never appears to appropriate it to his own use, would be to protect him in his fraud and dishonesty-a thing not to be tolerated, much less sanctioned, in any court of justice." Where a parcel of bank bills of a bank is deposited with it as collateral security for a loan, the deposit constitutes a bailment, and does not create a debt, and the bank is required to keep and return in specie the identical bills. And if it refuse to deliver them on demand, the bailor may maintain trover against the bank: Abrahams v. Southwestern R. R. Bank, 1 Rich., N. S., 441; Morse on Banking, 461. In McLaughlin v. Waite, 21 Am. Dec. 232, it was decided that the finder of a lottery ticket which had drawn a prize could not maintain an action against the maker to recover the amount due thereon.

DATE ON THE FACE OF A BANK BILL is not evidence of the time when it was issued; and evidence is admissible to show that it was not issued until long after its date: Morse on Banking, 468; Wright v. Douglass, 3 Barb. 554; Long v. Bank, 81 N. C. 41; Selfridge v. Northampton Bank, 8 Watts & S. 320; Greer v. Perkins, 5 Humph. 588.

WHERE BANK BILLS ARE STOLEN WHILE INCOMPLETE, before they are signed by the president, and his signature is afterwards forged and the bills put in circulation, the bank is not liable in an action thereon by a bona fide holder: Salem Bank v. Gloucester Bank, 9 Am. Dec. 111. Where the charter of a state bank provides that its bills shall be taken in payment of taxes, this does not create a contract with the bank so as to preclude the state from afterwards passing a law which forbids such bills to be any longer received

in payment of taxes: Graniteville Mfg. Co. v. Roper, 15 Rich. L. 138. POST-NOTES are notes issued by a bank and made payable at a future day. Not being payable on demand, they are not, properly speaking, bank notes or bills: Morse on Banking, 460. They are intended to circulate like bank notes after they become due, and are treated as such for all convenient purposes: Fulton Bank v. Phænix Bank, 1 Hall, 577. If a bank has power to issue notes, and there is no limitation in its charter as to the description of the notes it may issue, it can issue post-notes, and when issued they may circulate as currency: Campbell v. Mississippi Union Bank, 6 How. (Miss.) 625. The rules in reference to demand and notice applicable to promissory notes and bills of exchange do not apply to the post-notes of a bank. Post-notes are entitled to days of grace, but are payable on demand at any time during banking hours on the last day of grace: Perkins v. Franklin Bank, 21 Pick. 483; Staples v. Franklin Bank, 35 Am. Dec. 345.

THE PRINCIPAL CASE IS CITED in Marine Bank of Chicago v. Rushmore, 28 Ill. 477, to the point that bank bills paid or received as money will support an action for money had and received; and in Wood v. Merchants' Savings etc. Co., 41 Id. 270, to the point that if the holder of a note was present at the time and place of payment, and the maker was there and tendered the amount, this would not be a bar to a recovery, unless the tender was kept good by bringing the money into court.

AMBROSE V. ROOT ET AL.

[11 ILLINOIS, 497.]

AGREEMENT THAT ONE PARTY THERETO MAY, IF NECESSARY, USE FORCE in taking possession of certain property, in case the other party fails to comply with its conditions, is not an agreement to do an unlawful act. Such agreement releases the party using the force from the payment of damages to the other party for injuries necessarily inflicted upon him in obtaining the possession, but will not release him from a prosecution for a breach of the peace if he commits one. If greater force is used than is necessary, the plaintiff may reply the excess, or give evidence of it under the general replication de injuria. TRESPASS for assault and battery. The opinion states the case. B. S. Morris and R. S. Blackwell, for the plaintiff in error. I. G. Wilson, for the defendants in error.

By Court, TRUMBULL, J. This was an action of trespass, for an assault and battery of the plaintiff. The defendant pleaded, among other defenses, certain articles of agreement between the plaintiff and the said Anson Root, from which it appears that the former purchased of the latter an interest in certain mill property, for which he was to pay in installments, and of which he took possession. The last article of agreement, which extends the time for payment as fixed by the first, contains thig clause: "In default of paying said installment on or before the said twenty-third day of July, the said Ambrose covenants and agrees to and with the said Root, that he, said Root, may enter and take possession of said mill, using all the force necessary to obtain the actual possession thereof; and such entry shall not be regarded as a trespass, nor sued for as such, nor in any wise unlawful." The agreements are set out at length in the plea, which then alleges that the plaintiff did not pay the said installment; that the said Anson Root and the other defendants, as his servants and assistants, and at his request, entered and took possession of said mill, using no more force than was actually necessary to enter and take possession thereof; in doing which they did necessarily a little beat and ill treat the plaintiff, which are the same trespasses complained of. To this plea the plaintiff demurred, and the overruling of the demurrer is the only question in the case.

An objection of a formal character is first taken to the plea, that it does not distinctly allege that the plaintiff resisted the defendant, Anson Root, in taking possession of the mill. It avers, that the injury complained of was occasioned in taking

the possession, and that no more force was used than was actually necessary to accomplish that object. Had the plaintiff not violated his engagement, by attempting to withhold the possession of the mill, there would have been no necessity to use violence towards him; and if there was no such necessity, the plea was untrue, and issue might safely have been taken upon it. In point of form we do not think the plea obnoxious to a general demurrer. But the main objection taken to the plea is, that it sets up an agreement that is illegal and void. The principle is admitted, that a court will not lend its aid to enforce a contract entered into with a view of carrying into effect anything that is prohibited by law. But is this such an agreement, or had the parties to it a violation of the law in contemplation when it was made?

