Syllabus. Opinion of the Court.

agent, it was held that it was the duty of the company to deposit such baggage in their baggage room, in which event their responsibility becomes that of warehousemen, and they must respond in damages for any neglect in that capacity.

2. It is not necessary that such place of deposit should be absolutely fire-proof, or burglar-proof, but such a place as a man of ordinary prudence would use for the storage of his own goods.

APPEAL from the Circuit Court of Rock Island county; the Hon. GEO. W. PLEASANTS, Judge, presiding.

The opinion states the case.

Messrs. GLOVER, COOK & CAMPBELL, for the appellants.

Mr. WILLIAM H. GEST, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

The appellee purchased a ticket entitling him to passage upon the railroad of appellants from Chicago to Moline, and checked his baggage to the same station.

On arriving at Geneseo, he procured a lay over ticket, and stopped there from the 13th to the 15th of February.

The baggage was allowed to go on to Moline, arriving at 5.25 P. M. of the 13th, and no one being on hand to receive it, the baggage master of appellants placed it in the depot building, where baggage was ordinarily kept. He remained in the building until 11:45 P. M., then locked all the doors and fastened all the windows, and left the station, for the night. At 7 the next morning, he went to the depot and found that burglars had broken into the depot, broken open the trunks, and rifled their contents. This action was brought against the company to recover the value of the property stolen, and the jury found a verdict for $92.50. The court instructed the jury as follows:

Opinion of the Court.

"The responsibility of the defendant as a common carrier, lasted until the plaintiff's baggage reached Moline, and was delivered to the plaintiff or his authorized agent, or was by the defendant stored in a safe warehouse of itself or some one else.

"If the jury believe, from the evidence, that the goods of the plaintiff were carried to their destination and not then and there delivered to the plaintiff, either by reason of his not being there to receive them, or for other causes, not the fault of the plaintiff, it was then the duty of the defendant to store the goods in a safe warehouse; and if the jury further believe from the evidence, that the defendant retained possession of the goods after so arriving at their destination, then it was in the capacity of warehousemen, or keepers of goods for hire, and as such warehousemen, the defendants were bound to use ordinary diligence in the care of the same.

"Ordinary diligence or care which a warehouseman is bound to use, is that degree of care or attention which, under the actual circumstances, a man of ordinary prudence and discretion would use in reference to the particular goods if they were his own property."

It is objected that these instructions impose too large a responsibility upon the company, but we can see no objection to them. It certainly would not be contended that a railway company can leave the baggage of its passengers on the platform, utterly uncared for. If the owner of the baggage fails to call for it on the arrival of the train, it is the duty of the company to deposit it in their baggage room, in which event, as in the case of freight, their responsibility becomes that of warehousemen. The baggage room should be reasonably

secure.

Objection is taken to the use of the phrase, "safe warehouse," in one of the instructions. But the jury would understand, from all the instructions, that by this phrase was meant, not a warehouse absolutely fire-proof or burglar-proof,

Syllabus.

but such an one as a man of ordinary prudence would use for the storage of his own goods.

The evidence discloses great negligence on the part of the company. The baggage was stored in the ordinary waiting room, the windows of which were within four feet of the platform, without blinds, and one large pane of glass, 12 inches by 22 (by removing which the burglar made his entry), was fastened only by tacks, and there was no watchman about the building at night.

HENRY C. DENT

v.

EZRA D. DAVISON.

Judgment affirmed.

1. ACTION ON PENAL BOND-of assigning successive breaches. The 18th section of the practice act, which provides that in actions upon penal bonds, successive breaches may be assigned and recovery had, after a trial and judgment in the same action, is not confined in its operation to actions on official bonds, but applies as well to other penal bonds, conditioned for the performance of covenants, where the non-performance of the condition is not necessarily embraced in a single breach.

2. So where one partner purchased his co-partner's interest in the firm, agreeing to pay the partnership debts, and gave a penal bond conditioned for their payment within a specified time, upon a breach of such condition by the neglect of the obligor to pay the firm debts, as he had agreed, a right of action upon the bond accrued to the obligee, but if the latter had not himself paid the debts, or some portion of them, he could recover only nominal damages, and the judgment for the penalty would stand as security for such other breaches as might afterwards happen by reason of the obligee paying the debts, or any portion of them.

3. BILL OF EXCEPTIONS-when it should be signed. While it is for the judge trying a cause to determine, in the first instance, whether the requirements of the law have been so far complied with as to make it his duty to sign a bill of exceptions, yet where that has not been done, the bill should

52 109 121 328 121 329

Opinion of the Court.

not be signed. In this case, the bill was signed two years after the trial to which it related, and from the memory of the judge, without minutes, and without any exceptions having been taken at the time. The signing of the bill was disapproved.

APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

The opinion states the case.

Messrs. BANGS & SHAW and Messrs. BURNS & BARNES, for the appellant.

Messrs. JOHNSON & HOPKINS, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears from the record in this case that appellee brought an action of debt to the August term, 1867, of the Woodford circuit court, against appellant and Addis, on a penal bond. It was conditioned that the obligors should, before the 26th day of August, 1866, pay, or cause to be paid, all debts contracted by the firm of E, D. Davison & Co., or that might have stood charged to E. D. Davison for goods had to the use of the firm obtained in the name of A. D. Addis & Co., and all collections made by Davison & Addis, or Addis & Co.; and it was further provided that, should default be made in the payments, or any part thereof, on the day named, and the same should remain in arrear for the space of ten days, then the aforesaid sum of three thousand dollars should, at the option of Ezra D. Davison, become payable immediately thereafter. At the December term, 1867, a trial was had by the court and a jury, when a recovery was had for the amount of the penalty of the bond and one cent damages.

Afterwards, appellee filed suggestions of further breaches, which occurred after the recovery of the judgment, under the 18th section of the practice act. To this assignment of

Opinion of the Court.

breaches, appellant filed a demurrer, which was overruled by the court, and a trial was had resulting in a judgment of $476.81 in favor of appellee.

It seems that Addis & Davison had been partners in business, and the former purchased of the latter his interest in the business of the firm, and to secure him, gave the bond sued upon, that he would pay the firm debts which he had assumed. Addis failed to pay them within the limited time, and left the country. At the first trial, appellee having failed to prove that he had paid and discharged any portion of the indebtedness which Addis had bound himself to pay, the jury only assessed nominal damages; and the present controversy grows out of the question, whether moneys paid by appellee on the firm debts after the judgment on the bond can be recovered under the assignment of new breaches.

It is not controverted that this is a penal bond, but it is urged that the damages growing out of its breach are of such a character that they should all have been assessed on the first trial; that the damages are entire, and cannot be divided or split up into several recoveries.

It is apparent that appellee should have introduced evidence of the payment by him of debts prior to bringing the suit, on the first trial, to recover more than nominal damages. And failing then to introduce evidence to prove he had paid any portion of the debts, the jury could but find one cent damages, having no proof of anything more than the mere fact that Addis had failed to pay the debts of the firm. And failing to prove such payments, appellee had a right to recover for the technical breach, and nothing more.

The 18th section of the practice act declares that in actions brought on penal bonds conditioned for the performance of covenants, the plaintiff may assign as many breaches as he may choose, and the jury, whether on the trial of the issue or of inquiry, shall assess the damages for so many breaches as the plaintiff may prove, and the judgment for the penalty shall stand as security for such other breaches as may