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a single count of the indictment, and proved under the trustee named in the deed of trust is an indispensit, the act can not be split into several distinct able party to the record. crimes, and a separate indictment sustained in 2. IT IS THE SETTLED DOCTRINE OF COURTS OF each; and whenever there has been a conviction EQUITY in this country, that a party holding the legal on one part, it will operate as a bar to any subse
title to property involved in a judicial proceeding must quent proceedings as to the residue." And again,
be made a party to the decree. he says: “Whenever, in any criminal transac
Error to Circuit Court of Cook County. tion, a felonious intent is essential to render it a
Charles J. Beattie, for plaintiffs in error, cited crime, and without proof of which no conviction
the following authorities, as to the necessity of can be had, two informations, founded upon the
joining the trustee in proceedings of this nature. same intent, can not be maintained."
Gardner v. Brown, 21 Wall. 36; McRea y. Branch We think this reasoning is sound. In burglary
Bank of Alabama, 19 How. 376; Russell v. Clarke, with intent to commit larceny, and in larceny
7 Cranch, 69; Supervisors of Douglas Co. v. Wall. itself, it is essential that the felonious intent
bridge, 38 Wis. 179; Moor v. Munn, 69 111. 591; should be proved; and it is this intent, which is the
Trustees v. Braner, 71 III. 546; Alexanderv. Hoffsame in both cases, that constitutes a material ele
man, 70 Ill, 114; Atkins v. Billings, 72 Ill. 597; ment of crime in each; and when punished in one
Hopkins v. Roseclare Lead Co., 72 111. 373; Corcase, it would be to punish twice for one offense,
nell v. Harris, 80 Ill. 65. if, on a subsequent trial and conviction, an essen
MURPHY, P. J., delivered the opinion of the tial part of the criminal act first punished also
court: constituted an essential part of the criminal act
The bill of complaint, set out in this record, last punished. For an assault a party may be in
was exhibited on the chancery side of the Circuit dicted; so he may be for a battery; but a convic
Court of Cook County, at the July Term, 1875, by tion for an assault bars a conviction for the bat
Anson M. Truesdell, against Ellen Walsh (widow tery, as the assault is an essential element in the
of John Walsh, late of said county, deceased), battery, and part of it. In North Carolina and in
John Walsh, Michael Walsh, Mary Walsh, MarGeorgia it has been held that, where on indictment
garet Walsh and William Walsh, his heirs at law, for burglary with intent to commit a larceny, a
defendants. conviction has been had, a conviction for the actual
By the bill it appears that on the 6th day of Jupe, larceny, being the same transaction, can not be
1871, the said John Walsh (then in his lifetime) maintained. And this we think the better and
and Ellen Walsh became and were indebted to one sounder rule. The circuit judge sustained defend
Thomas I. Holt, upon a certain promissory note of ant's demurrer to the replication of the attorney
that date, in the sum of $1,400, to become due and general to his plea, and sustained the plea of
payable by its terms on the 1st day of March, former conviction, and discharged the defendant
1872, with interest at the rate of ten per cent. per from this prosecution. And we affirm the judg
annum; and that for the purpose of securing the ment.
payment of said promissory note, according to its NOTE.—The cases referred to, with which this opin
tenor and effect, on that day, executed and deion is in accord, are State v. Lewis, 2 Hawks, 98, livered under their hands and seals their certain and Roberts v. The State, 14 Geo. 8. The contrary indenture of trust deed, by which they granted cases are State v. Warner, 14 Ind. 572, and Wilson v. and conveyed to one Joseph N. Barker, of said State, 24 Conn. 57; the latter being the case in which
county, the fee-simple title to the following deWaite, C. J., dissented. In this case, which was a case
scribed real estate, to wit. : “ Lot No. 7 in Burof statutory shop-breaking, Storrs, J., held the offense of breaking to have been complete, whether or not the
row's subdivision of lots Nos. 7 and 8 of the assestheft was consummated; thus disregarding the ele sor's division of block No. 3, in Brand's addition ment of the one criminal intent as the controlling con to Chicago," which said conveyance was in trust sideration. Mr. Bishop questions whether, on princi for the purposes in said indenture of trust deed ple, this doctrine“ does not press more heavily against
specified-that is to say, to secure the payment of defendants than the humane policy of our criminal
said promissory note above mentioned, according jurisprudence justifies." Sec. 893. The Tennessee court, it seems, takes the humane side in this contro
to its tenor and effect. It also appears from the
record, that on or about the 8th day of October, versy.