It simply provides that Anson Root, who, if the agreement were not complied with by the plaintiff, would have the right to enter and take possession of the mill, should not be regarded as a trespasser, nor his entry as anywise unlawful, in case force should be necessary to enable him to obtain the possession.

This was not an agreement to do an unlawful act. It can not be supposed that the parties had it in contemplation at the time of executing the contract, that the plaintiff would wrongfully attempt to retain the possession, or that there would be any occasion to resort to force to put him out. The agreement was not made for the purpose of committing an illegal act, nor with a knowledge that one would be committed, and had the defendant complied with his obligation, as the law will presume was his intention at the time, none would have followed. If greater force was used than was necessary, the plaintiff could have replied the excess, or given evidence of it, according to the authority of the case of Ayres v. Kelley, 11 Ill. 17, and the general replication de injuria.

This agreement does not release the defendants from a prosecution for a breach of the peace, if they committed one, but it does release them from the payment of damages to the plaintiff for injuries that may necessarily have been inflicted upon him, in obtaining that possession, to take which he had expressly authorized one of the defendants, Anson Root, and by necessary implication the other defendants acting under his direction.

At the common law, whenever a right of entry existed, the disseisee might lawfully regain the possession by force: 1 Chit. G. P. 646. In the case of Hyatt v. Wood, 4 Johns. 150 [4 Am. Dec. 258], the court says: "If the entry in such case be with a

strong hand or a multitude of people, it is an offense for which the party entering must answer criminally; but it would be absurd to say that he must also be responsible in damages, as for an injury to the person who has no right, but is himself a wrongdoer."

Under our statute of forcible entry and detainer, a party having by law a right of entry has no authority to make such entry by force; but this statute provides a civil remedy, which the wrong-doer in possession may at any time waive. My neighbor has no right to break open my dwelling and take therefrom my watch, yet if I authorize him to do it, the act becomes lawful, and he is released from any liability to me in so doing. So in this case, Root had no right by force to enter, and turn the plaintiff out of the mill, yet the plaintiff having given him authority to make the entry, using all the force necessary to obtain the actual possession, such entry by force became lawful as to the plaintiff, and he can not recover damages for that which was done by his own authority, nor can he complain that he was pushed aside when he wrongfully stood in the way. Had the agreement been made with a view to authorize the beating of the plaintiff, it might have been void, because of the unlawfulness of the act, but it was made for the purpose of accomplishing a lawful object in a lawful manner-that is, to enable the defendant Root, by the consent of Ambrose, to take the possession of his own premises. But for the unforeseen wrongful act of the plaintiff himself, nothing unlawful would have followed the carrying of the agreement into execution. The following distinction has been taken as to when a promise to indemnify against a trespass will or will not be valid: "If an act directed or agreed to be done is known at the time to be a trespass, an express promise to indemnify would be illegal and void; but if it was not known at the time to be a trespass, the promise of indemnity is a good and valid promise:" Stone v. Hooker, 9 Cow. 154; Coventry v. Barton, 17 Johns. 142 [8 Am. Dec. 376]. The judgment of the circuit court is affirmed. Judgment affirmed.

FORCIBLE ENTRY WAS FORMERLY PERMITTED, at the common law, where the party making the entry held the title and was entitled to the possession: Tribble v. Frame, 23 Am. Dec. 439; note to Evill v. Conwell, 18 Id. 139.

THE PRINCIPAL CASE IS CITED in Page v. De Puy, 40 Ill. 511, and in Fabri v. Bryan, 80 Id. 183, to the point that the law does not prevent a person from making an agreement with another, that the former may use necessary force in removing the latter from the possession of premises, in case of a breach of the terms of the agreement.

DONNELLY V. PEOPLE EX REL. BUSH.

[11 ILLINOIS, 552.]

PROCEEDING BY QUO WARRANTO IS CRIMINAL PROSECUTION, and must, in Illinois, be carried on "in the name and by the authority of the people of the state," and conclude, "against the peace and dignity of the same."

INFORMATION MUST POSSESS THE SAME CERTAINTY AND TECHNICAL PRECISION that are required in an indictment.

PROCEEDING by quo warranto, charging that Donnelly had usurped the office of sheriff. The relation commenced: "And now comes Alonzo Platt, state's attorney for the eleventh judicial circuit of the state of Illinois, and on the relation of Derrick C. Bush, who sues for the people in this behalf, and. for the said people gives the court here to understand and be informed," etc., and concluded as follows: "Contrary to law, and to the damage and prejudice of the said people of the state of Illinois; whereupon the said attorney of the people prays the advice of the court," etc. The court below sustained the information.

P. W. Platt, for the appellant.

S. A. Hurlbut, for the appellee.

By Court, CATON, J. This proceeding is a prosecution, within the meaning of section 26, article 5, of the constitution, and should have been carried on and should have concluded as is there required. That section provides: "All prosecutions shall be carried on in the name and by the authority of the people of the state of Illinois,' and conclude,' against the peace and dignity of the same.' In its broadest sense, the word "prosecutions" would embrace all proceedings in the courts of justice, or even elsewhere, for the protection or enforcement of a right or the punishment of a wrong, whether of a public or private character. The word as here used, however, has not that comprehensive meaning, but signifies prosecutions of a public or criminal character. When used in this sense, it means the mode of the formal accusation of offenders, and this may be by presentment, information, or indictment: 4 Bla. Com. 301; Webster's Dict., "Prosecution."

This proceeding is a substitute for the ancient writ of quo warranto, but it is none the less a mode of criminal prosecution, as well to punish the usurper for the usurpation of the franchise, as to oust him from its enjoyment: The People v. Utica Ins. Co., 15 Johns. 358 [8 Am. Dec. 243]. Blackstone says: