author: Mr. Justice Craig

text:
    William H. Huddleston v. Charles Francis et al.

      Filed at Springfield March 28, 1888.

    1. Surety—want of diligence in presenting claim against the estate of principal—release of surety—the statute construed. Under the act of March 4, 1869, the failure of the payee or holder of a joint note to present the same against the estate of the principal maker, in case of his death, within two years after the grant of letters of administration, operated to discharge and release absolutely the sureties in such note, from liability for any part thereof.

      2. The proviso to the act of March 4, 1869, relating to the release of sureties, was not intended to preserve to the holder of a joint note any •cause of action against the sureties, when he failed to present the same against the estate of the principal maker within two years from the grant •of letters. If presented and allowed, and not paid in full, then the sureties were liable for the deficit, and they might be sued before the expiration of the two years.
    3. Statute—office and effect of a proviso. A proviso in a statute is to be strictly construed, and it takes no case out of the enacting clause which is not fairly within the terms of the proviso. Its office, generally, is either to except something from the enacting clause, to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extending to cases not intended to be included.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Rinaker & Rinaker, for the plaintiff in error.
    Mr. C. A. Walker, for the defendants in error.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 4th day of March, 1869, the following statute was enacted: “That whenever the principal maker of a joint note shall depart this life, it shall he the duty of the payee or assignee thereof to present the same, against the estate of the •decedent, for allowance, to the proper court, within two years after granting of letters testamentary or of administration on his estate; and if said payee or assignee shall fail or neglect so to do, the surety or sureties on such note shall be released from the payment thereof: Provided, that this act shall not ■he construed so as to release any surety or sureties from the ■payment of the whole or any part of such debt that may remain unpaid after the estate of the decedent is fully administered, nor to prevent the holder of such notes from proceeding against the surety or sureties at any time before the expiration of two years after the granting of letters testamentary or of administration upon said estate.”

While this statute was in force, and on the 1st day of October, 1872, John Jones, as principal, and Charles Francis and John Halpin, as sureties, executed and delivered to William H. Huddleston a promissory note for $1000, due in one year, with interest at ten per cent per annum. On the 31st day of October, 1873, John Jones, the principal in the note, died intestate, in Macoupin county. On the 13th day of December, 1873, letters of administration upon the estate were issued to Charles Francis and Weye Smith, by the county court of Macoupin county, who, on that day, duly qualified as such. The payee of the note, William H. Huddleston, did not, within two-years after the granting of letters of administration, or at anytime, present the note for allowance against the estate of John Jones, the principal in the note; but in March, 1877, long-after the time had expired within which the note should have-been presented for probate, the payee brought this action against the sureties, to recover a judgment for the amount of the note and interest against them. The circuit court held, that the sureties were released, and the correctness of this, ruling is the only question presented by the record.

The first part of the section of the statute under consideration, in plain and emphatic language, requires the owner of a. note to present the same, against the estate of the deceased principal, for allowance, to the proper court within two years after the granting of letters of administration, and the statute also declares that a failure to do so shall release the sureties. This provision is so plain that there is no room for construction. Indeed, it is conceded, in the argument, that if the act did not contain a proviso, plaintiff in error would have no standing in court. Eeliance is therefore placed on the proviso, to authorize a recovery against the sureties. Upon this branch of the case it is claimed, that notwithstanding the note was not presented for allowance within two years next after the granting of letters of administration, and was not allowed, still the plaintiff was entitled, under the proviso in the act, to recover a judgment against the sureties for the amount'which would remain unpaid on the note had it been presented against the estate of the principal, and duly allowed. In other words, that the sureties could only be released from so much of the amount of the note as would have been realized from the estate of Jones had the note been presented and allowed in proper time.

The view presented by counsel is an equitable one, and one, too, which we would be glad to adopt, if the language of the proviso would bear the construction attempted to be placed upon it. But the language contained in the proviso will not admit of that construction. In Potter’s Dwarris on Statutes, page 118, in a note, it is said: “A proviso in a statute is to be strictly construed. It takes no case out of the enacting clause which is not fairly within the terms of the proviso. * * * The office of a proviso, generally, is either to except something from the enacting clause, to qualify or restrain its ■ generality, or to exclude some possible ground of misinterpretation of its extending to cases not intended to be brought within its purview.” Adopting this as establishing a correct rule as to the object and office of a proviso to an act of the legislature, as we are inclined to do, the question may be readily disposed of in a few words. There is nothing in the proviso saying that a surety should only be released from that part of the debt which might have been made from the estate of the principal in the note if it had been presented and allowed, but the language is; that the act shall' not be construed so as to release any surety from the payment of the whole or any part of such debt that may remain unpaid after the estate of the decedent is fully administered.

When the act was before the legislature, the question may have arisen, if the act was passed without a proviso, in case a * note was presented against the estate of the principal in the note, and a part of the debt made, whether, in such a case, the sureties might not be discharged. The question may also have been raised, whether a suit could be maintained against the sureties during the time the estate of the principal, debtor was in process of settlement, and, as laid down in the authority cited, for the purpose of excluding any possible ground of misconception the proviso was added to the statute. But whether this was the reason which led to the adoption of the proviso or not, does not affect the question. The first part of the act declares that the sureties shall be released unless the note shall be presented for allowance within two years after granting letters of administration, and there is nothing in the language of the proviso, if the language used is given its ordinary meaning, which will exclude any part of the debt from the operation of the first part of the act. The proviso, as we read it, merely declares that where a note has been probated against the estate of the principal debtor, the sureties shall not be released by the act from the payment of whatever amount remains unpaid after the assets coming from the estate have been applied thereon, nor shall the act prevent a suit against the sureties during the two years the estate of the principal debtor may be in process of settlement.

This statute has been before us in two previous cases,— House v. Trustees of Schools, 83 Ill. 368, and Curry v. Mack et al. 90 id. 606,—and while the proviso was not discussed, it was held in both the cases that if a note was not presented within the two years named in the act, the sureties would be released. No hardship can result from the construction placed upon the act, as might be supposed, without giving the matter due and proper reflection. The law was in force at the time .the note was executed, and .may be regarded as a part of the contract between the payee of the note and the sureties. It was therefore a part of the contract made by the plaintiff, that in case of Jones’ death the note should be presented against his estate in proper time for allowance, and unless presented within two years from the grant of letters, the sureties should be released. The sureties had the right to rely upon the statute and the contract, and if loss is to follow, it grows out of the fact that the plaintiff himself was in fault.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shope Mr. Justice Craig,

license: Public Domain

text:
    The Belleville Savings Bank v. James A. Bornman et al.

      Filed at Mt. Vernon March 27, 1888

      GrUABANTY—upon condition that (mother shall join therein. A party signing a guaranty of the payment of a draft or bill has the right to impose, as a condition to its' acceptance and binding force on him, that a certain other person named shall become his co-guarantor, and its acceptance by Paye® with notice of the condition will create no liability on such guararL^or if the condition is not performed.
    2. A private corporation drew its draft on its treasurer in favor of a bank, which the treasurer accepted. The president of the corporation, before its delivery to the bank, wrote his name across the back of the draft, and handed it to the treasurer, with instructions to inform the bank that the draft was not to be taken unless one A. also placed his name on the back of it, of which the bank was duly notified before acceptance. A. did not indorse his name as a co-guarantor, but signed a guaranty on a separate-paper guaranteeing payment in case the draft was not paid by the corporation or its president: Held, that the first guarantor was not liable for want of performance of the condition.
    3. Pabol evidence—to show a failure'of condition to validity of an obligation. Parol evidence is competent to show that the guarantor of the payment of a draft or note signed the same on the condition it was not to be taken unless another named person also signed the same guaranty, and that such condition was not complied with. Such evidence does not tend to vary or alter the contract of guaranty, but is admissible to show no delivery to the payee, and that no contract was in fact made.
    4. ¡Renewal note ob bill—whether in satisfaction of a prior note or bill—presumption. Where a note or draft is taken in renewal of a former one, the presumption of law will be that the new note is not a payment of the old one, as between the parties thereto, in the absence of anything showing a contrary intention.
    5. The weight of authority is, that the intention with which the new note is accepted will control as to whether the original note or draft is paid and discharged by the acceptance of another in renewal of it, or not; and this may be shown by proof of an express agreement of the parties as to-the effect of the renewal upon the indebtedness evidenced by the former note or bill, or by proof of the attendant circumstances from which the intentions of the parties can be inferred.
    6. Where a subsequent promissory note is given for the same consideration as a former one, it is a question of fact, for the determination of the jury, whether the former note is thereby satisfied. If the subsequent note is executed and accepted by the parties for that purpose, the satisfaction is complete.
    7. Presumption—in support of a judgment. The presumption of law is in favor of the correctness of the judgment of the trial or lower court, and it will be presumed that the law was properly applied to the facts by the jury, or the court, sitting as a jury, unless the record affirmatively shows-.error in that regard.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. W. H. Snyder, Judge, presiding.
    This is an appeal from the judgment of the Appellate Court, for the Fourth District, affirming the judgment of the St. Clair circuit court, disallowing a claim presented by the Belleville Savings Bank against the estate of Conrad Bornman, deceased, which was heard in that court, by the court, without a jury, on appeal from the probate court of that county. The claim filed in the probate court was evidenced by the following instrument i

    “$10,000. Office of Belleville Nail Mill Co.,
    Belleville, III., December 12, 1878.

