author: Sibley, P. J.

text:
    Clinton W. Card v. Phœba M. Robinson.
    X. Husband and wife—Agency of husband.—The statute of this State in relation to the property rights of married women, does not allow the wife to appropriate the results of the husband’s skill and labor in a business carried on in her name, to the exclusion of the rights of the husband’s creditors.
    2. Property purchased by wife.—Where it appears that the wife borrowed" the money with which to purchase material and engage in business, the business being carried on by her husband as her agent, and repaid the money borrowed out of the proceeds of the business, earned by the skillful labor of the husband, it cannot be said that she derived the property from a source other than that of her husband. The transaction will be regarded as an attempt to do indirectly that which is forbidden by the statute to be done directly.
    Appeal from the Circuit Court of Grundy county; the Hon. Josiah MoBoberts, Judge, presiding.
    Mr. A. L. Doud, for appellant;
    argued that the wife cannot appropriate the results of the husband’s labor and skill to the exclusion of his creditors, and cited Wortman v. Price, 47 Ill. 22; Wilson et al. v. Loomis, et al. 55 Ill. 352; Patton v. Gates, 67 Ill. 164.
    That the verdict is clearly against the evidence, and the case should be reversed: Schwarts v. Lammers, 63 Ill. 500; Davenport et al. v. Springer et al., 63 Ill. 276; Hibbard v. Molloy, 63 Ill. 431; Waggeman v. Lombard, 56 Ill. 42; C. & A. R. R. Co. v. Purvines, 58 Ill. 38; Ehrich v. White, 74 Ill. 481.
    That an instruction not based upon the evidence should not have been given: Goodwin v. Durham, 56 Ill. 239; Holden v. Hulburd, 61 Ill. 280; Paulin v. Howser, 63 Ill. 312.
    Messrs. Menu & Musu and Mr. W. T. Hopkins, for appellee;
    contending that the question whether the husband’s skill and labor had improved the property in question, was one of fact, and the jury having found by their verdict that it had not, tlieir finding should not be disturbed, cited Ellis v. Locke, 2 Gilm. 459; O’Reilly v. Fitzgerald, 40 Ill. 310; Young v. Rock et al. 48 Ill. 42; Jacquin v. Davidson, 49 Ill. 82; Chapman v. Stewart, 63 Ill. 332; Holcomb v. The People, 79 Ill. 409.
   Sibley, P. J.

The facts disclosed in this record, exhibit a very clear case of an effort on the part of husband and wife to evade the law existing between debtor and creditor. Phceba M. Robinson, the wife, in December, 1874, through George McKinney, purchased at a constable’s sale, on execution against Ephraim Robinson, the husband, and his former partner, Dolan, several articles of personal property, for which she paid the sum of $34.95, but claims that they were worth $336. With the materials purchased at that sale, she in January, 1875, commenced the pump-making business on her own account, as she testified, and placed her husband, who was an experienced hand in the manufactory of pumps, in the sole charge of it. He managed and controlled the business according to his own judgment, as her agent, devoting his whole time to its prosecution, without any compensation for his labor. This business of pump-making was carried on by her at the same place previously occupied by Robinson and Dolan for that purpose, without any indication of agency on the part of the husband, or. any apparent change of ownership from that which existed when he was the proprieter, until the appellant levied on and sold the stock by virtue of an execution issued against the husband. Phceba M. Bobinson brought this action of trespass against Card, the constable, andHewport, the plaintiff in the execution, for taking the property, and recovered damages from Card to the amount of $206.49. From the judgment rendered upon that finding he apppealed to this court.

If this was all the evidence in the case, there being no claim that any of the property levied on by the constable included articles originally purchased by the wife, it would seem by the settled law of this State, that the creditors of the husband had a right to take it in satisfaction of their debts. We held, in Guill v. Hanney, decided at the December term, 1877, (1 Bradwell, 490) upon the authorities there cited, as well as on the correct construction of the statute, that the fruits of the husband’s skill and labor were liable to be taken on execution to satisfy his debts, and we do not feel disposed to review the principles upon which that decision was founded. But when proceeding a little further with the testimony of appellee, which is alone being considered, if any doubt existed respecting the rights of the parties, it is at once removed. For Mrs. Robinson says that she borrowed the money to make the purchase of the materials at the constable’s sale (which was all the capital that she ever put into the enterprise), of her brother-in-law, and repaid it out of the proceeds of the business. It should be remembered that Robinson and Dolan, at the time of this sale, were bankrupts, but afterward compromised with their creditors for fifty cents on the dollar. The appellee did not attend the sale in person, but employed McKinney to bid for her, and she knew nothing about the goods purchased except what was told her. Upon this state of facts the attorney for the appellee argues, with apparent gravity, that the chattels in the possession and control of the husband, levied on by the constable in September, 1875, without any proof of their identity with the articles originally purchased by the wife, were her separate property.

Even conceding that they were the very same purchased by her, and that no change in them had taken place by the handiwork of the manufacturer, as between the appellee and the creditor of the husband, her hold on the property would have been an exceeding slender one. Since it appears that the goods of an insolvent debtor were sold on execution against him—bid off by his wife through a third party for about one-tentli of their value, according to her judgment (although she never saw them), the money used in the purchase borrowed by the wife of a brother-in-law, and repaid out of the skillful labor of the husband, can it for a moment be seriously urged that she derived the property from a source other than that of her husband? If she had taken her husband’s earnings before the purchase to buy the property with, it would require a bold man to deny the right of his creditors to seize it on execution. Is there any substantial difference between the taking his earnings before the purchase, or appropriating the wages of his labor to repay the money borrowed with that view?

The law never sanctions the doing of a thing indirectly that cannot be directly accomplished.

Then a purchase made under such circumstances is a mere shift to evade the spirit of the statute, and cannot be sustained.

The judgment of the Circuit Court is reversed.

Judgment reversed.


source: Caselaw Access Project

author: Pillsbury, J.

license: Public Domain

text:
    Gottleib M. Young v. Elizabeth Denslinger.
    1. Evidence—Proof of discharge in bankruptcy.—The pleadings put in issue the fact of a discharge in bankruptcy, and to establish that fact, appellant offered in evidence the deposition of the clerk of the District Court of the United States, to the effect that appellant filed his voluntary petition in bankruptcy in that court, and the destruction of the files and records by fire. A memorandum of the register in bankruptcy of his final report in the case was also offered in evidence, and the appellant testified that he had received a certificate of his discharge, and that the same was lost. Held, in the absence of proof to the contrary, that the discharge in bankruptcy was sufficiently proven.
    2. New promise.—To the plea of discharge in bankruptcy, the plaintiff replied a new promise, and a demurrer was sustained to such replication. The replication to the plea of new promise put in issue a fact, as such promise, if made, was a waiver of a defense which the law otherwise permitted the defendant to make, and should have been tried. It was error to sustain a demurrer thereto.
    Error to the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.
    Messrs. Cratty Brothers, for plaintiff in error.
    Mr. M. M. Bassett, for defendant in error;
    that the certificate of a clerk of the court, of the substance or purport of a record, is not competent evidence, cited 1 Greenleaf on Ev. § 507.
    Upon the question of nexv promise: Otis v. Gazlin, 31 Me. 567; Maxim v. Morse, 8 Mass. 127.
   Pillsbury, J.

This was a proceeding by defendant in error against plaintiff in error, to revive a judgment by scire facias.

The defendant pleaded, among other pleas, that since the rendition of the judgment sought tobe revived, he had been adjudicated a bankrupt on his own petition, and had received his discharge, etc.

The plaintiff filed several replications to the pleas of discharge, the eighth of which is that of a new promise to pay the judgment. A demurrer was sustained to all the replications except the first and second, which put in issue the certificate of discharge alleged in the third and fourth pleas.

A trial was had before the court, a jury being waived, and a judgment of revivor entered, and the defendant prosecuted this writ of error.

The only question presented is whether the court erred in finding that no discharge in bankruptcy was issued to the defendant. The defendant, to sustain his pleas, read in evidence the deposition of William H. Bradley, clerk of the District Court of the United States, for the ¡Northern District of Illinois, who testifies that the defendant filed his voluntary petition in bankruptcy in that court on the 21st day of ¡November, A. D. 1867, and that all the original papers, memoranda of register and court records of that proceeding wore destroyed by the great fire of 1871. That after the fire he received from the Pegister a memorandum of the proceedings in that case had before him. This memorandum was put in evidence, from which it appears that on the 15th of July, 1868, the Register made a final report to the court, recommending that a discharge be issued to the bankrupt.

