kartright v. Buffalo Commercial Bank, 22 Wend. 347; McNeil v. Tenth National Bank, 46 N. Y. 33; Smith v. American Coal Co. 7 Lans. 317; Leitch et al. v. Wells et al. 48 N. Y. 605; Chambersburg Ins. Co. v. Smith, 11 Pa. St. 120; Stone v. Hackett, 12 Gray, 231; Salsbury Mills v. Townsend, 109 Mass. 121; Choteau Spring Co. v. Harris, 20 Mo. 387; Duke v. Cohawba Nav. Co. 10 Ala. 82.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

Sheridan Wait, in his lifetime, was the owner of one hundred shares of the capital stock of the Calumet and Chicago Canal and Dock Company, of the par value of $10,000, represented by certificates issued to him. Written on the back of each certificate was a blank assignment and power of attorney, that would authorize the assignee to have the stock represented by such certificates formally transferred to him on the books of the company. On the 16th day of March, 1875, Sheridan Wait indorsed the certificates by signing his name below the blank assignment and power of attorney, and then delivered them to Chauncey T. Bowen, and took therefor his written receipt, in which it is recited, “which said one hundred shares of stock I have borrowed of him, and agree to return on demand.” Concerning the use Bowen might make of such stock the receipt is silent, nor does the use to be made of it by the borrower appear from any testimony in the case. Afterwards, on the 9th day of November, 1875, James H. Bowen, being indebted to Jefferson Gardner on two promissory notes, each for $4262.25, for borrowed money, pledged these certificates of stock as collateral security for the payment of such notes, and delivered them to Gardner, indorsed in blank, as they had been received by Chauncey T. Bowen. As the notes of James H. Bowen were indorsed by Chauncey T. Bowen, he was, of course, liable for the indebtedness to Gardner. Neither the blank assignment nor the power of attorney, which was all one instrument, had ever been filled up. It does not appear the notes of Bowen have ever been paid, and since they were pledged these certificates have been held either by Gardner or his agent for him. Both the maker of the notes and the indorser are insolvent, and the only security Gardner has for his claim, either on the maker or the indorser, is the stock pledged for its payment. Since the death of Sheridan Wait, the original owner of the stock, his administrator, Xavier L. Otis, has demanded the stock of Chauncey T. Bowen, and also made application to the company to have the stock transferred to him on the books of the corporation, and failing to obtain it, he thereupon exhibited his* bill in the circuit court of Cook county, making Chauncey T. Bowen, the Calumet and Chicago Canal and Dock Company, Jefferson Gardner, and George Van Zant, defendants. The bill asked for a decree that such stock be declared to have belonged to the intestate at the time of his death, and to now constitute a' part of his estate; that the old certificates be canceled, and that new certificates be issued by the company, and placed on the books of the corporation in the name of complainant, and that Gardner, Van Zant and Bowen be enjoined from negotiating or interfering with such stock. The corporation and Chauncey T. Bowen failing to answer, they were defaulted, and a decree pro confesso rendered as to them. Gardner and YanZant answered the bill, stating the principal facts, about which there is no dispute, and for himself Gardner says, that at the time the notes and certificates were delivered to him by James H. Bowen, the certificates had Avritten on the back the usual assignment, in blank, with power of attorney to transfer the stock on the books of the corporation, which was signed by Sheridan Wait, and that he received such certificates as collateral security for the debt of Bowen, in the usual course of business, without notice of the prior rights or equities of any person in such stock, and that he believed then, and does now believe, that BoAven had full right and authority to transfer to him the stock in question. On the hearing the circuit court found complainant was not entitled to relief, and dismissed his bill» at his costs, and ordered execution therefor. That decree was affirmed in the Appellate Court, at the costs of complainant, to be paid in due course of administration. Afterwards, and at the same term, on the attention of the court being called by defendant’s counsel to the fact the circuit court had inadvertently awarded execution against the administrator for costs, that court so amended its judgment that the decree of the circuit court should stand affirmed in all respects except as to awarding execution for costs against such administrator, which part of the decree was reversed, and it was then further ordered that each party pay one-half the costs in the Appellate Court. Complainant brings the case to this court on appeal.