    “Ninety days after date, pay to the order of Belleville Savings-Bank ten thousand dollars, value received, and charge same to account of Belleville Nail Mill Company.
    Conrad Bornman, Pres’t.

    James C. Waugh, Sec’y.

    To F. H. Pieper, Treas., Belleville, 111.”

      It was shown upon the trial in the circuit court, that after the foregoing draft was executed by the Belleville. Nail Mill Company, Bornman wrote his name across the back of it, and handed it to F. H. Pieper, treasurer of said company, with instructions to inform the bank that it was not to be taken by the bank unless Edward Abend also placed his name upon the back of it. This Mr. Pieper did, and the bank, through its cashier, was fully notified of the condition interposed by Born-man to its acceptance by the bank, prior to such acceptance. It also appears that Mr. Edward Abend, the" person referred to by Bornman, was president of the bank, and, with two of its directors, composed the discount committee of plaintiff’s bank, to whom this draft, in the regular course of business, would pass from the hands of the cashier before it wras discounted. Shortly after the draft was delivered by Mr. Pieper to its cashier, the nail mill company, through Mr. Pieper, paid to the bank four months’ interest in advance, which was received by the bank. At the time of the making of this draft, the bank held the draft of the Belleville Nail Mill Company for a like amount, dated March 14, 1874, payable to the bank " four months after its date, and guaranteed on the back thereof by Conrad Bornman, James Waugh and Edward Abend. Mr. Pieper testifies, and is substantially uncontradicted, that when he went to pay the discount, he asked the cashier if the draft was taken on the conditions imposed by Mr. Bornman, and the cashier replied it was. He testifies: “Mr. Bornman was •particular in telling me, after it passed the discount board, to •ask him (the cashier) if the note had been so guaranteed with Mr. Abend’s name on the back of it; ” that he did so inquire •of the cashier. At the time of paying the discount before mentioned, the draft of March 14, 1874, was stamped by the bank “paid,” across its face, and delivered to Mr. Pieper, who, •it appears, was treasurer of the drawer. Edward Abend did not, however, place his name on the back of the draft of July 17, 1874, but executed a separate paper, as follows:

      "July 17, 1874.

    “For value received,. I hereby guarantee the payment, at maturity, of the draft drawn by Belleville Nail Mill Company, upon F. H. Pieper, treasurer, accepted by him, dated July lY, 1874, payable four months after date, for the sum of ten thousand dollars, to the Belleville Savings Bank, if the same is not paid by said Belleville Nail Mill Company or Conrad Bornraa-n. Edward Abend.”
    The draft not having been paid' by the makers, was presented against the estate of Conrad Bornman, who died subsequent to the making of said draft, and his liability as indorser thereon insisted upon.
    Mr. Charles W. Thomas, for the plaintiff in error:
    When a dealer at a bank pays off a note by renewal, the debt is the same,—the debt remains unpaid,—the credit is extended. As a general rule, the surrender of the pre-existing note does not discharge it. Daniel on Neg. Inst. see. 205; Edwards on Bills, see. 290, *207.
    But it should be shown that it was expressly agreed that -the old one should be extinguished, in order to have the effect ■of extinguishment; and the delivery of the old note without such agreement does not itself operate as a presumption of ■extinguishment, not even when the new note has been sued on .and judgment obtained. Daniel on Neg. Inst. sec. 1266.
    In this case, the drawer of the draft being insolvent, the ■debt would be lost if the renewal was to be held a payment, .and the principle that a renewal is not a payment, applies with .additional force. Daniel on Neg. Inst. secs. 1266, 1267. See, .also, upon the point that a renewal is never held to be a payment where a security would thereby be lost, Daniel on Neg. Inst. sec. 1266 a, note 1, to 1266; Dodge v. Emerson, 131 Mass. 467.

      In this case the draft given in renewal was actually delivered' to the bank by Pieper, with Bormnan’s guaranty written on it, and no parol evidence is admissible to show that the contract was other' than it was written. Mason v. Burton, 54 Ill. 349; Beattie v. Browne, 64 id. 360; Courtney v. Hogan, 93 id. 101; Martin’s Exr. v. Lewis’ Exr. 32 Am. Rep. 682.
    If the draft had been in escrow, perhaps some modification, of the rule might be made; but a note or paper must be delivered to a third person, if in escrow. Edwards on Bills, sec. 243; Millet v. Parker, 2 Metc. 608.
    It may well be doubted whether, under all the circumstances, Abend is not'in fact, as between him and Bornman, bound to-contribute, and if this is so, there is no pretense of a defenceto this claim. There is nothing in the point that Abend’swriting was on a separate piece of paper. 1 Wait’s Actions- and Defences, 594; Edwards on Bills, 314, *220.
    Messrs. Wilderman & Hamill, for the defendants in error:
    In cases where the Appellate Court finds the facts the same-way as the trial court did, and there are no disputed questions of law, the judgment of the Appellate Court is conclusive.. Laws of 1877, p. 153, sec. 89; Tenney v. Foote, 95 Ill. 99;: Bridge Co. v. Commissioners of Highivays, 101 id. 518; Fitzsimmons v. Cassell, 104 id. 352; Edgerton v. Weaver, 105 id. 47; Stock Yards v. Ferry Co. 102 id. 514.
    Where a trial is had in a trial court, before the court, without a jury, on the evidence offered by both the opposing parties, and no propositions of law are submitted to the trial court for its decision, and the judgment of that court is affirmed by the Appellate Court, the record presents no questions of law for the decision of this court. Fitch v. Johnson, 104 Ill. 118; Edgerton v. Weaver, 105 id. 48; Steinman v. Steinman, 105 id. 348; Leonard v. Patton, 106 id. 99; Paddon v. People’s Ins. Co. 107 id. 196; Casner v. Preston, 109 id. 531; Miller v. Life Ins. Co. 110 id. 102.
   Mr. Justice Shope

delivered the opinion of the Court:

When Conrad Bornman wrote his name, as guarantor, upon the draft of the Belleville Nail Mill Company, of the date of •July 17,1874, he imposed, as a condition to its acceptance by the plaintiff hank, that Edward Abend should become his co-.guarantor thereon, of which the bank had actual notice prior to its acceptance of the draft. Bornman had the right to impose this condition, and the delivery of the instrument being ■conditional, created no liability until tbe condition was performed. It was competent to prove such condition and noncompliance therewith by parol, not as tending to vary or alter the contract of guaranty, but for the purpose of showing that there had been no delivery thereof to plaintiff in error. The ■ condition materially affecting, as it did, the liability of Born-man, and the draft not having been guaranteed by Abend, so that he would become Bornman’s co-guarantor thereon and liable to contribute in payment of the draft, as required by the ■conditions thus imposed, the delivery of Bornman’s contract •of guaranty never became complete, and he was not, therefore, liable, as guarantor, upon the draft of July 17, 1874. Stricklin v. Cunningham, 58 Ill. 293; Knight v. Hurlbut, 74 id. 133; Rhode v. McLean, 101 id. 467; Lovell v. Adams, 5 Humph. 133; Hull v. Parker, 37 Mich. 590; Benton v. Martin, 52 N. Y. 570; Fletcher v. Austin, 11 Vt. 447; Edwards on Bills, 186.

