author: Per Curiam :

text:
    Eli Peck et al. v. James Herrington.

      Filed at Ottawa January 23, 1884.

    1. Surface waters—-drainage—dominant and servient heritage— relative rights in respect thereto. In this State the same rule is applied to surface water flowing in a regular channel as is applied to a water-course. The owner of the dominant heritage, or higher tract of land, has the right to have the surface water falling or coming naturally upon his premises, pass off the same through the natural drains upon and over the lower or servient lands; and the owner of the dominant heritage may, by ditches or drains, drain his own land into the natural and usual channel, even if the quantity of water thrown upon the servient heritage is thereby increased.
    2. Where two tracts of land adjoining each other are so situated that the water falling or collected by melting snow and the like upon one, naturally descends upon the other, it must be suffered by the owner of the lower one to be discharged upon his land, if desired by the owner of the upper field.
    3. The owner of the upper field in such a case has a natural easement, as it is called, to have the water that falls upon his own land, flow off the same upon the field below, which is charged with a corresponding servitude in the nature of dominant and servient tenements.

      4. The owner of the upper field can not construct drains or ditches so as to- create new channels for water in the lower field, but he may make such drains for agricultural purposes on his own land as may be required by good husbandry, although by so doing the flow of water may be increased, in a regular, well-defined channel, which carries the water from the upper to the lower field.
    5. The owner of land upon which there is a pond, in which is collected the surface water, only, from rains and melting snow, when good husbandry so requires may drain the same by an artificial drain constructed upon his own land, whereby its water is thrown into the same outlet or natural drain it was accustomed to take before, when the pond was full, notwithstanding the flow of the water over a servient tract-of land may thereby be increased.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    This was a bill in chancery, filed in the Kane circuit court by James Herrington, against Eli Peck and Sackett Booth, seeking a perpetual injunction restraining the defendants from draining certain sloughs, or small ponds, situate nearly a mile from complainant’s lands, into the natural watercourse or channel on their own lands, whereby it is claimed it will flow over his lands and into Mill creek. On a hearing, the circuit court dismissed the bill for want of equity, and dissolved the injunction. From this decree the complainant brought the case, by appeal, to the Appellate Court for the Second District", where the decree of the circuit court was reversed, and the cause remanded, with directions to the latter court to render a decree in accordance with the opinion of the Appellate Court. From this order the original defendants appealed to this court. The facts are sufficiently stated in the opinion.
    The following is the diagram or map referred to in the opinion":

      Mr. Charles Wheaton, Messrs. Nichols & Clapsaddle, and Mr. F. Green Garfield, for the appellants:
    As to the right of a party to improve his land by throwing increased water upon lower land through the natural channel, see Martin v. Riddle, 26 Pa. St. 415; Kauffman v. Griesemer, 26 id. 407; Goodale v. Tuttle, 29 N. Y. 459; Miller v. Laubach, 47 Pa. St. 154; Gormley v. Sanford, 52 Ill. 158; Washburn on Easements, 292, 427; Gannon v. Hargadon, 10 Allen, 110; Brodbent v. Ramsbotham, 11 Exch. 602; Martin v. Jett, 12 La. 504; Rawstron v. Taylor, 11 Exch. 369; Delahoussage v. Judice, 11 La. Ann. 587; Herbert v. Hudson, 13 La. 54; Dallmen v. Davis, 14 id. 161; Angell on Water-courses, 122; Frazier v. Brown, 12 Ohio St. 294; Buffon v. Haines, 5 R. I. 243; Hicks v. Silliman et al. 93 Ill. 256; Mellor v. Pilgrim, 7 Bradw. 306; Carl v. De Hart, 12 N. J. (1 Beas. Ch.) 280 ; 81 N. Y. 86.
    Mr. B. C. Cook, for the appellee:
    While the owner of the superior heritage has a natural easement to have the water which falls upon his lands flow off the same upon the lands of an adjoining heritage below, yet he can not, by a system of drainage, collect the water and precipitate it upon the land below. Smith v. Kenrich, 7 C. B. 515; Dickenson v. City of Worcester, 7 Allen, 19; Butler v. Peck, 16 Ohio St. 334; Miller v. Daubach, 47 Pa. 154; Frazier et ux. v. Wayne, 29 Wis. 511; Hoyt et al. v. City of Hudson, 27 id. 656; Hicks v. Silliman, 93 Ill. 255; Livingston v. McDonald, 21 Iowa, 160; Taylor v. Fickas, 69 Ind. 201 ; Schlecker v. Phillippi, 67 id. 201; Waffle v. New York Central R. R. Co. 58 Barb. 413; Cooley on Torts, 577; Washburn on Easements, secs. 209, 210; Wood on Nuisance, 404.
   Per Curiam :

Much evidence was introduced on the hearing of this cause, which has been carefully considered, and while there is some conflict in the testimony, yet upon the main points involved there is no more conflict than may be expected where so many witnesses have been examined. The Appellate Court, as appears from the record, found the facts differently from the circuit court, and from the facts so found arrived at a different conclusion from the one reached by the circuit court, and hence reversed the decree which had been rendered in the circuit court.

Without undertaking to determine whether all the facts found by the Appellate Court are fully justified by the evidence, we think it is clear, from the testimony heard on the trial, that the land of appellant Peck lies much higher than the land of appellee, Herrington. From “A,” the pond on the land of Peck, along the dotted line on the map in evidence, to “I, ” where the water is discharged on Herrington’s land, there is a gradual descent, the pond “A” being 29.72 feet higher than the point “I.” From “I,” across Herrington’s land, to Mill creek, at point “L,” there is a fall of 10.17 feet, which makes a fall of 39.89 feet from the pond on appellants’ land to “L,” the surface of the water of Mill creek. It also appears, from the evidence, that during the wet portion of the season, for many years, there has been a natural flow of surface water along or near the dotted line from “A” to “I.” Upon this point Mr. Hawkins, who was familiar with the location of the property, testified: “The natural outlet of pond ‘A,’ as it existed in a state of nature, was very nearly where the dotted line is, as represented on the Pease map. I am familiar with the lay of the country between pond ‘A’ and the point ‘I,’ as shown by the dotted line on this map, and the ditch or excavation, and know which way the water would flow from pond ‘A,’ in a state of nature. I think the dotted line is the natural outlet of the water as it was when I first became acquainted with the land. There are places where the courses have been obstructed by plowing, etc. There is a natural outlet of this slough ‘A’ along where this dotted line is on this map, that was not straight, to carry the water in a straight line through Mr. Peek’s line; some little obstruction would be encountered, through which knoll-ditches would be cut, but not changing the natural course of the water materially. I do not think .the surface drainage from pond A,’ as shown on this map, has been changed, as to its point of discharge at the point ‘I,’ by the means of these ditches. The water always run there. There has been no change of the surface drainage between pond ‘A’ and point T.’ There has been a ditch dug between slough ‘A’ and a little, say some one hundred feet, from the slough or pond, continuing on to the next slough near Mr. Booth’s. I should think that ditch is in the natural outlet, as near as could be dug. Then as the ditch is continued from the east sag on towards the road running north and south, it varies a little from the natural outlet. This ditch from the east sag is about straight, while the natural channel runs a little crooked. It varies but a few feet, at the farthest, from the natural outlet, while when it strikes the road it comes to the natural outlet again. I can’t explain every place where the water would have run thirty-five years ago. As I said before, there was made, years ago, a channel with a plow, across Mr. Peck’s field, in the lowest place most of the way, so as to convey it (the water) into one channel across this field. There is a point near the quarter section, on section 7, on land formerly owned by Mr. Bullard. I should think the course of the water had been changed a little there, the natural channel being a few rods north of the ditch, as indicated by the dotted line, but making around into the same natural water-course where the water runs now, and not changing the natural outlet. West of this north and south road, and on section 7, there is a natural depression where this water-course is,—there is more than one hundred acres, there may be two hundred of it,— which naturally descends towards the ponds indicated by the dotted line on the map. These ditches, made with a plow along the course of this dotted line between points ‘A’ and ‘I,’ have not in any manner changed the outlet or discharge of the water at point ‘I.’ I do not see how these ditches between points ‘C’ and ‘I’ have had, or could in any manner affect or increase the quantity of water discharged at point ‘I.’” The testimony of this witness was corroborated by that of others. It also appears, from the evidence, that at point “D,” marked on the map, the land was originally quite flat, and after long-continued rains the water would stand upon it for a time. In 1854 the land now owned by Herrington was owned by one John Bullard, who also owned the land extending from “D” to “E,” and for a distance of fifteen rods west of “E.” At the date last named, by the consent and with the authority of Bullard, the then owner, the natural channel of the surface water from “D” to “E,” and fifteen rods west, was deepened, and since that time no water has been known to stand at the point “D. ’’ It also appears, from the evidence, that the tile-drain which Peck proposed to put in when the injunction was served, extended from “A” to “C,” where the water would be discharged in the natural channel where the surface water had run for many years. The point “C,” which appellant designed as the outlet for the tile-drain, was on his own land, and a distance of more than a half-mile from Herrington’s land. Under such circumstances, did appellant Peck have the right to tile-drain the ponds, and turn the water therein in the channel which had for a number of years carried off the surface water ?