The deposition of the defendant was then read in evidence, in which he testifies that he instituted the proceedings in bankruptcy, and obtained his final discharge on the 21st day of July, 1869. That his certificate has been lost, but that he knows he had it as late as 1872. That he has made diligent search for it-and cannot find it, etc. This was all the evidence in the case.

No objection was made to the sufficiency of the preliminary proof of loss of the certificate, and we are satisfied that the proof is sufficient as it stands in the record, to sustain the pleas under which it was offered. The defendant cannot he prejudiced, because the records in Chicago were burned, if he can plainly satisfy the court of their once existence and their contents; and the presumption must prevail, we think, in absence of proof to the contrary, that, as he procured a certificate of discharge, he was regularly adjudicated a bankrupt. Upon the issues tried before the court the judgment should have been for the defendant. We are of the opinion that an issue of fact should have been formed upon the replication of a new promise, as such promise to pay the debt after a discharge in bankruptcy waives a defense which the law otherwise permits him to make. Way v. Sperry, 6 Cush. 238; Classen v. Schœnemann, 80 Ill. 304.

The judgment must be reversed, and cause remanded, with leave to form issue of fact upon a replication of new promise, if the parties so desire.

Judgment reversed.


text:
    Commissioners of Highways of North Henderson v. The People ex rel. Brown et al.
    1. Mandamus.—In order to entitle a party to a mandamus, he must show a clear right to have the thing sought by it clone, and by the person or body sought to be coerced, and such person or body must have the power, and be obligated to do the act.
    2. To compel the opening op a highwat.—There being no proof whatever in the record, either by recitals in the proceedings of the commissioners of highways, or the supervisors on appeal, or by evidence aliunde that copies of the petition for laying out the proposed road had been posted as required by law, it does not appear that the commissioners of highways had jurisdiction to perform the act sought to be enforced by mandamus.

      3. Proof that copies of the petition were posted should be made.—The statute requires that notice of such petition should be given by posting copies thereof, and it is essential that proof of such notice should be made before the commissioners of highways are authorized to grant the prayer of the petition, and in the absence of such proof the commissioners could but refuse to act.
    4. Appeal to supervisors—Proof required.—On an appeal under the statute from the commissioners of highways to three supervisors, it becomes necessary to show that the commissioners had jurisdiction to authorize them to act differently.
    5. Posting of copies a prerequisite.—The posting of copies of the petition is a prerequisite to the acquiring of jurisdiction by the commissioners to act, and there being no evidence of such notice, the record is insufficient to show a legal highway.
    6. No presumption that notice was given.—The provision of the statute, that the filing of the final order of the commissioners, and other papers, with the town clerk are prima facie evidence of the regularity of all antecedent steps in the proceedings, applies only when the papers upon their face show jurisdiction. In the absence of such showing it will not be presumed that there was a proper petition presented, notices posted and a hearing and as essment of damages.
    7. Notice to non-resident heirs.—The record shows that a portion of the land taken belonged to certain heirs, one of whom was anon-resident. No notice was shown to have been given her, and it does not appear that any one was authorized to appear and represent her, and she has never released her claim for damages. As to such non-resident the damages have not been legally assessed, and the commissioners were justified in refusing to open the road.
    8. Variance between petition and order—Irregularity.—The petition prayed for a road four rods wide, a width prohibited by the statute, and the supervisors in their order determine that the road shall be laid out as prayed for, and order the damages assessed on the basis of a road fifty feet wide. This was erroneous.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Lanpiiebe & Beown, for appellants;
    argued that the application for the writ was premature, and cited Rev. Stat. 1874, 932, § 119.
    The commissioners of highways have no right to allot a new road or the damages for opening the same, until those damages have been legally ascertained and fixed: Rev. Stat. 1874, 925, §§ 76, 77; Rev. Stat. 1874, 928, § 97.

      Before damages can be legally assessed, the road should be surveyed and platted: Rev. Stat. 1874, 924, § 75.
    The jury in assessing damages took into consideration the benefits to land owners, and charged those benefits to them in violation of the Constitution: Constitution, Art. II. § Sec. 13; Carpenter v. Jenings, 77 Ill. 250.
    The petition prayed for a road wider than allowed by law: Rev. Stat. 1874, Chap. 121, §65.
    The petition should fix the termini and general course of the road: Rev. Stat. 1874, Chap. 121, § 70; Shinkle v. Magill, 58 Ill. 422.
    Messrs. Pepper & Wilson, for appellees;
    contending that it is the duty of the commissioners of highways to open and keep in repair all roads in the township, cited Rev. Stat. 1877, Chap. 121, §81.
    As to requisites of a petition for laying out a new road: Rev. Stat. 1874, Chap. 121, §§ 24, 29.
   Pillsbury, J.

It appears from the record in this cause, that a petition for a new road four rods wide, and three miles long, between sections 7,18 and 19, in North Henderson, and sections 12, 13 and 24, in the .township of Suez, in Mercer county, was presented to the highway commissioners of the respective townships, and that the said commissioners met on the 4th day of August, 1876, to hear reasons for and against the laying out of the road, at which time the appellants, as commissioners of North Henderson, refused to grant the prayer of the petitioners, and those of Suez decided to grant the same. An appeal was taken to three supervisors of the county, who upon hearing, had on the 24tli day of August, determined to, and did reverse the decision of the commissioners of highways of North Henderson, and ordered “ that the prayer of the petition be, and the same is hereby granted, and that the road as prayed should be granted.”

Thereupon they caused proceedings to be instituted before a justice of the peace for assessment of damages for a road fifty feet wide, and caused a survey to be made describing the road as three rods wide.

The final order declares the road to be fifty feet owide, making the survey a part of such order. The commissioners of North Henderson took no action whatever in the premises, after their refusal to grant the prayer of the petition on the 5th day of August, and refuse to do anything towards apportioning the road or dividing the damages assessed between the towns in opening the road or making any provision for the payment of the damages. The relators herein applied to the Circuit Court of Mercer county for a writ of mandamus, to compel the commissioners of North Henderson to meet those of Suez, and proceed under the statute to open the road and apportion the road and damages between the towns. Hpon the hearing, the court awarded a peremptory writ of mandamus, commanding defendants within ten days from service of the said writ, that they appoint and hold a meeting with the commissioners of Suez, to allot to each town the part of said road that each town shall open, and repair, and to divide the damages; and if they cannot agree, to select said arbitrators to make such allotment and division; that as soon as the part of the damages and expenses for locating said road, which said town of North Henderson has to pay, shall have been ascertained and determined by such division, the said defendants shall at the proper time prescribed by law, levy a tax not exceeding forty cents on the $100, to pay said damages and expenses, and report the same to the Board of Supervisors. From this judgment the commissioners appeal to this court.

In order to entitle a party to a mandamus, he must show a clear right to have the thing sought by it done, and by the person or body sought to be coerced; and such person or body must have the power and be obligated to the act. The People v. C. & A. R. R. Co. 55 Ill. 95; The People v. Cline, 63 Ill. 394; Commissioners of Highways v. The People, 66 Ill. 339. There is no proof whatever in this record, either by recitals in the proceedings of the commissioners or the supervisors upon appeal, or by evidence aliunde, that copies of the petition had been posted twenty days in the towns of Suez and North Henderson, as required by the 97tli section of the act of 1874.

The commissioners of North Henderson refused to grant the prayer of the petitioners, and we cannot see from this record but the ground of their refusal was that they had no jurisdiction to grant it, because no proof was made before them that the petition had been posted as required by the statute. Such proof was essential to be made before they were authorized to grant the prayer, and in the absence of proof of such posting they could but refuse it, as they did. On an appeal to the supervisors, in order to show that the action of the commissioners was erroneous, it became necessary, we apprehend, for the petitioners to show that the commissioners had jurisdiction to authorize them to act differently. The statute makes it the duty of the petitioners to post copies of the petition, and to make proof of that fact to the commissioners, which proof can be made by the affidavit of the person posting the same, or by other legal evidence. Kev. St. 1874, section 71. The posting of copies of the petition is a prerequisite to the acquiring of jurisdiction by the commissioners to act, and there being no evidence of such notice, the record is insufficient to show a legal highway.

