Greene County vs Moses O. Bledsoe

Source: Records Of Cases Illinois
Written: 1850

The County of Greene, plaintiff in error, v. Moses O. Bledsoe, defendant in
error.

Error to Pike.

Where the condition of a bond may be broken by the omission or commission of a
single act, the breach may be assigned in the words of the covenant, but if it
may be broken in various ways, the assignment should state the particular
breach. (a)

When the law requires a public agent, to take security in real estate of
treble the value of the sum loaned, the duty is answered, if he has availed
himself of the best means of forming a correct opinion of the value of the
property, and believes it adequate.

In order to prove a breach of duty, it should be shown that the agent did not
believe the security adequate, or that he was guilty of negligence by not
informing himself.

An appearance and cross-examination of witnesses is a waiver of objection to
the sufficiency of notice.

In depositions, it is not indispensable that the officer taking them, should
literally follow the requirements of the statute, if the substance of the law
is complied with.

This was an action upon a school commissioner's bond, brought against the
defendant in error. The declaration contains several counts; in the first, the
bond is set out, and the averment that Bledsoe, as school commissioner, loaned
one Eakin $1,232, of the school fund of Greene county, on mortgage security,
and that "the title to said real estate was not clear, unincumbered and
indisputable, and that the said real estate was not in value treble the amount
loaned, as aforesaid, at the time the said loan was made, nor hath been since;
that proceedings were had by the successor of Bledsoe, to foreclose the
mortgage; that judgment was obtained upon the bond; that executions were
issued and the whole sum realized upon the executions and the sale of the
mortgaged premises was but $534.83; and so the plaintiff says that the said
Moses O. Bledsoe, as school commissioner and agent for, etc., hath in the
premises forfeited and broken the condition of his said bond, contrary to the
form of the statute in that case made and provided." And avers loss of the
plaintiff in the premises at $2,000.

The second count avers that no more was made, because Eakin had not any
unincumbered real property out of which the judgment could be satisfied; avers
breach of condition of bond contrary to the form of the statute, in this that
Bledsoe did not faithfully loan and have secured the sum loaned, as required
by the statute.

The third count, like the second, averring that the fi. fa. was returned, no
property found. The fourth count, same as third, averring the insolvency of
Eakin at the time the obligation taken by Bledsoe, as school commissioner,
became due.

To this declaration the defendant interposed several pleas, upon which issues
were joined, viz:

That he did not unfaithfully and negligently loan the $1,232.

That he did faithfully loan and have the money secured.

That he had settled with the plaintiff, and fully paid and satisfied the
plaintiff all that was due and owing.

That he had resigned his office, delivered over his books and papers, etc., to
plaintiff, and that he settled with the plaintiff, reported said loan and
mortgage to the plaintiff, which was accepted and approved. A demurrer to this
plea was sustained.

That he faithfully performed his duties as school commissioner in loaning
money; that he had good reason to believe, and did believe, that the mortgaged
property was worth treble the value of the sum loaned.

That the property, at the time of taking the mortgage, was treble the value of
the sum loaned.

That Joseph Eakin was not insolvent at the maturity of the mortgage, as
alleged in declaration.

That, at the time the mortgage was executed, he had good reason to believe,
and did believe, that the mortgaged property was worth three times the sum
loaned. Also a plea of non est factum.

A demurrer to the first count of the declaration was sustained by the Circuit
Court.

On the trial of the cause on the circuit, the jury found for the defendant;
the county of Greene brought the case to this court.

The exceptions to the manner in which the depositions were taken, it is not
material to notice; the opinion of the court states them sufficiently.

D. A. Smith, for plaintiff in error.

Browning & Bushnell for defendant in error.