1873, said John Walsh departed this life, leaving
him surviving the defendants to said bill, as his FORECLOSURE OF DEED OF TRUST
widow and heirs at law. REQUISITE PARTIES.
The bill prays the aid of the court in foreclosing
said indenture of trust deed as a mortgage, he, WALSH ET AL. v. TRUESDELL.
said complainant, claiming to be the owner of
said promissory note, to secure which the same Appellate Court of Ilinois, First District. was given, and that by the decree of the court
said premises be subjected to sale under the direc[Filed May 13, 1878.]
tion of the court, and that out of the proceeds of Hon. Theo. D. MURPHY, Presiding Justice.
such sale said promissory note be paid, etc. " GEO. W. PLEASANTS, Associate Justices.
It appears that, on the 9th day of December, " Jos. M. BAILEY,
1876, the court decreed for the complainant the 1. IN A SUIT OR PROCEEDING IN CHANCERY to foreclosure of said trust deed, as prayed, finding foreclose a deed of trust in the nature of a mortgage, I due to the complainant from the defendants the sum of $1,878.20; and, for the purpose of paying answer of those who were made defendants or the the same, ordered a sale of said premises by the evidence, but by the complainant's own proof. Master in Chancery, according to the rules and It seems remarkable that he, being within the practices of that court. From this decree the de jurisdiction of the court, and holding at the time fendants below prosecute this writ of error, and the legal title to the premises sought to be reached ask the reversal thereof, and assign several by the decree, should not have been made a party errors, only one of which will it be necessary for defendant. us to consider.
But this not having been done, it was error for The fourth assignment is that the court erred in the court below to decree a sale of said premises, rendering said decree, in the absence of the trus so long as the trustee, who really held the feetee named in the bill, without his consent, he not simple title, was not before the court, and for this being a party.
error the decree of the court below is reversed and It is insisted by the plaintiff's in error that the cause remanded. trustee, J. N. Barker, is a necessary party to this
Decree reversed. proceeding, being, as he is, the grantee named in the trust deed; that it is apparent that by such instrument the title in fee-simple of said premises was SETTING ASIDE VERDICT OF JURY FOR conveyed to said Barker in trust, to be by him used
MISCONDUCT OF OFFICER. for the purpose of paying said promissory note, as therein declared, and that said title has ever since
STATE V. SNYDER. and still resides in him.
It has long been the settled doctrine of courts of chancery in this country that a party holding the
Supreme Court of Kansas, January Terin, 1878. legal title to property involved in a judicial pro
[Filed June 19, 1878.) ceeding is an indispensable party to the record of
HON. ALBERT H. HORTOX, Chief Justice. such proceeding. Harris et al. v. Cornell et al.,
16 D. M. VALENTINE, Associate Justices. 80 ni. 65.
16 D. J. BREWER, This bill is filed to subject these premises to sale AFTER a verdict of guilty had been returned by a by a decree of foreclosure of the trust deed to jury against an accused for the offense of obtaining by Barker, and by the production of his own princi false pretenses the signature of a firm to a check of pal instrument of evidence, the complainant estab $850, and in support of a motion for a new trial affidalishes the important fact that the parties whom he
vits were filed proving that the bailiff who had the has made defendants have no other or higher
jury in charge, and who had testified on the trial on
the part of the prosecution to material facts against interest in the premises in controversy than a mere
the prisoner, was with the jury in their room the greater equity of redemption.
part of the time while they were deliberating on their These premises having been conveyed by John verdict, and no explanation was made of the presence Walsh and Ellen Walsh to the trustee, J. N. of the officer with the jury in their consultations toBarker, as above stated, and he never having re
gether, and the state made no showing that the rights conveyed or otherwise been divested of such title,
of the prisoner were not prejudiced by the acts and
conduct of such officer and witness: Held, that the it is clear that no procceding to subject the same
verdict should have been set aside and a new trial to sale can be effective or binding on him unless he
granted. be made a party; for it is a familiar and uniform rule, that a decree cannot effect the rights and APPEAL from Linn County. interests of the parties who are strangers to the W. R. Biddle, for the state; Snoddy & Eley, for record of such proceeding. Therefore a sale under
defendant. any decree to wbich he was not a party could pass
HORTON, C. J., delivered the opinion of the no title to the purchaser.
court. So it will be seen that for the complainant to reach the title he seeks he must bring the trustee,
After the appellant, A. J. Snyder, was diswho holds the legal title, before the court, that the
charged by this court in the case of ex parte Snysale under the decree may effect a transfer of the
der, reported in 17 Kas. 542, and 5 Cent. L. J. 307, title to the purchaser at such sale.
he was arrested for having obtained by false pre"It is the duty of the complainant to see and
tenses, on November 28th, 1876, the signature of
the firm of Messrs. Hood & Kincaids to a check of know that he has before the court all necessary parties, or his decree will not be binding. It is a
$850, and having also obtained by like pretenses
the possession of the check after it had been cerpolicy of the law to prevent a multiplicity of suits,
tified. Under the information subsequently filed and where a complainant takes a decree without
against him, he was convicted on one of the making the necessary parties defendants to his bill,
connts, and his punishment assessed at three when the necessity of their being made parties is
years' confinement at hard labor in the penitendisclosed to him, by the answers of those who are
tiary. He Has assigned a number of errors commade parties and by the evidence in the case, the
mitted by the district court on his trial, only one decree will be reversed.” Hopkins et al. v. Rose
cf which it is necessary for us to notice in this clare Lead Company, 73 Ill. 373.
opinion. This relates to the presence of the bailIn this case the necessity of the trustee, Barker, , iff of the jury in their room during their deliberabeing made a party appeared not only by the ' tions. The facts are, that one H. H. McGlothlin was a material witness for the state and testified their deliberations? This certainly would be a on the trial that he had a conversation with Sny very unsafe rule, if answered in the affirmative. der, at the depot at Kansas City, Mo., about De If the bailiff in this very case had been the prosecember, 1876, concerning the $3,850 obtained by cuting witness, John Hood, and he had acted as Snyder, and that Snyder, in talking about the Mc Glothlin did, no argument would be needed to matter, stated that D. A. Painter & Son owed him show the gross impropriety of sanctioning such $3,900 and this was one way, or the only way be proceedings, and the fact that the bailiff only teshad to get even with them. After the jury had been tified to a few material matters instead of many, charged by the court, this witness was appointed as Hood did, lessens, perhaps, the probabilities of the bailiff to have the charge of the jury.
improper influences being used towards the jury, It appeared from the affidavits filed on the part but does not convince us that his presence might of the appellant on his motion for a new trial be not have been prejudicial. The actual presence of fore the inferior court, that the jury retired for the bailiff was not only unfair to free and private deliberations a little after twelve o'clock on the deliberation by the jury, but was a constant menace morning of the 1st day of August, 1877, and were to the jurors who might have wished to question out many hours before they agreed upon a verdict; the facts testified to by the witness. Would not that said McGlothlin remained in the room with his presence have been likely to have deterred disthe jury during their deliberations and their dis cussion upon his own evidence and thereby precussion of the case the greater portion of the time vented a fair expression of opinion on the part of they were absent from the court-room, and was the jurors. The very fact that this witness gave evi. actually present with them while they were con dence against the prisoner at the instance of the sidering what their verdict should be.
prosecution might have induced the belief, in the No counter-affidavits were filed, and all the state minds of some of the jurors, that he believed the ments contained in these affidavits we may as defendant guilty and was favorable to his convicsume to be true. We suppose it must be conceded tion, and with this idea some of them might have that the continued presence of the officer in the hesitated to express themselves as freely in his jury-room during their deliberations was an irreg presence as if allowed to consult and conularity, and the question is presented whether such verse in his absence. An officer's presence, conduct will render the verdict void and require a to use the mildest language, under the cirsetting of it aside, in the absence of all explana cumstances. is a restraint upon the deliberations tion of the reasons of the presence of the officer of a jury, entirely at variance with the seclusion with the jury, and in the absence of all showing and privacy which the wise provisions of the law whether the accused was prejudiced.