It is, however-, insisted, that if Bornman was not liable as ■guarantor upon the draft of July 17, that draft having been given in renewal of a like draft in all respects, except date, dated March 14,1874, upon which Bornman was a guarantor, •the acceptance by the bank of the last draft, with Bornman’s -.incomplete contract of guaranty thereof, did not extinguish his liability upon the former draft, and that plaintiff in error should, in the county court, have recovered upon that liability. "The insistence is, that by the guaranty of Bornman of the .March draft, he became liable to pay that draft if the drawer failed to pay at maturity; and the draft of July 17, 1874, being in renewal of the March draft, that such renewal was not a payment of the former draft, and his liability as guarantor thereon was therefore not extinguished.

The authorities are not uniform upon the question as to' whether the acceptance' of a new note or bill in renewal of another, upon the same consideration, without proof of the intention of the parties in making or accepting the same, should be held to be a payment of the original note or bill, or not. Plaintiff in error contends, the presumption of law is, that a. note or draft taken in renewal of a former one is not a payment of the original note or draft, as between the parties, and in this is sustained by what is said to be the weight of authority. (Edwards on Notes and Bills, 291; 2 Parsons on Notes and Bills, 203.) Mr. Parsons, however, says: “The general custom and understanding of the mercantile world would seem to demand that a new note given in renewal of an old one, which is taken up, as it is termed, should pay and cancel the old note for which it is given.” He seems to find support, more or less direct, in many adjudicated cases. Nichol v. Bates, 10 Yerg. 429; Hill v. Bostick, 10 Humph. 410; Huse v. Alexander, 2 Metc. 157; Cornwall v. Gould, 4 Pick. 444; Slaymaker v. Gumbacker, 10 S. & R. 75; Alford v. Baker, 53 Ind. 279; Holmes v. Smith, 16 Me. 177; Skenkel v. Taylor, 12 La. Ann. 773; Smith v. Hamper, 5 Cal. 330.

It will not be profitable to review the authorities relating to that question, or necessary to re-state the rule of law upon that subject in this State. The decision of that question is not at all necessary to the solution of the questions involved in this case, nor does it necessarily arise in its determination, for while there are decisions holding that the legal presumption arising from the renewal can be rebutted only by proof of a contrary express agreement of the parties, the decided weight of authority is, regardless of what the legal presumption arising from the mere fact of renewal is held to be, that, it being the proper subject matter of contract, the intention with which the new note is accepted will control as to whether the original note or draft is paid and discharged by the acceptance of another in renewal of it, or not, and that this may be shown by proof of an express agreement of the parties as to the effect of the renewal upon the indebtedness evidenced by the former note or bill, or by proof of the attendant circumstances, from which the intention of the parties can be inferred.

Daniel, in his work on Negotiable Instruments, after referring to the authorities relating to the legal presumptions arising from the renewal of negotiable instruments, says, section 1267: “The presumptions of law which we have referred to, are universally held to be open to rebuttal; and it is competent for the parties to show that the bill or note was, by express agreement, received in absolute payment and discharge of the precedent debt, or the contrary, or that there are facts and circumstances attendant upon the transaction from which an understanding and agreement might be inferred.” So in Pennsylvania, where it was held that the taking of a renewal note was not a satisfaction of the former bill or note, “unless it was so intended and accepted by the creditor,” it is said: “But if so accepted, it is a satisfaction. The quo animo in which it was accepted is a matter of fact, which the court can not take to itself and exclude the jury from a decision of it. The intent may often be deduced from circumstances, though nothing positive was expressed.” (Hart v. Bollar, 15 S. & R. 162.) This, undoubtedly, is the rule of law in this State, where the holding is in harmony with the rulings elsewhere. In Yates v. Valentine, 71 Ill. 644, it is said: “Where a subsequent promissory note is - given for the same consideration as a former one, it is a question of fact, for the determination of the'jury, whether the former note is thereby satisfied. If the subsequent note was executed and accepted by the respective parties for that purpose, the satisfaction is complete.” See, also, Morrison v. Smith, 81 Ill. 221; Hough v. Ætna Life Ins. Co. 57 id. 318; White v. Jones et al. 38 id. 159; Strong et al. v. King, 35 id. 19; Varner v. Nobleborough, 2 Greenlf. 121; Ward v. Borne, 56 Me. 161; Crane v. McDonald, 45 Barb. 354; Brewer v. Branch Bank, 24 Ala. 440; 1 Edwards on Notes and Bills, sec. 289; Parsons on Notes and Bills, 203 ; Flower v. Elwood, 66 Ill. 438; Conway v. Case, 22 id. 127; Archibald v. Argall, 53 id. 307; 2 Greenleaf on Evidence, sec. 527.

It is true, as stated by counsel, that in Yates v. Valentine, the note given and accepted in renewal was made payable to a third person; but that was simply a circumstance from which the inference of fact might arise that the parties intended the renewal note to be a satisfaction of the precedent indebtedness, and it was so treated in the consideration of that case. That fact, therefore, in no way militates against the authority of that case in establishing the rule announced.

The question of whether it was intended or understood that the prior draft was paid by the acceptance of the new draft, is, therefore, both upon authority and principle, a question of fact, not of law, and it was competent for the jury,—or, in this case, the court, sitting as a jury,—to consider all the attending circumstances proved, and deduce therefrom the understanding or intention of the parties in respect thereto. Waiving the question as to whether plaintiff in error should be required to confine its proof to the claim filed in the probate court, it is ■evident that the question of the liability of Bornman’s estate ■on the draft of March 14, 1874, necessarily depended upon the finding of fact as to whether that draft had been paid, and his liability as guarantor thereby discharged, by the acceptance, by the plaintiff bank, of the draft of the nail mill company, of July 17, and that the determination of that question would depend upon the fact of intention of the parties in respect thereof.

It may be conceded, that an extension of time to the principal debtor, if made after the liability of the guarantor becomes fixed by non-payment at maturity, (Hayes v. Wells, 34 Md. 512,) will not discharge the guarantor upon the original obligation; yet if the debt is paid, the liability of the guarantor is forever gone, and can not be revived without his consent. Those cases which seem to hold that the liability of the guarantor or surety will revive on the former or original debt, will be found to relate to a state of facts where there has been a ■suspension of the right of action, simply, by reason of the extension of time to the principal debtor, the original liability of the guarantor remaining, in the meantime, undischarged.

The trial in the circuit court in this cause was by the court, without a jury, by the consent of parties. The circuit court, upon proof of the attendant circumstances, from which the acceptance of the new draft for and in payment of the former might be inferred, found for the defendant, and entered its judgment accordingly. That judgment has been affirmed by the Appellate Court. No propositions of law were presented by either party, to be held or refused by the court, as it is provided by statute may be done, thus preserving the rulings of the court upon questions of law. No error in the rulings of the court in the admission or exclusion of evidence has been qiointed out or urged in this court, nor is any perceived by us. We are not permitted to review, on appeal from or writ of error to the Appellate Court, controverted questions of fact. The judgment of the Appellate Court, affirming the judgment below, • must, in the absence of a finding of the facts by the Appellate ■Court, be treated in this court as conclusively determining all controverted questions of fact necessary to the maintenance of the judgment adversely to the appellant or plaintiff in error. It therefore follows that plaintiff in error can not be heard in this court to say that error has intervened upon questions of. fact. The finding of the Appellate Court is, as we have said, conclusive and final as to all such questions.

It is, however, sought by counsel for plaintiff in error to parry the force of this position, by accepting, in their argument filed in this court, the statement of fact made in the brief of counsel for defendant in error filed in the Appellate Court. Counsel do not concede, however, the vital fact insisted upon by the defendant’s counsel, that it was the intention of the parties, in the acceptance of the renewal draft of July 17, 1874, that the former draft should be paid and satisfied. It is manifest that a material question of fact was, whether the last draft was accepted by the bank in payment and discharge of the prior draft, or not, and the intention with which it was given and accepted became an important and controlling matter of inquiry. It is apparent the draft of July 17, as to the nail mill company, the drawers, was a complete instrument. No condition was attached by the drawer to its acceptance or delivery. Plaintiff in error had the undoubted right to accept it with or without security, or with the guaranty of Abend, in payment and satisfaction of the precedent indebtedness. Whether it did so or not, was, as we have seen, a question of fact, to be deduced from proof of the attending circumstances.

