text:
    Town of Saratoga and Town of Lisbon, Appellees, v. Benjamin Jacobson et al. Susan Duckworth and Richard Duckworth, Appellants.
    Gen. No. 5,926.
    1. Roads and bridges, § 168

      —when water may he cast into highway. A decree prohibiting the casting of water into a highway from an artificial channel without the consent of the highway commissioner, held not to prevent the flowage of water in its natural course.
    2. Roads and bridges, § 16S*—when natural flow of water onto highway may he accelerated. A property owner may accelerate the natural flow of water by means of ditches to a point on his own land where it discharges itself over the natural surface onto an adjoining highway.
    3. Roads and bridges, § 168*—when ivater may he *discharged onto highway from artificial channel. A landowner cannot bring water by artificial channels and discharge it in onto a highway at a point other than where it would naturally flow.
    4. Waters and water courses, § 8*—when discharge of water onto servient land may he artificially accelerated. A person can artificially accelerate the natural flow from his land of water which would otherwise in a state of nature evaporate or seep into his soil, and cast it onto servient lands.
    5. Roads and bridges, § 168*—when owner of land to middle of highway may cast water thereon. The fact that a person owns land to the middle of a highway does not permit him to cast water thereon through an artificial channel at a point other than where it would naturally flow.

      6. Drainage, § 113

      —what drains are within “Ditches Constructed by License Act.” A tile drain constructed with the consent of the commissioner of highways, by a person from a point in a highway across his land and emptying into a natural water course, is a drain, within the meaning of the “Ditches Constructed by License Act” (J. & A. 4594 et seq.)

    7. Drainage, § 113*—when connection may be made with drain built under “Ditches Constructed by License Act." Third persons cannot connect drains with a tile drain built with the consent of the commissioner of highways, by a person from a point in a highway across his own land, unless consent to the connection is given by the commissioner.
    8. Township organization, § 39*—when highway commissioner may sue in name of town. A commissioner of highways may bring an action in the name of a town.
    9. Appeal and error, § 126*—when freehold involved. The Appellate Court does not have jurisdiction of an appeal concerning perpetual rights of drainage, since freehold is involved.
    10. Equity, § 5*—when court has jurisdiction of land in another county. A court of chancery has jurisdiction under section 3 of the Chancery Act (J. & A. | 883) of a controversy over the rights to cast water onto lands within the county, notwithstanding that the property from which it is conducted lies in an adjoining county.
    11. Equity, § 524*—when sheriff may execute decree in adjoining county. The question of the power of a sheriff to execute in an adjoining county a decree prohibiting the casting of water onto land within the county, held not necessarily involved, where it did not appear that he would be required to perform any act in the adjoining county.
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the April term, 1914. Rehearing denied April 7, 1915.
    Affirmed.
    Opinion filed October 27, 1914.
    Cornelius Reardon and John Small, for appellants.
    J. L. O’Donnell, T. F. Donovan, J. A. Bray and Frank H. Hayes, for appellees.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice

Carnes delivered the opinion of the court.

This is an appeal from a decree of injunction rendered on an amended bill filed by the Commissioner of Highways of the Towns of Lisbon and Saratoga against the appellants, Susan and Richard Duckworth, and the appellees Benjamin Jacobson and Hendrick Hendrickson, in matter of tile drainage of lands affecting a public road.

The township of Lisbon in Kendall county lies north of and adjoining the township of Saratoga in Grundy county. There is a public highway, established in 1856, between the two towns, which is under the control and management of the two boards, of highway commissioners of said towns, acting as one body. Benjamin Jacobson owns the N. W. 14 of Section 6 and about sixty acres of land adjoining on the south in Saratoga township, through which sixty acres extends Moore Creek, running in a southeasterly direction. Susan Duckworth owns the quarter section in Lisbon township adjoining the Jacobson land on the north and separated therefrom by said town line road. Her husband, Richard Duckworth, has charge of her land. Hendrick Hendrickson owns a tract of land adjoining the Duckworth land on the east. The three tracts in a state of nature drain southerly into Moore Creek, but are so nearly level that portions of each tract cannot be successfully cultivated without artificial channels ; and that portion of the land near the point in the road where the three tracts meet is low and consequently wet if not artificially drained. A part of the Duckworth quarter section naturally drains southerly onto the Jacobson land at or near this point (the northeast corner of the Jacobson land and the southeast comer of the Duckworth land), and another part naturally drains onto the Jacobson land at" a point about eighty rods west, and thence southerly to the creek; and probably another small part naturally drains onto the Jacobson land, at a point still further west. These lands were occupied as farms about 1850, and in the next five years open ditches were dug by the owners to facilitate draining in the direction of the natural depressions leading to the creek. There was a ditch from near the northeast comer of the Jacobson land southwesterly to the creek, and one running southerly from a point about eighty rods west, and others from the north, on the Duckworth lands, connecting with these ditches. The drainage so provided left the greater part of the land neat the ditches unfit for cultivation, and it was used for pasture, and while there is evidence of some effort to keep the ditches open from time to time, it is quite clear that for many years before this suit was begun, and probably before the Farm Drainage Act of 1889, they had, as is usual with open ditches on prairie land used for pasture, filled up so much that they could not be considered as constituting a system of drainage.

On May 20, 1891, a written contract was entered into by the highway commissioners and Jacobson, and Jacobson’s then co-owner of the land, in which it was agreed that Jacobson should lay a tile from a point designated in the north side of the road north of the northeast corner of the Jacobson land across that land into said creek, beginning in the highway with a nine-inch tile and increasing in size to a twelve-inch tile where it entered the creek, with the right to the commissioners to connect therewith for the purpose of draining the highway, and that the commissioners should pay a stated part of the expense of the work. All of which was accordingly done, and the commissioners laid tile some distance east and west in the road to connect therewith.

The drain so constructed was sufficient to take care of the surface water naturally deposited on the highway and Jacobson’s land, and to enable bim to cultivate all his land. The commissioners placed a culvert in the road to take the water accumulating on the north side of the pike and conduct it towards this tile drain, and with these improvements the road was fit for travel.

About the year 1906, the Duckworths tiled their land ending in a nine-inch tile inside their fence two or three feet below the natural surface, and from thence dug a ditch into the highway and in the north side of the highway to the head of the Jacobson tile, and connected branches on different parts of their farm with this main tile, thus bringing water to the point of outlet that, but for thé tiling, would have drained south eighty rods or more west of the point of outlet. Hendrickson connected tile from his land with the road tile emptying into the Jacobson tile. The commissioners built a large concrete culvert to let the water cross from the north side of the road into the Jacobson tile. The result was that the Jacobson tile would not take care of the water so brought to it, and he was unable to cultivate his land. He put an iron shing'le between two sections of the tile inside his fence which relieved the situation as to him, but of course made it worse as to the highway.

The commissioners filed a bill to compel him to remove the obstruction and to enjoin him from further obstructing the flow of water through the tile. Jacobson answered the bill, and a partial hearing developed the facts above stated in relation to the Duckworth and Hendrickson tiles. Thereupon an amended bill was filed by the commissioners making Hendrickson and the Duckworths parties defendant. Hendrickson defaulted. The Duckworths answered and filed a cross-bill, claiming the right to drain the water from their land onto the highway and across Jacobson’s land, and praying an injunction restraining the commissioners and Jacobson from interfering with such drainage. All the parties except Hendrickson answered the cross-bill. The chancellor heard the evidence and entered a decree granting the relief prayed in the original bill, and dismissing the cross-bill for want of equity, from which decree this appeal is prosecuted.

The decree after finding the facts substantially as above stated, and ordering Jacobson to remove the obstruction, and ordering Hendrickson to disconnect his tile and enjoining him from again connecting it with the tile in the highway, “ordered * * * that Susan Duckworth and Richard Duckworth be enjoined from further connecting or attempting, to connect their said trunk line of tile with the joint ditch aforesaid by means of excavations or otherwise; and that the said highway at the place where said excavations were made by Susan Duckworth and Richard Duckworth be restored to its former condition; and that Susan Duckworth and'Richard Duckworth be perpetually enjoined from draining onto the highway, without the consent of said commissioners of highway, at the southeast corner of the southwest quarter (S. W. %) of said Section thirty-one (31); and that the commissioners of highway be, and they are, hereby authorized to restore the highway to the condition in which' it was upon the north side thereof opposite the mouth of said tile of Susan Duckworth and Richard Duck-worth at the time said tile was laid.

“It is further ordered, that in case of default or refusal on the part of any or either of said parties’ to obey the mandate of this decree, the sheriff of Grundy county do forthwith execute the same.”