It is not denied, as we understand the argument, that the owner of a dominant heritage may, by ditches or drains, drain his own land into the natural and usual channel or water-course, even if the quantity of water thrown upon the servient heritage is increased. But it is said there is no natural water-course here into which the ponds could be drained, and in support of this position we have been referred to Hoyt v. City of Hudson, 27 Wis. 656, and other like cases in that State, where it was held that a water-course or natural channel is a stream usually flowing in a particular direction, in a definite channel, and discharging into some other stream or body of water, and the term does not include surface water conveyed from a higher to a lower level, for limited periods. It is a sufficient answer to the position taken that the rule established in Wisconsin has never been adopted in this State, but on the other hand, the same rule has been applied to surface water flowing in a regular channel as is applied to a water-course. The two following cases will be found to be in point on the question: Gillham v. Madison County R. R. Co. 49 Ill. 484; Gormley v. Sanford, 52 id. 158. In the last case cited, it is said: “It is admitted that the water which flowed from Sanford’s to Gormley’s land, the obstruction of which is the basis of the action, is wholly surface water, * * * and much of the argument has been addressed to the question whether the same law in regard to drainage which applies to well defined water-courses is applicable to cases of this character. ” This question has already been decided in Gillham v. Madison County R. R. Co. 49 Ill. 484. In the opinion filed in that case we said: “Although there was a conflict of authorities among the courts of this country, yet the rule forbidding the owner of the servient heritage to obstruct the natural flow of surface waters, was not only the clear and well settled rule of the civil law, but had been generally adopted in the common law courts both of this country and of England. * * * The cases asserting a different rule for surface waters and running streams, furnish no satisfactory reason for the distinction. ”

We now come to the main question in the ease. Had Peek the right to drain the water from the ponds and discharge the same on his own land in the channel which carried the surface water from his land to that owned by Herrington ? It may be regarded as a well settled principle of law, that where two farms adjoin, and one lies lower than the other, the lower farm will be subject to the natural flow of water from the one which lies in a more elevated position,—or as declared by Washburn on Basements and Servitudes, page 353: “It may be stated as a general principle, that by the civil law, where the situation of two adjoining fields is such that the water falling, or collected by melting snow and the like, upon one, naturally descends upon the other, it must be suffered by the lower one to be discharged upon his land, if desired by the owner of the upper field. ” The owner of the upper field, in such a case, has a natural easement, as it is called, to have the water that falls upon his own land flow off the same upon the field below, which is charged with a corresponding servitude in the nature of dominant and servient tenements. (Ibid. 355.) It may also be regarded as a well settled rule that the owner of the upper field can not construct drains or ditches so as to create new channels for water in the lower field, but he may make such drains, for agricultural purposes, on his own land, as may be required by good husbandry, although by so doing the flow of water may be increased in a regular, well-defined channel, which carries the water from the upper to the lower field.

But it is said that the owner of the dominant heritage can not drain natural ponds of water from his own land upon the land of his neighbor below him. The ponds which Peck proposed to drain were merely the collection of surface water from rain and melting snow, which fell upon the land. Suppose Peck, instead of tile-draining the ponds, had filled them up with dirt. This would have caused the water which before accumulated in the ponds, to flow down the channel indicated on the map by the dotted line, upon the land of Herrington. It will not be pretended that in such a case he would have violated any rule of law. As was said in Goodale v. Tuttle, 29 N. Y. 459: In respect to the drainage of surface water, there is no principle which will prevent the owner of land from filling up the wet and marshy places to his own advantage because his neighbor’s land is so situated as to be incommoded by it. If it be true that, the water which would naturally accumulate in these ponds could be cast upon Herrington’s land by filling them up, upon what principle can the owner of the dominant heritage be denied the right to do the same thing in another way ? If the water which would naturally accumulate in those ponds can be turned upon Herrington’s land by filling them up, we perceive no reason why the water may not be drawn off by tile-draining, if good husbandry required it. These were small ponds, the largest one containing only three acres. Good husbandry did not, in our judgment, require Peck to keep this collection of water standing on his farm, and gradually seeping into his other land, and thus making it unfit for cultivation; but on the other hand, we are of opinion that he had the right to tile-drain the ponds, and carry off the water in the natural channel leading from “A” to “I,” although the flow of.water would thereby be increased. This view of the subject we believe to be reasonable, and well sustained by authority. Martin v. Biddle, 26 Pa. St. 415; Kauffman v. Griesemer, id. 407; Miller v. Laubach, 47 id. 154; Broadbent v. Ramsbotham, 11 Exch. 602; Rawstron v. Taylor, id. 396; Frazier v. Brown, 12 Ohio St. 294.

’ It may be true that the owner of a tract of land would have no right to drain a lake or large body of water upon the land of an adjoining owner, and thus destroy it; but such is not this case. These small ponds rendered much of the land of Peck unfit for cultivation, and good husbandry required that they should be drained, and so long as the water was discharged in the regular channel leading from the land of Peck to that of Herrington, he has no legal ground of complaint. The natural flow of the surface water was not changed by the drainage. It may have been increased, but such increase of water was a burden which the location of the two tracts of land demanded should be borne by the owner of the lower tract of land. As was said in Kauffman v. Griesemer, supra: “Because water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in, or flow or fall upon, the superior. ”

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Dickey : I can not concur in this decision.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    August C. Swarth et al. v. The People ex rel. Paxton.

      Filed at Mt. Vernon May 15, 1884.

    1. License to keep a dram-shop—as to the necessity of a petition by voters—statute, not applicable to cities. The statute requiring a petition of voters in the town or election precinct to be had and presented before the issue of a license to keep a dram-shop, has no application to licenses granted by a city.
    2. Same—application for license not essential. A previous application in writing is not essential to the validity of a license granted by a city to keep a dram-shop. It is enough in this respect that it be issued, and accepted by the licensee.
    3. Same—by whom, license may be issued. The statute gives the power to grant licenses in a city to the city council, but that body may, by ordinance, grant licenses to a certain class of persons, upon certain conditions, by authorizing the mayor to issue or cause license to be issued when the conditions are complied with. In such case the issuing of the license by the mayor is a lawful exercise of the power of the council.
    4. Same—of the manner of signing a license. It is not essential to the validity of such a license that the signatures of the mayor and city clerk be affixed with a pen. Such signature may be lawfully affixed by stamping a fac simile of the written signature of such officer, if done by him, or by another under his direction or at his request.

      5. Same—as to time of expiration of license—extending the municipal year. It is no objection to a license that the ordinance fixing the time when it shall expire was passed before an ordinance extending the municipal year to the same time. It is sufficient if the extension is made before the license is issued.' But a license issued to extend to a time beyond the end of the municipal year, would be valid for so much of the period 'named therein as did not extend beyond the end of the municipal year.
    6. Same—taking out new license before the expiration of former one. The fact that a party has an unexpired license to keep a dram-shop when he takes out a new one, can not affect the validity of the new one.
    7. Same—taking out license under an existing ordinance passed in anticipation of the going into effect of a law fixing a higher license fee— construction of the act of 1883. The act of June 15,1883, fixing the minimum license fee for keeping a dram-shop at $500, relates solely to licenses to be issued after the act went into effect—the first day of July next after the date of the passage of the act. It was not intended to invalidate licenses lawfully issued before that time.
    8. On the 18th of June, 1883, three days after the passage of the act above mentioned, but before it became operative as a law, the city of Chicago passed an ordinance fixing the fee for licenses which might be issued thereafter, and prior to the first day of Jufy, 1883, the date at which the act of June 15 would take effect, at $103, and providing further, that licenses issued under that ordinance, unless sooner revoked, should expire on the first Monday of April, 1884, about nine months after the act of June 15, fixing the minimum license fee at $500, would go into effect, and beyond the term of the then current municipal year, when the statute on that subject provided that no such license could lawfully extend beyond the municipal year in which it was granted. But on the 28th of June, 1883, the city passed another ordinance, changing the time at which the municipal year should begin and end, and also extending the current municipal year to the same time, so that licenses issued under the ordinance of June 18 would not extend beyond the municipal year in which they were granted. Licenses were issued under this ordinance, and their legality was questioned, on the alleged ground that the whole proceeding was an attempted evasion, and in fraud of the higher license act of 1883.
    9. It was held, however, that although it was the intention in the passage of the ordinances of June 18 and June 28 to anticipate the taking effect of the act of June 15, and to enable persons in Chicago to procure licenses before that act should go -into force—July 1, 1883—at a'rate less than $500 a year, under which they might keep, in that city, dram-shops until April, 1884, the passage of the ordinances being but the exercise of powers in compliance with then existing laws, licenses issued under such ordinances were lawfully issued. The purpose attributed to the city in the action taken, to afford cheaper licenses to those who might procure them before the act should go into effect, than could be obtained afterward, was an entirely legitimate one.

      10. Quo warranto—lies to test validity of license to retail intoxicating liquors. Under our present statute, as amended in 1881, an information in the nature of a quo warranto lies to test the validity of a license to keep a dram-shop.
    11. Same—of the pleading sand proof. On an information in the nature of a quo warranto, the defendant can not put in a general denial of wrong and then await the proof of the relator. A plea of not guilty will not prevail. The defendant must disclaim, or avow and justify, his claim, and the burden of proof rests upon him if his claim is denied.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    This is an appeal from a judgment of the Superior Court of the county of Cook, purporting to oust appellants from the exercise of “the franchise, privilege and license of selling intoxicating liquors at retail, in less quantities than one gallon, ” and imposing a fine upon them for usurping “the franchise, privilege and license described in the information, ” which was “the franchise and privilege of keeping a dram-shop and liquor saloon, and of selling intoxicating liquors at retail, in less quantity than one gallon. ” This judgment is founded upon an information by the Attorney General, in the nature of a quo warranto, to test the validity of the license of appellants, purporting to have been issued to them on June 29, 1883, by the mayor of the city of Chicago, under the corporate seal of the city, and signed by the mayor and clerk, and purporting to license appellants “to keep a saloon or grocery at 385 and 387 N. Clark street, ” in Chicago, and “to sell, barter, ” etc., “wines and other liquors, whether malt, vinous, ardent or fermented, in quantities less than one gallon, from the date thereof until the first Monday of April, 1884.” The plea of appellants justified the keeping of a dram-shop under this license, and in response to a suggestion in the information, the plea claims that the act of June 15, 1883, (commonly known as the “Harper High License law,”) is unconstitutional and void. Various objections to the license were raised by the replications.

      By ordinances in force in Chicago at the time of the passage of the act in question, (June 15, 1883,) all saloon licenses expired on the last day of June next after the date of their issue, (sec. 1852, Revised Ordinances,) and by statute no such license could lawfully extend beyond the municipal year in which it was granted, (sec. 46, chap. 24,) and the current municipal year in Chicago never having been fixed by ordinance, would, unless changed by ordinance, terminate on the 1st day of April, 1884. (See sec. 88, chap. 24, and sec. 48, as amended March 9, 1877.) The act approved June 15, 1883, in force July 1, 1883, provides, “that hereafter it shall not be lawful for the corporate authorities of any city to grant a license for keeping a dram-shop, except on payment, in advance, into the treasury of the -city granting the license, such sum as may be determined by the authorities of such city, not less than at the rate of $500 per annum, ” etc. On June 18, 1883, an ordinance was passed by the city of Chicago, providing that “every such license hereafter granted, unless sooner revoked, shall expire on the first Monday of April next thereafter. Bor every such license issued hereafter, and prior to July 1, 1883, there shall be paid the sum of $103.” It will be-observed that the first Monday of April, 1884, occurs on the 7th day of that month, while the current municipal year, as then defined, would end on the first Tuesday of April, which, in 1884, occurs on the 1st day of that month, and thus the ordinance of June 18, 1883, provided for the expiration of such licenses on a day beyond the period of the then municipal year. On June 28, 1883, another ordinance was passed, fixing the Monday after the first Tuesday of April for the beginning and ending of the municipal year, and extending the current municipal year to the 7th day of April, 1884, which is the first Monday after the first Tuesday.
    On June 15, 1883, appellants were keeping a dram-shop in the city of Chicago, under a license issued to them by the city before that time, which, under the ordinances and laws then in force, and on its face, would expire on June 30,1883. On June 29, 1883, after the current municipal year had been extended to the first Monday of April, 1884, by the ordinance of June 28, swpra, and after the price of such license had been fixed, as above stated, at $103, and one day before their then license would expire, and»two days before the act of June 15 came into force, appellants, without any application made therefor in writing, and without any petition signed by a majority of the voters of the town, election precinct or district in which their dram-shop is located, received a license from the city on payment of $103, and giving the bond required by law, under the signatures of the mayor and city clerk, and under the seal of the city, authorizing them to keep a dram-shop at the place named, in the city, from that date until the first Monday of April, 1884. The signatures of the mayor and city clerk were not written by them with a pen, but were stamped on the license by some other person. The objections presented to the validity of this license were, that the license was granted by the mayor, and not by the city council; that there was no previous application therefor made in writing; that the signatures were not signed to the same by the mayor and city clerk, but were stamped thereon by some other person; that a prior license was outstanding when it was issued; that the same was not issued in compliance with the High License law of June 15, 1883; that the ordinances of June 18 and June 28, and the issue of this license, constitute a fraud upon that statute, and that all these things were done for the fraudulent purpose of defeating the object of that statute, and the ordinance of June 18 extended the period of the license beyond the then municipal year.
    Mr. Austin Bierbower, Mr. Harry Rubens, and Mr. Edward Roby, for the appellant.
    Mr. F. S. Winston, Jr., for the city of Chicago.

      Mr. James McCartney, Attorney General, Mr. Gilbert L. Miller, assistant, Messrs. C. C. & C. L. Bonney, and Mr. James L. High, for the appellees.
   Mr. Justice Dickey

delivered the opinion of the Court:

The court is unanimous in the opinion that the act of June 15, 1883, called the “High License law, ” is valid and constitutional. That question was settled by the decision in Timm v. Harrison, (ante, p. 593,) and needs no further discussion here. A majority of this court, after careful consideration, are of opinion that the judgment in this case should be reversed, and the information dismissed, and that is the judgment to be entered in this case.

We think the license set up by appellants is a valid license, and justifies their right and lawful authority to retail liquors, as claimed by them. A previous application in writing is not essential to the validity of such a license. It is enough, in this respect, that it be issued, and accepted by the licensees. Nor is it essential that the signatures of the mayor and city clerk be affixed with a pen. Such signature .may be lawfully affixed by stamping a fae simile of the written signature of such officer, if done by him, or by another under his direction or at his request. The fact that the license was not granted upon the petition of voters in the town or election precinct, is not important, as the statute on that subject has no relation whatever to licenses granted by a city. It is true, the ordinance prescribing the duties of the mayor in issuing licenses, says that he shall, under certain circumstances, “grant” licenses to certain persons, while the statute authority to “grant” such licenses is given only to the city council; but the substance of the ordinance is, that the city council grants licenses to a certain class of persons, upon certain conditions, by authorizing the mayor to “grant, ”—that is, to issue,—or cause license to be issued, when the conditions are complied with. This is not a delegation to the mayor of the power of the council. We see no objection to the form in which this power of the council is exercised, or the mode in which the license was issued.

Nor do we think it of the slightest importance that the ordinance fixing the time when the license shall expire was passed before the ordinance extending the municipal year to the same time. It is sufficient that at the time when the license was issued the municipal year had been extended, so that the period of the license was not beyond that of the municipal year. We think a license issued to extend to a time beyond the end of the then municipal year would nevertheless be valid for so much of the period named as does not extend beyond the end of such municipal year.

The objection that appellants, on the day they received their license, had already a former license under which they might have continued to sell for another day, can not affect the validity of the present license. No legal difficulty seems to exist to a man buying as many licenses as he chooses, to do the same thing. Each of them, if in other respects unobjectionable, would permit him to do the thing in question. Were this otherwise, the acceptance of the new license would be regarded as a surrender of the old.

The most important objections, and those most strenuously pressed upon our attention, are the allegations, first, that by a true construction of the act of June 15, 1883, it provides, “that after the date at which the act went into force it shall not be lawful for any person to sell intoxicating liquors except upon compliance with the act, ”—that is, without having a license for which he has paid in advance at a rate not less than $500 a year; and second, that the passage of the ordinances passed after June 15, 1883, and the issuing of the license under the same, in the manner in which these things were done, is a fraud upon that statute, and that these proceedings were an unlawful and fraudulent evasion of the statute, designed and intended to defeat the objects of that statute.

If it were the intention of the legislature to provide that after July 1,1883, it shall be unlawful for any person to keep a dram-shop without having a license for which he has paid in advance a sum not less than at the rate of $500 per annum, no such intention is expressed or reasonably suggested by the words of the act or the condition of things at the time the act was passed. No one is warranted in saying that an act containing an express provision to that effect could or would have had the sanction of the law-making power. The statute, under our constitution, by its terms relates solely to licenses to be issued after July 1, 1883. There is not a word in the statute suggestive in the slightest degree of an intention to invalidate licenses lawfully issued before July 1, 1883. It was a fact well known to the General Assembly that many licenses in different parts of the State had been issued before the passage of the act, the period of which, on their face and under laws and ordinances then in force, would extend beyond the 1st of the then next July. If it bad been intended to invalidate such licenses on and after that date, some language indicating that purpose would undoubtedly have been employed. No such language being found in the statute, courts are not at liberty to attribute such a purpose to the act, or to incorporate words into the statute expressive of a purpose not in any way indicated by the words of the statute.

Lastly, did the proceedings occurring after the passage of the act constitute a fraud upon the law, or an unlawful evasion of the law, designed to defeat the objects of the statute ? These proceedings must be held to have been intended to produce the results naturally arising from their occurrence, whatever may have been the private promptings in those who brought them about. It must therefore be assumed that the intention in the passage of the ordinance of June 18, 1883, and that of June 28, was to enable parties in Chicago to procure licenses before July 1, 1883, at a rate less than that of $500 a year, under which they might keep, in that city, dram-shops until April, 1884. Is this an evasion of the statute ? We think it is not. It neither evades, avoids nor violates that statute in any respect whatever.

Our constitution provides, that unless the General Assembly shall otherwise direct by a vote of two-thirds of all the members elected to each house, no act shall take effect until the 1st day of July next after its passage. One of the great purposes of this provision was to enable the people to prepare for the operation of the statute when it shall come into force. Under our constitution, then, this statute, passed June 15, 1883, simply provided that after July 1, 1883, it shall not be lawful for the corporate authorities of any city, town or village to grant a license for the keeping of a dram-shop, except upon the terms and conditions stated in the act. Had the provision been, that after January 1, 1884, no license to marry should issue except on payment of a fee of $100, and had a previous statute provided that all marriage licenses should authorize marriages under the same at any time- within two months after the dates of their issue, and not after, would it have been an unlawful evasion of the new statute for a party wishing to marry on February 1, 1884, to take out a license in December, 1883, so as to get a license at a cheaper rate? Nothing being said in the new statute about the effect of licenses to be issued before January 1, 1884, the law as to such, in the case supposed, would remain unaffected by the new statute. Again, had a statute been passed June 15, 1883, to come in force July 1, 1883, saying: “Hereafter no person shall lend any money at a rate of interest greater than four per cent per annum, and any one violating this act shall forfeit all interest upon such loan, ” and had some money lender sent out his agents and lent large amounts of money on June 30, 1883, for the coming year, at interest at the rate of eight per cent per annum, can any one doubt the validity or legality of such loan ? Could it be held that this was a violation of the statute, or an unlawful evasion of the same ? It seems to us not. Again, should Congress pass a statute fixing the import duty, after the 1st of January next, upon an article of merchandise at one hundred per cent upon its value, the present duty being but twenty per cent, would it be a fraud upon the law, or an unlawful evasion of- the law, for one of our importing merchants to hasten to Europe and ship into this country a quantity of such merchandise, at twenty per cent duty, sufficient to supply his trade for years to come, and to do so for the express purpose of avoiding the necessity of paying the one hundred per cent duty after January next ? Other illustrations might be given, but these suggest the view we take of the proceedings under which the license under consideration was issued.

The statutes in force at the date of the passage of the act under consideration, which provided for modes in which licenses might lawfully continue to be issued between that date and July 1 next thereafter, being all left in force unaffected by the passage of that act, we know of no reason why city councils might not lawfully exercise all such powers as the law cast upon them, until the inhibitory statute came into force. After the passage of the act of June 15, the city council had full power to change the municipal year, and also full power to prescribe the conditions upon which licenses might be issued between that date and July 1, 1883, and to fix the time under the law when such licenses should expire. These powers were in no way affected by the new act, for it could have no legal effect until it came into force. These powers were exercised in compliance with existing laws. It is not the function of courts to enact, amend or repeal statutes. No matter how desirable it may seem that the law should be otherwise than it actually is, courts can do nothing, lawfully, but declare and enforce it as they find it.

As to the form of action, a majority of the court are of opinion that under our present statute the validity of such a license can lawfully be tested by an information in the nature of a quo warranto. In this view the writer of this opinion does not concur. His own views on that subject are therefore presented.

Prior to the act of 1881, in cases other than those instituted to declare a forfeiture of some valid franchise or office, this kind of writ did not lie in any case except for usurpation of some franchise, or intrusion into some public office or some office in some corporation created by this State. By the act of May 27, 1881, in force July 1, 1881, our statute was so amended as to extend this writ to eases where any person shall hold, or claim to hold or exercise, any “privilege, exemption or license” which has been improperly, or without warrant of law, issued or granted by any officer, board, commission, court, or other person or persons authorized or empowered by law to grant or issue such privilege, exemption or license. It is claimed that a license to keep a dram-shop is such a privilege and license. It is plain to me that all licenses and all privileges which come within the letter of this statute are not included in its spirit and legal effect. Such a construction would lead to absurdities too gross to be thought within the meaning of the legislature. Under such a construction, we might have a proceeding in the nature of a quo loarranto to test the right of a neighbor to pass over the owner’s land to a convenient well. To do so would doubtless be a “privilege, ” and the permission to do so would, in the popular sense, be a “license,” and the owner is surely “authorized and empowered bylaw to grant and issue” to another the “privilege” or the “license” to so pass over his land, and in so doing, to grant an “exemption” from liability as a trespasser. This is all within the letter of the statute. Such a construction would enable a landlord to test the right of the tenant to any privilege or exemption the tenant. might claim under the provisions of his lease. In the same manner this proceeding might be invoked to test every petty license known to the law,—a license to drive a dray or hack, a license to keep a peanut stand or a pet dog. I do not believe it was intended by this amendment to work such a revolution in legal proceedings in this State as would necessarily spring from such a construction of this statute. By the rules governing proceedings of this character, a defendant can not put in a general denial of wrong, and then await the proof of his assailant. A plea of not guilty does not prevail in quo warranto proceedings. The defendant must disclaim, or avow and justify, his claim, and the burden of proof rests upon the defendant if his claim is denied. I do not think that it was intended by this statute to give so wide a range to special proceedings of this kind. Some rational construction must be given to this amendatory statute, consistent with its words and the apparent reasonable purposes of the act, in view of all its words and the nature of the subject. To determine the intention and legal effect of the statute, obviously the line must be drawn somewhere by construction, and so as to give effect to the same, and yet exclude a construction which leads to a preposterous conclusion. It is plain, as I have suggested, that every kind of privilege, exemption or license is not embraced within the spirit of the statute. The question is, what exemptions, etc., are intended to be embraced.

Writs of quo warranto, and proceedings on information in the nature of quo warranto, have long been in use, and have usually been confined to the matter of usurpation of franchises or intrusion into public offices, find from the nature of such proceedings they are not well adapted to any subject matter which doe's not relate in some degree, in its character, to that of a public office or that of a franchise. Before 1881 our statute had extended this kind of proceeding to the intrusion into an office in a' corporation created by authority of this State, which in some degree partakes of the nature of a public office. Before the passage of the amendment of 1881 it had been held by this court that a license by a city to a railroad corporation to run its track along a public street was not a franchise, although it does partake, in some degree, of the nature of a franchise, in this, that it is a privilege to do that which all men, at common law, have not a common right to do, and in that it is a privilege which, under our statutes, may be granted to some. (Chicago City Ry. Co. v. The People, 73 Ill. 547, and Metropolitan City Ry. Co. v. Chicago West Division By. Co. 87 id. 322.) It had also been held, membership in the board of trade was not a franchise, in the strict sense of that term, although it carried with it privileges not enjoyed by all as of common right. It was there said that the term “franchise” had a technical meaning and also a popular meaning, and in construing a statute where that term was used, it was held that the technical meaning, and not the broader and popular meaning of the term, should be adopted. This amendatory act of 1881 was passed after these decisions were made, and it seems reasonable that it was the intention of this act to extend this proceeding only to privileges, exemptions and licenses which in their nature partake somewhat of the nature of a franchise, and yet are not strictly franchises, and this in the same way that the same proceedings had before that time been extended to intrusion into an office of an Illinois corporation, which in its character did in some degree partake of the nature of a public office.

I think the privileges, exemptions and licenses brought within proceedings of this kind by that amendment are only such as partake in some degree of the nature of a franchise, and as were not, at common law, enjoyed by all citizens as a matter of common right, and yet such as, to be held, had to be granted specially by some lawful authority, but were not such as were granted directly from the State, so as to fall within the technical meaning of the term “franchise.”

In consideration of the necessity, as shown above, of adopting a construction which is less broad than the letter of the amendment, and in consideration of the nature of proceedings upon information of this kind, and in consideration of the condition of the law at the time of the passage of the act, I think no better rule can be adopted. The view that it was intended to extend this remedy only to such privileges, exemptions or licenses as partake somewhat of the nature of a technical franchise, seems to be strengthened by the language of that part of this amendatory act which prescribes the character of the judgment to be rendered. The court, in ease of conviction under this act, is required to give judgment of ouster against such person “from the office or franchise,” and to fine such person for usurping “such office or franchise.” Nothing is said expressly in this new statute about a judgment of ouster, or fine, in relation to any “privilege, exemption or license, ” and yet it is manifest that judgment of ouster and fine was intended to be entered in eases embraced in the new statute, and not embraced in the old statute. The fact that all these cases are classified, in the section as to judgment, under the head of “office or franchise, ” is cogently suggestive of the idea that only such privileges, exemptions and licenses as partake in their nature of the character of a franchise, were intended to be brought within the purview of this statute. I am inclined to think that by the words “privileges, exemptions and licenses,” as used in this amendatory act of 1881, were meant only such privileges, exemptions and licenses as were not, at common law, enjoyed by all citizens as of common right. No better limitation occurs to my mind. Obviously, a license to keep a dram-shop, by such a test, does not fall within the statute. Every citizen, at common law, had the right to keep a dram-shop as of common right. The position that this remedy is not the one appropriate to such a case, is fortified by the fact that in the Dram-shop act the mode in which offenders against that statute are to be punished is expressly provided, and yet no mention is there made of proceedings on information in the nature of a quo warranto.

From the language of the record in this ease it seems that the Attorney General, and the court pronouncing the judgment in this case, entertained the view that a license, to he a proper subject for this writ, must in some way partake of the nature of a franchise. The information expressly charges appellants with the usurpation of “the franchise, privilege and license” to retail liquors, etc., and the judgment is, that appellants be ousted from “the exercise of the franchise, privilege and license” of selling, etc. I am authorized to say that Justices Mulkey and Craig concur with me in the view that under this statute such information is not a proper remedy for testing the validity of such a license.

The judgment of the Superior Court of the county of Cook is reversed, and the information is dismissed.

Judgment reversed,.

Mr. Justice Scott : I concur in holding that quo warranto is a proper remedy for testing the validity of the license in this case, but I dissent from that portion of the opinion which holds the license in question is valid.


author: Mr. Justice Craig

text:
    Robbins P. Dunn v. The People of the State of Illinois.

      Filed at Springfield March 26, 1884.

    1. Change of venue—in criminal case—on the ground of prejudice on the part of the people of the county. A petition for a change of venue in a criminal case was based on the alleged prejudice in the minds of the people of the county, caused by the publication in certain newspapers of prejudicial accounts of the alleged offence, such newspapers having a standing and large circulation in the county. The State’s attorney filed a denial of the statements in the petition, supported by counter affidavits, going to show that such prejudice did not exist from the publication of the articles, among which affidavits was that of the sheriff, to the effect that he talked about criminal cases with people from all parts of the county, and had found there was but comparatively little interest taken in the case, and that from his knowledge of the temper of the people of the county he had no hesitation in saying that the defendant could have his case tried as fairly and impartially in that county as in any one in the State. It was held, that this court was not prepared to say the circuit court, in denying the petition, had decided contrary to the right of the case.
    2. Continuance—absence of witnesses. One ground for a continuance in a criminal case was the absence of witnesses; but it did not appear from the affidavit but that the same facts might be proved by other witnesses: Held, that this ground was not sufficient.
    3. Same—want of time for attorney to prepare the defence. An offence was alleged to have been committed on March 31, and the defendant was arrested on the same day, so that both he and his counsel were then informed of the nature and character of the offence with which the defendant was charged, and the indictment was not found until forty-seven days thereafter, and the trial was had twenty days later. It was apparent from the nature and character of the case, as shown by the record, that the defendant had ample time to prepare for trial. It was held, no error to refuse a continuance on the ground that defendant’s counsel had been so occupied with other cases in the circuit and Appellate courts that he had not sufficient time and opportunity to prepare the case for trial.
    4. Criminal law—insanity as a defence—as to the test of responsibility. Where reason and judgment are not overcome, but the person charged with crime at the time retains the power to choose between right and wrong as to the particular act done, he can not escape responsibility for his acts under the plea of insanity.
    5. So, if at the time a deadly assault is made, the person making the assault knew that it was wrong to commit such an act, and had the power of mind to choose either to do or not to do, and of controlling his conduct in accordance with such choice, he will be held amenable to the law, although he was not entirely and perfectly sane.
    6. Same—reasonable doubt—defined. A reasonable doubt, as used in instructions in criminal trials, is one arising from a candid and impartial investigation of all the evidence, and such as in the graver transactions of life would cause a reasonable and prudent man to hesitate and pause.
    7. Same—of an instruction attempting to define a reasonable doubt. On a trial of one for an assault with intent to murder, the court instructed the jury: “That the guilt of the defendant must be proved beyond a reasonable doubt, as used in the instructions in this case, means not a possible doubt, not a conjectural doubt, not an imaginary doubt, not a doubt of the absolute certainty of the guilt of the accused, because everything relating to human affairs and depending upon moral evidence is open to conjectural or imaginary doubt, and because absolute certainty is not required by law. A reasonable doubt exists in that state of the case which, after considering and comparing all the evidence in the case, leaves the minds of the jury in that condition that they can not say that they feel an abiding conviction of the truth of the charge; but when the evidence in the case establishes the truth of the charge to a reasonable and moral certainty, that convinces the understanding and satisfies the reason and judgment of the jury of the truth of the charge, then, in law, there exists no reasonable doubt:” Held, that the instruction was more like an argument than a proposition of law; and was erroneous.
    8. Instruction—as to form of verdict in criminal case—as ignoring the right to find for a lesser offence—duty of defence to ash a counter instruction. An instruction given for the People, on the trial of one for an assault with intent to murder, directing the jury as to the form of their verdict in case of conviction, was objected to as error, inasmuch as the direction to fix the term the defendant should serve in the penitentiary if found guilty, ignored the right of the jury to find him guilty of a lesser offence: Held, that while not concurring in such view, if it were correct it was the duty of counsel for the defendant to have asked an instruction that the jury might find a verdict for an assault with a deadly weapon, etc., and not having done so, they were in no position to complain.
    9. Same—too many instructions. On a trial upon an indictment for an assault with intent to murder, the court, for the defence, gave eleven instructions as asked, and twelve others after modifying them, and refused twenty-three. It was held, that the rules of law applicable to the case were simple and plain, and that the practice of incumbering the record with so many instructions was a vicious one, and it ought not to be encouraged.
    10. Same—in the language of the statute. On a criminal trial, an instruction following the language of the statute, which declares that drunken"ness is no excuse for crime, is not erroneous.
    11. New trial—verdict against the evidence—in criminal case. Where one was convicted of an assault on his wife with intent to kill and murder her, and the proof was clear that the accused did shoot his wife, it was held, that the question whether the shooting was an accident, or was intentional, was a question of fact for the jury; and that when they have settled that fact adversely to the defendant, without passion or prejudice, in accordance with the evidence, it was not the province of this court to disturb the verdict.
    12. Evidence—weight of defendant’s testimony in criminal case, when testifying in his own behalf. On the trial of one for an assault with intent to murder, the court instructed the jury that the credibility and weight to be given to the testimony of the defendant testifying in his own behalf, was a matter with the jury, and that in weighing the defendant’s evidence they had a right to take into consideration his manner of testifying, the reasonableness of his account of the transaction, and his interest in the result: Held, that there was no error in giving the instruction.
    • Writ of Error to the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Thomas F. Tipton, for the plaintiff in error:
    A prisoner has the right to have a trial in a county where he can obtain a fair and impartial trial. Weyrich’s case, 89 Ill. 90; Brennan v. The People, 15 id. 511.
    It being the policy of the law that every man charged with crime should have a fair and impartial trial, a change of venue may be awarded by consent. The People v. Scates, 3 Scam. 351.
    Nor can the party object to the jurisdiction of the court to which the cause may be sent on his petition. Gardner v. The People, 3 Scam. 84; Weyrich’s case, 89 Ill. 90.
    The petition in this case clearly brought the prisoner within the requirements of the statute. The rule is, that whenever a prisoner, by petition verified by affidavit, brings himself within the requirements of the statute, the obligation of the judge is imperative, and admits of the exercise of no discretion. Clark v. The People, 1 Scam. 117; McGoon v. Little, 2 Gilm. 42.
    It is only when the material facts are disputed that the court can pass upon the facts, as alleged. This right of change of venue has been applied by this court to cases of quo warranto, (The People v. Shaw, 13 Ill. 581,) and is not a matter of discretion. Ensminger v. The People, 47 Ill. 384.
    The case of Baum v. The People, 73 Ill. 259, was made under the statute of 1861, as was also Perteet’s case, 65 Ill. 230, and Rafferty’s case, 66 id. 118. By the revision of 1874, act approved March 24, 1874, in force July 1, 1874, which is now in force, there is no discretion if the facts set up in the petition are not denied, or if there are sufficient facts that are undisputed to entitle the party to a change, and when the facts are contested the court must pass upon the same, and its findings are subject to review.
    The prisoner was entitled to a continuance. Conley v. The People, 80 Ill. 236; Wray v. The People, 78 id. 212.
    The second of the People’s instructions was improper, in virtually telling the jury they might disregard the defendant’s testimony. Chambers v. The People, 105 Ill. 409.
    When the nature and essence of a crime are made by law to depend upon the peculiar state and condition of the criminal’s mind at the time, and with reference to the act done, drunkenness, as a matter of fact, affecting the state and condition of the criminal’s mind, is a proper subject for consideration and inquiry by the jury. The question in such case is, “What is the mental status?” Swaim v. State, 4 Humph. 136; Lancaster v. State, 2 Lea, 575; Pirtee v. State, 9 Humph. 663; Huila v. State, 11 id. 154; The People v. King, 27 Col. 507; The People v. Eastman, 14 N. Y. 562; The People v. Harris, 29 Col. 678; Mayne’s Law of Crimes, sec. 22; The People v. Hamill, 2 Parker’s Cr. Rep. 223; State v. McCautz, 1 Speer, 384; Ferrell v. State, 43 Texas, 503; State v. Johnson, 64 Conn. 130; State v. Garvey, 11 Minn. 154; Moline v. State, 49 Ga. 210; State v. Bell, 29 Iowa, 316; Shannahan v. Commonwealth, 8 Bush, 403; Roberts v. The People, 19 Mich. 401; McIntyre v. The People, 38 Ill. 521.
    Mr. Robert B. Porter, State’s Attorney, for the People:
    The proof very clearly shows that the shooting was not accidental, but intentional. The defendant’s own testimony shows he was not insane, for he says: “I knew it was wrong to shoot. ” All the law books make legal responsibility to depend on the ability of the accused to distinguish right from wrong. Ray’s Medical Jur. sec. 242; Haskell’s case, Fish on Insanity, 83; Freeman v. The People, 4 Denio, 9; Willis v. The People, 32 N. Y. 715; Chitty’s Medical Jur. 354; Rex
      v. Offord, 5 C. & P. 168; State v. Spencer, 1 N. J. 196; Commonwealth v. Rogers, 7 Metc. 500; 1 Russell on Crimes, 8; Commonwealth v. Mosler, 4 Barr, 264.
    Counsel, after reviewing and commenting upon the cases cited by plaintiff in error, contended that there was no error in refusing to grant a change of venue or a continuance'.
    The instruction as to a reasonable doubt was based on the celebrated cases of Commomvealth v. Harman, 4 Barr, 269, and Commomvealth v. Webster, 5 Cush. 320, and is abundantly sustained by the decisions of this court in Kennedy v. The People, 40 Ill. 488; Earll v. The People, 73 id. 329; Smith v. The People, 74 id. 144; Hiller v. The People, 39 id. 457; May v. The People, 60 id. 119 ; Connaghan v. The People, 88 id. 468; Pate v. The People, 3 Gilm. 644; Jackson v. The People, 18 Ill. 270.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an indictment in the circuit court of McLean county, against Robbins P. Dunn, for an assault on Phoebe Dunn, with intent to commit murder. Upon a trial before a jury the defendant was found guilty, and his derm of imprisonment in the penitentiary was fixed at seven years. To reverse the judgment of the circuit court the defendant sued out this writ of error.