The statute (Practice act, sec. 42,) has made ample provisions for preserving in the record the rulings of the court upon questions of law arising in the case. It may be as efficiently and conveniently done by submitting to the court written propositions, to be held as law in the decision of the case, as it can by instructions to a jury. It is made the duty of the court to pass upon all questions of law thus submitted, and to hold, refuse or modify the same, as the trial court shall deem right, and either party may except to such ruling. As we have said, the presumption of law is in favor of the correctness of the judgment of the inferior court, and it will be presumed that the law was correctly applied to the facts by the jury, or the court sitting as a jury, unless the record affirmatively shows error in that regard. This precise question has been passed upon by this court in the eases of Tibballs et al. v. Libby, 97 Ill. 552, Hobbs v. Ferguson’s Estate, 100 id. 232, Steinman v. Steinman, 105 id. 349, and Montgomery et al. v. Black et al. ante, p. 57, and we do not deem it necessary to further elaborate the question here.

Plaintiff in error having failed to preserve in the record, in the only mode by which it can be done in eases of this kind, the rulings of the trial court, and the presumption being that the law was correctly applied, no error can be assigned as to such rulings. The questions of fact having been settled by the judgment of the Appellate Court to be sufficient to maintain the judgment of the court below, and there being no error of law, the judgment of the Appellate Court must be affirmed, which is accordingly done.

Judgment affirmed,.

Mr. Justice Craig,

dissenting:

As I do not agree with a majority of the court in the judgment rendered, I desire to state the rules of law which, in my judgment, should control the decision of the court.

The following instrument was filed in the county court, as evidence qf the demand of the Belleville Savings Bank against the estate of Conrad Bornman, deceased:

“$10,000. Office of Belleville Nail Mill Co.,
Belleville, III., July 17, 1874.
“Four months after date, pay to the order of Belleville Savings Bank, ten thousand dollars, value received, and charge same to account of Belleville Nail Mill Company.
Conbad Bobnman, Pres’t.
James C. Waugh, Sec’y.
To F. H. Piepeb, Treas., Belleville, 111.”

• Written across the face of this instrument appear the words: “Accepted.—F. H. Pieper, Treas.” On the back are the signatures of Conrad Bornman and James Waugh.

In the circuit court the cause was tried without a jury, and it was proven that after the draft was executed by the Belle-ville Nail Mill Company, Bornman wrote his name on the hack ■of it, and gave it to F. H. Pieper, and directed him to tell the •cashier of the hank that the draft was not to be taken by the bank unless Mr. Abend placed his name on the back of it; "that when the draft was given to the cashier he was so notified. Abend never placed his name on the back of the draft. He ■executed a separate paper, guaranteeing the payment of the draft if it was not paid by the Belleville Nail Mill Company ■or Conrad Bornman. Had this been all there was of the case, it is plain that Bornman was not liable. His contract was a ■conditional one. He guaranteed the draft on the condition that Abend should also become a guarantor, like himself, by writing his name on the back of the draft, and the bank, before accepting the draft, had notice of that fact. As the condition upon which Bornman agreed to become bound as a guarantor of the paper was never performed, of which the bank had notice before accepting the draft, he incurred no obligation. The bank had no right to take the draft until Abend had written his name on the back of it. It was, as between the bank and Bornman, an incomplete instrument until that condition was complied with, and, so far as the conditional contract of Born-man is concerned, no recovery can be had upon it.

But there is another feature of the case, which places the liability of the parties in a different aspect. This draft was .given in renewal of a like one in all respects, except date, made ,on March 14, 1874, on the back of which appear the signatures of Conrad Bornman, James Waugh and Edward Abend, .■as co-guarantors. This last draft, when the other one was taken by the bank, was marked paid, and surrendered, and -was put in evidence on the trial, by defendant. That.the draft ■ of March'14 was in all respects valid, and a binding obligation, ■ and that Bornman was liable thereon as guarantor, is not -■questioned or denied. That it never was in fact paid is also .-a conceded fact. And if Bornman shall not be held liable as ¡guarantor on the renewal draft of July 17, then it is contended that his liability as guarantor of the old draft of March 14-remains undischarged, and may be enforced against his estate.

The authorities are not uniform on the subject of the giving; of a bill of exchange or a negotiable promissory note for a, pre-existing debt being regarded as payment, or not, of the indebtedness. But the prevailing rule I regard to b.e as stated in 1 Edwards on Bills and Notes, sec. 290, viz.: “In general, the American courts have'followed the doctrine of the common law, holding that the negotiable note of a debtor, when delivered to his creditor on his own debt, without express agreement, is not a payment thereof, but that the giving of the note maybe shown in evidence on the trial in an action brought on the-original demand, and will defeat a recovery on it unless the-note is produced and cancelled.” In further support of such, rule, see secs. 277, 278, 286, 290, same author, and 1 Daniel on Neg. Inst. see. 205 ; 2 id. secs. 1259,1260,1266,1267, and. authorities cited in the notes. And see McConnell v. Stettinius, 2 Gilm. 713; Miller v. Lumsden, 16 Ill. 161; Morrison v. Smith, 81 id. 221.

Generally, where a new bill or note is given in renewal of another bill or note, the new bill or note operates only as a. suspension of the debt evidenced by the original, and is not-a satisfaction of it until paid. Although in some cases it has-been held that an agreement to take a bill or note in absolute-payment of a debt must be express, in order to render it such, the better opinion is said to be that such agreement may be-implied as well as expressed, and that all the circumstances may be looked to, to ascertain what was the actual agreement of the parties. 2 Daniel on Neg. Inst. sec. 1268.

There was in the present ease nothing of any agreement that the renewal draft should be taken in payment of the old one, and all the circumstances indicative of any intention of the parties in that respect, are the surrender of the old draft,— the bank stamping it “paid” on its face,—and indorsement on the renewal draft of payments subsequently made. But it is-held that delivery of the old note, without arrangement that it shall be extinguished, does not, of itself, operate as a presumption of extinguishment; neither does the receipting of the renewal note as payment so operate,—such receipt being interpreted as meaning conditional payment, to be in full when the renewal note is paid. (See authorities above cited.) The circumstance of indorsing some payments that were made, on the last note, although dwelt upon by counsel, I regard ^s of no significance.

It is said by Parsons, (2 Parsons on Notes and Bills, 203,) that the general custom and understanding of the mercantile world would seem to demand that a new note given in renewal of an old one, which is “taken up,” as it is termed, should pay and cancel the old note for which it is given. But this appears to be but the author’s individual opinion, and not having support in the adjudicated cases. (See 2 Daniel on Neg. Inst. sec. 1266.) But it is laid down by Parsons: “When a new note is exchanged for one void or. worthless from any cause, as, usury, the former contract is not thereby avoided. The debtor has not given that to the creditor which the creditor supposed, and therefore the creditor is not bound thereby. Nor would an exchange or renewal of notes be held a payment and discharge, if such discharge would injure the creditor.” (2 Parsons on Notes and Bills, 205, 219.) Daniel lays it down: “Even where a note is considered as paid and discharged by one given for it, as a general rule the case is excepted where the debt would, by such construction, be lost, because then the intention to receive the second as a discharge would be prima facie rebutted. This view was taken where the first note was secured by mortgage, citing authorities.” 2 Daniel on Neg. Inst. sec. 1266.

A renewal note has the benefit of any security for the payment of the original, whether by way of mortgage, deed of trust, or otherwise, and the holder may enforce it. (1 Daniel on Neg. Inst. sec. 148.) This is abundantly established by the authorities, where the first note is secured by a mortgage. It is also held, where the renewal note is void for usury in it, that the original note is not discharged, and may be enforced. Rice v. Welling, 5 Wend. 595; Leary v. Miller, 61 N. Y. 490.

In the case at bar there was a clear liability on the part of Bornman and Abend, as co-guarantors, for the payment of the draft of March Í4, 1874. That draft has never been paid, and Bornman’s liability to pay it has not been discharged. As respects Bornman, all that he has done in the way of discharging this undoubted liability of his, is, that he has made an abortive attempt toward the continuation and extension of his liability for four months. In place of his guaranty of the draft of March 14,:he was willing to become guarantor with Abend on a draft in renewal, payable at the end of four months, and went so far in that purpose as to place his name on a renewal draft dated July 17, payable at four months, upon the condition that before it was delivered Abend should likewise place his name on the draft as co-guarantor. This Abend did not do; consequently Bornman’s placing his name on the renewal draft went for naught, and it was as if he had never-done so. So Bornman’s liability on the draft of March 14,1874, remains with nothing whatever done on his part in discharge of it. To hold Bornman to be quit and clear of all liability by reason of the bank taking the renewal draft, would be a manifest injustice, and not in accordance with the intention of either party. The bank surely did not intend to release the liability of Bornman, as guarantor. Bornman had no intention or expectation of having his liability as guarantor extinguished. He was willing and expected to continue his existing liability as guarantor, by having Abend join with Mm in the guaranty of the renewal draft. But if Abend would not become a co-guarantor with him of the renewal draft, then, of course, Born-man intended and expected that his liability, together with that of Abend, as guarantor on the old draft, should be and remain as it then was. There is no reason why his mere unsuccessful attempt to renew the guaranty should discharge it. His putting his name on the renewal draft, without a delivery thereof, was of no detriment to him or benefit to the bank, and the taking by the latter of the renewal draft, with Bornman’s name upon it, should, under the circumstances, count as nothing toward the discharge of his liability as guarantor upon the original draft of March 14, 1874. Nor did the separate guaranty given by Abend affect the rights of any of the parties. He remained bound as co-guarantor on the old draft with Born-man. For like reason that the taking of the renewal draft would not have been held to affect the security of any mortgage, had there been one, for the payment of the original draft, I think it should not be held to discharge this security of a guaranty for the payment of the first draft.

Yates v. Valentine, 71 Ill. 643, which is referred to by counsel for defendant in error, is obviously a quite different case from the present, and should not control it. That was not a case of a mere renewal of a note, but in the place of a former note the maker of it had given a new note, made payable to another person than the payee of the former note, and thus had been placed in a worse condition, where to have enforced the old note against him would have made him subject to a double liability for the same debt. In McConnell v. Stettinius, supra, the rule as I have stated, which- generally prevails, was laid down, and has never intentionally been departed from by this court.

But it is said the plaintiff must recover on the claim .presented, (the draft of July 17,) or not at all,—that the draft of March 14 was not presented as a claim against the estate, and an allowance can not be predicated upon it. I do not concur in this view. The doctrine contended for is entirely too technical. No pleadings are required in the county court in a proceeding of this character, and I think a party ought to recover where the evidence shows that he is entitled to a judgment, although a mistake may have occurred in filing the claim. Harrison v. Lindley, 104 Ill. 247, is a case where a recovery was sustained on proof variant from the claim filed.

Section 24 of the Practice act provides, “that at any time before final judgment, in a civil suit, amendments may be allowed * * * changing the parties, either plaintiffs or defendants, changing the form of the action, and in any matter, either of form or substance, in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defence.” This act has always received a liberal construction, and since its passage amendments almost unlimited in character have been sustained when made, even in courts where written pleadings are required. Less strictness would, of course, be required in courts where ne written pleadings are required. Indeed, the whole theory and policy of our practice now is, to allow a recovery in all cases, regardless of technical rules, where the evidence shows a right of recovery. Such being the case, it would be no less than taking a step backward to lay down a rule of practice, in a court where no pleadings are required, which would defeat a recovery on the evidence, merely because the evidence was variant from the claim in writing, filed as the foundation of the action. This I am not prepared to do.

It is also insisted that the question involved is one of fact, upon which the decision of the Appellate Court, affirming the judgment of the circuit court, is conclusive. I do not take that view of the question. Had the question been merely whether or not the draft had been paid, that might be regarded as a question of fact. But that was not the point. The question was, whether the giving of the draft of July 17 operated as a payment of the draft of March 14,—and that was a question of law. Whether the draft last dated was given in renewal of the one of date March 14, may be regarded as a question of fact; but when the fact was established by the evidence, whether the renewal operated as a payment of the first draft was a question of law, upon which the court was required to pass in rendering a judgment in the cause. There was here no dispute in regard to the facts. Conceding the facts, therefore, to he as claimed by the defendant, did they constitute a defence, under the rule indicated in Fitch v. Johnson, 104 Ill. 119 ? That was a question of law, which may be reviewed on appeal.


author: Mr. Justice Magruder

text:
    James Sanders v. The People of the State of Illinois.

      Filed at Mt. Vernon March 27, 1888.

      1. Pebjuby—materiality of a statement upon which to assign perjury. A party indicted for burglary and larceny filed his affidavit in support of his motion for a continuance, in which he stated that he could prove an alibi by a witness named, and that he was the only witness by whom he could prove that he, the affiant, was at his home on, etc.: Held, that the statement there was no other witness by whom the alibi could be shown, was a pertinent and material point on the motion, and if false, perjury could be assigned upon it, although the affidavit may have been insufficient in that it failed to show proper diligence to procure the attendance of the witness.
    2. Indictment fob pebjuby—sufficiency—as showing materiality of matter sworn to. An indictment for perjury averred that a certain cause was pending in the court, naming the parties and court; that the defendant therein had made a motion for a continuance, and that upon the hearing of that motion the affidavit of the defendant, used by him, was material, and that it was a material question upon such hearing whether or not one W. was the only witness by whom an alibi of the defendant could be proved, and setting out the language of the affidavit in this respect, and charging its falsity in the usual manner, is sufficient to sustain a conviction.
    3. Juey in ceiminaXi CASE—to be in charge of sworn officer. On the adjournment of court at noon, the officer who took charge of the jury in a criminal case the trial of which was pending, was sworn by the clerk, as required by section 15, division 13, chapter 38, of the Revised Statutes. After the court met in the afternoon, and some further proceedings were had, the jury retired “to consider of their verdict, ” but the officer attending them, being the same officer in whose charge the jury were placed at the noon adjournment, was not again sworn: Held, that while it would have been better if the officer had been sworn at the time the jury retired, yet if the proper oath was administered to the officer a few hours before, the irregularity was not of such gravity as to call for a reversal.
    á. The swearing of an officer to take charge of a jury a few hours before the jury retire to consider of their verdict, will not justify a reversal of a judgment of conviction, when it is hot shown that the jury were not attended to a private and convenient place, or were not kept together without meat or drink until they agreed, or that others were suffered to speak with them, or that they were exposed in any such way as to be operated upon to the prejudice of the prisoner.
    5. Practice—matters in argument to jury, outside the record—how far allowable—in criminal case. A State’s attorney, in addressing the jury in a criminal case, has the right to dwell upon the evil results of crime, and to urge a fearless administration of the criminal law. He may comment upon the conduct of the accused, and illustrations drawn from well known historical facts are not out of place, when used merely for the purpose of explaining or emphasizing the bearings of the evidence.
    6. On the trial of a party for perjury, assigned upon statements in an affidavit for a continuance, in addressing the jury the State’s attorney told them that criminals often escaped their just deserts, and the wheels of justice were often blocked by such false affidavits for delay as the prisoner was charged with making, and that .it was their duty to put a stop to that kind of work. He also referred to the destruction of the court house in Cincinnati a few years ago, as illustrating the effect of public indignation, when aroused by the unjust escape of criminals through perjured evidence: Held, that the language of the State’s attorney was not of such a character as to justify the reversal of a judgment of conviction.
    7. On the same trial for perjury, in making an affidavit for a continuance in another case, against the defendant and two others, for burglary, the defendant asked the court to instruct the jury to disregard any remarks by the State’s attorney concerning any other case than the one on trial: Held, that the instruction was properly refused, as the burglary case, though not being tried, was so closely connected with the case on trial as to make it impossible to avoid making remarks about it.
    8. Same—time to object—as to improper remarks of counsel to jwry. If it be claimed that counsel pursued an improper line of argument to the jury in a criminal case, the objection, to be availing, should be made at the time. It comes too late on appeal or error.
    9. Instructions—directing attention to part of the. facts only. An instruction which purports to summarize the principal facts in a case, but directs the attention of the jury only to those favorable to one of the parties, is bad, and properly refused.