This was the rule announced in Commissioners v. Harper, 38 Ill. 103, and in Cooley v. Kennedy, 28 Ill. 143.

It is insisted, however, that under the 92d section of the statute of 1874, the final order and other papers filed with the town clerk are prima facie evidence of the regularity of all the antecedent steps in the proceedings.

We are inclined to think, under the decisions of the Supreme Court, that such effect can only be given to the papers when upon their face they show jurisdiction. In such case, if the recitals in the order and other papers show a prima facie case, it shall not be presumed that the fact is contrary thereto.

If the commissioners of highways file an order in the town clerk’s office, simply certifying that they have established a road in their town, shall it be presumed that a proper petition was presented, duly posted, notices given of the time and place of hearing reasons, and that the damages have been duly assessed by a jury; and if the land-owner is unable to negative these essential facts, shall he lose his land?

It is better that those who desire to take private property by statutory proceeding should also take the burden of showing, at least by recitals under their official oaths, that they have pursued the statute.

The facts are peculiarly within their knowledge, and it is no hardship to require them to preserve the evidence in the record. The Supreme Court in Frizell v. Rogers, 82 Ill. 109, where the proceedings were had under the statute of 1874, hold that these jurisdictional facts must affirmatively appear in the record, and we must conclude such decision was made with a full understanding of the 92d section of the act. Under this decision we are compelled to hold, whatever we might do if it were an open question, that this record is insufficient to confer jurisdiction upon the commissioners of highways to grant the prayer of the petition, or upon the supervisors upon appeal. Again, the record shows that a portion of the land taken by the road belonged to the heirs of John Gould, and the damages were assessed in their favor by that designation. The mother of the heirs was living on the land, and one of the heirs resided in Mercer county, and the other in the State of Kansas.

Mo notice whatever was given the non-resident heir, and the notice to the resident was served upon her husband. It does not appear that any one was authorized to appear and represent the non-resident owner, and she has never released her claim for damages. As to her, at least, we are of the opinion that the damages have not been legally assessed, and the commissioners of Morth Henderson are therefore justified in refusing to open the road. The proceedings are otherwise irregular. The petition asks for a road four rods wide, a width prohibited by the statute, and the supervisors in their order reversing the action of the commissioners in refusing to lay it out, determine that the road shall be granted as prayed for; they then have the damages assessed on the basis of a road fifty feet wide. We are of the opinion that the court erred in ordering the writ of mandamus herein for the reasons above given, and the judgment of the court below will therefore be reversed.

Judgment reversed.


text:
    Nathan Doxey v. John T. Miller.
    1. Wager—Stakeholder.—A stakeholder is in no sense a party to the illegal contract, or in pari üelictu. He is a mere depositary of both parties respectively, with a naked authority to deliver over on the happening of the proposed contingency. If the authority is actually revoked before the money is paid over, it remains a naked deposit to the use of the depositor.
    2. Recovery of money deposited.— It has been held, under the statute of lt:45, that the loser of a draft in gambling can recover the same of a party who had purchased it from the winner in good faith. The statute of 1874, in relation to gambling, is broader than the former statute, and most certainly allows a recovery from the stakeholder of the money deposited
    3. Recovery of interest not allowed.—The statute limits the recovery in such cases to the money lost, with costs, and interest on the same cannot be recovered.
    Appeal from the Circuit Court of Henry county; the Hon. Geo. W. Pleasants, Judge, presiding.
    Mr. C. Dunham, for appellant;
    argued that a recovery, if had at all, must he under the common law, the statute not authorizing a recovery of money from a stakeholder, when it was placed in his hands in pursuance of an immoral or illegal wager, and, under the common law, appellee cannot have relief from the consequences of his own illegal act, citing: Yates v. Foot, 12 Johns. 1; Morgan v. Groff, 5 Denio, 364; Hill v. Corcoran et al. 107 Mass. 251; Worcester v. Essex, etc. Corporation, 7 Gray, 457; Stanton v. Metropolitan R. R. Co. 14 Allen, 485; Heland v. City of Lowell, 3 Allen, 407; Merchants’ Savings, etc. Co. v. Goodrich, 75 Ill. 554; Harris v. Hatfield, 71 Ill. 298; Neustadt v. Hall, 58 Ill. 172; Gregory v. King, 58 Ill. 169; Chapin et al. v. Dake, 57 Ill. 295; McClurken v. Detrich et al. 33 Ill. 349; Beadles v. Bless, 27 Ill. 320; Tatman v. Strader, 23 Ill. 495.
    Mr. George E. Wait, for appellee;
    that this is a wagering contract, and void, cited Rev. Stat. 1877, 369.

      Hence the money deposited may be recovered back: Parmlee v. Rogers, 26 Ill. 56; Hampden v. Walsh, 16 Eng. Rep. 37.
    When both parties claim the entire sum wagered, the court will not lend its aid to enforce the illegal contract: Gregory v. King, 58 Ill. 169; Merchants’ Savings, etc. Co. v. Goodrich, 75 Ill. 554; Harris v. Hatfield, 71 Ill. 298; McClurken v. Detrich et al. 33 Ill. 349; Beadles v. Bless, 27 Ill. 320.
    But a person may recover his own, lost by a gaming contract: Chapin et al. v. Dake, 57 Ill. 295.
    Money bet on an illegal wager may be recovered of .the stakeholder before he pays it to the winner: Wilkinson v. Tousley, 16 Minn. 299; Ball v. Gilbert, 12 Met. 397; McAllister v. Hoffman, 6 S. & R. 147; Tarleton v. Baker, 18 Vt. 9; Wheeler v. Spencer, 15 Conn. 28; West v. Holmes, 26 Vt. 534; Perkins v. Eaton, 3 N. H. 155; Whitwell v. Carter, 4 Mich. 329; 2 Smith’s Leading Cas. 346.
    So long as the money remains in the hands of the stakeholder it may be withdrawn, notwithstanding the loss of the bet: McAllister v. Gallaher, 3 Pa. 468.
    FTotice to the stakeholder not to pay the winner, is a countermand of the authority implied by the original deposit: Bates v. Lancaster, 10 Humph. 134; Fryberger v. Simpson, 11 Ind. 59; Morris v. Philipot, 11 Ind. 441; West v. Holmes, 26 Vt. 530; Conklin v. Conway, 6 Harris, 329; Humphreys v. Magee, 13 Mo. 435: Vischer v. Yates, 11 Johns. 23.
    A stakeholder is a mere bailee: Stacy v. Foss, 1 Appleton, 335; Wheeler v. Spencer, 15 Conn. 28; Moor v. Trippe, 1 Spencer, 263; Forrest v. Hart, 3 Murph. 458; Perkins v. Hyde, 6 Yerg. 238; Wood v. Duncan, 9 Pet. 227; Schackleford v. Ward, 3 Ala. 37; Ivey v. Phifer, 11 Ala. 335; Hardy v. Hunt, 11 Cal. 343; House v. McHanney, 46 Me. 94; Heincke v. Francis, 3 Dutch. 55; Dewess v. Miller, 5 Har. 347; Whitwell v. Carter, 4 Mich. 329; Alexander v. Mount, 10 Ind. 161; Alford v. Burke, 21 Ga. 46; West v. Holmes, 26 Vt. 530; Bell v. Gilbert, 12 Met. 397; Hutchings v. Stillwell, 18 B. Mon. 776; Conner v. Ragland, 15 B. Mon. 634; 2 Smith’s Leading Cas. 284; 1 Addison on Con. §304; 2 Parsons on Con. 138; Cooley’s Blackstone, 431; 2 Kent, 600; 2 Bouv. Law Dic. 541.
   Pillsbury, J.

The appellee Miller and one Daniel Gilman, wagered $200 upon a horse race, and each deposited $150 with the appellant as stakeholder. The race resulting unfavorably to Miller he demanded the money deposited by him with appellant before it was paid over to Gilman. Doxey refused to pay back the money to appellee, but retained the same until this suit was commenced to recover it. The court below rendered judgment in favor of appellee for the $150 and interest from June 1875, the time of the demand.

It is insisted by the appellant, that as the wager was void upon the ground of public policy, and the appellee in proving his case established the illegality of the transaction, the courts will not aid him in recovering the money so illegally deposited.