The first alleged error is the decision of the court overruling defendant’s petition for a change of venue. The ground set up and mainly relied upon in the petition was, that certain newspapers published in Bloomington had published prejudicial accounts of the alleged assault, and as they had a standing and large circulation in the county, by reason of such publications the minds of the inhabitants of the county were prejudiced against the defendant. The State’s attorney filed a denial of the allegations contained in the petition, and in support of the denial he also filed counter affidavits of certain citizens who were well acquainted in the county, who state, in substance, that no prejudice exists in the county against the defendant. Among the affidavits filed was one made by the sheriff of the county, who states that he talks about criminal cases with people from all parts of the county, and finds that there is but comparatively little interest taken in.what is called the “Dunn case,” and from his knowledge of the temper of the people of the county he has no hesitation in saying that Dunn could have his case tried as fairly and impartially in McLean county as in any county in the State.

Section 22, of chapter 146, of the Revised Statutes of 1874, provides: “When the cause for the change of venue is the prejudice of the inhabitants of the county against the defendant, his petition shall set forth the facts on which he founds his belief, and the attorney on behalf of the People may deny the facts stated in the petition, and support his denial by counter affidavits, and the judge may grant or deny the petition, as shall appear to be according to the right of the case. ” Here there was no dispute in regard to the publication of the newspaper articles, but the question was, whether these articles had produced a prejudice in the minds of the inhabitants of the county against the defendant. If they had, he would be entitled to a change of venue; if they had not, then it was the duty of the judge to overrule the petition. The affidavits filed by the People in support of the denial of the allegations of the petition, upon which the circuit court rendered the decision, tended to show that there was no prejudice of the inhabitants of the county against the defendant, and we are not prepared to hold that the decision of the court was contrary to the right of the case.

The alleged offence was committed on March 31, 1883. The indictment against the defendant was returned into court on the 27th day of April, 1883. On the 17th day of May following, the defendant entered a motion for a continuance of the cause until the next term of court. The court overruled the motion, and the decision is relied upon as error. One ground stated in the affidavit for a continuance is the absence of two witnesses, in the State of Pennsylvania; but it is not seriously contended that the affidavit was sufficient upon this point, as it does not appear from the affidavit but the same facts might be proven by other witnesses. The main ground relied upon in the affidavit for a continuance was, that counsel for defendant had been so occupied with other cases in the circuit and Appellate courts that he had not sufficient time and opportunity to prepare the case for trial. A defendant, as a general rule, should not be compelled to go to trial, after an indictment has been found, until he has had a reasonable time to prepare his case for trial; but in this case the alleged offence was committed on March 31, and the defendant was then arrested. He and his counsel then knew the nature and character of the offence, and then knew as well what the defendant would be called upon to meet, as they did after the indictment was found. Here was a period of forty-seven days from the time of arrest before the defendant was required to go to trial, and twenty days after indictment, in which he might prepare for trial, and from the nature and character of the case, as disclosed by the record, it is apparent that defendant had ample time to prepare for trial.

The court gave ten instructions on behalf of the People, and objection is made to all of them except the first, fourth and eighth. The second instruction- announced the well-known rule that the credibility and weight to be given to the testimony of the defendant was a matter for the jury, and in weighing the defendant’s evidence they had the right to take into consideration his manner of testifying, the reasonableness of his account of the transaction, and his interest in the result. The rule applied to the defendant may be adopted in regard to the testimony of any witness called to testify in a case, and no error is perceived in this charge to the jury. The third merely follows the language of the statute, which declares that drunkenness is no excuse for crime,—and we held in Fitzpatrick v. The People, 98 Ill. 270, that such an instruction was not erroneous. The fifth, sixth and seventh were as follows:

“5. If you believe, from the evidence, beyond a reasonable doubt, that at the time of committing the alleged act the defendant was able to distinguish right from wrong, then you can not acquit him on the ground of insanity.
“6. If you believe, from the evidence, beyond a reasonable doubt, that the defendant committed the crime in manner and form as charged in the indictment, and at the time of committing such act was able to distinguish right from wrong, you should find him guilty.
“7. If from all the evidence in the case you believe, beyond a reasonable doubt, that the defendant committed the crime of which he is accused, in manner and form as charged in the indictment, and that at the time of the commission of such crime the defendant knew that it was wrong to commit such crime, and was mentally capable of choosing either to do or not to do the act or acts constituting such crime, and of governing his conduct in accordance with such choice, then it is your duty, under the law, to find him guilty, even though you should believe, from the evidence, that at the time of the commission of the crime he was not entirely and perfectly sane, or that he was greatly excited or enraged, or under the influence of intoxicating liquor. ”

It is claimed that these instructions conflict with the law as declared by this court in Hopps v. The People, 31 Ill. 385, and Chase v. The People, 40 id. 353. We do not so understand the instructions. In the Hopps case, in discussing the question of insanity, it is said: “We have come to the conclusion that a safe and reasonable test in all such cases would be, that whenever it should appear from the evidence that at the time of doing the act charged, the prisoner was not of sound mind, but affected with insanity, and such affection was the efficient cause of the act, and that he would not have done the act but for that affection, he ought to be acquitted. But this unsoundness of mind, or affection of insanity, must be of such a degree as to create an uncontrollable impulse to do the act charged, by overriding the reason and judgment, and obliterating the sense of right and wrong as to the particular act done, and depriving the accused of the power of choosing between them.” Under this decision, where reason and judgment were not overcome, but the person retained the power to choose between right and wrong as to the particular act done, he could not escape responsibility for his acts under the plea of insanity. This, too, is the doctrine of the instructions, if we understand them correctly. Under the fifth and sixth, if defendant was able to distinguish between right and wrong he should be held liable. So, too, if at the time the crime was committed the defendant knew that it was wrong to commit such a crime, and had the power of mind to choose either to do or not to do the act, and of controlling his conduct in accordance with such choice, then he ought to be held responsible, although he was not entirely and perfectly sane. This, in substance, is the principle announced in the seventh instruction, and we regard it correct. Where a man knows that it is wrong to do a certain act, and possesses the power of mind to do or not to do the act, it would be a dangerous doctrine to hold that such person should not be held responsible because he might not be regarded entirely and perfectly sane.

Instruction No. 9, given for the People, is as follows:

“That the guilt of the defendant must be proved beyond a reasonable doubt, as used in the instructions in this case, means, not a possible doubt, not a conjectural doubt, not an imaginary doubt, not a doubt of the absolute certainty of the guilt of the accused, because everything relating to human affairs, and depending upon moral evidence, is open to conjectural or imaginary doubt, and because absolute certainty is not required by law. A reasonable doubt exists in that state of the case which, after considering and comparing all the evidence in the case, leaves the minds of the jury in that condition that they can not say they feel an abiding conviction of the truth of the charge; but where the evidence in the case establishes the truth of the charge to a reasonable and moral certainty, that convinces the understanding and satisfies the reason and judgment of the jury of the truth of the charge, then, in law, there exists no reasonable doubt. ”

This court has had occasion, in a number of cases, to determine the scope and meaning of the term “reasonable doubt, ” and it has been, uniformly held that a reasonable doubt is one arising from a candid and impartial investigation of all the evidence, and such as, in the graver transactions of life, would cause a reasonable and prudent man to hesitate and pause. (May v. The People, 60 Ill. 119; Miller v. The People, 39 id. 457; Connaghan v. The People, 88 id. 460.) In a number of cases in this court an instruction given for the People, containing the above proposition, has been sustained; but we are aware of no case where an instruction like the one given in this ease has been sustained by this court. The instruction is not a proposition of law, but it is more in the nature of an argument than anything we can liken it to, and in a case where the testimony is conflicting, or such as to leave the minds of the jury in doubt, it would be likely to prejudice the jury. While we do not hesitate to condemn the instruction, still we do not think it did any harm in this case, for the reason that the evidence did not leave the guilt of the defendant in doubt. The guilt of the defendant was so clear and palpable, from the evidence, that no question of doubt could arise, and while the instruction was erroneous, the error could work no injury in the case.

The tenth and last instruction given for the People, merely directs the jury as to the form of the verdict. But it is said that the direction to fix the term defendant should serve in the penitentiary if found guilty, ignored their right to find the defendant guilty of the lesser offence, and hence was erroneous. We do not concur in this view, hut if counsel for defendant are correct, it was for them to prepare an instruction informing the jury that they should bring in a verdict of guilty, only, if they find, from the evidence, that the defendant was. guilty of the lesser offence,—an assault with a deadly weapon; and as they did not ask for an instruction of that character, they are in no position to complain.

The court gave to the jury, on behalf of the defendant, eleven instructions as asked, twelve others were modified by the court, and given as modified, and twenty-three were refused. It would be extending this opinion to a greater length than we have the time to do, should we undertake to review the decision of the court on the thirty-five refused and modified instructions, and it would serve no useful purpose to do so. We are satisfied, after a careful examination of the record, that the jury was fully and fairly instructed in regard to the law involved in the case, and if it be true that some of the refused instructions contain correct propositions of law, no harm was done in refusing them. The rules of law applicable to a case of this character are simple and plain, and the practice of incumbering the record with so many useless instructions is a vicious one, and it ought not to be encouraged.

It is also claimed that the verdict of the jury is against the evidence. There is no controversy in regard to the fact that the defendant shot his former wife. He claims that the revolver which he had in his possession was discharged by accident, while engaged in a scuffle with his son. In this, however, he is contradicted by his wife and several members of his family, who were present at the time the shooting was done. Whether the shooting was an accident, for which the defendant should not be held responsible, or whether it was done intentionally, was a question of fact, purely for the determination of the jury; and when they have settled that question without passion or prejudice, in accordance with the evidence, it is not the province of this court to disturb the verdict of the jury.

The judgment of the circuit court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Robert E. Jenkins v. William E. Merriweather.

      Filed at Ottawa May 19, 1884.

    1. Process—sale on execution—power of the court over them, on motion. Courts of record exercise the power to control their process as long as the proceeding is in fieri. Under this practice the court may, upon motion, on proper grounds, withdraw and quash executions and other writs, and set aside sales of real estate before they ripen into titles.
    2. Same—when sale set aside only in equity. After the deed for real estate sold under execution has been made, the court has no power, on motion, to set aside the deed or set aside the sale. It must be impeached, if at all, in equity, unless there was no judgment or execution, or the court had no jurisdiction to render the judgment. Section 65 of the Practice act has no application to motions to set aside judicial sales, but refers to writs of execution, replevin bonds, and the like.
    3. Same—ease where court refused to set aside sale, etc. Where a judgment was assigned after a levy upon various parcels of real estate, and the assignee became the purchaser of the lands, portions of which he had sold and conveyed to other persons after receiving the sheriffs deed, it was held, that the execution under which the sale was made, a venditioni exponas, could not be set aside on mere motion.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

      Mr. W. T. Burgess, for the appellant:
    If the judgment was a debt provable in bankruptcy, or if it was a lien on the real estate, it, under the United States Statute, no more than any other debt or lien, could be enforced against or to the prejudice of the assignee, after the lapse of two years from the date of his deed. (Rev. Stat. of the U. S. see. 5057; Rev. Stat. 1874, chap. 77, sees. 1, 6.) And so no execution could thereafter issue thereon.
    If the levy was not in fact made, or was not returned before the seven years had expired, the lien of the judgment was gone, and the court erred in not quashing the venditioni exponas. A proceeding to quash an execution is a proceeding recognized by our statute. Rev. Stat. chap. 37, see. 32; chap. 110, sec. 64.
    The courts have equitable power over their process, and may quash them for irregularities, or when it would be inequitable to permit their further use. Sandburg v. Papineau, 81 Ill. 448; Lampset v. Whitney, 2 Scam. 441; 2 Hill, (S. C.) 297; Mavis v. Duren, 1 Brewster, 428.
    There was no levy made that binds any one, until the date of the return,—September 14, 1881. Up to the time the execution was returned, the indorsement thereon was under the sheriff’s control. Nelson v. Cook, 19 Ill. 440.
    As to what constitutes a levy in States having no statute on the subject, see Isam v. Hooks, 46 Ga. 309; Hamblin v. Hamblin, 34 Miss. 455; McBirnie v. Overstreet, 8 B. Mon. 300; Green v. Burke, 23 Wend. 488.
    Messrs. Dupee, Judah & Willard, for the appellee:
    Matters of fact can not be assumed, and important interests can not be divested in this informal way, upon motion of a stranger to the record. Bonnell v. Neely, 43 Ill. 290; Lansing v. Quackenbush, 5 Cow. 38.
    No cause is shown for not making the motion to quash, at an earlier moment, and before other persons purchased from Ritchie for value. Noyes v. True, 23 Ill. 504; Prather v. Hill, 26 id. 404; Hay v. Baugh, 77 id. 504; Bowman v. Tollman, 2 Robt. (N. Y.) 634.
    The sheriff’s sale having gone to a deed, and the purchaser having conveyed, it is the fixed rule that the appellant must have made his application to a court of equity, where all rights could have been examined and protected. Day v. Graham, 1 Gilm. 442; Meacham v. Sunderland, 10 Bradw. 126.
    Common equity suggested that notice should have been given to all parties in interest. Sears v. Low, 2 Gilm. 284; Turney v. Saunders, 3 id. 242.
    In proceedings to set aside a sale, the purchaser, and all claiming under him, and the defendant, are necessary parties. Herman on Executions, 517; Roberts v. Clelland, 82 Ill. 540.
    The Bankrupt act expressly preserved the liens. To take them away, or to abridge them, would be in derogation of the spirit of that act, as well as of common rights and justice. The assignee in bankruptcy took all real estate of the bankrupt subject to all existing liens upon it.
   Mr. Justice Walker

delivered the opinion of the Court:

On the 24th day of July, 1874, appellee, Merriweather, obtained a judgment in the Superior Court of Cook county, against Samuel J. Walker, for $19,645.33. Afterwards, on the 11th day of the next September, an execution was issued upon the judgment, and placed in the hands of the sheriff, which was returned on the 16th day of February, 1875, indorsed “no property found.” An alias execution was issued on the 1st day of July, 1881, and it was returned on the 14th day of the following September, indorsed “in no part satisfied,” but there was attached to it a paper, in which the sheriff, by his deputy, stated that he had, by virtue of the annexed execution, (describing it,) on the 23d of July, 1881, levied upon all the right, title and interest of the defendant, Samuel J. Walker, in and to a large number of lots and tracts of land, (describing them,)—and to this return is the signature of the sheriff, by his deputy. On the day last named, a venditioni exponas, in the usual form, was issued, which was indorsed by the clerk that the judgment had been assigned to William C. Eitchie on the 23d of July, 1881. The sheriff afterwards returned the writ, indorsed that he had sold the lands to the amount of $21,000, and after deducting his fees it satisfied the judgment to the sum of $20,640, which he paid to Eitchie, and it was unsatisfied as to' the balance. The time having expired for a redemption, and none having been made, the sheriff executed a deed to Eitchie, who filed an affidavit, on the trial of this motion, stating that he had sold portions of the land and conveyed the same to other persons. Walker was declared a bankrupt on the 26th of April, 1878, and conveyed his property to Bobert E. Jenkins, his assignee, on July 31, 1878. To the former execution, of which no exceptions are taken, Jenkins, on the 29th of August, 1883, filed in the Superior Court a motion to quash the venditioni exponas, and the motion was continued until the next September term, at which time it was heard and denied. An appeal was taken to the Appellate Court for the First District, where the judgment of the Superior Court was affirmed, and the record is brought to this court, and a reversal is urged.