The act incorporating ihe Calumet and Chicago Canal and Dock Company provides the stock shall be transferable in such manner as the directors shall determine, and section 12 of the by-laws of the company provides the secretary shall keep a book for the transfer of such stock, upon which all transfers of stock must be made by the holder or holders, or by his oí’ their attorney, duly constituted, in writing. The stock involved in this suit was not in fact transferred on the books of the corporation, either by the party to whom it was issued, or his attorney, in writing, duly authorized, and the argument for relief proceeds on the ground there never was any transfer of the shares of stock by the original owner, and hence the title never passed from him. That may be true as to the legal title, and yet complainant, who simply represents the intestate, may not be entitled to the relief asked by his bill. Undoubtedly the rightful possession of the certificates, with the blank indorsement and power of attorney"thereon, would give the holder authority to fill up the blanks, and have the stock transferred to himself on the books of the corporation. Had that been done, it would have passed the legal title to the assignee. The effect of what was done was to place the equitable title to the stock in the assignee, and if it was done for a valuable consideration it will surely be obligatory on the assignor, if living. In such cases it is a matter of no concern to the assignor whether the assignee ever avails of the power of attorney embodied in the assignment to have the stock transferred to him on the books of the corporation, so that he may become the legal as well as the equitable owner. Equity will certainly give the assignor no relief against the bona ficle sale of stock in that way, although the assignee may never choose to have the stock transferred to him under the by-laws of the corporation. What may be the position of the assignee of such stock to the corporation, is a question not involved in the present decision. It may be, as was said in Laing v. Burley, 101 Ill. 591, the corporation might not be compelled to admit him to the privilege of membership,—but it is a matter in which the seller can have no interest. Here the question is, what is the effect of the transfer of the stock, not upon the books of the corporation, but by mere assignment in writing ? It is apprehended that, as between the assignor and assignee, it would be a binding contract, against which the assignor would not be entitled to relief, any more than he would be in ease of the sale of anything else made assignable by law, although imperfectly done. This can hardly be regarded as an op'en question in this State since the decision of this court in Kellogg v. Stockwell, 75 Ill. 68. It was there expressly ruled, that the stock owned by a party in an incorporated company may be regarded similar in its nature to a chose in action, the equitable title of which, as between the parties, may be transferred without observing the requirements of the charter or by-laws of the company. Precisely the same doctrine was held in Laing v. Burley, supra. The principle declared by the cases cited certainly has for its support both reason and the weight of authority. The case of People's Bank v. Gridley, 91 Ill. 457, cited with so much confidence by counsel for complainant, does not militate against this view of the law. The ease of Kellogg v. Stockwell was cited in the opinion of the court, and the doctrine it declares, that as between the vendor and the vendee a sale and transfer of such stock will be good without being entered on the company’s books, and will bo enforced in equity, was not impaired in the least. Its principle was fully stated, and the case then' being considered was distinguished. In the Bank case it was expressly said there was no question between a vendor and vendee, or pledgor and pledgee, but the contention was between two parties having equally meritorious claims against the owner of the stock, each claiming a prior lien over the other. But here the question made arises in like manner as it ivould between a pledgor and pledgee or vendor and vendee. The intestate placed the certificates in the hands of Chauneey T. Bowen, with a blank assignment written thereon, authorizing an absolute transfer of the stock to the assignee, under the by-laws of the company. The exact use the assignee should make of the stock does not appear from anything in the record, but as .the use he might make of it was in no way limited, by the terms of the assignment, it is reasonable to presume the assignee was authorized to make any legitimate use of it that a rightful owner might,—that is, he might sell it or pledge it, in the usual course of business. That was done in this case. It was pledged to Gardner, in the usual course of business, as collateral security for the indebtedness of the holder, and was taken in good faith, without the slightest knowledge that any one other than the pledgor claimed or had any interest in the stock represented by the certificates. As has been seen, the certificates of stock were placed in the hands of Bowen by the intestate in such condition they could be readily sold or hypothecated by him, and if his assignee made an improper use of them, the assignor, if living, could get no relief against that which he deliberately authorized to be done, if it would affect injuriously.an innocent purchaser for value, and his personal representative can have no relief that could not be granted on a like bill by the intestate, if .living. The principle is, that when one of two or more persons must suffer loss, upon him whose conduct made it possible for loss to occur should the consequences ultimately rest.