By all the authorities the stakeholder is not considered as one of the parties to the transaction.

This position is clearly stated by Shaw, C. J., in Ball v. Gilbert, 12 Metcalf, 397: We think it clear,” he says, that in no proper sense can the stakeholder be regarded as a party to the illegal contract, or in pari delictu. He is a mere depositary of both parties, respectively, with a naked authority to deliver it over on the proposed contingency. If the authority is actually revoked before the money is paid over, it remains a naked deposit to the use of the depositor.

This view is sustained by the following cases: McAllister v. Hoffman, 6 S. & R. 147; Tarleton v. Baker, 18 Vt. 9; Wheeler v. Spencer, 15 Conn. 28; Perkins v. Eaton, 3 N. H. 155; Whitwell v. Carter, 4 Mich. 329; Wilkinson v. Tousley, 16 Minn. 299.

However this may be at common law, we are of opinion that the action can well be maintained under the provisions of our statute.

The gaming act, Rev. Stat. 1845 p. 592, provided that any person losing money or any other valuable thing at play, if it amounted to $10 might recover the same by any appropriate action from the winner, and by the same act all promises, notes, bills or other securities made upon any gambling consideration should be void and of no effect.

The Supreme Court of this State, in Chapin et al. v. Dake, 57 Ill. 295, held that the loser of a draft in gambling could recover the same by bill in equity of a party who had purchased the same of the winner in good faith in the usual course of business, notwithstanding the draft bore the genuine endorsement of the loser.

This was placed upon the ground that the statute made the contract of endorsement void and no title passed under it. Mow the statute of 1874 upon the subject of gaming is a reenactment of the statute of 1845, including, however, in its provisions all wagers upon any race, fight, pastime, sport, lot, chance, casualty, election, or unknown or contingent event whatever. In this respect it is broader than the statute of 1845, and clearly includes the race in question in this suit.

If, then, the statute is broad enough to permit the loser to pursue and recover the property lost when found in the hands of an innocent purposer, most certainly he can recover it from the mere stakeholder, who has knowledge of all the facts.

The case of Gregory v. King. 58 Ill. 169, relied upon by appellant, does not overrule or modify the case of Chapin v. Dake.

In Gregory v. King the court held, it is true, that a wager on an election in another State was against public policy, and void, overruling the former case in 3 Scam, holding the contrary view. At the time of the decision of Gregory v. King, the statute of 1845 was in force, and did not include in its provisions bets upon races or elections, and hence had no bearing in the decision of the case.

That case was decided on common law grounds, and the money having been paid to the winner, the court held that it would not lend its aid to assist either of the parties to the illegal transaction. Had the statute of 1845 given a right of recovery from the winner in case of wagers on elections, we apprehend Gregory v. King would have been decided the same, as Chapin v. Dake; but because it was against the common law, only the common law was meted out to the parties.

But as we have seen, the statute of 1874 places bets on races, elections, etc., in the same category with gambling, and gives the same right of recovery in the one case as in the other, hence, Chapin v. Dake is as applicable to the statute of 1874 as to that of 1845, and fully authorizes a recovery in this case.

The statute, however, limits the recovery to the money lost and costs, and we think that a party ought not to recover any more from the stakeholder than he could if it had been paid to the winner. Interest should not have been allowed. Chapin v. Dake, supra.

For the error of the court in allowing interest, the judgment must be reversed and the cause remanded to the Circuit Court of Henry county, and if the appellee will there remit all over $150, the Circuit Court will render judgment in his favor for that sum and costs, without further trial.

Judgment reversed.


text:
    The President, etc. Town of Earlville v. Joel Carter.
    1. Contributory negligence.—It is a general rule that where a plaintiff fails to use ordinary care, and the want of such care contributes to produce the injury complained of, he cannot recover on account of any mere neglect on the part of the defendant to avoid the result.

      2. Comparative degree of negligence.—If the act of the defendant was wanton or willful, or if after he became aware of the danger to which the plaintiff had exposed himself, he failed to use ordinary care to avoid injuring him, he will be held liable, notwithstanding the plaintiff may have neglected to use reasonable precaution to avoid the injury. But it has never been the law in this State that the negligence of the parties to a controversy upon that subject could be weighed in a scale, when if it inclined at all in iavor of the plaintiff, lie might recover.
    3. Instruction as to negligence.—While the question of negligence is ordinarily one of fact for the jury, an instruction to the effect that however reckless the plaintiff may have been, it was their province, and theirs alone, to determine his right of recovery, and that the Court is powerless to indicate what facts would constitute such recklessness as to preclude the plaintiff from recovering against the defendant, although he might also be guilty of even gross negligence, is erroneous.
    4. Changing instructions.—If a court undertakes to amend an instruction, it must take care that the instruction, when amended, declares the law.

      Appeal from the Circuit Court of La Salle county; the Hon. Edwin S. Leland, Judge, presiding.
    Messrs. Eiciiolson & Snow, for appellant;
    argued that if there is want of ordinary care on the part of the plaintiff, contributing directly to the injury, then the law will not attempt to measure the degree of such negligence, but will forbid a i'ecovery, and cited Walker v. Westfield, 39 Vt. 252; Deher v. Town of Fitchburg, 22 Wis. 677; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; City of Quincy v. Barker, 81 Ill. 300; C. B. & Q. R. R. Co. v. Sykes, 1 Bradwell, 520; City of Centralia v. Krouse, 64 Ill. 19; Wharton on Negligence, § 133.
    That the instruction as to comparative negligence was erroneous: C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510.
    Erroneous instructions are not cured by giving others that are correct: C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501.
    Mr. C. H. Brush and Mr. H. T. Gilbert, for appellee;
    that the question of plaintiff’s want of care was proper to be left to the jury, cited Wharton on Negligence, § 403.
    That the third instruction given for appellant was erroneous, because it assumed as true facts which were disputed, and the existence of which should have been left to the jury, and gives undue prominence to certain facts: Barrelett v. Bellgard, 71 Ill. 280; Olsen v. Upsahl, 69 Ill. 273; Wilson v. Bauman, 80 Ill. 493; Wolcott v. Heath, 78 Ill. 433; Straus v. Minzesheimer, 78 Ill. 492; Hewitt v. Johnson, 72 Ill. 513; Homes v. Hale, 71 Ill. 552; Ogden v. Kirby, 79 Ill. 555; Evans v. George, 80 Ill. 51; Drohn v. Brewer, 77 Ill. 280.
    A party asking an erroneous instruction cannot complain if the court modifies the same and gives it as modified: Ryan v. Donnelly, 71 Ill. 100; Pierce v. Millay, 62 Ill. 133.
    The instructions as a whole state the law correctly, and for that reason the judgment should not be reversed: Lawrence v. Hagerman, 56 Ill. 68; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 309; N. L. P. Co. v. Binninger, 70 Ill. 571; Yundt v. Hartrunft, 41 Ill. 9; Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206; Stowell v. Beagle, 79 Ill. 525.
   Sibley, P. J.

This suit was brought by Joel Carter against the town of Earlville, for wrongfully allowing a bridge across Indian Creek to remain in such an unsafe condition that while the plaintiff was endeavoring to pass over with a team it gave away from under him, by means of which he was seriously injured.

The declaration also alleges the bridge to have been a public one, and within the corporate limits of the village. How the town became incorporated, and what its powers and duties were respecting the building and maintaining of bridges, does not appear. But since its liability is conceded, it does not become necessary to notice the question.

It appears from the testimony that Carter lived a mile or two from the village of Earlville, and was in the habit of going to town nearly every day with a team at that time, carrying milk to market, and generally passing over this bridge, which was the nearest route. There were other ways, one called the South road, which was a little further, and others also by fording the creek, that were not so easy as crossing on the bridge. The bridge was constructed of wood, and a 60 foot span in it seems to have been supported by bunches of trestlework, which were carried away during the high water of February or March, 1876. Soon after that the town authorities caused the bridge to be nailed up at the ends.