      10. Same—as to proof of facts. An instruction which tells the jury that if they find certain facts from the evidence, those facts are proved, is-meaningless, and calculated to mislead and confuse the jury. Pacts are proven by the evidence, and not as the result or consequence of a finding by the jury.
    11. Same—mitst be based on evidence. Instructions are erroneous when there is no evidence on which to base them. So, instructions directing the -jury to consider the character and reputation of the witnesses for the State, on a criminal prosecution, and the reputation of the prisoner for truth and veracity, when there is no evidence on these subjects, are bad.
    12. Same—as to presumption of innocence. An instruction that “the defendant, though indicted for perjury, is just as innocent of the crime as though not indicted, ” is erroneous, as virtually telling the jury that the defendant is innocent, independently of what the evidence may show.
    Writ of Error to the Circuit Court of St. Clair county; the Hon. B. H. Canby, Judge of the City Court of East St. Louis, (by request of Hon. W. H. Snyder, circuit Judge,) presiding.
    Mr. William P. Launtz, for the plaintiff in error:
    It is the false swearing to a matter material to the point of inquiry that constitutes perjury. Pollard v. People, 69 Ill. 148; Morrell v. People, 32 id. 502.
    The affidavit being insufficient to procure a continuance, presented a wholly immaterial issue, as it was not used, and its making injured no one.
    The court erred in allowing the State’s attorney to make improper remarks to the jury. Kennedy v. People, 40 Ill. 489; Fox v. People, 95 id. 78.
    It was error not to place" the jury in charge of a sworn officer, as the law requires. Crim. Code, sec. 495; Rev. Stat. chap. 38, div. 13, sec. 15; McIntyre v. People, 38 Ill. 514; Lewis v. People, 44 id. 452; 2 Blackf. 478.
    Mr. George Hunt, Attorney General, and Mr. B. D. W. Holder, State’s Attorney, for the People:
    The indictment contained every necessary allegation, and is sufficient. Rev. Stat. chap. 38, sec. 227; Morrell v. People, 32 Ill. 502; Hendersons. People, 117 id. 265.

      Our remarks to the jury were justified by the circumstances. 'They were in reply to the able and ingenious argument of counsel for plaintiff in error, that inasmuch as the affidavit failed of its purpose, and that Sanders had been acquitted on the trial of the case, the jury ought to acquit him of the charge -of perjury. Bulliner v. People, 95 Ill. 394; Duffin v. People, 107 id. 113; Epps v. State, 102 Ind. 539; Cross v. State, 63 Ala. 40.
    There was no error in refusing the instructions asked by the plaintiff in error. The court is not bound to give instructions as asked, when the substance of them has already been given, or when they are not based on evidence. Crews v. People, 120 Ill. 318; Spies v. People, 122 id. 1; Pennsylvania Co. v. Marshall, 119 id. 399; Railroad Co. v. Bragonier, id. 51; Thompson v. Duff, id. 226.
    The irregularity in swearing the officer to take charge of the jury not having prejudiced the prisoner in any manner, will not be ground for reversal. McIntyre v. People, 38 Ill. 514; Adams v. People, 47 id. 376; McKinney v. People, 2 Gilm. 556; Perteet v. People, 70 Ill. 171; Bulliner v. People, 95 id. 394; Mackin v. People, 115 id. 312; Graham v. People, id. 566; Hughes v. People, 116 id. 330.
   Mr. Justice Magruder

delivered the opinion of the Court:

Plaintiff in error was indicted jointly with Christian A. 'Schmidt and Peter Tourville for breaking into a house a few miles from Bast St. Louis on the night of October 22, 1886, .and taking therefrom certain articles of property. He was dried on March 29, 1887, for the burglary and larceny, for which he had been so indicted, and was acquitted.

In the case at bar, plaintiff in error.was indicted for perjury. The complaint is, that on March 29,1887, before his trial for burglary and larceny began, he made an affidavit for continuance, on the ground that he could not safely proceed to trial in the absence of H. T. Winchester, a witness by whom he expected to prove an alibi. In the affidavit he made the following statement: “That Winchester will swear that this affiant was at his home in East St.Louis, St.Clair county, Illinois, in the first ward, between Main and Second streets, in said city, on the night of the 22d day of October, 1886, from 8 o’clock P. M. until 11:30 o’clock P. M.; that said Winchester is the only witness by whom he can prove that he was at his home there, as aforesaid, until that time.”

The indictment for perjury in making this affidavit charges that “in truth and in fact the said H. T. Winchester was not the only witness who could swear to the facts, and by whom the said James Sanders could then and there prove that he, the said James Sanders, was at his home in the first ward of the city of East St. Louis, in the county of St. Clair, aforesaid, on the night of -the 22d day of October, A. D. 1886, from 8 o’clock P. M.-to half past 11 o’clock P. M.,. as the said James Sanders then and there well knew at the time the said James Sanders made his oath and affidavit, as aforesaid.”

The continuance was refused on the ground that due diligence had not been used to procure the attendance of the absent witness. The trial for burglary and larceny then proceeded. Upon the trial, which took place on the same day on which the affidavit was made, Sanders introduced Annie Lane and Lehndorf Tate as witnesses to prove the alibi.

Mrs. Lane swore that she was at the home of Sanders on the night in question until 11 o’clock and that Sanders was there up to that time. Tate swore that he was at the home of Sanders during the whole of the night of October 22, 1886, and that Sanders was at home during the entire night. It was also proven, that Sanders, who had been out on bail from March 16, 1887, to March 29, 1887, came, on the latter day shortly before making the affidavit for continuance, on the cars from East St. Louis to Belleville in company with Tate, and was then and there engaged in conversation with Tate in reference to what the latter would testify to about the alibi.

The jury found plaintiff in error guilty of perjury. Judgment has been entered upon the verdict and plaintiff in error has been sentenced to the penitentiary. The judgment is brought before us for review by writ of error.

The first error assigned is the refusal of the court below to quash the indictment. The indictment is claimed to have been insufficient on the alleged ground that the false swearing was not in respect to a matter material to the point of inquiry, and, therefore, could not constitute the crime of perjury under the rulings of this court. Pollard v. The People, 69 Ill. 148; Henderson v. The People, 117 id. 265.

The issue presented by the affidavit for continuance was not whether the defendant was guilty or innocent of the charge of burglary and larceny. The affidavit alleged that there was no other person, by whom an alibi could be proved, except Winchester. The issue presented was the truth or falsity of this allegation. It was pertinent and material to the motion for continuance, which had been made by Sanders and was then pending in the pending cause of The People v. Sanders, Schmidt and Tourville. It makes no difference that the continuance was denied, or that the affidavit did not show the exercise of due diligence. If the affidavit was false as to a material fact necessary to support the general ground, upon which a continuance was asked, then perjury was committed.

The indictment in this case is not obnoxious to the objections mentioned in the case of Morrell v. The People, 32 Ill. 502, referred to by counsel. There, it did not appear from the indictment that an application for a continuance was made and that the affidavit was material on such application. Here, the indictment avers that a cause was pending in the court, that a motion for continuance had been made, and that, upon the hearing of that motion, the affidavit was material. It was a material question upon such hearing whether or not Win-Chester was the only witness by whom the alibi could be proved. We do not think that the trial court erred in refusing to quash the indictment.

It is next assigned for error, that the jury were not placed in charge of a sworn officer, when they retired “to consider of their verdict, ” in accordance with the requirement of section 495 •of the Criminal Code. That section provides that “when the jury retire to consider of their verdict in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury,” etc.

The evidence shows, that, when court adjourned at noon, the officer, who took charge of the jury, was sworn by the clerk in the manner required by said section, but, after the noon recess, the jury returned into court, some further proceedings were had in the trial, the jury then retired “to consider of their verdict,” but the officer, who attended them, was not again sworn. It would have been better, if the officer had been sworn to attend the jury and keep them together and prevent others from speaking to them, etc., at the time they retired to their consultation room to agree upon their verdict. But if the statutory oath was administered to the same officer an hour or more before they retired to the jury room, we do not regard this as such an irregularity as will justify a reversal.

In Lewis v. The People, 44 Ill. 452, it appeared that the •officer, in whose charge the jury were placed while deliberating upon their verdict, either was not sworn at all, or was not sworn in the mode required by the statute. So, also, in McIntyre v. The People, 38 Ill. 514, it appeared that “the oath required by the statute was not administered.” In the case at bar, however, such an oath as the statute provides for was administered by the clerk to the officer in charge. The only peculiarity about it was that it was administered an hour or more before the jury retired, instead of being taken at the time or “when” they retired. In McIntyre v. The People, supra, the officer was sworn “on an adjournment of the-court at a previous time in the progress of the trial,” just as in the present •case. But, there, the objection was only as to the character of the oath, and not as to the time when it was taken.

We do not think that the plaintiff in error was prejudiced by administering the oath at the noon recess instead of doing so later in the afternoon. It is not shown that the jury were not attended to a private and convenient place, or were not kept together without meat or drink until they agreed upon their verdict, or- that others were suffered to speak to them, or that they were exposed in any such way as to be operated upon to the prejudice of the prisoner. The irregularity, here indicated, is too slight to be regarded as a just ground for reversal. Adams v. The People, 47 Ill. 376.

Certain statements, alleged to have been made by the State’s attorney in his closing argument to the jury and which are set forth in an affidavit made upon the motion for a new trial, are claimed to have had an improper influence upon the jury. We do not think the language of the State’s attorney was of such a character as to justify us in reversing this judgment. He told the jury, that criminals often escaped their just deserts and the wheels of justice were often blocked by such false affi- . davits for delay, as the prisoner was charged with making, and that it was their ‘‘duty to put a stop to that kind of work.” He referred to the destruction of the court house in Cincinnati ' a few years ago, as illustrating the effect of public indignation, when aroused by the unjust escape of criminals through perjured evidence.

Counsel must be allowed to pursue a legitimate line of argument in addressing juries. They have a right to dwell upon the evil results of crime and to urge a fearless administration of the criminal law. They may comment upon the conduct of the accused. Illustrations drawn from well-known historical facts are not out of place, when used merely for the purpose of explaining or emphasizing the bearings of the evidence. In Bulliner v. The People, 95 Ill. 394, we said that it was impossible to lay down any fixed rule with respect to the illustrations, with which counsel should be allowed to embellish their arguments, and that “the trial judge should always see that the line of argument is kept within reasonable bounds, and not allow the defendant to be convicted or prejudiced on account of real or imaginary crimes for which he is not upon trial. And unless for a palpable abuse of discretion in this regard, manifestly tending to an improper conviction, there should be no reversal.” Y/e see no abuse of discretion here in this respect. Moreover, it does not appear that any exception was taken to the language of the State’s attorney at the time it was used. Counsel should not remain quiet until the verdict is brought in and then complain of remarks alleged to have been improper. Upon objection made at the time of their utterance, the court can caution the jury against them and prevent any injurious effects.

Plaintiff in error also complains of the refusal of the trial court to give eight instructions asked by him and numbered from 7 to 14 inclusive. There was no error in the action of the circuit court in this regard.

Instruction No. 7 is faulty in that it calls the attention of the jury to a part only of the evidence tending to prove the fact in issue. It gives prominence to the facts, that Mrs. Lane was at Sanders’ house until 11 o’clock and left there at that time, and that Winchester was there when she left, but it omits to state the fact sworn to by Tate that Winchester was at the house all night. An instruction, which purports to summarize the principal facts but directs the attention of the jury only to those favorable to one of the parties, is bad. (Evans v. George, 80 Ill. 51.) Moreover, the instruction tells the jury that if they find certain facts from the evidence, those facts are proved. This is meaningless. A jury can only find facts to exist, because they are proven to exist. Facts are not proven as the result or consequence of a finding by the jury. The result, which must follow from the finding of a jury in a criminal case, is the guilt or innocence of the prisoner. To say to a jury: “If you find certain facts from the evidence, the prisoner is guilty,” or, “If you find certain facts from the-evidence, the prisoner is not guilty,” is intelligible. But to-say to a jury: - “If you find certain facts from the evidence, those facts are proved,” is calculated to confuse.

Instructions 8 and 9 are erroneous as not being based on the evidence. (Stern v. The People, 102 Ill. 540.) They direct, the jury to consider the character and reputation of the witnesses for the State and the reputation of the prisoner for truth and veracity. Upon these subjects no proof was introduced.

Instruction No. 10 is substantially the same as the first instruction given for the defendant. In addition to this, it purports to summarize all the facts and yet omits all reference to the important circumstance of the defendant’s conversation with Tate on the cars on the morning of the trial, as showing defendant’s knowledge of what Tate would swear to.

The first part of instruction No. 11 is a quotation from the statute as to what is required in an affidavit for continuance. It tended to produce the impression upon the minds of the jury, that if such affidavit did not show the exercise of diligence in procuring the attendance of a witness, its falsity in other respects would be immaterial. Such is not the law, as we have above stated. The second part of the eleventh instruction is a mere repetition of instructions that were given..

The twelfth instruction told the jury, that “the defendant", though indicted for perjury is just as innocent of the crime as-though not indicted.” It may have been the intention of this-instruction to say to the jury, that the fact of the defendant’s indictment would make no difference in determining the question of his guilt or innocence. But the instruction virtually said, that the defendant was innocent independently of what the evidence might show on that subject, and, of course, it was erroneous.

The thirteenth instruction, which told the jury, that, if the ■defendant made the affidavit in good faith for the purpose of having the cause continued until the evidence of Winchester ■could be procured, the verdict should he not guilty, was substantially embodied in several of the instructions that were given.

The fourteenth instruction was as follows: “You are instructed that any remarks made by the State’s attorney concerning any other case than this one were improper and should he disregarded by you.” This instruction was properly refused. The charge was perjury in swearing to an affidavit in the case of The People v. Sanders, Schmidt and Tourville. 'The latter case was not the case on trial, but it was impossible to avoid making remarks about it from the very nature of the charge.

It is furthermore claimed that the evidence did not warrant the verdict. It was the peculiar province of the jury to weigh and consider the evidence. Their finding is not so contrary to the testimony in the ease as to impress us with the belief that the verdict was the result of passion or prejudice. Therefore we can not disturb it. Graham v. The People, 115 Ill. 566.

Defendant swore, that there was no other witness except Winchester, by whom he could prove, that he was in his own home when the burglary was committed. An hour or more after he swore to this, he produced two witnesses, Lane and Tate, who swore to his being at home at the time named. Shortly before making the affidavit he was in consultation with these very witnesses on the cars and in the court room about the testimony they were to give.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    James R. Corder, v. William R. Corder.

      Filed at Springfield March 28, 1888.
    1. Besudting tbtjst—when it arises—degree of proof required. A conveyance to a party may be overcome by proof of a resulting trust, by evidence showing that another than the grantee in the deed furnished and paid the purchase money. But the evidence to establish a resulting trust must be very clear, and is always received with great caution.
    2. Evidence — declarations of party in his own favor. The title or interest of a party in land in the possession of another, claiming under a conveyance, can not be established or shown by the parol declarations of the former, made when such other person is not present. Such declarations may be used against the person making them, but not in his favor, or in favor of one claiming through him.
    3. Same—weight of declarations as evidence of title. On bill to establish a resulting trust in land in favor of another than the one holding the-legal title, the parol declarations of the latter are admissible as evidence, but such evidence ought to be received with great caution. It is subject to-much imperfection, and frequently is entitled to but little weight.
    Appeal from the Circuit Court of Coles county; the Hon. C. B..Smith, Judge, presiding.
    Mr. W. H. Shinn, and Mr. W. B. Leitch, for the appellant s
    Parol evidence is competent to establish a resulting trust. 4 Kent’s Com. 399; 2 Washburn on Real Prop. 482; Morgan v. Clayton, 61 Ill. 35; Cramer v. Moose, 93 id. 503; Smith v. Smith, 85 id. 189; Remington v. Campbell, 60 id. 516; Rann v. Rann, 95 id. 438; Low v. Graff, 80 id. 360; Collins v. Smith, 18 id. 162; Kinzie v. Penrose, 2 Scam. 516.
    In the absence of all rebutting circumstances, when one party furnishes the purchase money, and the deed is taken in the name of another, a resulting trust will arise in favor of the former. 1 Perry on Trusts, p. 137, sec. 126, and p. 144, sec. 132; Beach v. Dyer, 93 Ill. 295; Marlow v. Marlow, 77 id. 633; Bruce v. Roney, 18 id. 67.