attempts and intends to secure to its members, It was held in State v. Mulkins, 18 Kas. 16, that when they have retired to agree upon a verdict. where the court allows the jury to separate and Such restraint should not be imposed upon jurors. fails to admonish them as required by law, it will In this case there seems to be no excuse therefor, be presumed, in the absence of anything to the and no reason given why it took place. We cancontrary, that the rights of the defendant were not be too strict in guarding trials by jury from prejudiced during said separation, because of such improper influences, and in compelling a rigid and failure, and the burden of proving that the rights vigilant observance of all the provisions of the of the defendant were not so prejudiced rests upon statutes tending to preserve the purity of such the prosecution.
trials. The verdict, when returned into court, In Madder v. State, 1 Kas. 340, it was stated: “It must command entire confidence. It must be seis of the utmost importance that triers, who pass cure from all improper bias and even from the upon the lives and liberties of men, should so act suspicion of improper bias. that no possible suspicion can attach to them of We are clearly of opinion that the law does not having been in a position where improper influ sanction a verdict surrounded with the opportuniences, prejudicial to the accused, or in his favor, ties for improper influences as this was, and that may have operated on their minds. Where the the district court erred in refusing to grant a new opportunity for such influences is afforded, if the trial. verdict is against the accused, he is entitled to the It is therefore ordered that the verdict of the presumption that the irregularity has been preju jury and the sentence and judgment of the court dicial to him, and it is incumbent on the state to be annulled and avoided; that the case be remandshow that no such injury could have occurred by ed for a new trial; and it is further directed that reason of the irregularity.”
the appellant be returned from the state penitenIn view of the law thus stated, and the provision tiary and delivered over to the jailor of Linn of the criminal code, that the court shall grant a county, there to abide the order of the district new trial “when the verdict has been decided by court of said county. means other than a fair expression of opinion All the justices concurring. on the part of all the jurors." if the irregularity of the officer could have affected the rights of the prisoner injuriously, we are required to undo what was improperly done. Can we say it is no harm for a bailiff, who has been produced on the part of
“THERE's no such word as fail,” said Cardinal the state in a criminal action to testify to material Richelieu; but tben our bankruptcy laws had not been facts against an accused, to be with the jury in' invented.-Figaro.
NEGLIGENCE-PROXIMATE AND REMOTE times the space between the two divisions of the CAUSE.
barrier was left open for vehicles to pass which might be going to any of the other premises to
which the road in question led. But at the times CLARK v. CHAMBERS.
when the sports were going on, a pole, attached by
a suitable apparatus, was carried across from the English High Court of Justice, Queen's Bench Divi one part of the barrier to the other, and so the road sion, April 16, 1878.
was effectually blocked. TAE defendant put a dangerous spiked hurdle in a
Amongst the houses and grounds to which this private road over which he and others had rights of
private road led was that of a Mr. Bruen. On the way. Some person, without the knowledge of the de evening on which the accident which gave rise to fendant, moved the hurdle a few yards. On a dark the present action occurred, the plaintiff, who night, the plaintiff, who was not a trespasser, without occupied premises in the immediate neighborhood, negligence, and thinking to avoid the original position accompanied Mr. Bruen, by the invitation of the of the hurdle, came into collision with it, and was in
latter, to Mr. Bruen's house. It was extremely jured: Held, that the plaintiff could recover from the defendant. Mangan v. Atterton, 4 H. & C. 388, L.
dark, but being aware of the barrier and the openR. 1 Ex. 239, commented on.
ing in it they found the opening, the pole not being
then set across it, and passed through it in safety. This was a motion for judgment.
But on his return, later in the evening, the plainThe action was tried before Cockburn, C. J., tiff was not equally fortunate. It appears that in when a verdict was entered for the plaintiff for the course of that day, or the day previous, some £200, subject to the opinion of the court on certain one had removed one of the chevaux de frise special findings.
hurdles from the place where it had stood, and had The facts and findings sufficiently appear in the placed it in an upright position across the footpath. judgment.