But it remained closed only a short time before some one tore down the fastenings in order to pass over it. These barriers, consisting of poles and 2x6 joist across the ends of the bridge fastened with spikes, were repeatedly put up by the town, and as often taken down by persons who desired to pass over the bridge until the 18th of May, 1876, when Carter, the appellee, in attempting its passage broke it down and received the injury of which he complains. That Carter was well acquainted with the dangerous condition of the bridge, is beyond dispute. For besides having warned the town author-ties of that fact, he had spoken of its unsafe condition to others on several occasions in very strong terms, and also admits having seen the fastenings across the bridge indicating to the public that it was not open for travel. Nor is it seriously questioned that the town authorities were guilty of negligence in permitting it to remain for such a period of time in that precarious state. On the trial in the Circuit Court, the jury found the defendant guilty, and assessed the plaintiff’s damages at $250. The town, in appealing to this court, has assigned quite a number of reasons for reversing the judgment rendered upon the verdict of the jury, which have been ably and extensively argued on both sides.

Although several irregularities may possibly have occurred on the trial, it is believed that none of them were sufficient to justify a reversal, and therefore the errors to be considered are narrowed down to the single question of whether the plaintiff exercised ordinary care to avoid the accident, and whether the rule upon that subject was properly submitted and fairly understood by the jury.

Negligence in accordance with the rule of the civil law, is usually by writers divided into three classes, though some authors have made more.divisions, like Sir Win. Jones on the subject of bailments. That is, a slight neglect of the duty required, a want of ordinary care, and gross negligence.

The doctrine in England is well settled, that when a plaintiff fails to usé ordinary care, and the want of such care contributed to produce the injury complained of, he cannot recover on account of any mere neglect on the part of the defendant to avoid the result. And such is the clear weight of authority in the United States, although it is a little difficult to reconcile the inharmonious expression used by judges in arriving at that conclusion. Indeed many decisions can be found where the rule is stated that no recovery can be had by the plaintiff, if he by his own fault in the slightest degree, contributed to produce the injury. But if the act of the defendant was wanton or willful, or if after he became aware of the danger to which the plaintiff had exposed himself, he failed to use ordinary care to avoid injuring him, he will be held liable, notwithstanding the plaintiff may have neglected to use reasonable precaution to obviate a collision. It is stated in Sherman and Bedfield on Negligence, § 37, as the result from an examination of all the authorities upon the subject, that “ we think there is no case in which it has been held that ordinary negligence on the part of the plaintiff, did excuse gross negligence on the part of the defendant.”

This proposition, it will be observed from the context, was not intended to include those cases where the act of the defendant was so gross as to amount to a willful or tortious wrong. Whether by search a case, could possibly be found holding otherwise, would be quite a useless investigation, since the doctrine stated in the text is most unquestionably the correct rule, as a great majority of the courts have concurred in establishing.

The doctrine of comparative negligence has in some way crept into the practice in a manner so inaccurately understood as to have led to many erroneous notions relating to it.

It never was the law in this State that the negligence of the parties to a controversy upon that subject could be weighed in a scale, where, if it inclined at all in favor of the plaintiff, he might recover against the defendant. Nor, it is believed, has such a rule ever been established by a court of recognized authority, that if the negligence of the plaintiff, in a case of this kind, is a shade less than that of the defendant, he may be allowed to recover.

The opinion delivered in the case of C. B. & Q. R. R. Co. v. Payne, 49 Ill. 500, it is true, contains the language that “ it is the established doctrine of this court that although a plaintiff may be guilty of negligence, still the defendant will be held liable if his negligence is greater than that of the plaintiff.” The cases referred to, of the Chicago & R. I. R. R. Co. v. Still, 19 Ill. 500; C. B. & Q. R. R. Co. v. Dewey, 26 Id. 255; C. B. & Q. R. R. Co. v. Hazzard, Id. 373; and G. & C. U. R. R. Co. v. Jacobs. 20 Ill. 478, it will be seen, do not sustain the language used. Those cases, except that of the G. & C. U. R. R. Co. v. Jacobs, are placed upon the ground that the plaintiff was guilty of gross negligence or failed to exercise ordinary care in respect to the injuries complained of, and therefore was not entitled to recover. The case of the Chicago, Galena & U. R. R. Co. v. Jacobs, turned principally upon the Circuit Court having given instructions not based on the evidence. But Mr. Justice Bbeese, who delivered the opinion, went into a very elaborate and exhaustive discussion of the principles that govern the law of negligence, in which the earliest English cases upon the subject were recognized and approved, as in Blyth v. Topham, Cro. Jac. 158, where it was held that in an action on the case against the defendant for digging a pit, whereby the plaintiff’s mare strayed and fell into it, there being no right for the mare’s straying, he could not recover. So in Butterfield v. Forester, 11 East, 60, Lord Ellenborough said that “ a party is not to cast himself upon an obstruction which has been made by the default of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. * * One person’s being in fault will not dispense with another’s using care for himself.

Two things must concur to support the action. One by the default of the defendant, and no want of ordinary care to avail it, on the part of the plaintiff. In Plucknell v. Wilson, 5 Car. and Payne, 375, the same doctrine was announced, and in Wolf v. Beard, 8 Id. 435, it was said by the court, “that if the plaintiff has contributed to the accident by her neglect, she cannot recover in the action.” A great number of similar cases were commented on, and the court come to the conclusion that wherever it shall appear that the plaintiff’s negligence is comparatively slight, and that of the defendant is gross, he shall not be deprived of his action.

This is doubtless all that was meant in the case of the C. B. & Q. R. R. Co. v. Payne, supra. It was quite unnecessary to say more than that in deciding the case, nor is it fair to infer that more was really intended by the distinguished Judge who delivered the opinion, when all that was said by him on the occasion is taken and considered together. If there ever was any doubt on the subject, it is made plain enough by many subsequent decisions of that court, fully explaining the exact rule which should govern in all such cases. In the case of the C. B. & Q. R. R. Co. v. Lee, 68 Ill. 578, the doctrine was re-stated in terms of such accuracy as not to be mistaken, that it is an essential element to the right of action in all cases, the plaintiff or party injured must himself exercise ordinary care, such as a reasonably prudent person will always adopt for the security of his person or property. It was again, in the C. & A. R. R. Co. v. Ryan, 70 Ill. 212, repeated, that “ persons must use reasonable precaution to avoid an accident, and if they fail to do this, no recovery can be had for an 'injury which might have been averted by the exercise of ordinary care.”

So in C. & A. R. R. Co. v. Becker, 76 Id. 27, it was held that if the plaintiff, by the exercise of ordinary care and caution could have avoided the consequences of the defendant’s negligence, and failed to exercise that care and caution, he cannot recover. The same rule was recognized in I. C. R. R. Co. v. Green, 81 Ill. 20, and quite a number of authorities are referrred to in support of it. See, also, City of Quincy v. Barker, Id. 300. This doctrine was again announced in Kepperly v. Ramsden, 83 Ill. 354, where suit was brought by the plaintiff against the defendant, for damages sustained by reason of falling into an excavation in the sidewalk made to construct coal vaults, and the court remarked that before any recovery can be had it is incumbent on the plaintiff to show she had herself been in the observance of due care for her personal safety. The same rule is re-asserted in I. C. R. R. Co. v. Hetherington, Id. 510.

While the 3d instruction given for the plaintiff which was this:

“ 3. The jury are instructed that the question as to what facts are or are not sufficient to show a want of ordinary care in this case, either on the part of the corporate authorities of the town of Earlville, or on the part of the plaintiff, is one which the jury must decide for themselves by the aid of their own judgment and experience in the affairs of life.

“ The court can only lay down general rules for their guidance. In deciding the question of negligence, the jury should consider all the evidence in the case, giving to the evidence of the witnesses such weig’ht and consideration as they may think it entitled to under all the circumstances appearing in evidence in the case. And if the jury find, from the evidence, that said corporate authorities were guilty of negligence, it is for the jury to say whether such negligence was slight or gross, justifiable or unjustifiable, under all the surrounding circumstances appearing in evidence in this case. And if the jury think, from the evidence, that the plaintiff in attempting to cross the bridge in question, knowingly incurred danger of injury, it is for the jury to say, from all the surrounding circumstances appearing in evidence in the case, whether the plaintiff used reasonable care, and if he did not, whether his want of reasonable care was or was not slight in comparison with that of the defendant, if any,” announces perhaps substantially a correct proposition of law in a general sense, yet applying it to the evidence in the cause, was calculated if nothing else, to mislead the jury in determining the law as applicable to the facts in the case. They are told, in substance, that if the plaintiff knowingly incurred danger of injury in entering upon the bridge, it-was still their province, unguided by any direction of the court, to find whether he used reasonable care in so doing.