      Mr. Horace S. Clark, and Mr. Charles Bennett, for the appellee:
    Á resulting trust is not created by any agreement. It arises in the law upon a certain state of facts. It results from the fact that one man’s money has been invested in land, and the conveyance taken in the name of another. Bruce v. Roney, 18 Ill. 67; Mahoney v. Mahoney, 65 id. 406.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 19th day of October, 1884, Joseph Corder died inféstate, in Coles county. He left two brothers, William B. Border and James B. Corder, as his only heirs. This bill was filed by William B. Corder to partition some five hundred acres ■of land of which Joseph Corder died seized. James B. Corder, who was made a defendant to the bill, put in an answer, in which he admitted,'substantially, all the material allegations of the bill. He then filed a cross-bill, in which he alleged that a certain farm in Coles county, consisting of one hundred •and forty acres, known as the “Pierce farm,” belonged to the •estate of Joseph Corder, deceased; that William B. Corder bought the land for Joseph with money furnished by Joseph for that purpose, and that William held the title in his own name, in trust for Joseph. The cross-bill prayed that this' land be partitioned between William B. and James B. Corder. William B. Corder answered the cross-bill, and in the answer denied that Joseph furnished the money to buy the Pierce farm, or that it was bought for him, or that he had any interest whatever in it. Beplication having been filed, the cause proceeded to a hearing on the evidence, and the court entered a decree dismissing the cross-bill, to reverse which James B. Border appealed.

The evidence in this case is quite voluminous, many wit-messes having been examined on behalf of the respective parties. Some of the evidence has but little bearing on the merits of the case. We have, however, after carefully examining all the testimony, and after giving it such weight as it is entitled to receive, arrived at the conclusion that the decree ought to be affirmed.

William B. Corder purchased the land in his own name, on the 7th day of January, 1882, and entered into a contract, in writing, with the owners, providing for a conveyance-within thirty days. On the 23d day of February following, he paid the purchase money, .($4900,) and the land was conveyed to him by David B. and Sarah Pierce. One of the grantors testified: “I sold this farm, and made the deed of it to William Corder. If Joseph was concerned in it, I did not know it.” After making the purchase, William B. Corder leased the farm to Dan Grumes for the year beginning in March, 1882, by a written lease. On the 1st of March, 1883, and again on the 1st of March, 1884, William Corder leased, in writing, the principal part of the farm to' George Osborn. Here is testimony, conclusive in character, which does not depend upon the recollection or veracity of witnesses, showing that William B. Corder purchased the land, and leased it as his own property, in his own name, from the time of the purchase until after the death of Joseph Corder,—three entire years. It is true, the conveyance to William B. Corder may be overcome by proof of a resulting trust, by evidence showing that Joseph Corder furnished and paid the purchase money for the land. But, as said in Mahoney v. Mahoney, 65 Ill. 406, the evidence to sustain a resulting trust must be "very clear, and is always received with great caution. The object of this rule is apparent. It is to afford stability to the legal title to real estate. No witness testified that Joseph Corder furnished the purchase money which paid for the land, nor is there any direct evidence that he did furnish the money. There is evidence in the record that Joseph Corder said there were papers between him and William, to the effect that William was to convey the land back to him. But this was not competent evidence. Joseph’s title or interest in the land could not be established by his parol declarations, made when William was not present. The complainant in the cross-bill, James E. Corder, testified, that on a certain occasion he was at the residence of Joseph Corder, and was requested to write a letter for Joseph, and in looking for writing paper he found a paper folded up, with William E. Corder’s name indorsed upon it. He asked Joseph what this document was, and Joseph said it was a paper he held against W. E. Corder for the Pierce land,—an agreement. But this evidence was not competent, as Joseph Corder could not, under any rule of evidence laid down in the books, establish title to the land by his own declarations. His declarations might be used against him, but not in his favor.

But it is said, Joseph Corder had the land surveyed after it was purchased; that he did labor on the farm, ditching, trimming hedge, repairing fence, trimming trees in the pasture, receiving rents, and other acts indicating ownership of the property. There was much evidence of this character introduced on the hearing, and while it was entitled to due consideration, yet it was, in the main, fully explained by testimony introduced by appellee. For example, Daniel W. Grumes, the tenant who occupied the farm in 1882, testified that he had a conversation with William and Joseph in the spring, soon after he leased the farm, in which William said: “I have hired Joseph to repair the fences, and he will fix the fence and water-gaps ; and Joseph said, ‘Tes, I have got a hand, and not work enough to do, and I will work him on this place fixing these fences.’ ” As to the surveying, the surveyor testified that he was employed by William; that Joseph was present and gave directions, but this was owing to the fact that he was interested in the adjacent land on the south, and hence claimed to know where the line actually ran. But without stopping to go over the evidence in detail, it is quite apparent, from the repeated declarations of Joseph to be found in the evidence, that the labor he performed on the farm was not done as owner, but was done by him for William, under some arrangement made between the parties.

But it is said, that William B. Corder admitted that the-land belonged to Joseph. There is the evidence of some ten or twelve witnesses in the record, to the effect that William B. Corder stated that Joseph owned the land. These declarations are, in the main, denied by appellee. But aside from this, such evidence, where the title to real estate is involved, ought to be-received with great caution. As held in Bragg v. Geddes, 93 Ill. 40, such evidence is subject to much imperfection, and frequently is entitled to but little weight. But should this-evidence receive that weight which appellant insists it should in the decision of the case, it is overcome by the same character of evidence introduced by appellee. Many witnesses were called by him,—some twenty-seven in all,—who, in substance, testified that Joseph Corder said the land belonged to William. The following is taken from the testimony of a part of the witnesses, as their evidence appears in the abstract:

Scoby testified: “I lived on the Pierce farm a year and eight months after William bought it. I rented a small house from Brown, who had it rented from Grumes. Joseph told me it was William’s place. He said he was seeing to the place for William.”

Tipton: “I said to Joseph, T thought you bought the Pierce farm?’ He said, ‘No, William has bought it.’ When he was fixing the fence, I said to him, ‘You are improving your land a little.’ He said, ‘No, I am helping Billy a little.’ ”

D. W. Grumes: “I lived on the Pierce farm in 1882. Leased it of William Corder. Paid rent to William Corder. Joseph said William owned the Pierce farm. William and I settled in November, 1882. Joseph was on that farm a good deal, making repairs. Joe jerked and hauled away a couple of pieces of loads of rent corn he said he had bought of Billy.’5"

Albert Grumes: “I lived on the Pierce farm in 1882. Joseph Corder told me Billy owned that land, and had employed him to do what work was needed to be done there.”

William Grumes: “Joseph told me, one time, he was over there attending to business for William. That’s all I know about it.”

Bridgman: “In the summer of 1882 I met Joseph Corder on the road. He said he was going to the Pierce farm. Said he had no interest in it,—that it belonged to William. That William was sick, and he was fixing the fence for him.”

Brown: “I had a conversation with Joseph Corder, in which he told me William had bought one hundred and forty acres of the Pierce land.”

Shaw :■ “I wanted to rent this Pierce land of Joseph. He said it belonged to William, and I would have to see him.”

Band: “I spoke to Joseph about renting a small house on the south end of the Pierce farm, and he said it belonged to Billy.”

James, Davis: “I asked Joseph about renting some oats ground. He said I must see Billy—he had nothing to do with the ground.”

Cash Davis: “I saw Joseph Corder fixing a fence on the Pierce farm. He said he was fixing it for Billy.”

Munson: “Joseph told me, at one time, he was doing work on the Pierce farm for his brother William.”

Bud Davis: “Saw Joseph Corder cutting hedge on the Pierce farm. He rode with me up to his place. He told me he was cutting the hedge for his brother William.”

Connover: “I wanted to rent the Pierce farm of Joseph. He told me to go to Billy—he had nothing to do with the renting.”

As to the ditching in 1884, J. T. Tucker testified: “I live in Ash Grove, Shelby county. I helped Beynolds do this ditching on the Pierce farm. When we finished ditching on Joseph’s home place, he said: ‘We are going onto William’s place next.’ He said that farm over there (the Pierce farm,) belonged to William, and to keep the ditching account separate. Joseph paid for all the ditching done on both places.”

From these often repeated declarations of Joseph Corder that he had no interest in the land,—that it belonged to William B. Corder,—in connection with the fact that William contracted for the land in his own name, paid the purchase money, and the conveyance was made to him, leave no ground upon which a decree might be rendered that a resulting trust has been established.

We think the decree is sustained by the evidence, and it will be affirmed.

Decree affirmed.