Appellants say that the clause in the above order enjoining them from draining onto the highway at the southeast corner of their farm, without the consent of the commissioners, means that they are required to prevent water that would in a state of nature flow from their lands onto the highway at that point from so doing, and consequently that the decree is absurd, incapable of execution in any reasonable way, and broader than the prayer of the bill. We do not think the language of the decree requires or even admits of such a construction. The order, when read in connection with the finding of facts in the decree, means that appellants are enjoined from draining water onto the highway at that point by means of Artificial channels in the highway. If they are able to accelerate the natural flow of water to that point by means of ditches, and allow it to discharge itself over the natural surface of their own lands onto the highway, they have the right to do so; but they are not permitted to bring water to that part of the hig’hway that would naturally be delivered at a different place. The law does permit them by drains on their own land to conduct water onto servient lands, accelerating- its flow along natural depressions and water courses, and thereby precipitate water on the lower lands that would in a state of nature evaporate or seep into the soil; but they must not conduct water out of its natural water course and must not make excavations on the lower lands. It does not appear that they could within the limits above indicated drain water onto the highway; but if they can we are of the opinion that the decree should not be read as preventing them from so doing.

The case of Peck v. Herrington, 109 Ill. 611, defines the rig’hts of the owner of higher lands, the dominant heritage, to conduct water by drains and ditches onto lower lands, the servient heritage, of another; and it is there held that he cannot construct drains or ditches so as to create new channels for water on the lower field. And in Fenton & Thompson R. Co. v. Adams, 221 Ill. 201, the court reviewed that and other cases on the same subject, and held that one may change a natural water course, but he must restore the water to its natural channel within the limits of his own land so that it will flow upon the servient estate at the same place as before. Therefore appellants had no right, even by channels dug entirely on their own land, to conduct water to the point in question that would in a state of nature be discharged upon the highway at points west thereof.

It is suggested that appellants own the land to the center of the road subject to the easement, and therefore that as between them and the commissioners the rule that applies in case of a private owner of lower lands does not here apply. The perpetual easement of the public is a freehold, and under the authority of Young v. Highway Com’rs Macon Tp., 134 Ill. 569, and People v. Magruder, 237 Ill. 340, the situation is no more favorable to appellants than if the land in the road was owned by a private individual.

The tile drain of the commissioners and Jacobson, with which appellants connected, is a drain within the Act of 1889, entitled “Ditches Constructed by License” (J. & A., vol. 3, page 2516, ¶ 4594). It is provided in section 2 (J. & A. ¶ 4595) of that act that no party interested in such drain shall authorize any other person to connect therewith without the consent of all the parties interested in the drain; and further provided that any party interested may by bill in chancery compel a person so connecting without authority to fill the drain. Appellants had no right to connect with this drain without the consent of the commissioners and Jacobson (Funston v. Hoffman, 232 Ill. 360), and there is no claim that they had the consent of either.

That highway commissioners may bring the action in the name of the towns, is held in Town of Crooked Creek v. King, 252 Ill. 126.

There is some argument that rights of perpetual drainage in the old ditches made before 1860 are involved and invaded by the decree. If that question is involved appellants have mistaken their forum in taking their appeal. Funston v. Hoffman, supra. No point is made in briefs of counsel that a freehold is involved and therefore that this court had not jurisdiction, and we are of the opinion that under the pleadings and the evidence there is no controlling question of any right of appellants resting on the facts concerning those ancient ditches. It is not sought in this proceeding to restore appellants to any rights in an open ditch constructed before the Act of 1889, but rather to give them rights in a tile drain constructed since that day by other parties.

It is argued that the court did not have jurisdiction to enter a decree affecting appellants’ lands, because they were not located in the county in which the court was held.. We are of the opinion that the suit is within the provision of section 3 of our Chancery Act (J. & A. ¶ 883), that suits which may affect real estate shall be commenced in the county where the same or some part thereof is situated.

It is assigned as error and argued that the court erred in ordering the sheriff of its county (Grundy) to execute the mandate of the decree, and our attention is called to the statute and authorities to the effect that a sheriff can act as such only in the territory of his own county. No authority is cited in which a situation like the one presented here is discussed. The court having jurisdiction of the subject-matter, had power to enforce its decree. In the absence of- any authority cited as to what instrumentality might be used, whether its own sheriff as sheriff, or as a commissioner of the court might lawfully so act, and in view of the fact that the principal mandatory order is that Jacobson remove the obstruction in his tile, which obstruction is in Grundy county, and that it does not appear that the sheriff of Grundy county will be required under the order to do any act in Kendall county, we do not feel called upon to investigate or decide through what instrumentalities a court having jurisdiction of matters affecting lands in its own and other counties should enforce its decree; and we are not inclined to reverse the case on that ground.

Finding no reversible error in the record, the decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Marc A. Blumenberg et al. William Geppert, Plaintiff in Error.
    Gen. No. 5,823.
    1. Conspiracy, § 20

      —what is conspiracy at common law. A conspiracy at common law is a combination of two or more persons to accomplish, by concerted action, a criminal or unlawful purpose, or a purpose not in itself criminal, by unlawful or criminal means.
    2. Conspiracy, § 50*—sufficiency of evidence to show conspiracy to extort money. The evidence held sufficient to show a criminal conspiracy between the publishers of a trade journal to extort money from, and to injure the character, credit and business of a manufacturer, by threatening to and actually publishing derogatory articles concerning him and his business.
    3. Criminal law, § 51*—venue of conspiracy to extort money by publication in foreign paper. Where the evidence shows a conspiracy to extort money from and to injure the character, credit and business of a manufacturer by publishing in a trade journal, printed in another State, false, malicious and scandalous matter concerning him and his business, the venue of an indictment is sufficiently shown by proof that the defendants caused copies of such journal containing the articles in question to be circulated in the county where the indictment was found.
    4. Conspiracy, § 50*—sufficiency of evidence of circulation of publication intended to extort money. The evidence on a prosecution for a conspiracy to extort money from and to injure the character, credit and business of a manufacturer by the publication in a trade journal of false, malicious and scandalous matter, held sufficient to show the circulation of such matter within the county where the indictment was found.
    5. Conspiracy, § 49*—when circulation in county presumed of publication intended to extort money. The presumption of the circulation in a county where an indictment was found for conspiracy to extort money by publishing in a trade journal of large circulation, printed in another State, false, malicious and scandalous matter concerning the character, credit and business of a manufacturer, does not answer the requirement of legal proof that the publication reached such county, but operates merely in support of evidence which might otherwise be regarded as uncertain and indefinite.
    6. Conspiracy, § 50*—sufficiency of evidence to show overt acts in county of venue. The evidence on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, held to show the performance of acts in the furtherance of the conspiracy within the county where the indictment was found.
    7. Criminal law, § 287

      —when venue question for jury. The question of venue on a criminal prosecution is one of fact for the jury, and must he established by the same measure of proof as any other material fact.
    8. Criminal law, § 52*—sufficiency of evidence of venue. The evidence on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, held sufficient, in the absence of proof to the contrary, to establish the venue in the county where the indictment was found.
    9. Criminal law, § 51*—venue of prosecution for conspiracy to extort money by means of defamatory publication. A prosecution for a conspiracy to extort money from and to injure the character, credit and business of a manufacturer by false and malicious publications in a trade journal printed in another State, will lie in the county where the business is located and copies of such journal circulated by the defendants.
    10. Conspiracy, § 37*—when indictment does not charge separate offenses. An indictment for a conspiracy to extort money from and to injure the character, credit and business of a manufacturer by false and malicious publications in a trade journal, held not to charge separate and distinct offenses in the same count.
    11. Conspiracy, § 49*—admissibility of evidence of conduct of co-conspirator prior to conspiracy. On a prosecution for a conspiracy to extort money from and to injure the character, credit and business of a manufacturer, evidence is not admissible to prove the acts and sayings of an alleged co-conspirator previous to the time when the evidence tends to establish the existence of a conspiracy.
    12. Conspiracy, § 49*—competency of declarations of one conspirator. Declarations of one alleged conspirator made before the formation of the conspiracy are competent evidence against him but not against his co-conspirators.
    13. Conspiracy, § 49*—admissibility of evidence of conduct of one conspirator. Evidence on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, of the conduct of one alleged conspirator, held admissible as bearing on the question whether the conspiracy was formed before a certain date.
    14. Conspiracy, § 49*—when evidence sufficient to show date of formation of conspiracy. The evidence on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, held sufficient to show the formation of the conspiracy before a certain date.
    15. Conspiracy, § 50

      —when proof of wrongful act evidence of conspiracy. On a prosecution for a conspiracy to do a wrongful act, proof of the doing of such act is evidence of a previously formed design.
    16. Conspiracy, § 22*—when conspiracy to do unlawful act complete. The crime of conspiracy to accomplish a criminal or unlawful purpose, or a lawful purpose by unlawful or criminal means, or to do an act constituting the statutory crime of conspiracy, is complete when the agreement is made.
    17. Conspiracy, § 49*—when overt acts evidence of previously formed design. Overt acts done in carrying out a conspiracy to accomplish a criminal or unlawful purpose, or a lawful purpose by unlawful or criminal means, or to do any act constituting the statutory crime of conspiracy, are evidence of a previously formed design.
    18. Conspiracy, § 49*—when overt acts evidence of conspiracy. The attack in a trade journal, on the character, credit and business of a manufacturer, is evidence of a preconceived plan on the part of the publishers; and on a prosecution for conspiracy to extort money from him, it is not necessary to show a meeting and consultations between the indicted parties, since the conspiracy might be implied from overt acts.
    19. Conspiracy, § 25*—sufficiency of combination or agreement. It is not necessary that the plan of a conspiracy to extort money from and to injure the character, credit and business of a manufacturer should embrace in detail in its early stages the various means by which it should be executed, since it is sufficient if there was a general plan to accomplish the result sought by means that might from time to time be found expedient.
    20. Conspiracy, § 45*—when necessary to set out in indictment means of carrying out conspiracy. An indictment charging conspiracy in the language of the statute, held sufficient against the objection that it did not set out with sufficient particularity the means by which the conspiracy was entered into, or by which it was to be carried into effect.
    21. Conspiracy, § 47*—when variance shown between pleading and proof. The evidence on a prosecution for a conspiracy to extort money from and to injure the character, credit and business of a manufacturer, held not to show a variance from the indictment.
    22. Conspiracy, § 49*—when evidence of absence of co-conspirator from county not proof of flight. Evidence on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, that one of the indicted persons was and had been for some time in a foreign country, held not evidence that he had fled the country.
    23. Conspiracy, § 49