How imminent that danger may have been before the act itself would establish a want of reasonable care, is left entirely in doubt. Concede that it is ordinarily a question of fact fur the jury to find, yet should they be informed as in this instruction, that the court is helpless to guide them except in a general way, as to what extent of danger a party may knowingly incur before, he would be absolutely guilty of such a want of proper care as to preclude a recovery, even against a merely negligent defendant, will the law permit a party to rush into any kind of danger, and if injury results from his rashness, that a jury is at liberty to find as a question of fact independent of the direction of the court, there was no want of reasonable care for the hazardous act? ¡Reasonable care is said to be that care which a reasonably prudent man will ordinarily adopt for the security of his person or property. Then, can it be said that a reasonably prudent man will voluntarily encounter danger, no matter how threatening, simply to save a few miles travel? The proposition when stated, appears at once to be a solecism.

If, then, a person is rash enough to voluntarily incur a known and apparent danger, and on the trial of an issue as to his right of recovery against a defendant for negligence growing out of it, may a jury be informed that they have a right to find that the plaintiff used reasonable care to avoid the result, and the defendant has no remedy against such direction? We do'not understand this to be the correct doctrine. ' That a party may take some risks, and still not necessarily be guilty of a want of reasonable care, is an indisputable proposition. But when he apparently exceeds the bounds of reason, the court itself will determine the fact whether he shall be allowed to recover.

By this instruction, the jury might infer, that however reckless the plaintiff may have been, it was their province, and theirs alone, to determine his right of recovery, and the court was powerless to indicate what facts would constitute such recklessness as to preclude the plaintiff from recovering against the defendant, although he might also be guilty of even gross negligence.

In the case of the C. & A. R. R. Co. v. Gretzner, 46 Ill. 75, the rule is laid down in these words: “ That if a party rushes into danger, which by ordinary care he could have seen and avoided, no rule of law or justice can be invoked to compensate him for any injury he may so receive.”

The following, as well as numberless other cases, hold the same doctrine, that, although the question of negligence is one of fact for the jury to d éter mine, still the Appellate Court found upon the testimony, notwithstanding the verdict to the contrary, that the evidence of negligence on the part of the plaintiff was sufficient to preclude a recovery: C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 326; T. P. & W. R. R. Co. v. Head, 62 Id. 233; C. & A. R. R. Co. v. Jacobs, 63 Ib. 178; C. B. & Q. R. R. Co. v. Lee, Adm’x, 68 Ib. 578. And the rule is as strongly stated in the case cited by counsel, of Fulsom v. The Town of Underhill, 36 Vt. 591, where the court remarks that if the plaintiff had reasonable ground to apprehend that the bridge was unsafe for such a team and load, the driving upon the bridge with such a load, was such an act of imprudence and want of care as to prevent him from recovering in the action.

Other authorities to the same effect might be multiplied to an unprofitable extent.

Again the instruction is liable to another objection. It concludes with an intimation that the plaintiff could recover, even though negligent, provided his negligence was slight in comparison to that of the defendant.

This is an incomplete statement of the law as now settled, notwithstanding some casual remarks made by the courts in former cases. Take the case of C. & N. W. R. R. Co. v. Cass, 73 Ill. 394, where Chief Justice Walker gives a very clear explanation of what is meant by comparative negligence- in a few words, as follows:

“.That under the rule long since announced and adhered to by this court, a party receiving an injury, must show either that he is himself free from, and the defendant is gnilty of negligence, or if the plaintiff is guilty of negligence that it is slight, and that of defendant is gross or wanton, or the injury is willfully inflicted. These are the conditions upon which a party may recover in such a case.”

The same rule was also announced in R. R. I. & St. L. R. R. Co. v. Delaney, 82 Ill. 198, where several cases were referred to, sustaining the doctrine, that if the plaintiff is guilty of contributory negligence, it should be slight in comparison with the defendant’s not only, but that the defendant, to make him liable in such a case, must be guilty of gross negligence. It is not correct to say that the plaintiff can recover though guilty of slight negligence in comparison with that of the defendant, without stating that such comparison must amount to gross negligence on the j^art of the defendant and nothing less.

The defendant requested the court to give the following instruction, which wTas numbered four, as follows:

“ The jury are instructed that if they believe, from the evidence, that the plaintiff at and before the time of the accident in question, knew that the bridge upon which he was injured was unsafe and unfit for public travel, then in such case the fact that the road leading over this bridge was the only direct route to the village of Earlville, would be no excuse for the plaintiff not exercising ordinary care and caution. And even though the bridge in question was located on the only road by which plaintiff could reach the village of Earl-ville, yet if he knew the bridge was unsafe, he would have no right to put himself in a place of danger and take the chances of receiving injury. And if he suffered injury by reason of his want of ordinary care and caution, he cannot recover against the village of Earlville in this suit. ”

This instruction was altered by the court, by erasing from the two last lines the following: “ He cannot recover against the village of Earlville in this suit,” and interlining in lieu of the words erased by the following: “ And the negligence of the defendant (if the jury shall find it was negligence), was not as great.”

Altering the instruction, and giving it to the jury in its altered condition, was error in the Court.

It is suggested that it was meaningless, and therefore did no harm. The harm then would consist in its want of meaning, as tending to confuse rather than to enlighten the jury upon the law of the case.

Counsel for appellee admit that it was clearly intended by the court to insert the erroneous doctrine of comparative negligence, which has been considered.

Who is able to say that the jury understood the court had miscarried in that attempt?

It is also intimated that the instruction when offered was erroneous, and therefore the appellant is not in a condition to complain of the alteration.

If the premises are conceded, it by no means follows that the party offering it cannot now complain of the court for making an alteration and then giving the instruction to the jury in its altered condition, unless it wTas altered so as to cure the defect. It was thus held in O’Niel v. Orr, 4 Scam. 3, and in Morgan v. Peet, 32 Ill. 281, where the court said that “ if the instruction in its original form was not the law, it was the duty of the court either to refuse it altogether, or so to amend it as to make it law, and then give it as amended.”

“ If a court undertakes to amend an instruction, it must take care that the instruction when amended declares the law,” and we do not understand these decisions have been overturned by anything that was said in the cases referred to by appellee’s counsel upon that subject.

But we do not think the instruction in its original form liable to the objection urged against it. The law of the case is stated substantially correct, and it should have been given by the court, unless refused for the reason that the same principles had been declared in an instruction previously given.

The judgment of the Circuit Court is reversed and the cause remanded for a new trial, which we think the Circuit Court erred in not awarding.

Judgment reversed.


author: Leland, J.