Caton, J. The first count of this declaration is upon a bond executed by
Bledsoe and his sureties, conditioned that he should faithfully discharge his
duties as school commisioner of said county, and should, at the expiration of
his term of office, pay over to his successor the funds in his hands. The
count, after setting forth the bond and condition in the usual way, proceeds
to aver that the defendant Bledsoe, as such school commissioner, on the first
of February, 1839, had in his hands the sum of $1,232, which he loaned to
Eakin, to secure which he took a bond, together with a mortgage upon certain
premises described. And it is averred that the title to said real estate was
not clear, indisputable and unincumbered, and that it was not in value of
treble the amount of the sum loaned. The count then shows that the mortgage
had been foreclosed and the mortgaged property sold for the sum of $533.33,
which is all that has been made of said debt, "and so the said plaintiff says
that the said Moses O. Bledsoe, as such school commissioner and agent for,
etc., as aforesaid, hath in the premises forfeited and broken the condition of
his said bond, contrary to the form of the statute," etc. A demurrer was
sustained to this count, which is assigned for error.

The averment that the title to the mortgaged premises was not clear,
indisputable and unincumbered, does not show a sufficient breach of the bond
to render the defendants liable. Where a covenant or the condition of a bond
may be broken by the omission or commission of a single act, the breach may be
assigned in the words of the covenant or condition, but where the condition
may be broken in various ways, the party in his assignment must specify the
particular mode in which the condition has been broken. Here the title may
have been encumbered in various ways, or it may have been disputable from
various causes, and it was the right of the defendants to know how the land
was alleged to be encumbered: The People v. Brush, 6 Wend., 454. Here it is
not even shown, whether the complaint is that the mortgagor's title was
defective or whether it was encumbered, and the defendants are not advised
what specific complaint or defect they are called upon to meet.

The other breach complained of, however, is of a different character. The
averment there is that the real estate taken in security was not of treble the
value of the amount of money loaned. The condition of the bond is that the
commissioner should faithfully perform all the duties which were or should be
required of him by law. As the law then stood, he was required to secure the
loan upon real estate, in value, treble the amount of the loan. This duty
could be violated in but one way, and hence it was sufficient to assign the
breach, by negativing the words of the statute, which by adoption constituted
a part of the condition of the bond.

In the case of the People v. Haines, 5 Gilman, 528, which was a suit upon a
school commissioner's bond, the complaint was that the mortgagor had no title
to the mortgaged premises, and it, was decided that: "If the commissioner acts
in good faith, and with due caution and circumspection, then he does his duty
and incurs no responsibility; but if he loans the money either in bad faith,
or without such care and circumspection, then he diverts and misapplies it,
and is responsible at once for all the money thus misapplied." The principle
of this decision is applicable to the case before us. If the commissioner had
reason to believe, and did believe, that the mortgaged premises were of treble
the value of the sum loaned, then he has discharged his duty with fidelity,
and is not responsible for the consequences. No standard is fixed, either by
law or by public estimation, by which we can determine, with certainty, the
value of real estate. It must necessarily be estimated by the judgments of
men, and hence, at best, it is but matter of opinion, which we know must vary
widely in the estimates of different individuals, and much more so here than
in older states and in large cities. There, the rents and profits, to a very
considerable extent, afford a standard of value, while here, the prospects of
the future often, and indeed generally, have a much greater influence than the
present income of the estate in determining its value. With us, then, the
value of real estate is peculiarly matter of opinion, and it is incapable of
being determined with absolute certainly, and the legislature never could have
designed to require of the commissioner, that he should determine at his
peril, and with absolute certainty, that which was incapable of demonstration.
Doubtless, it was in view of this, and of the fallibility of human judgment,
which induced them to require what would be exorbitant security, if the thing
mortgaged were of a fixed and unalterable value. The requirement of the law is
answered, if the commissioner has availed himself of the best means of forming
a correct opinion of the value of the properly mortgaged, and believes that it
is of the required value. To require more than this would make the law
oppressive, and would render it extremely hazardous for any one to accept the
office of school commissioner.