      —admissibility of evidence of absence of co-conspirator from county. It may be shown on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer that one of the indicted persons was and had been for some time in a foreign country..
    24. Conspiracy, § 51*—when argument of prosecuting attorney not prejudicial. An argument of the prosecuting attorney on a prosecution for conspiracy to extort money from and to injure the character, credit and Business of a manufacturer, that one of the indicted persons who was not put on trial had sought safety in a foreign country, held not prejudicial to the defendant.
    25. Conspiracy, § 51*—when remarks of court not prejudicial. Remarks of the trial court on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, as to the admissibility of certain testimony together with the comments of the prosecuting attorney thereon, held not prejudicial to the defendant.
    26. Criminal law, § 236*—when improper remarks of prosecuting attorney not prejudicial. While remarks to the court of the prosecuting attorney on a criminal prosecution must he guarded by the court so as not to improperly influence the jury, and improper remarks must be rebuked and suppressed, yet the question whether a remark is intended or likely to improperly influence the jury is particularly within the knowledge of the trial judge, and much must be left to his judgment and discretion in disposing of a motion for a pew trial.
    27. Conspiracy, § 52*—sufficiency of instruction on prosecution for conspiracy to extort money. An instruction on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, containing the' phrase “as charged in the indictment,” which consisted of several counts, held not objectionable where all of the counts were good.
    28. Criminal law,.§ 558*-—when refusal of requested instructions not error. Error cannot be assigned by the defendant in a criminal prosecution, on instructions given on behalf of the State, similar to those given at the request of the defendant.
    29. Conspiracy, § 52*—when instruction as to fair comment sufficient on trial for conspiracy to extort money by malicious publication. On a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, by false and malicious publications in a trade journal, the jury held sufficiently instructed as to the law of fair comment.
    30. Libel and slander, § 56

      —what constitutes fair comment. Erroneous opinions, unwarranted inferences and unsound arguments expressed in print in harsh and violent language calculated to ridicule, defame or cause pecuniary . loss, do not amount to fair comment of a person’s character or business.
    31. Conspiracy, § 32a*—when conspiracy to maliciously publish truth concerning person is indictable. For two or more persons to unlawfully combine to defame another by publishing true statements concerning him, with malicious intent and motive to wrongfully and wickedly defame and injure his character or impeach his honesty, virtue and reputation, so as to expose him to public hatred, contempt and ridicule, constitutes a criminal conspiracy.
    32. Conspiracy, § 52*—sufficiency of instruction as to doing wrongful act under conspiracy. An instruction on a prosecution for a conspiracy to extort money from and to injure the character, credit and business of a manufacturer, that the defendants should be found guilty if they conspired together and carried out a wrongful act within a county, held not prejudicial because of the omission to observe the technical distinction between acts and overt acts.
    33. Conspiracy, § 52*—instruction as to what amounts to execution of conspiracy. An instruction on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, to the effect that it was not necessary to constitute the crime, that the conspirators should have succeeded in their design, but that it was enough if a common design was formed, and any act in furtherance of such design was thereafter done in the county where the indictment was found, and that the acts of any one of the conspirators in furtherance of the common design would be the act of all, held not prejudicial to the defendant because failing to observe the technical difference between acts and overt acts.
    34. Conspiracy, § 52*—sufficiency of instructions as to conspiracy to extort money. The instructions given on a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, held not prejudicial to the defendant. /
    35. Criminal law, § 357*—motion for neio trial on ground of newly-discovered evidence. A motion for a new trial on the ground of newly-discovered evidence, in a prosecution for conspiracy to extort money from and to injure the character, credit and business of a manufacturer, held properly overruled.'

      Error to the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied April 7, 1915.
    Affirmed.
    Opinion filed December 3, 1914.
    Edward A. Alexander and Brundage, Landon & Holt, for plaintiff in error.
    Robert W. Martin and Snapp & Heise, for defendant in error; Patrick J. Lucey, Frederick Burnham and D. D. Snapp, of counsel.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Dlinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

William Greppert, plaintiff in error, was tried alone in the Will County Circuit Court at the January term, 1913, on an indictment found at the March term, 1912, charging him and Marc A. Blumenberg, Thomas B. Thompson and Bernard S. Maloy, in different counts, with the statutory crime of conspiracy, and the common-law crime of conspiracy, to extort money from and injure the character, employment and business of John Y. Steger and to injure the business and credit of Steger & Sons Piano Manufacturing Company and the Singer Piano Company, two corporations, each manufacturing pianos at Steger, Illinois, and each dominated and controlled by John Y. Steger, and dependent upon his capital, business management and influence for success, by composing, publishing and circulating orally and in writing, and particularly through the Musical Courier Extra, false, malicious and scandalous matter, unfavorable comment and adverse criticism concerning John V. Steger and his business and by threatening to compose and publish such matter. Thompson and Maloy were before the trial in some way discharged. The record shows them released “from bail and further prosecution upon proofs and arguments.” Counsel for plaintiff in error say they were no doubt discharged because of failure to prosecute them within the time required by the statute, and we assume that is true. Blumenberg was never apprehended. He was in Paris at and before the time of the trial, and the record shows that he has since died. Geppert was found guilty by a jury and his punishment fixed at imprisonment in the penitentiary for two years and a fine of $2,000. The court after overruling motions for new trial and in arrest of judgment entered judgment on the verdict, and Geppert prosecutes this writ of error therefrom.

Section 46 of our Criminal Code (J. & A. ¶ 3547), so far as applicable here reads: “If any two or more persons conspire or agree together * * * with the fraudulent or malicious intent wrongfully and wickedly to injure the person, character, business * * . * or property of another, they shall be deemed guilty of a conspiracy; and every such offender * * * and every person convicted of conspiracy at common law, shall be imprisoned in the penitentiary not exceeding five years, or fined not exceeding $2,000, or both.” Conspiracy at common law may be defined as: “A combination of two persons or more, by a concerted action, to accomplish a criminal or unlawful purpose, or a purpose not in itself criminal, by unlawful or criminal means.” Heaps v. Dunham, 95 Ill. 583.

The claim of the prosecution is- that Blumenberg and Geppert were, and had been for many years through the agency of a corporation which.they controlled, publishing a musical trade journal in the city of New York known as the “Musical Courier Extra” with a large and general circulation among manufacturers of and dealers in musical merchandise throughout the United States and some foreign countries; that Blumenberg was the editor in chief and Geppert the managing editor of the paper; that they were closely associated together in its management and control and together dictated and were responsible for its contents, each writing a considerable part thereof; that they solicited and carried advertisements of manufacturers of pianos and received therefor compensation in the" ordinary manner of dealing between publications advertising goods, and manufacturers and merchants advertising and selling them; that they also published in their paper laudatory articles concerning the business and goods of their advertising patrons under the head of observations and editorials, which they called “specials,” for which they expected and received compensation based in part on the value and volume of the business conducted by such patron; that John Y. Steger through his said two corporations was and for a long time had been extensively engaged in the manufacture and sale of pianos at the village of Steger, which village is located in Will and Cook counties, and was largely built up by him and dependent on his manufacturies; and that he had become extensively interested in real estate in the village of Steger by furnishing homes to his employees, to be paid for under contracts on the instalment plan; that in the year 1907, and for some years prior thereto, he was carrying advertisements, as such, in the Musical Courier Extra and paying for them at rates varying from $600 to $1,000 a year; that Blumenberg and Geppert were dissatisfied with the amount that he was paying for advertising in their paper and thought because of the volume of his business, which was very large, that he ought to pay a much larger sum; tb,at they began in 1907 by threatening to publish articles derogatory to his business and character, to try to induce him to pay more for the good offices of that publication in advertising his business, and to pay large sums for laudatory articles; that Steger sufficiently yielded to their demands so that their business relations continued until 1909, when they attempted to extort a large 'sum of money from him by threats of blackmail, and failing, they began and continued in their publication a persistent, virulent attack on his private and business character, the quality of his goods and his methods of dealing- in his manufacturing and real estate business; that publications of false charges, unfavorable comment and adverse criticism were frequent and continued up to the time of the indictment, and the papers containing the same were sent to and circulated in Will county. There was offered in evidence articles so published between these dates that occupy more than 200 pages of the printed abstract, and Steger with great ingenuity and facility of language is pictured as a man of moral depravity, entirely lacking-business honesty. A more skilful and violent attack on the moral and business character and business of an individual than was thus made cannot well be imagined. It is. clear from the record that the charges and comments were not such as would be made by any publication with an honest intention to serve the public by the exposure of a bad man or a bad business. There are no doubt many statements in the articles so published that are true, and others that are false but might be presumed to be reasonably supposed true by the author. A business as large and varied as Mr. Steger was conducting must needs be open to errors and imperfections that are the subject of fair comment and criticism; but after liberal allowances on that ground, it is clear from a reading of the articles themselves that they were published from bad motives and with malicious intent, and when read in connection with the evidence there is left no doubt that the attack was threatened by Geppert and Blumenberg- to induce Mr. Steger to buy their advertisements, and carried on for that purpose from motives of malice and ill-will to him, and perhaps to show others similarly situated the power of the Musical Courier Extra and warn them that demands for advertising patronage must not be disregarded.

There can be no question about the legal effect of the facts, if so found, on the question whether there .was a conspiracy to extort money and injure reputation and business. It is no answer to say that the advertisements offered Steger were such as he ought to buy and worth more than .he was asked to pay for them. ' They had no more right to force their goods on him than he had to force them to buy one of his pianos, which he certainly could not legally have done, however cheaply he might have offered it or however indispensable it might have been to their welfare and happiness. The evidence sustained the People’s claim, and the only question in the case is whether the defendants received a fair and impartial trial according to the established rules of law.

It is strongly urged that the prosecution failed to establish the venue in Will county and said: “The venue of a conspiracy is in the county where the corrupt agreement is entered into, or in any other county where one of the conspirators commits an overt act in furtherance of the conspiracy.” An overt act in criminal law is an open manifest act from which criminality may be implied1. Black’s Law Dictionary.

It is discussed in Dealy v. United States, 152 U. S. 539, as an act in furtherance of a conspiracy, an act done according to and in pursuance of a conspiracy, an act done in carrying out a conspiracy. If the conspiracy be admitted, and there is proof that the conspirators, or one of them, caused copies of the paper containing the articles in'question to be sent into Will county, we assume that act sufficient to establish the venue of that county. We do not understand counsel to deny that position, but they insist there is no sufficient proof of that fact. It does appear that the post office in Steger is on the Will county side of the village; that residents of Will county received at that post office copies of the papers containing the articles in wrappers upon which was printed, “Musical Courier Extra of New York City”; there is also evidence that many copies of the paper were found in Steger on the Will county side in December, 1911, and January and February, 1912, at which time many of the articles in question were published, but it does not definitely appear which, if any, of these articles were in the papers so found. The Musical Courier Extra had a wide circulation. Geppert in testifying on the trial said: “There was never any trouble about finding a copy of it in a piano house,” and plaintiff’s counsel call our attention to the fact that it had a large list of subscribers and was for sale in Chicago and other places in large numbers. The publishers, Blumenberg and Geppert, apparently employed the usual and customary means of getting their paper into'the hands of the public, and with great success. When we remember the population of Will county and of the cities therein, which we judicially know, and apply a knowledge of human affairs that we are supposed to possess in common with all mankind, we naturally presume that a paper of that circulation containing article after article attacking a business of the importance of the Steger concerns in Will county, and attacking the real estate transactions extensively carried on in the village of Steger, as these articles did, must have got into Wrill county in considerable numbers through agencies employed by the publishers to place the papers in the hands of the people. But we do not hold that such presumption answers the requirement of legal proof that the páper did so get there, still we think the presumption operates in support of proof that might otherwise be regarded as uncertain and indefinite. Allegations of facts that are highly probable are supported, certainly so far as a jury is concerned, by less proof than would be required of improbable allegations. We assume that on a judicial hearing the fact that the Chicago Tribune was circulated in Will county by its publishers on some given day of a recent date could not be found without technical evidence that it did reach the inhabitants of that county through agencies of the publishers; but the fact would be found by a jury on much less evidence than they would require to establish that some individual sent a circular or letter into the county at a given time; and no court would refuse to accept the verdict of a jury dependent on such a finding except in the absence of any legal proof. The data from which some of the articles were written was furnished by defendant Maloy, who lived in Steger on the Will county side and was making inquiries and investigations among the . workmen in the Steger factories, which were in large part located on the Will county side of "the line: Some of the most vicious articles were based on information so furnished by Maloy. It is said by counsel for plaintiff in érror that it does not affirmatively appear that any of his work was done on the Will county side of1 the village, and it is true that the evidence does not sufficiently point out any act that Maloy did in Will county; but .we are of the opinion that considering the fact that he lived there, and what the evidence shows that he did among the workmen and property owners of the village, the jury were justified in finding, what as a matter of common sense they as men knew, that some of this work was done in Will county, and they were warranted in finding that acts so performed were in furtherance of the conspiracy. The defendant Thompson lived in Chicago and was employed by Blumenberg and Geppert in making investigations and writing these articles: He spent some time in Steger in that effort, but there is the same question as to which side of the county line he might be working. Counsel for plaintiff in error say that the question of venue- is one of fact for the jury, which is no doubt true, and it is to be established with the same measure of proof required of other material facts in the case (Spalding v. People, 172 Ill. 40); and we hold, as did the court in that case, that while the evidence might have been more specific it was sufficient, in the absence of contrary proof, to authorize a finding that the venue was proved. It is said in Weinberg v. People, 208 Ill. 15, on page 19: “It is not necessary that some one testify, in so many words, to the place where the offense was committed, but it is sufficient if the evidence, as a whole, leaves no reasonable doubt as to the act upon which the indictment is based having been committed at the place laid in the indictment. (Porter v. People, 158 Ill. 370.) ‘ The venue of an offense may be proven like any other fact, in a criminal case. It need not be established by positive testimony nor in the words of the information, but if, from the facts appearing in evidence, the only rational conclusion which can be drawn is that the offense was committed in the county alleged, it is sufficient.’ Weinecke v. State, 34 Neb. 14.”

We do not agree with counsel that this construction of the law works an undue hardship on their client in talcing him for trial into a place far from his home. If there was a conspiracy it was certainly aimed at an industry in Will county, upon which many people there were dependent; and if inflammatory matter fired from New York City, with an aim to injure people and interests in Will county, landed there, it seems proper that the action should be there prosecuted. In Hyde v. United States, 225 U. S. 347, the court said, quoting from an earlier ease: “It is not an oppression in the law to accept the place where an unlawful purpose is attempted to be executed as the place of its punishment, and rather conspirators be taken from their homes than the victims and witnesses of the conspiracy be taken from theirs. We must not, in too great a solicitude for the criminal, give him a kind of immunity from punishment because of the difficulty in convicting him—indeed, of even detecting him. * * * Let him meet with his fellows in secret, and he will try to do so; let the place be concealed, as it can be, and he and they may execute their crime in every State in the Union, and escape punishment in all. * * * The possibility of such a result * * * demonstrates that to yield to it would carry technical rulos and rigidity of reasoning too far for the practical administration of criminal justice.” And in Brown v. Elliott, 225 U. S. 392, the court said: “The Constitution of the United States is not intended as a facility for crime. It is intended to prevent oppression ; and its letter and its spirit are satisfied if, where a criminal purpose is executed, the criminal purpose be punished. It is there that its victims are sought and defrauded. It is there that its perpetrators should be brought to the bar of justice for their acts; not for the mere conception of them, but for the actual execution of them. The venue of his trial is thus made by the criminal himself, not determined by reasons or interests which may be adverse to him and used to his injury.”

It is argued that the indictment is bad in charging separate and distinct offenses in the same count; that it in some counts charges a conspiracy in October, 1907, in the city of Chicago, with allegations of subsequent overt acts in the county of Will, which are separate and distinct transactions to avoid the statute of limitations and bring the case within the jurisdiction of the court of that county; therefore that, at best,1 the inquiry is whether there was any conspiracy formed in Chicago ill 1907, and if there was not, then there can be no conviction under counts so charging; and it is said there is no evidence of a conspiracy at that time and place. The time and place is alleged in the counts in question under a videlieit, the use of which is to avoid variance between allegations and proof. It is said in Hyde v. United States, supra: “As the overt acts give jurisdiction for 'trial, it is not essential where the conspiracy is formed, so far as the jurisdiction of the court in which the indictment is found and tried is concerned;” and there are other counts in the indictment that allege the conspiracy in Will county that may be supported by the evidence of overt acts performed there. We are not unmindful that the crime of conspiracy as defined by the Federal statutes differs from the common law in making an overt act a part of the crime, and so far as the discussion in Hyde v. United States is based on that feature of that statute, it is not applicable here; but the court at considerable length discusses the common law, reviewing authorities, and concludes that at common law as well as under the statute conspirators may be punished in the county where the overt act is committed without evidence of an expressed renewal of the agreement. But the case at bar was prosecuted and evidence admitted on the theory that the conspiracy was formed outside of Will county and overt acts committed there within the time limited by the statute, and it is necessary to consider whether a claim that the conspiracy was formed as early as 1907 finds support in the evidence; for instance, declarations of Blumenberg made in 1907 were proven over objections which were not competent against Geppert if they were made before the conspiracy was formed, because of the rule that counsel for plaintiff in error correctly state as follows: “Evidence of the acts or sayings of an alleged coconspirator prior to the time when the evidence tends to establish the existence of the conspiracy, are not admissible in evidence.”

In addition to and explanation of the facts we have heretofore briefly stated, the record shows that in 1905 John Y. Steger’s manufactories had assumed large proportions and he had become influential and well known in the piano trade. He was paying $600 a year for advertisements in the Musical Courier Extra. In 1905 and 1906 Geppert visited his factory and induced him to increase his advertising contract to $1,000 a year, which sum was not satisfactory to Blumenberg and Geppert and they were discussing means to increase his contributions; and in October, 1907, Blumenberg wrote a laudatory article entitled “Mr. Steger’s Aggresive Challenge,” and took it to his office and there offered to publish it in the Musical Courier Extra for $3,500. There is some evidence that this article was intended by Bluménberg to injure Steger by antagonizing musical artists. It contained what might be construed as a slur on them, and is called the “Paderewski Article;” but be that as it may, it was intended to appeal to Mr, Steger as an effort to aid his business, and he so construed it. We have no duty to pass upon or even to criticize newspaper ethics, and only say that so far as we know, Blumenberg violated no law in so offering this article to Mr. Steger, and up to that point that act furnished no evidence that he and Geppert were conspiring to extort money from him. But Mr. Steger did not accede to Blumenberg’s demand that he pay $3,500 for the article, and was very blunt and direct in his refusal to do so; whereupon Blumenberg in unmistakable terms threatened to attack him and his business by publications in the Musical Courier Extra if he did not yield. The matter was then adjusted by Mr. Steger paying $750 for the article and continuing his advertising contract at $1,000 a year. Geppert testified that he was present at that interview, but he gives an entirely different account of the transaction and one that in no way tends to prove a conspiracy at or before that time. Mr. Steger and his son, who testified to the transaction, say Geppert was not present and the jury probably believed that he was not; but they may have believed that he was there and was wrong about what was there said. Assuming that Geppert was not present, does proof that this act of Blumenberg’s when taken in connection with the other evidence in the case, tend to show a conspiracy between Blumenberg and Geppert at and before that time? There is evidence that in 1904 Geppert was told that John V. Steger said that Blumenberg was a blackmailing crook, and that Geppert got furious and said that he would get even with Steger if it was .the last act of his life, that he would take the matter up with Blumenberg and they would line up' a plan of attack, that he would wait an opportune time, and mentioned another man that it had taken him a long time “to put it over.” Declarations of a person charged with conspiracy made before the conspiracy was formed are competent evidence against him, though not ag’ainst a co-conspirator. We have no doubt this was competent evidence for the jury to consider in determining whether Geppert and Blumenberg had formed the conspiracy charged as early as this “Paderewski Article” transaction, and that they were justified in finding- that the conspiracy was formed before that time, and the People were properly permitted to prosecute the case on that theory, and on the theory that this act of Blumenberg’s was not an independent transaction. Confusion arises if we do not keep in mind that this is not a prosecution to punish some act done in furtherance of a conspiracy. It is a prosecution of the charge of conspiracy to do certain things charged, and proof of the act done is evidence of the conspiracy formed prior thereto. The conspiracy did not begin by the act of Blumenberg in writing the Paderewski article or in threatening to attack Steger if he did not pay for it, but it began in the plan made before that time to pursue that line of conduct. This is not a prosecution of the crime of extortion by threats as defined in section 93 of our Criminal Code (J. & A. jf 3647), nor are we considering an indictment for criminal libel however much the facts proven may tend to show Geppert guilty, either as principal or accessary, of such crimes. The question is did Geppert, in the manner charged in the indictment, combine with others to accomplish a criminal or unlawful purpose or a lawful purpose by unlawful or criminal means, or to do the acts which constitute the statutory crime of conspiracy! If he did, then the crime charged was complete when the agreement was made. Overt acts done in carrying out the agreement serve as evidence that before the act there was a plan, and serve to toll the statute of limitations and fix the venue of the crime.

The $750 received for the publication of the Paderewski article was far from satisfactory to Blumenberg and Geppert, and they are shown often expressing the intention to keep'after Steger. Early in 1909 Geppert said he was going to Chicago to put the screws to him, that he was mailing 15,000 to 20,000 pianos, a year and he would make him pay fifty cents a piano or attack his moral character and conditions of his factory. Geppert did go to Steger’s office in Chicago at about that time and proposed that he spend with them at least fifty cents a piano, and Steger resented the proposition and said that he would not be held up by him and Blumenberg any longer, and Geppert replied that he had brought others to terms and they would bring him. Shortly afterwards, one Couchois, an employee of Blumenberg and Geppert called on Mr. Steger and made specific threats of what the Musical Courier Extra would do in attacking his character and his business if he did not accede to' their demands, and Couchois says, testifying for the People, that he was sent on that mission by Blumenberg and Geppert with specific directions from them which he was carrying out. Mr. Steger left him before he finished his story, and all business transactions between the parties then ceased, and the attack began, the codefendants Thompson and Maloy acting as agents of or in conjunction with Blumenberg and Geppert in some of them. An article was printed in the Musical Courier Extra March 6,1909, which on its face purported light fiction. It was in Blumenberg’s department of the paper and probably written by him, and was so written that Mr. Steger would understand when read in connection with what he had been told by Couchois and Geppert that it referred to him. It contained inuendoes and references that would be understood by Mr. Steger to threaten additional chapters if a settlement was not made; and is said to import to Mr. Steger great moral depravity by the use of terms not understood except in the lower world and by respectable people whose duties throw them in contact with that world. Mr. Steger ignored the article but ceased to patronize the paper, and thereafter the publication of abusive articles began and persistently continued up to the time of the indictment.

Geppert in his testimony contradicts many of the material statements of fact above made and is in some instances corroborated, but we are of the opinion that there was abundant evidence from which the jury could find those facts, and an examination of the record evidence leads us to the conclusion that they were justified in so finding them. Evidence of directions given Couchois by Blumenberg and Geppert on his trip to visit Mr. Steger in the spring of 1909, and their conversations with him about that matter, rests entirely on the téstimony of Couchois himself; and his character and truthfulness is much impeached by various matters disclosed in the record. It is not to be presumed that a man of good character could have been sent on or would have undertaken that mission; but he certainly did undertake by threats of blackmail to induce Steger to pay money to Blumenberg and Geppert, and it is natural to believe that he was doing it at their instance. The verdict does not rest on his testimony further than his statements would naturally be credited from their inherent probability. When it is known that on Steger’s refusal to comply with their demands, Blumenberg and Geppert made a vicious attack on him, and that each of them as early as 1907 threatened such an attack, it is natural to believe a person who was in their company when he says they planned the attack that they made. Counsel also attack the character and testimony of the People’s witness Pischel, and the reasoning applied to Couchois and his testimony is equally applicable to him. The attack itself was evidence of a preconceived plan. It was not necessary to show meetings and consultations between the parties indicted. Conspiracy may be implied from proof of overt acts. Ochs v. People, 124 Ill. 399; and Spies v. People, 122 Ill. 1. The indictment charges a conspiracy to extort money from, to injure the character, business, employment and property of John Y. Steger, and the business and property of his two corporations. We see no reasonable inference from the facts proven, except that the acts complained of were all performed in furtherance of one plan of Blumenberg and Geppert made as early as 1907 to accomplish what they afterwards attempted to do by their publications. As said in Hyde v. United States, supra, one starting evil forces must withdraw his support from them or incur the guilt of their continuance. There can he no claim that their acts were not aimed at the ends, or some of them, charged in the indictment. It may well be that before the end they abandoned the hope of extorting money, but they certainly designed to injure Steger’s character and business. Nor does it seem important that considerable periods of time elapsed with no overt act committed; it was not a plan to be executed quickly, it required time and patience. Neither is it necessary or to be supposed that the plan in its inception or early stages embraced in detail the various means by which it should be executed; it is sufficient that there was a general plan to accomplish the result by means that might from time to. time be found expedient. Spies v. People, supra.

It is argued that the counts of the indictment charging the crime in the language of the statute are insufficient and bad because they do not set out with particularity the means by which the conspiracy was entered into or was to be effected. It is a sufficient answer to say that such counts have been held good by our Supreme Court in many cases: Cole v. People, 84 Ill. 216, is an early conspiracy case, and People v. Nall, 242 Ill. 284, one of the later cases. The same complaint is made of each count of the indictment, that it does not with sufficient particularity describe the crime charged. We are of the opinion that each count is good. The indictment is very long, too long to quote, and most of the counts are more open to the criticism that the evidence is unnecessarily pleaded than to the objection that they are not sufficiently expansive in their allegations. While one good count in an indictment is sufficient to sustain a conviction, there are instructions complained of that refer the jury to the indictment that might require attention if we held one count bad, and we have examined each count with that in view.

It is argued that there is a fatal variance between the indictment and the proof, and the discussion under that head is on the theory that different and independent transactions, which even if they were proof of a conspiracy were not evidence of the conspiracy charged, were permitted to be proven. In the views already expressed, we have sufficiently discussed that question.

Counsel urge as error that the prosecution was permitted to prove that Blumenberg “had fled the country.” It did appear in evidence that he was and had for some time been in Paris. That was hardly equivalent to showing flight or that he was a fugitive from justice, and in the evidence of that fact there was not a connection-to impress the jury that its object was to show flight. We do not think it was error to show where Blumenberg was at the time of the trial. It was hardly possible to get through the narration of his movements and communications with other people during the period covered by this investigation without its incidentally appearing where he then was. We may as well say in .this connection that it is also urged as error that counsel for the People stated in his argument to the jury that Blumenberg sought safety in France. We are inclined to regard this as error, but we do not regard it an error that affected the verdict in the case. In as long a trial as this some error must always occur,1 and in the view we take of the defendant’s guilt, the error falls within the decisions of our Supreme Court, among which are: Garrity v. People, 107 Ill. 162; Spies v. People, supra; Gallagher v. People, 211 Ill. 169; Siebert v. People, 143 Ill. 571; and Spahn v. People, 137 Ill. 538,—holding improper remarks of the prosecuting attorney not reversible error.

Numerous objections are made to remarks, of the court during the trial. We find nothing serious in any of them. Counsel have selected one which they say, coupled with the- statement of the prosecuting attorney at the time, is so improper and prejudicial to the defendant’s rights that it constitutes in itself reversible error. It arose on an attempt to show something that Blumenberg had said in 1904, objected to by Mr. Forrest, counsel for the defendant, on the ground that ‘ ‘ what Mr. Blumenberg may have said prior to 1904 is too remote. ’ ’ The court remarked that it was pretty remote and the prosecutor said: “Well, Mr. Blumenberg was determined to punish Mr. Steger before that time, 1904.” Mr. Forrest objected to' the statement on the ground that it was not relevant and an attempt to inject testimony into the case. The court said: “He has a right to give his reasons, but I don’t suppose that you have any right to introduce testimony of the statement that Mr. Blumenberg made before the time when the attempts to form a conspiracy were made,” and sustained the objection. The argument is, that the court assumed there had been attempts to form a conspiracy. This was part of a colloquy between court and counsel in the trial of a case that makes a record of over 5,000 pages, and that counsel for plaintiff in error in presenting to this court have used 450 pages of brief. So far as we can see, they are right in emphasizing this transaction as the chief cause of complaint as to remarks of the court. Of, course it would he better if a court might be gifted with absolute accuracy of expression in what he is impelled to say in a colloquy during a trial in which two or three attorneys are taking part, all talking at once, and if the court had been so gifted he might have said “before the time when there was proof of attempts” instead of “before the time when there were attempts to form a conspiracy;” but we regard the incident as trivial and the assertion of the prosecuting attorney as nothing more than must frequently happen in the trial of any case,—that the attorney addressing the court asserts something to be true which he is not permitted to prove when he offers his witness. Of course trials must be guarded, and efforts to influence the jury by remarks made to the court in their presence must be rebuked and suppressed, but whether a remark is so intended, or likely to have such effect, is peculiarly within the knowledge of the trial judge who knows the surrounding circumstances, the manner of counsel, and many other things in that connection that are not shown in a printed record; and much must be left to his judgment and discretion in conducting the trial in that respect and passing on the question whether the jury have been improperly influenced by such remarks, which he must do in considering a motion for a new trial. As we have before said, we see nothing of importance in this complaint.

About 40 pages of the abstract are covered by instructions given by the court, divided about equally between those asked by the People and by the defendant ; about 100 pages of the briefs of plaintiff in error are devoted to an attack on the instructions given for the prosecution. It is argued that each of them is bad, excepting the' familiar stock instructions on reasonable doubt, etc. It is not practicable to follow counsel in their various suggestions of error in each instruction, and not possible within the limitation of space that must be observed to notice each suggestion.

It is strongly urged that the court erred in referring the jury to the indictment by phrases like “as charged in the indictment:” First, because it is said the counts in the indictment are not all good, and we are referred to cases holding such reference to an indictment or a declaration error where there is a bad count. As we have before said, we regard each count in the indictment good. Second, because it is said the indictment is long and would not be understood by the jury and therefore they should not have been referred to it; and again that the defense of fair comment was interposed and there is no allegation in the indictment that the publications were not fair comment. This position is not well taken for two reasons: First, the court gave for the defendant instructions referring the jury to the indictment, and it is familiar law that a party cannot assign error in giving an instruction of the same character as one given at his request. Jacksonville & St. L. Ry. Co. v. Wilhite, 209 Ill. 84. Second, it is not error to so refer the jury to the indictment if each count contains the necessary allegation for conviction. Parker v. People, 97 Ill. 32. It is true the practice has been criticised by that court in civil cases, but it is still persisted in by lawyers offering instructions, as it was in this case by both sides, and error cannot be predicated thereon. Latham v. Cleveland, C., C. & St. L. Ry. Co., 179 Ill. App. 324. It is said the jury were mislead as to the law of fair comment. We have discovered little ground in the evidence on which to base a defense of fair comments. It is true, as before said, that many statements in the articles in question may be fair comment, but there are other statements in the same articles that by no stretch of the imagination can be so construed; still it is a pertinent inquiry whether the jury were properly instructed on that question. The court at the instance of the defendant gave six instructions oh that feature of the case, in which the jury were told that the manner in which the public affairs of the village of Steger were administered and conducted, advertisements of Steger and Sons in magazines and newspapers, the career of John V. Steger in so far as it was dealt with in a certain pamphlet mentioned, the manufacture and sale of stencil pianos by the Singer Piano Company, the manner in which' the workmen in the Steger factories were dealt with, and the wages paid such workmen, were things of public interest, and it was the right and privilege of any person to print and publish fair comment thereon. This specification of matters covers subjects dealt with in the articles in question, and in so far as there can be any question of fair comment, covered the case. The instructions are however more likely to have been misunderstood by the jury, and construed as meaning that one is licensed by law to attempt to extort money by threatening to publish, and publishing, the truth about a man and his business, than are other instructions complained of given for the People dealing with some one feature of the case to mislead the jury-by directing their attention to that one thing; such instructions are always open to such an argument. -The court properly refused to instruct that erroneous opinions, unwarranted inferences and unsound arguments expressed in harsh and violent language calculated to ridicule or defame or cause pecuniary loss were fair comment; but did instruct at the instance of the People that on the question of fair comment it was the duty of the jury to consider all the facts and circumstances in the case and determine whether the articles were published for the purpose of making fair comment or wickedly and maliciously, and that the truth is not a defense to the publication of malicious and defamatory statements unless said publication be with good motives and for justifiable ends. And also gave the following instruction: coming Mm which, although they are true, are published with the malicious intent and motive wrongfully and wickedly to defame and injure his character, and to impeach Ms honesty, virtue or reputation, and thereby expose him to public hatred, contempt and ridicule, they are guilty of the crime of conspiracy.”

1 ‘ The court instructs the jury, as a. matter of law, that if two or more persons combine, unlawfully, to defame another, by publishing true statements con-

Counsel complain of this instruction and argue that the truth is a defense to a criminal action of libel, and cite authorities. Truth is not a defense in this State to an indictment for libel unless published with good motives and for justifiable ends. People v. Strauch, 247 Ill. 220; People v. Fuller, 238 Ill. 116, affirming this court (141 Ill. App. 374). The court also gave for the People the following instructions:

“The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that William Geppert and Marc A. Blumenberg conspired together as charged in any one count of the indictment in this case, and were carrying out said conspiracy in Will county within eighteen months before the return of the indictment in this case, it will be your duty to find William Geppert guilty.”
“The court instructs the jury, as a matter of law, that to constitute the crime of conspiracy it is not necessary that the conspirators should succeed in their design. It is enough if the common design was formed in manner and form as charged in the indictment, and that thereafter any act was done in this county in furtherance of such design by any one of the conspirators within eighteen months before the indictment was returned. If the conspiracy charged in the indictment has been proved to the satisfaction of the jury, beyond a reasonable doubt, then the acts of any one of the conspirators ‘ in furtherance of the common design, if proved, will be regarded as the act of all.”

In addition to complaints already referred to, counsel contend that these two instructions are bad because the jury were told it was sufficient if defendants “were carrying out said conspiracy in Will county,” or that “any act done in this county in furtherance of such design by any one of the conspirators;” when, as they say, simply an act is not enough, it must have been an overt act which is an open act as distinguished from a secret, concealed act. Assuming this definition and the necessity of observing it if the evidence had shown acts in Will county in carrying out the conspiracy that did not fall within its terms, still we cannot see how a failure in these instructions to observe the technical distinction between acts and overt acts could have prejudiced the defendant. The acts shown in evidence and which the jury were considering, and concerning which they required instructions on the law applicable thereto, were open acts. We also note that in instruction 72, offered by and given for the defendant, there was the same failure to notice that the conspiracy could only be located in Will county by an overt act performed there.

We have noticed what seems to us the principal objections urged to the instructions. There is also error assigned and argued as to instructions offered by the defendant and refused; but we are of the opinion that the jury were fully and fairly instructed on what we believe the correct governing rules of law, and that the instructions read as a whole could not have misled them, and that there was no reversible error in giving, refusing or modifying instructions.

On the motion for a new trial, affidavits of newly-discovered evidence were filed, among them that of the witness Couchois who, in the meantime, seems to have gone over to the defendant’s side of the case. His affidavit covers questions of improper conduct of the jury after the case was submitted to them and contains other statements by which he attempts to modify the effect of the testimony which he gave at the trial, although he reasserts the truth of that testimony. We discover nothing in these affidavits that in onr judgment entitled the defendant to a new trial. We are of the opinion that he received a fair and impartial trial in accordance with the established rules of law; that the jury were fully warranted in finding him guilty and fixing his punishment as they did by their verdict, and that the court properly sentenced him on that verdict. The judgment is therefore affirmed.

Affirmed.

Mr. Justice Dibell took no part in this decision.


text:
    Henry Boehning for use of Himself and Connecticut Fire Insurance Company, Defendant in Error, v. Elgin, Joliet & Eastern Railway Company, Plaintiff in Error.
    Gen. No. 5,913.
    (Not to he reported in full.)
    Error to the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied April 8, 1915.
    Affirmed.
    Opinion filed January 6, 1915.
    Statement of the Case.
    Action brought by Henry Boehning, for the use of himself and the Connecticut Fire Insurance Company, against the Elgin, Joliet & Eastern Railway Company to recover for the destruction of farm buildings by a fire alleged to have been caused by sparks from a passing locomotive. From a judgment for $7,600 in favor of the plaintiff, the defendant brings error.
    Henry Boehning owned a farm on the south side of a highway east of and adjoining the right of way of the defendant’s railway, with farm buildings located about three hundred feet from the track, which was up grade for some distance each side of this point, the track being below the natural level of the ground opposite the plaintiff’s premises. At about 11 a. m. of November 27, 1907, on a day when a strong wind was blowing from the southwest, at a time when everything was very dry a fire started in the south side of a straw stack at a point three hundred and forty-five feet east of the center line of defendant’s track, which resulted in the destruction of all the farm buildings.
    It appeared from the evidence that the only people on the premises for two or three hours before the fire were a housekeeper in the dwelling house, one hundred and twenty feet north of the straw stack, and the plaintiff’s son, thirteen years old, who was working with a hired man about the farm; that there was a fire in the kitchen stove in the dwelling house and no other fire on the premises. The son testified that he and the hired man came from a field to the bam, and that the latter drove into the basement to do some work, while the boy stayed outside to shut a gate; that he was outside about ten minutes in the vicinity of the straw stack, and that he noticed no fire, but that he saw a freight train with one engine and twenty-five to forty cars going north; that it.was not moving fast, that he could hear a heavy exhaust and see smoke coming from the stack like a black cloud; that he went into the barn where the hired man was working and stayed not more than fifteen minutes and when he came out the stack was on fire. John Hartman, a farmer, testified that he lived on an east and west road about two miles north of plaintiff’s premises, and a little over half a mile east of the railroad; that he started from his home about 10:30 a. m., and drove west and stopped about six rods east of the railroad crossing to let a northbound freight train pass; that there were perhaps thirty ears drawn by one engine which threw out a lot of black smoke; that he felt a few cinders flying around, and that the train was not running very fast; that he drove on after the train passed, and when about forty rods west of the track he looked south and saw a lot of smoke and in a few minutes saw flames from plaintiff’s burning buildings. There was another east and west highway about two miles further north which crossed defendant’s right of way under the track. A physician testified that on the forenoon of the fire he had been visiting patients in the 'country and was east of the defendant’s right of way driving west on the last mentioned road, and that he reached the railway crossing about eleven o’clock; that he stopped about twenty rods east of the crossing to let a long northbound train pass; that it contained perhaps thirty-five or forty cars, drawn by a common-size engine running slowly and throwing out a large amount of smoke and cinders; that there was a strong wind from a little southwest, and cinders from the engine struck his buggy; that he drove across the track after the train passed and when he had gone from an eighth to a fourth of a mile he saw the smoke from the burning buildings.
    The defendant introduced its train sheet kept by the train dispatcher, which showed that no train had passed north and up the grade prior to the fire on the day in question until four o’clock in the afternoon, although several trains went south in the morning, the one nearest to the time the fire being a train drawn by two engines, which passed the farm at about 10 a. m. The next train south was at about 12 m., at which time the fire was well under way and the buildings substantially burned.
    It appears that in the ordinary course of business the train seen by plaintiff’s witnesses could not have gone north to the point where it was said to have been seen without being reported to the train dispatcher. The testimony of the men in charge of the passing trains was also that the agent at a nearby station and one McCarthy, employed at a railway crossing in the vicinity, who reported every train that passed to defendant’s dispatcher, corroborated the statement in the train sheet as to the passing of trains on the day in question. By way of impeachment of McCarthy, it was shown by the plaintiff and his attorney that they met McCarthy some time before the trial and asked him if he saw a train going north by the Boehning farm, at or about 11 a. m., on November 27, 1907, and that McCarthy replied yes, a freight train went by, north, by Boehning’s place, heavily loaded, with a small engine, and that a few minutes afterwards his attention was called to the fire. When McCarthy’s attention was directed to this statement he at one time answered that he did not remember and then positively denied making it.
    Abstract of the Decision.
    1. Railroads, § 932

      —sufficiency of evidence to show passing of train before discovery of fire. The evidence although conflicting, in an action against a railway company for the destruction of buildings by fire caused by sparks from a locomotive, held to show that a train passed shortly before the discovery of the fire.
    The engine when directly west of the stack was three hundred and forty-five feet distant, and if the wind was blowing from due southwest, a spark would have had to travel about five hundred feet before reaching the point on the stack where the fire started.
    John A. Russell and Knapp & Campbell, for plaintiff in error; William Beye, of counsel.
    Shopen & Paulson, for defendant in error; Robert S. Egan, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

2. Railboads, § 932*—sufficiency of evidence to sustain judgment for plaintiff for destruction of buildings by fire. The evidence although conflicting, in an action against a railway company for the destruction of buildings by fire caused by sparks from a passing locomotive, held sufficient to sustain a verdict for the plaintiff.

3. Railboads, § 941*—peremptory instruction in action for destruction of buildings by fire. A peremptory instruction to find for the defendant held properly denied in an action against a railway company for the destruction of buildings by fire caused by sparks from a passing locomotive.

4. Railboads, § 938*—when■ jury may find that fire was caused by sparks from locomotive. A jury may reasonably find that cinders from a passing locomotive flew five hundred feet in a high wind and caused a fire which destroyed the plaintiff’s buildings.

5. Railroads, § 931*—when question for jury whether fire caused by sparks from locomotive. It is for the jury to determine whether a fire which destroyed the plaintiff’s buildings was caused by sparks from a passing locomotive.


text:
    George Oram and Eliza Oram, Appellees, v. Daniel Peterkin, Receiver of Joliet & Southern Traction Company, Appellant.
    Gen. No. 6,041.
    1. Street railroads, § 133

      —when negligence to run interurban car without headlight. Whether it was negligence to run an interurban electric car at night without the ordinary or usual headlight, held, under the circumstances, to be a question for the jury.
    2. Street railroads, § 131*—sufficiency of evidence of negligence in running interurban car at night. The evidence in an action against an electric interurban railway company for injuries sustained in the nighttime by the occupants of a carriage in a collision with a car, held sufficient to warrant a finding of the negligence of the defendant in operating the car without a headlight, and in not giving warning of the approach of the car.
    3. Street railroads, § 131*—sufficiency of evidence of due care of person injured in collision with car. The evidence in an action against an electric interurban railway company for injuries sustained by the occupants of a carriage in a collision with the car in the nighttime, held sufficient to warrant a finding that they exercised due care.
    4. Damages, § 115

      -—when damages for injuries to person and property not excessive. ' A verdict in favor of a man seventy-four years of age, for injuries sustained in a collision in the nighttime between a carriage in which he and his wife were riding and an electric interurban car, based on injuries to his person, his carriage, his horses and' the loss of the services of Ms wife, held not excessive.
    5. Damages, § 115*—when damages for personal injury to woman not excessive. A verdict in favor of a woman sixty-four years of age for "injuries received in a collision between a carriage in which she was riding and an electric interurban car, held not excessive.
    Dibell, J., took no part in this decision.
    Appeal from the Circuit Court of Will county; the Hon. Dorbance Dibell, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 6, 1915.
    Rehearing denied April 7, 1915.
    Garnsey, Wood & Lennon, for appellant.
    S. J. Drew, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and- section number.

   Mr. Presiding Justice Carnes

delivered the opinion

of the court.