The costs, under the statute, in a chancery case, are within the discretion of the court, and the division of the costs made by the Appellate Court seems both just and reasonable. The judgment of the Appellate Court is not open to the criticism ' made upon it,—that it awarded execution for costs against complainant, suing as administrator on behalf of the estate. It did no such thing. In the first place, all the costs were adjudged against complainant, to be paid in due course of administration. By a subsequent order, made at the same term of the court, it was adjudged complainant should only pay one-half of the costs, but no execution was awarded against him at that or any other term by the Appellate Court.

No reason appears why the judgment of the Appellate Court should not be affirmed, and it is so done.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Daniel S. Harris et al. v. The Board of Supervisors of Whiteside County et al.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Constitutional law—limit of legislative power. The question of legislative power and its extent depends on the limitations contained in the constitution. When a State is created it is invested with complete sovereign power, unless restricted by constitutional limitation.
    2. By section 1, acticle 4, of our constitution, full, unlimited and uncontrolled legislative power is conferred, and may be exercised unless limited by other provisions of that instrument or by the Federal constitution.
    3. Counties—are public bodies, and their property held for the public. Counties are mere political divisions of the State, as a convenient mode of exercising political, executive and judicial powers of the State. They are wholly public in their character, and are a portion of the State organization, and all their powers are conferred and duties imposed by the constitution and the statutes of the State. They are public, and all the property they hold is for the public use. It belongs to the public, and the county is biit the agent invested with the title, to be held for the public.
    4. Same—property of, subject to legislative control. The property of a county being held for the public, it is under the uncontrolled power of the General Assembly, as it is not restricted or limited in its absolute control over the same. A county can neither hold nor dispose of property except by constitutional or legislative authority, and the legislature has the power to sell or dispose of it without the consent of the county authorities.
    5. Same—legislative direction to county to reconvey property to donors. Certain parties, to procure the location of a county seat at a certain place, made donations to the county, both to acquire the title to the land for the town site and to erect the county buildings. In 1857 an act was passed, under which the county seat was removed, and which provided that in case of such removal the board of supervisors should convey the court house and block of land upon which it was erected, and all other lands and town lots theretofore donated to the county for the purpose of erecting public buildings, to the parties who originally conveyed said property to the county, or to their legal representatives, in proportion to the donation made by them, respectively, for the purpose of procuring said lands and erecting such court house: Held, that such act conferred upon and vested the equitable title in the donors, and their representatives, in the proportion each had originally contributed, and that the county authorities could not lawfully refuse to make the conveyance to them accordingly, and upon their refusal so to do a court of chancery would compel the conveyances to be made.

      Appeal from the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.
    Messrs. Kilgour & Manahan, for the appellants:
    This preemption right of the donors of the town site was' a right well known and defined, and regarded by the laws of both the United States and of this State, (Bruner et al. v. Manlove, 3 Scam. 339,) and right to preempt may pass by deed or other transfer. (Delaney v. Burnett, 4 Gilm. 454.) The purchaser of this right is regarded as a legal representative. (Delaney v. Burnett, supra; Phelps v. Smith, 15 Ill. 572.) Parties entitled to preemptions are protected by law. Baty et al. v. Sale, 43 Ill. 351; Lester v. White's Heirs, 44 id. 464.
    Under the act of 1857, the county, on a removal of the seat of justice, was bound to return the donations. The case of Warnecke v. Lembca, 71 Ill. 94, settles who the legal representatives are.
    Messrs. J. & J. Dinsmoor, for the appellees:
    The bill alleges a reversionary interest in Ezekiel Kilgour in the lands donated. A reversion is an estate' left in the grantor or donor to commence in possession after the determination of some particular estate granted out of him. (2 Blackstone’s Com. 175; 1 Cruise’s Digest, “Reversion,” sec. 2; 2 Washburn on Real Prop. 390.) Kilgour never had any such estate to descend to his legal representatives.
    If the title or fee of this block 57 was in the county, it seems hardly necessary to argue or cite authorities to show that an act of the legislature would have no effect upon the title. The legislature, by divesting the county of its property, would clearly be usurping the judicial functions of the government. Lane et al. v. Dorman et ux. 3 Scam. 242; Rozier v. Fagan, 46 Ill. 404.
    The donor of an estate, and his heirs, stand in no better situation, so far as receiving the property given away, than one who has made a fraudulent conveyance. Choteau v. Jones, 11 Ill. 300.
    As showing the donor of land or property for-the location of a county seat can not recover the same back on a change of the county seat, see Adams et al. v. County of Logan, 11 Ill. 336; Harris v. Shaw, 13 id. 456.
   Mr. Justice Walker

delivered the opinion of the Court:

In this case, appellants filed a bill in chancery, against the board of supervisors of Whiteside county, and others, to have certain real estate, standing in the name of Nelson Mason, transferred and conveyed to them. The date of the filing of the original bill, or the bill itself, nowhere appears from anything contained in the transcript of the record filed herein, nor does it appear from anything filed with the record. The amended bill, a copy of which is brought before us, appears to have been filed in the circuit court on the 6th day of January, 1881. To it a demurrer was filed, and on a hearing on the demurrer it was sustained to the amended bill, and it was dismissed. Complainants prayed and perfected an appeal to this court, and the record of the proceedings on the amended bill are brought to this court, and errors are assigned.

The bill alleges that a part of the complainants were the first settlers on and occupants of certain lands, describing them, and that they became entitled to preemptions, and the exclusive right to enter them at the United States land office; that there then was a tract of land platted as a town site, owned and occupied by the State Bank, and other persons, naming them, known as Chatham; that contiguous to and-on the east side of complainants’ lands was another tract, which was platted and owned by Harris and Brink, two of the complainants, and three other persons, known as Harrisburg; that in the year 1839 the question arose as to the location of the county seat of Whiteside county; that to induce its location at that place, the proprietors of these towns, and Kilgour, agreed with the county authorities, on condition the county seat should be located and kept there, and the court house should be built on the lands they lived upon, and to unite the two towns under the name of Sterling, to give the county the right and the money necessary to enter the land they thus occupied, and also to make other donations, being a sixty-acre tract of land, owned by the proprietors of Harrisburg, and $1000 in money, and on the part of Chatham, twenty acres of land adjoining the sixty-acre tract, and $1000 in money; that in 1842 these donations were accepted by the county authorities, and the preemption held by Kilgour transferred to the county, and the money necessary for its entry was furnished by the proprietors and other persons, and the county entered the same in its own name, and located the county seat thereon, and with the donations thus given built a court house on block 57, on the plat of the land thus entered by the county, and the county seat remained at that place, and the building on block 57 was occupied and used as a court house, until in 1857, when the county seat was removed to another place; that since 1857 the county has not used or occupied the court house on block 57, but in January, 1866, the county conveyed that block to Nelson Mason; that on the removal of the county seat, by virtue of the agreement donating the land, and the act of the legislature, block 57 reverted to the donors in the proportion of their several donations, and the deed to Mason was made without authority of law; that a number of the donors had died before the suit was commenced, but their devisees, heirs or assigns are parties complainant. The bill states their interests, and the manner in which they were acquired. The several interest of each complainant is particularly set forth in the bill. The bill prays that complainants be decreed to be the owners of the block as tenants in common, according to their several interests therein, and that Mason be decreed to convey the same to them, and on his failing to do so, a conveyance be made by a commissioner, and that then there be partition of their several interests, and if a partition can not be made, that the property be sold, and the proceeds be divided among them in proportion to their several interests in the same.