If this is all the law demands of the commissioner to fulfill its
requirements, then, in order to prove the breach which negatives the terms of
the law, the plaintiff must show, to the satisfaction of the jury, either that
the commissioner did not believe that the land was of the requisite value, or
that he was guilty of a want of proper care in not ascertaining that it was of
inferior value. The objection that it should have been averred that the
commissioner knew that the land was of less value than required by the
statute, or that he might, with proper care, have known that fact, we think
was not well considered. The case in 5 Gilman, above referred to is directly
in point against this objection. In that case there was no want of fidelity or
vigilance charged in the declaration, and yet it was held that one of these
must have been wanting to make the commissioner liable. We are of opinion that
the demurrer to this first count should have been overruled.

Of the many questions which were presented relating to the depositions, but
one or two require particular notice. Of the objections to immaterial
testimony, it may be remarked, that most of the issues joined, were entirely
immaterial, and while the greater part of the depositions were entirely
foreign to the real merits of the action, yet they were more or less
applicable to these issues, and if parties will allow immaterial issues to be
formed, they ought not to complain that they have been tried.

The appearance of the defendants and their cross-examination of the witnesses
was a waiver of all objections which they might have urged to the sufficiency
of the notice to take the depositions. We think the Circuit Court erred in
rejecting the depositions of Reno and others, because the officer before whom
they were taken, did not state in the precise place directed by the statute,
that the witnesses were sworn. In the introductory part of the depositions,
the officer states that the witnesses were sworn previous to their
examination, as required by the statute, and in addition to that, at the foot
of each deposition, is the signature of the witnesses, and an ordinary jurat
signed by the officer, stating at what particular hour the witness was sworn
and examined. The certificate at the foot of the depositions does not in
express terms state that the witnesses were sworn, but the officer had already
stated that fact twice, once in the caption to the depositions to which the
closing certificate refers, and again in the jurat at the close of each
deposition, where each witness signed his name. We cannot doubt that the
depositions were taken strictly in conformity to the law, and the certificate
we think is substantially sufficient. The statement that the witnesses were
sworn at the proper time and place is under the official sanction of the
officer, and although he has not followed the literal directions of the
statute, as to the particular place or connection in which that statement is
made, yet we think that is not sufficient to justify the conclusion that the
depositions are not entitled to credence. This court has uniformly held, that
where the substance of the statute has been complied with, the depositions
should not be rejected, although the literal provisions of the law have been
departed from. In the case of Ballance v. Underhill, 3 Scam., 453, a
deposition was held to be admissible, although it was nowhere stated, that the
witness was sworn before he gave his deposition, the court holding that it
would presume that the oath was administered at the proper time. In Hawks v.
Lands, 3 Gilman, 227, the literal requirements of the statute were allowed to
be more widely departed from, than in the case before us. The statute provides
that in all cases, both where the interrogatories are sent out with a
commission to take a foreign deposition, and where they are orally propounded
in case of a domestic deposition, the officer taking the same, "shall cause
such interrogatories, together with the answers of the witnesses thereto, to
be reduced to writing in the order in which they shall be proposed and
answered, and signed by the witness." In that case the deposition was of a non-
resident witness, and the officer taking the deposition had not caused the
interrogatories to be written down with the answers, but had merely referred
to them as they were contained in the commission, and this departure from the
statute was held not only proper but even commendable, as it saved expense and
answered every beneficial purpose. The court could see by the reference, what
question had been put to and answered by the witness, and that was as
satisfactory as if they had been re-written in the deposition. So here, we can
see that the witnesses were properly sworn, and at the proper time, and when
that is the case it would be altogether too technical to say that the party
should lose the benefit of their evidence, because the officer did not certify
that fact in the particular place directed by the statute. We think the
Circuit Court erred in rejecting these depositions.

Whether the testimony which is really immaterial to the merits of the case,
should be rejected upon another trial, will depend upon the state of the
issues at that time. Should the counts on which the immaterial issues are
formed be dismissed, then the immaterial evidence must be rejected. As the
plaintiff has the right to dismiss those counts without the leave of this, or
the Circuit Court, it is unnecessary to make any order upon his application
for leave to do so.

The judgment of the Circuit Court is reversed, and the cause remanded, with
leave to the defendants to plead to the merits of the first count of the
declaration.

Judgment reversed.

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(a) See County of Green, v. Smith, 3 Scam., 227.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill.
1881.