text:
    Philip R. Shugart et al. v. Linus W. Halliday.
    1. Practice—Rigkht to open and close.—In an action of trespass quare clausamfregit, defendants offered to admit the trespass and damages, but no specified amount of damages, unless the locus in quo was in the highway, and claimed the right to open and close, which the court refused. The refusal of the court was error, but such error is not sufficient ground for a reversal, if the proceedings were otherwise regular, and it does not appear that injustice was done by the error.
    2. Evidence.—The question of the abrasion of the banks of the creek being an important one in the case, a witness produced by appellants stated that he had actual knowledge as to where the wash had affected the road, and was asked how he acquired such knowledge, which was objected to, and the objection sustained. The witness should have been permitted to answer the question, and the refusal of the court to allow the same was a substantial error.
    3. Dedication—Intention to dedicate—Proof—Instructions.—• Whether an intent to dedicate exists is, like any other fact in a cause, to be established by a preponderance of testimony, and an instruction that “such intent to dedicate must be unequivocally and satisfactorily proven,” is erroneous, as demanding a much stronger degree of proof than the law requires. Nor will another instruction that “it is incumbent upon the defendants to prove by a preponderance of evidence that there was an intent to dedicate," cure the error of the former instruction.
    4. Instructions giving undue prominence to evidence.—Instructions calling the attention of the jury to certain portions of the evidence and giving them undue prominence are erroneous.
    5. Highway by prescription.'—If a single tract he used as and for a public road, and traveled generally by the public as such, without objection by the owner of the land for more than twenty years, though not fenced on either side, it may become a highway by prescription.
    6. Laying out highway—Instruction as to.—An instruction leaving the jury to determine whether aa-oad was Laid out, without calling attention to the steps necessary to the laying- out of a public hig-hway, is erroneous. The question being a mingled one of law and fact and not, as assumed by the instruction, purely of fact.
    Appeal from the Circuit Court of Bureau county; the Hon. Josiaii MoBoberts,' Judge, presiding.
    Messrs. Eckels & Kyle, and Messrs. Farwell & Warren, for appellants;
    that the burden of proving a highway at the points where the fences were removed, was upon the defendants, and they should have the right to open and close, cited Harvey v. Ellithorpe, 26 Ill. 418; Heward v. Slagle, 52 Ill. 336; Huddle v. Martin, 54 Ill. 258; Kells v. Davis, 57 Ill. 261; Colwell v. Brower, 75 Ill. 516; Kent v. Mason, 79 Ill. 540.
    As to prescriptive right to highway from long user, and inference of dedication and acquiescence of owner: Grube v. Nichols, 36 Ill. 92; Town of Lewiston v. Proctor, 27 Ill. 414; Dimon v. The People, 17 Ill. 416; Warren v. Jacksonville, 15 Ill. 236; Williams v. Wiley, 16 Mo. 362; Hiner v. Jeanpert et al. 65 Ill. 428.
    Whatever is necessary to confer jurisdiction on the commissioners of highways must appear affirmatively in the record: Kennedy v. Corley, 28 Ill. 143; Com’rs of H’ys v. Harper, 36 Ill. 104; Com’rs of H’ys v. Barry, 66 Ill. 496; Frizell v. Rogers, 82 Ill. 109.
    A road is a public necessity, and the public cannot be charged with an abandonment of it, without showing that they have acquired another in lieu of it, and proof of abandonment must be strong enough to establish another line: Champlin v. Morgan, 20 Ill. 181; Waugh v. Leech, 28 Ill. 489; Peoria v. Johnson, 65 Ill. 45; Grube v. Nichols, 36 Ill. 92; Lewiston v. Proctor, 27 Ill. 414; Galbraith v. Littiech, 73 Ill. 209.
    Messrs. Kendall & Lovejoy, for appellees;
    contended that where there is great doubt about the existence of a highway, it is better that the proper authorities should lay out the road anew, and thus avoid expensive litigation, and cited McIntyre et al. v. Storey, 80 Ill. 127.
    That defendants were not entitled to open and close, not having admitted plaintiff’s whole cause of action: Young v. Highland, 9 Grattan, 16.
    The law requiring notice of proceedings to lay out highways came into force after the time when the road in question was said to have been laid out, hence, appellant’s objection upon the ground of failure to show notice has no force: Maley v. Brown, et al. 1 Gilm. 10; Dumoss v. Francis, 15 Ill. 543.
    The appellants are estopped to show that the former proceedings to lay out the road were irregular: Kile v. Town of Yellowhead, 80 Ill. 208; Town v. Town of Blackberry, 29 Ill. 137.
    If appellants took down any fence beyond the limits of the highway they were trespassers. They were claiming a highway by dedication and user, and the limits were determined by such user: Pfeiffer v. Grossman, 15 Ill. 53; People v. Judges of Cortland Co. 24 Wend. 491; Beyer v. Tanner, 29 Ill. 135.
    An easement can be acquired by adverse use, only with the acquiescence of the owner under a claim of right: Powell v. Bogg, 8 Gray, 443; Daniels v. The People, 21 Ill. 439; Green v. Oakes, 17 Ill. 249: 2 Washburn on Real Prop. 296.
    A road laid out must remain until vacated, or the necessity for a road has ceased to exist: Champlin v. Morgan 20 Ill. 181.
    Mere travel by the public is not evidence of an acceptance of a road: Forbes v. Balenseifer, 74 Ill. 183.
    Claim to a road by prescriptive right must be of a particular route used; changes or alterations in use less than the statutory time cannot be claimed by prescription: People v. Judges of Cortland Co., 24 Wend. 491; Cotton v. Pocasset Mf’g Co. 13 Met. 433.

      Mr. John Scott, for appellee;
    argued that a road acquired hy prescription has no established width, and must be confined to the width traveled by vehicles; and cited Eplar v. Nyman, 5 Ind. 459; Gentleman v. Soule, 32 Ill. 271; Peirce v. Cloud, 2 Am. Law Reg. 446; Talmage v. Hunting, 29 N. Y. 437.
    A highway may be established by user, but it must be recognized as a highway by the public authorities: Hiner v. Jeanpert et al. 65 Ill. 428.
    Claim of the road by dedication or prescription should have been made in 1861, when appellee first put up his fences, and if the travel took a different line, through common and timber land, user by permission and not adverse may be inferred : Barnham v. McQuestin, 9 Am. Law Reg. 574; Angell on Highways, 151.
    Appellants are concluded by the records made by their predecessors in office, no matter how erroneous they may be: Champlin v. Morgan, 20 Ill. 181; Roby v. Chicago, 64 Ill. 447; Gentleman v. Soule, 32 Ill. 271; 1 Greenleaf on Ev. 207.
    In cases of dedication, acceptance by the public officers and appropriation to the use, is necessary: Forbes v. Balenseifer, 74 Ill. 183; State v. McDaniels, 8 Jones, 284; Martin v. People, 23 Ill. 396; Hiner v. Jeanpert, 65 Ill. 428.
   Leland, J.

This was an action of tresj)ass, quare clqusam fregit, brought before a justice, and appealed to the Circuit Court.

The defense was that the place of the supposed trespass was in a highway, and that the appellants, as commissioners of highways, in discharge of their duties, removed a portion of appellee’s fence from the road. On the trial in the Circuit Court, appellant’s counsel proposed to admit the trespass and damages, but no specified amount of damages, unless the locus in quo was in a public highway, and claimed the right to open and close, which was not allowed by the court below.

It may perhaps be considered settled by the Supreme Court of this State that this was erroneous, and also that such an error ought not to be ground for reversal, if the proceedings were otherwise regular, and if it did not appear that injustice was done by the error. Kills v. Davis, 57 Ill. 261; Colwell v. Brower, 75 Ill. 516; and some prior cases.

In some other States the denial of the right to open and close is always an error of importance enough for the granting a new trial. If the defendants below had the legal right to open and close, it seems to us that, in a case of this kind, with so large a number of witnesses and so much complication of fact, the'right to the opening and closing arguments was a very valuable one. As Judge Sargent says, in Judge of Probate v. Stone, 44 N. H., 606: “ It is often a matter of as much consequence to a party to have the closing argument as it is to have questions of law ruled in his favor.”

For a careful, thorough, and exhaustive presentation of the other side of the question in cases of unliquidated damages, etc., see Young v. Highland, 9 Grat. (Va.) 16. See, also, Henderson v. Casteel, 3 Cranch C. Ct. 365, as to the issue on the replication to first plea in Colwell v. Brower, supra.

It is perhaps unnecessary to say anything more as to the facts than that there was evidence tending to show that there was a road by prescription or dedication, and that appellants removed a portion of appellee’s fence, placed by the latter within its limits, and to show that there was no road at the place where the supposed trespass was committed. The supposed road ran in an easterly direction, diagonally towards the stream, to a ford on Bureau Creek, where there once had been a bridge. The course of the creek from the ford for ¿orne distance was southwesterly. A little east of the ford, the course of the creek was northwesterly, the north bank of the stream describing an arc of a circle at or near the ford.

It was claimed by appellee that, by the wearing of the north bank at the ford, the traveled track of the road there was gradually moved northward, so that the track, at the time when, etc., was not where it had previously been, and that there never had been any traveled track, continuously, for twenty years at the place where, etc. The fence was removed in two places, one 'on the east side of the enclosure, near the creek, and the other on the west side.

There was a question whether the removed portion of the west fence, was all within the limits of the road. There were records and papers from the town clerk’s office, in relation to laying out and vacating roads, which proceedings would not ¡stand alone under the doctrine of the majority of the court, in Frizzell v. Rogers, 82 Ill. 109, but which would do very, well under the dissenting opinion, and which might have made very good roads or vacations thereof, under an opinion of the Supreme •Court, if counsel had brought to the attention of that court, ¡section 64, on pagé 691 of the laws of 1871 (Sec. 92, p. 927, Rev. 1874). There is also in this case the unargued question -whether said, section is retroactive, remedial, legislation, or prospective, as to the roads thereafter to be laid out only, upon ••which Sedgwick and Story in their respective works on Const, ¡and Stat. Law, and on the Conflict of Laws, would shed a good •deal of light if examined carefully.