The act to which reference is made in the bill was approved on the 7th day of February, 1857. (Pub. Laws, 238, sec. 9.) It provides, that “in case the seat of justice of said county shall be removed from Sterling, and located as herein provided for, then the supervisors of said county are hereby authorized and required to convey, by good and sufficient conveyatices, the court house and block of land upon which the same is situated and which is now used therewith, and all other lands or town lots heretofore donated to said county for the purpose of erecting said public buildings, and which are still owned and held by said county, to the parties who originally conveyed said property to said county, or to the legal representatives of said parties, in proportion to the donation made by them, respectively, for the purpose of procuring said lands and erecting said court house. ” This section gave to each donor to procure the land or to erect the building; as well as to those who donated land, an interest in the court house and the block of ground on which it stood, in proportion to the amount donated; and the section expressly provides, that in ease of the death of any of the donors, their interest shall vest in their representatives. The act therefore, confers the right, and having done so, the question of reversion of the title does not arise. It is a legislative grant, and the donors or their representatives do not necessarily take a reversionary interest, but by grant from the General Assembly. If this grant became operative to pass title, then it is unnecessary to inquire whether, in the absence of the enactment, they would have held the title by reversion. It is true complainants allege they hold such an interest, but the bill also claims they hold under this legislative grant.

By the allegations of the'bill complainants show that'they answer the description of the grantors in the act. It is alleged that they or their ancestors made donation to purchase the land and to erect the court house, and if this is true, and the demurrer admits its truth, they have brought themselves within the terms of the statute. It is said that Mason was a donor. If this be true, and he falls within the provisions of the statute, he can set up and rely upon his rights, and if he establishes them, he will be fully protected therein on a final hearing.

But it is contended that the General Assembly had no power to dispose of this property,—that it belonged to the county, and was therefore beyond the control of the legislature. The question of' legislative power, and its extent, depends on the limitations contained in the constitution. When a State is created it is invested with complete sovereign power, unless restricted by constitutional limitation, and under our system of government such restrictions are written and embodied in organic law. Were it not for these limitations, the legislative power would be without restriction. When we have to determine whether an act is within the scope of legislative power, we do not look for an express delegation of the power in the fundamental law, but we look to see whether the general power has been limited. The first section of the fourth article of our constitution vests the legislative power of the State in the General Assembly. By it the full, unlimited and uncontrolled legislative power was conferred, and it may be so exercised unless limited bjr other provisions of that instrument, or its exercise is inhibited by the Federal constitution; and we may search in vain for any provision in either, prohibiting the General Assembly from selling or donating public property. There is no such inhibition.

Counties are mere political divisions of the territory of the State, as a convenient mode of exercising the political, executive and judicial powers of the State. They were created to perform public, and not private, functions.. They are wholly public in their character, and are- a portion of the State organization. All their powers are conferred, and duties imposed, by the constitution and statutes of the State. They are public, and all the property they hold is for public use. It belongs to the public, and the county is but the agent invested with the title, to be held for the public. Were it not for constitutional restrictions, the General Assembly might change county seats at pleasure, or it might alter and change county lines, and even abolish counties and create new ones, to suit public convenience or interest. The property held by the county was only acquired and held by authority conferred by the legislature, and for public use, and the property being held for the public is under the uncontrolled power of the General Assembly, as it is not inhibited in its absolute control. The county could neither hold nor dispose of property unless authorized by the constitution or statute, and the legislature has the power to sell or dispose of it without the consent of the county authorities. It then follows, that the act of the General Assembly conferred upon and vested the equitable title in the donors and their representatives, in the proportion each had originally contributed, and the county authorities were expressly required to so convey it to them. According "to the allegations of the bill they failed to do so, but conveyed it to Mason.

The demurrer having admitted the allegations of the bill, and they being sufficient to require the relief sought, the court below erred in sustaining the demurrer and dismissing the bill, and the decree must be reversed and the cause remanded.

Decree reversed.