Coming back along the middle of the road, the Willis, &. C. (Glyn with him), for the plaintiff, plaintiff, feeling his way, passed safely through the showed cause; Hannen (A. L. Smith with him), for
opening in the centre of the barrier; having done the defendant, supported the rule.
which, being wholly unaware—it being too dark The following authorities, besides those noticed
to see—that there was any obstruction on the footin the judgment, were cited: Cordy v. Hill, 6
path, he turned on to the latter, intending to walk W. R. 575, 4 C. B. N. S. 556; Lynch v. Nurdin, 1
along it the rest of the way. He had advanced Q. B. 29; Ionides v. Universal Marine Insurance
only two or three steps when his eye came into Company, 11 W. R. 858, 14 C. B.N.S. 259; Mayne collision with one of the spikes, the effect of which on Damages, p. 27; Hoey v. Felton, 10 W. R. 78,
was that the eye was forced out of its socket. It 11 C. B. N. S. 142; Blagrave v. Bristol Waterworks
did not appear by whom the chevaux de frise hurdle Company, 1 H. & N. 369, 5 W. R. C. L. Dig. 137.
had been th us removed, but it was expressly found April 15.-The judgment of the court (COCK
| by the jury that this was not done by the defendBURN, C. J., and MANISTY, J.) was read by
ant or by his authority. The question is whether COCKBURN, C. J.:
the defendant can be held liable for the injury thus This is a case of considerable nicety, and which, occasioned. so far as the precise facts are concerned, presents It is admitted that what the defendant did in itself for the first time.
erecting this barrier across the road was unauthorThe defendant is in the occupation of premises ized and wrongful, and it is not disputed that the which abut on a private road leading to certain plaintiff was lawfully using the road. There is no other premises as well as to his. The road con- ground for imputing to him any negligence consisted of a carriage road and a footway. The soil tributing to the accident. of both is the property of a different owner; the The jury have expressly found, in answer to a defendant has no interest in it beyond the right of question put to them by me, that the use of the way to and from his premises. The defendant chevaux de frise in the road was dangerous to the uses his premises as a place where athletic sports safety of persons using it. are carried on by persons resorting thereto for that The ground of defense in point of law taken at purpose for their own amusement. His customers, the trial and on the argument of the rule was that, finding themselves annoyed by persons coming although if the injury had resulted from the use of along the road in question in carts and vehicles the chevaux de frise hurdle as placed by the defendand stationing themselves opposite to his grounds ant on the road, the defendant, on the facts as adand overlooking the sports, the height of the carts mitted, or as found by the jury, might have been and vehicles enabling them to see over the fence, liable, yet as the immediate cause of the accident the defendant erected a barrier across the road for was not the act of the defendant, but that of the the purpose of preventing vehicles from getting person, whoever he may have been, who removed so far as his grounds. This barrier consisted of a the spiked hurdle from where the defendant had hurdle set up lengthways next to the footpath, fixed it and placed it across the footway, the dethen two wooden barriers armed with spikes, com fendant could not be held liable for any injury remonly called chevaux de frise ; then there was left sulting from the act of another. an open space through which a vehicle could pass; On the part of the plaintiff it was contended that then came another large hurdle set up lengthways, as the act of the defendant in placing a dangerous which blocked up the rest of the road. At ordinary instrument on the road had been the primary cause of the evil, by affording the occasion for its being passing by whipped the horse, which caused it to removed and placed on the footpath, and so caus back the cart against the plaintiff 's window. It ing the injury to the plaintiff, he was responsible was urged that the man who whipped the horse, in law for the consequences. Numerous authori and not the defendant, was liable. It was also conties were cited in support of this position.
tended that the bad management of the plaintiff's The first is the case of Scott v. Shepherd, 3 Wils. shopman had contributed to the accident. But 403, and 2 Wm. Bl. 892. In that case the defend Chief Justice Tindal ruled that even if this were ant threw a lighted squid into a market. house
believed it would not avail as a defense. « If," he where several persons were assembled. It fell says, “ a man chooses to leave a cart standing in upon a standing, the owner of which, in self-de the street, he must take the risk of any mischief fense, took it up and threw it across the market that may be done." house. It fell upon another standing, the Lynch v. Nurdin, 1 Q. B. 29, is a still more owner of which in self-defense took it up and striking case. There, as in the former case, the threw it to another part of the market-house, defendant's cart and horse had been left standing and in its course it struck the plaintiff and ex- | unattended in the street. The plaintiff, a child of ploded and put out his eye. The defendant was seven years of age, playing in the street with other held liable, although, without the intervention boys, was getting into the cart, when another boy of a third person, the squib would not have in made the horse move on, the plaintiff was thrown jured the plaintiff.