Appellant is the receiver of a traction company operating an interurban line east from Joliet, Illinois. Appellees, George Oram and Eliza Oram, husband and wife, were driving upon a public highway with a horse and buggy about midnight March 8, 1913, and were struck by a car of the traction company approaching from the rear, tearing off both wheels on one side of the buggy, throwing the horse into the ditch and Oram and his wife on the ground. Three suits were begun to recover damages for injuries so sustained— one by George Oram for injuries to himself and the horse and buggy, one by Eliza Oram for injuries to herself, and one by G-eorge Oram for loss of services of his wife. A declaration was filed in each case charging negligence of the defendant, practically the same in each declaration, and a plea of the general issue was filed in each case. Then the cases were by agreement tried together, with three separate verdicts and judgments, which were in the first case, for injuries to George Oram and the horse and buggy, $1,750, of which two or three hundred dollars should be taken as the amount allowed for damages to the horse and buggy; in the second case, for injury to Eliza Oram, $1,750; and in the third case, for loss of services of the wife, $750. Appeals were perfected in each case, but it is brought here and argued as one -record, and in discussing the questions involved will be so treated in this opinion.

No complaint is made of any action of the court except in refusing a peremptory instruction to find for the defendant, overruling the motion for a new trial and entering judgment on the verdict. Therefore the only question is whether the verdict is supported by the evidence.

The charge in the declaration, of negligence of the defendant, is that it was running the car on a public highway without a headlight at a high rate of speed and in a careless and negligent manner. The evidence showed without contradiction that the headlight was out of order and two lanterns were substituted, one and perhaps both of them burning. There is a conflict of evidence as to the speed, but the jury were warranted in finding it fifteen or twenty miles an hour. There is a dispute as to the sounding of bell or whistle, but the jury rnig’ht well conclude there was no signal long enough before the car struck the buggy to be of any service to appellees as a warning of the approach of the car. There is no question but the car was running on the north side of a- public highway and the road was graded so that teams could be driven on the space occupied by the ear tracks. That part of the sixty-six foot highway north of the tracks was not used for travel, and there was a ditch ten or twelve feet south of the track along the highway. It appears that Mrs. Oram thought she heard the car approaching and so told her husband. He was familiar with the location and the operation of cars there, and told her no, if there was one they would see the headlight; and immediately thereafter the collision occurred. There seems no question but appellees were proceeding along the highway there in the usual manner of people driving under such circumstances.

It is very clear that under these facts a court could not direct a verdict, either on the ground of no negligence of defendant or lack of evidence showing due care of the plaintiff. If we admit appellant’s claim that it was not negligence per se to run without the ordinary and usual headlight, still it was a question for the jury whether it was in fact negligence under the circumstances to run at that time, place and manner without the usual signals and warnings that travelers would naturally look for in using, with appellant, the public highway, and without a light that would enable the motorman to see objects -ahead of him. And that appellees did not notice the car and get out of its way was very likely regarded by the jury as what might well occur to prudent people exercising usual care under such conditions. We are of the opinion the evidence was sufficient to, at least, so far warrant the findings of negligence of the defendant and due care of the plaintiff as to forbid a court’s disturbing that finding.

But it is urged that each verdict is excessive. It appears that George Oram was ■ at the time of the injury seventy-four years old and his wife about ten years younger; that they had a little farm that they cared for mostly by their own labor, and found some time to work for others, he with his horse, and she doing washing and cleaning. It is quite clear that they were sturdy old working people in good physical condition for their age, though she had rheumatic pains at times before the accident, and some of her subsequent disability may be attributable to them and not to the injury. She was severely hurt, was carried to a hospital and kept there eight weeks, and suffered much pain; the doctor’s, bill was $265; and while she was at the time of the trial able to do -housework, as that kind of women under many infirmities are, the jury had ample evidence to support a conclusion that she was practically and permanently incapacitated from performing the labor to which she was accustomed. George Oram was not so badly injured, but was sufficiently hurt to be taken to the hospital and remain there about ten days, suffering considerable pain, and he testified, and it is probably true, that ever since the injury he was unable to do any considerable amount of work. The horse was worth perhaps $200, and was killed because of the injury, soon thereafter; the injury to the buggy was about $30. There is conflict in the evidence as to these items. There are so many elements entering into the problem of damages, and so much is left to the judgment of the jury in this class of cases, we cannot say the first verdict for George Oram is excessive. We are of the opinion that the second verdict, for loss of services of his wife, is reasonable; and that the verdict for Eliza Oram, for her own injury, is well supported by the proofs.

Therefore the judgment in each case is affirmed.

Affirmed.

Mr. Justice Dibell took no part in'this decision.


author: Mr. Justice Dibell

text:
    Adaline R. Reames for use of Louis B. Rastede, Appellee, v. Phineas Morrow, Appellant.
    Gen. No. 5,990.
    1. Homestead, § 30

      —when exemption may be claimed in different lots. Where a person owned and lived upon two half city lots with a dwelling house on one and fruit trees and a garden on the other, held that his homestead extended to both lots.
    2. Homestead, § 27*—when incumbrance deducted in determining value of homestead. The amount of a mortgage is to he deducted from the value of property in determining the value of a homestead.
    3. Homestead, § 33*—claiming exemption in proceeds of sale as direction to apply on incumbrance portion arising from nonexempt land. Claiming the proceeds of the sale of a homestead and nonhomestead lands as exempt after - the payment of a mortgage thereon is equivalent to a direction that the proceeds from the nonexempt portion should be first applied in payment of the incumbrance.
    4. Homestead, § 99*—when toaiver of homestead not available to simple contract creditor.- The waiver of a homestead exemption in a portion of incumbered lands does not extend to the benefit of a simple contract creditor, and the homesteader may under section 4 of the Exemption Act (J. & A. f 5574) require the proceeds to be first applied in satisfaction of the incumbrance.
    Appeal from the Circuit Court of Henry county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied June 22, 1915.
    Reversed with finding of facts.
    Opinion filed January 6, 1915.
    Joseph L. Shaw, for appellant.
    Harry E. Brown, for appellee; Bartlett S. Gray, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and ^section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Louis B. Bastede, a merchant, sued Adaline B. Beames and her husband before a justice of the peace to recover for a store bill and had a judgment for $54.57 and costs. He began the suit by attachment and summoned Phineas Morrow as garnishee and had a judgment against him, and Morrow appealed to the Circuit Court. There the case was tried without a jury on .a stipulation of facts and there was a finding and a judgment against the garnishee, from which he appealed. In resisting, the garnishee is acting under the direction of Mrs. Beames, who is claiming the money in his hands as exempt from execution and attachment as proceeds of her homestead.

Mrs. Beames owned the south half of Lots 1 and 2 in a certain block in the city of Geneseo and lived there with her husband and her minor children by a former husband. These two half lots were not inclosed by a fence and there was no division fence between said two half lots. The house.and out buildings were on the south half of Lot 1. The south half of Lot 2 was used for growing trees and for garden purposes by Mrs. Beames and her husband. She sold these premises on November 24,1913, for $1,200. The south half of Lot 1 was worth $1,025 and the south half of Lot 2 was worth $175. The purchase money was placed in the hands of Morrow and he was therefrom to pay a mortgage resting upon all of said premises, and to pay the balance to Mrs. Beames. The writ of garnishment was then served upon Morrow. He paid the mortgage and there was then left $736 in his possession. It is the theory of appellee that the south half of Lot 1 only was homestead and exempt, because said south half of Lot 1 was worth over $1,000 and therefore the homestead could not extend to the south half of Lot 2; that the mortgage should be paid pro rata out of the value of Lot 1 and out of the value of Lot 2; and that there would then be left in the hands of Morrow out of the price paid for Lot 2 a sufficient sum to pay appellee’s judgment against Mrs. Eeames and the. costs, and such seems to have been the view of the trial court. We are unable to concur in this conclusion. The entire premises were occupied as a homestead, the part used for fruit trees and the garden being naturally a part of the homestead, and we flunk it settled law that the incumbrance is to be deducted from the value of the real estate in determining the value of the homestead. Imhoff v. Lipe, 162 Ill. 282, 286; Brokaw v. Ogle, 170 Ill. 115, 121; Kilmer v. Garlick, 185 Ill. 406, 412; Garwood v. Garwood, 244 Ill. 580, 587. It follows that the entire premises, after deducting the mortgage, were only worth $736, and they were therefore a homestead and that sum was exempt from execution. If, however, the south half of Lot 2 be treated as not homestead, and as of the value of $175, we are of opinion the same result would follow. Mrs. Eeames directed Morrow to claim this $736 as exempt by virtue of the Homestead Exemption statute. That was equivalent to directing that the proceeds of the sale of the south half of Lot 2 be first applied in payment of the mortgage. We are of opinion that though she waived her homestead in the mortgage, that waiver did not extend to the benefit of this simple contract creditor, and that as to him she had a right to require the proceeds of the south half of Lot 2 to be first applied in payment of the mortgage, under section 4 of the Exemption Act as amended in 1887 (J. & A. ¶ 5574), and all that would be left after the mortgage was paid would be a part of the proceeds of the south half of Lot 1, and exempt from this attachment. The judgment is therefore reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment. We find that the money in the hands of appellant, after the payment of the mortgage upon the real estate involved in this case, was proceeds of the homestead of Adaline R. Reames and exempt from attachment, under sections 1 and 6 of the Homestead Exemption Act. (J. & A. 5571, ¶¶ 5576.)