We do not feel at liberty to disregard the authority of Frizzell v. Rogers, and the other similar cases, upon mere conjecture ¡that a section of the statute has been accidentally overlooked by counsel in that case, nor do we deem it necessary to determine its effect in this case, without argument, as we find that there are errors requiring a reversal, however that might be.

The question about the extent of the abrasion of the bank of the creek, was an important one, in determining whether the locus in quo was within or without the limits of the highway, if any.

Rudolphus Childs, a witness introduced by appellants, had stated that he had actual knowledge as to where the wash had affected the road, and thereupon the counsel for appellants asked him to state how he acquired such knowledge. The counsel for appellee objected, and the court sustained the objection. That the witness had a right to give a reason for the faith that was in him, seems too plain for discussion, either as a question of law, or theology. At any rate, if there be any question as to the latter, there is none as to the former. We can imagine many interesting and satisfactory things which he might have said about monuments on the shore, and the approach of the bank towards them, if any; whether or not they were undermined, and fell into the stream; about the degree of attention he paid to such monuments, and why he did so; whether the old bridge may have been built by him, oi> whether he observed particularly its building, and why. We do not see any reason for making the objection, nor any for sustaining it, nor any why the error is not a substantial one.

As to the first instruction for appellee, we are inclined to think it not strictly accurate when applied to the facts of the case. There should be reason in all things. If commissioners of highways should find a fence across the road, and that the line of the road was equi-distant between two parts of a board fence, we doubt whether the law would require them to spoil the boards by sawing them in the middle, on the line of the road, and setting a post there to nail to. We think it would show a more Christian spirit to carefully draw the nails and save the boards for the land-owner to use to suit himself. For do we think the golden rule would imperatively require that the commissioners should go to the next panel, leaving half a panel in the road. The instruction is a little too broad for practical use.

The fourth instruction is erroneous. It is not necessary in a civil action to prove any fact except by a preponderance of the evidence. Whether an intent to dedicate exists, is like any other fact in a cause. It may well be that the jury should believe, from a preponderance of the evidence, that the intention to dedicate was unequivocal, as stated by Judge Walker, on p. 280 of the 32 Ill., or that the act of dedication should be unequivocal, as stated by the late lamented Judge Breese, on p. 336 of the 38 Ill., or as mentioned in Harding v. Hale, 61 Ill., 200. This instruction says, “such intent to dedicate must he unequivocally and satisfactorily proven.'’ This is a stronger expression than “beyond all reasonable doubt;” much stronger than clear conviction,” in Homer v. Koch, 84 Ill., 408. Unequivocally means without doubt, without room to doubt (Webster); nor is it always proper to say that a fact must be satisfactorily ” proved. That is a stronger expression than by the preponderance of the evidence.” Herrick v. Gary, 83 Ill. 89. See, however, Fagan v. Chicago, 84 Ill., 237, as to “satisfied.” For will the other words, “it is incumbent upon the defendants to prove by a preponderance of the evidence that ” there was the intent to dedicate, save the instruction from the destructive effect of the other words above, according to the cited case in the 83d.

The seventh, tenth, thirteenth, and fifteenth instructions are objectionable, as calling the attention of the jury to particular portions of the evidence, and thus giving undue prominence thereto: Ogden v. Kirby, 79 Ill. 555; Hewett v. Johnson, 72 Ill. 513; Hatch v. Marsh, 71 Ill. 370; Holmes v. Hale, Id. 535, and many previous cases.

The twelfth instruction given for the plaintiff (appellee) was as follows:

“ If the jury believe, from the evidence, that the premises over which the road in question passes was a part of a tract of wild uninclosed woodland, then the mere use by the public of a way or track, however, uninterrupted and long continued, is not sufficient to constitute such traveled track a public road, but such user must be accompanied by acts which show the use to have been claimed as a right, and not by permission of the owner of the land, such as working on it, keeping it in repair, removing obstructions therefrom, or causing the same to be described and recorded, as required by the statute.”

The defendants asked the Court to give the following third instruction, which the Court did, with the additional interlineations in italics.

“To establish the existence of a public highway by prescription, it is only necessary to show that it had been used continuously by the public, and accepted and recognized by the proper authorities, repairing it at public expense, if repairs were necessary, as a highway, for the period of twenty years, next preceeding the time, when its existence is questioned. And if you believe, from the greater weight of evidence in the case, that the places in dispute had been so used for said period, you should find the defendants not guilty.”

Hpon reading the 151st section of Angelí and Durfee on Highways, it would seem that the above instructions might have had their origin in that section. Hpon examining the cases cited, the doctrine appears applicable only to “the wild and unappropriated forests of South Carolina, where the owner of the land might not know of the existence of the way.” This was determined judicially in that State, in 1841, in an opinion of Judge Butler, in the case of Hog v. Gill, 1 McMullen, 329; and in 1853, Judge Frost, in the case of Hatto v. Tindall, 6 Rich., on pages 400 and 401, recognizes the distinction between unenclosed woodland and enclosed cultivated land, because, in that State, those who travel over woodland commit no trespass (at least not until after notice to desist), and it subjects the owner to no loss or inconvenience. To prohibit them would be considered churlish, and would be ineffectual, unless a constant watch was kept to prevent them; and to require the owner to secure his land against an adverse claim by a use, not actionable, of a way over it, would to that extent exclude his property from the protection of the law.”

Upon examination of all the cases cited in Sec. 151 to support the text, these and others in that State are the only ones which go to the extent of saying that user alone by the public with the acquiescence of the owner, without some other act, will never make a highway through unenclosed woodland. Among the other cases cited in the section is that of Austatt v. Murray, 22 Iowa, 457, in which Judge Dillon says, in relation to two instructions, somewhat similar in principle to the 12th and 3d above: “ These instructions lay down the proposition that however long a road may be used by the public, and however long the owner of the land may acquiesce therein, these facts will not be evidence of a dedication; and to support a dedication, either an express grant must be shown, or some affirmative act on the part of the owner, clearly showing his intention to dedicate it, or allow the use of it as a public road. We are of opinion that long use, and long acquiescence in such use by the owner of the land, are, in and of themselves, evidence of a dedication.” Further on he says: “If with knowledge of the owner, the public has claimed and continuously exercised the right of using land for a public highway for a period equal to that fixed by the statute for bringing actions of ejectment, their right to the highway, as against such owner is complete, there being no proof that the road was so used by leave, favor or mistake.” See, also, Daniels v. The People, 21 Ill. 439; Marcy v. Taylor, 19 Ill. 634; Gentleman v. Soule, 32 Ill. on p. 278; Chicago v. Wright, 69 Ill. on p. 327; Angell & Durfee on Highways, Sec. 143; and a good article on the subject in the number of the Central Law Journal, dated August 16th, 1878.

The portion of the 12th and 3d which requires, as a sime qua non to a road by prescription or dedication that there must be, in addition to any length of user by the public, repairing the road, removing obstructions, causing the road to be described and recorded or recognized by the public authorities, is erroneous.

Of course in determining the question of fact whether there was a dedication, the kind of land, whether enclosed or unenclosed, may be often important, as stated in the 22 Iowa, supra.

If a single tract be used as and for a public road, and be traveled generally by the public as such, without objection by the owner of the land, for more than twenty years, though not fenced on each side, we think it may become a highway by prescription, without the other acts mentioned in the instructions, being also necessary.

The sixth, tenth and thirteenth instructions are erroneous, under the decision in Harding v. the Town of Hale, 83 111. 501 (See instructions 7 and 8, on p. 504), as leaving the jury to determine whether the road was laid out, without calling their attention to the steps necessary to the laying out or vacating a public highway; the question being a mingled one of law and fact, and not purely of fact, as is assumed by the instructions.

The sixth, tenth and thirteenth, aré to the effect that if the jury believe, from the evidence, that the commissioners laid out a road, and that they vacated a road, then, etc., without defining what facts in law constitute laying out and vacating roads.

There are a few other objections made to the instructions not necessary to notice.

The judgment is reversed for the errors aforesaid, and the cause remanded.

.Reversed and remanded.