down, and the wheel of the cart went over his leg In Dixon v. Bell, 5 M. & S. 198, the defendant, and fractured it. A considered judgment was dehaving left a loaded gun with another man, sent a livered by Lord Denman. He says: “It is urged young girl to fetch it, with a message to the man, that the mischief was not produced by the mere in whose custody it was, to renove the priming, negligence of the servant, as asserted in the declawhich the latter, as he thought, did, but as it turned ration, but at most by that negligence in combinaout, did not do effectually. The girl brought it tion with two active causes—the advance of the home, and thinking that the priming having been horse in consequence of his being excited by the removed the gun could not go off, pointed it at the other boy, and the plaintiff's improper conduct in plaintiff's son, a child, and pulled the trigger. The mounting the cart, and so committing a trespass gun went off and injured the child. The defendant on the defendant's chattels. On the former of was held liable. "As by his want of care," says these two causes no great stress was laid, and I do Lord Ellenborough, “tirat is, by leaving the gun not apprehend that it can be necessary to dwell on without drawing the charge, or seeing that the | it at length; for, if I am guilty of negligence in priming had been properly nemoved, the instru leaving anything dangerous where I know it to be ment was left in a state capable of doing mischief, extremely probable that some other person wi.. the law will hold the defendant responsible. It is unjustifiably set it in motion to the injury of a a hard case, undoubtedly; but I think the action is third, and if that injury should be so brought maintainable.”
about, I presume that the sufferer might have reIn Ilott v. Wilkes, 3 B. & Ald. 304, the well dress by action against both or either of the two, known case as to spring guns, it becamne necessary but unquestionably against the first." And then, to determine how far a person setting a spring gun by way of illustration, the chief justice puts the would be liable to a person injured by such a gun case of a game-keeper leaving a loaded gun against going off, even though such a person were a tres the wall of a play-ground where school boys were at passer, inasmuch as the plaintiff, having had notice play, and one of the boys in play letting it off and that spring guns were set in a particular wood, had wounding another. “I think it will not be doubtvoluntarily exposed himself to the danger. But ed," says Lord Denman, - that the game-keeper both Mr. Justice Bayley and Mr. Justice Holroyd must answer in damages, etc., the wounded party, appear to have thought that, without such notice, This,” he adds, “ might possibly be assumed as the action would have lain, the use of such instru clear in principle, but there is also the authority of ments being unreasonable and disproportioned to the present Chief Justice of the Common Pleas in the end to be attained, and dangerous to the lives its support in Illedge v. Goodwin." It is unnecesof persons who might be innocently trespassing. sary to follow the judgment in the consideration of Looking to their language, it can scarcely be the second part of the case, namely, whether the doubted that, if instead of injuring the plaintiff
plaintiff, having contributed to the accident by the gun which he caused to go off had struck a per getting into the cart, was prevented from recoverson passing lawfully along a path leading through ing in the action, as no such question arises here. the wood, they would have held the defendant In Daniels v. Potter, 4 C. & P. 262, the defendliable.
ants had a cellar opening to the street. The flap In Jordin v. Crump, 8 M. & W. 782, the use of of the cellar had been set back while the defenddog-spear was held not to be illegal; but there the ant's men were lowering casks into it, as the injury done to the plaintiff's dog was alone in plaintiff contended, without proper care having question. If the use of such instrument had been been taken to secure it. The flap fell and injured productive of injury to a human being, the result the plaintiff. The defendant maintained that the might have been different.
flap had been properly fastened, but also set up as In Illidge v. Goodwin, 5 C. & P. 192, the de- a defense that its fall had been caused by some fendant's cart and horse were left standing in the children playing with it. But the only question street without any one to attend them. A person I left to the jury by Chief Justice Tindal was