The first question presented, and the only one we deem necessary to consider, is, whether after a sale under execution, and the time for redemption has expired, and the sheriff has made a deed to the purchaser, the execution, levy, sale and deed can be set aside, on motion,—or, if there are grounds for setting them aside, must .the parties in such case resort to a bill in equity for relief. Courts of record exercise the power to control their process as long as the proceeding is in fieri. This was the common law practice, which has always prevailed in the courts of this State. Under that practice the court may, on proper grounds, withdraw and quash executions and other writs, and no doubt set aside sales of real estate before they have ripened into titles; but it has never been the practice, on motion, in this jurisdiction, to set aside deeds or divest title when the sale has ripened into a deed and the title has vested, and all antecedent writs and process have performed their functions and have become functus officio. After a deed for real estate, under a sale on execution, has been made, it must be impeached, if at all, in equity, unless there was no judgment or execution, or the court had no jurisdiction to render the judgment. Such a motion as this is not provided for in the 65th section of the Practice act. That refers to writs of execution, replevin bonds, and the like.

In the case of Day v. Graham, 1 Gilm. 435, it was said, after reviewing many authorities on the question of the practice of setting aside such sales, on motion: “We are of opinion that when the plaintiff in the execution is the purchaser, and before he conveys to another, the court would set aside the sale, on motion; but after he conveys to a third person, and when a third person becomes a purchaser, the court will not determine, in this summary way, questions which may affect the rights of others not before the court, and without opportunity of explaining away the circumstances which might destroy his title. Although the purchaser here was the attorney, and will be chargeable with notice of all irregularities, if any, yet he is a third person, and did not purchase as an attorney, but in his own right. ” That case clearly governs this. In that case the attorney purchased, and yet the court held that his purchase could not be set aside, and his deed from the sheriff could not be vacated, on motion. Here an assignee of the judgment, after the levy was made, was the purchaser, and not only so, but he had sold portions of the property to other persons after receiving his deed from the sheriff. So this case is stronger in favor of the decision refusing to set aside this sale, than was that. This disposes of the case. Under more recent decisions we should not incline to go the length, even between the parties to the suit, of setting aside a sheriff’s deed, on motion.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Elizabeth Bute v. William Kneale et al.

      Filed at Springfield March 26, 1884.

    1. Dower—as to the release thereof—of the mode—prior to the act of 1869. Before the passage of the act of 1869, a married woman could not dispose of or bar her right to any interest she might have in land, including the right of dower, whether inchoate or otherwise, by merely joining with her husband in a deed, unless the deed was duly acknowledged by her before a proper officer, as shown by the officer’s certificate, in the form prescribed by the statute.
    2. Same—since the act of 1869. Under the act of 1869 relating to conveyances by married women, a married woman above the age of eighteen years, by joining in a deed with her husband; would be concluded as to any interest she might have in the land conveyed, including that of dower, without any acknowledgment of the deed on her part.
    3. Same—section 17 of the Conveyance act construed. Section 17 of the act of 1874, relating to conveyances, provides two distinct modes by which the right of dower may be relinquished or barred. By the first division or clause thereof a married woman is enabled to relinquish her dower in any case, whether the fee is in the husband or a third party, by the husband joining with her in the deed; by the second clause she is empowered, in all cases where she has dower or other interest in land in which the husband has no interest, by reason of the same having been divested, by legal process or otherwise, to release or convey such dower or other interest as though she were sole and unmarried, without her husband joining in the deed.
    4. In a case falling within the first clause, by joining with her husband in a deed, conveyance, etc., the wife may relinquish her dower in the real estate of the husband, or in any real estate, whether the deed, conveyance, etc., is acknowledged or not; but in cases under the latter clause, her deed must be duly acknowledged and properly certified, as required by the statute, otherwise it will be inoperative.
    5. Same—as to effect of sections 18 and 19 of the Conveyance act. While the language of section 18 of the Conveyance act of 1874 is broad enough to include the right of dower, whether inchoate or otherwise, it is thought it was intended to apply specially to lands or tenements belonging to the wife. Whether in such cases it is indispensable that the wife’s deed should be acknowledged before some officer, where the husband does not join in the deed, may be regarded as doubtful, but no decided opinion is given on the question.
    6. Section 19 is in the nature of a supplement to the two preceding sections, by which the acknowledgment or proof of the deed of a married woman relating to her dower or other interest in land, is put upon the same footing with-deeds made by a feme sole.

    7. Same—section 17 construed, with reference to section 16 of the Dower act. The object of the legislature in adopting section 16 of the Dower act of 1874, was not to prescribe the mode of relinquishing dower, that having been fully done by section 17 of the Conveyance act, which was adopted "for that express purpose. Therefore, if there is any apparent conflict in the two sections, the latter must control.
    8. The object of section 16 of the Dower act is simply to prevent either the husband or wife from making any conveyance, or doing any act whatever, whereby the dower interest of the other might be prejudiced or defeated, without the sanction or assent of the one whose interest is to be affected, which is manifested by one joining in a conveyance with the other. In such case the joinder in the deed is all the acknowledgment the law requires to “evince” such assent.
    9. Same—under the revision of 1874. Under the Revised Statutes of 1874, a married woman above the age of eighteen years, having an inchoate right of dower in land belonging to her husband, may bar or extinguish such right by voluntarily joining him in a mortgage, or other conveyance of the same, sufficiently formal to pass his interest, even though there be no certificate of acknowledgment on her part attached thereto.
    Writ of Error to the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding.
    This was a hill in chancery, brought by Elizabeth Bute, the plaintiff in error, to the December term, 1883, of the Ford county circuit court, against William Kneale and others, the defendants in error, for the assignment of dower in certain lands particularly described in the bill. Upon the hearing, the court found the equities with the defendants, and entered a decree dismissing the bill, to reverse which- the conrplainant brings this writ of error.
    The facts, so far as material to a decision of the case, as appears from a stipulation in the record, are: That Elizabeth Bute, the complainant, intermarried with Monroe Bute, on the 10th of May, 1850, and lived with him until the time of his death,—December 20, 1882; that during the marriage he was seized in fee of the land in which dower is sought to be assigned; that on the 19th of June, 1878, Bute and his wife executed a mortgage on the premises, to secure an indebtedness of the former, to Reuben Frame, of $2500, which was duly recorded August 20, 1878; that the certificate of acknowledgment of the mortgage was formal in every respect, except that as to the wife it did not state she was personally known to the officer who took the acknowledgment; that at the time of the execution of the mortgage complainant was over eighteen years of age; that on the 11th of February, 1879, the mortgaged premises were sold and conveyed, under a power of sale contained in the mortgage, to William Gilmore, from whom Kneale, defendant in error, by mesne conveyances, shows a regular chain of title of record to the premises, his co-defendant being a mere tenant of his.
    Mr. A. Sample, for the plaintiff in error.
    Messrs. Tipton & Moffett, for the defendant in error Kneale.
    Messrs. C. H. & C. B. Wood, also, for the defendants in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The only question presented by this record necessary for a determination of the case, is, whether a married woman, under the Revised Statutes of 1874, having an inchoate right of dower in a piece of land belonging to her husband, can bar or extinguish such right by voluntarily joining him in a mortgage, or other conveyance of the land, sufficiently formal to pass his interest, where the instrument contains no certificate of acknowledgment on her part, or where the certificate is manifestly defective, as is the case here.

Notwithstanding the able and exhaustive argument of the plaintiff’s counsel in support of the opposite view, we feel constrained to answer this question in the affirmative. While this question, in the precise form now presented, has not, so far as we are advised, been heretofore decided by this court, yet there are several cases that bear upon it with more or less directness, pointing to the conclusion reached. Terry v. Trustees, 70 Ill. 236; Hogan v. Hogan, 89 id. 427; Hamilton v. Hamilton, id. 349; Wormley v. Wormley, 98 id. 544; Edwards v. Schoeneman, 104 id. 278.

It is clear that until 1869 a married woman could not dispose of or bar her right to any interest she might have in land, including the right of dower, whether inchoate or otherwise, by merely joining with her husband in a deed, unless the deed was duly acknowledged by her before a proper officer, as shown by the officer’s certificate in the form required by the statute. (Ayres v. McConnel, 2 Scam. 307; Murphy v. Williamson, 85 Ill. 152 ; Heinrich et al. v. Simpson, 66 id. 58.) The act of 1869 made a radical change in the Conveyance law in this respect. It consists of but one section, and is as follows :

“Sec. 1. That any feme covert, being above the age of eighteen years, joining with her husband in the execution of any deed, mortgage, conveyance, power of attorney, or other writing of or relating to the sale, conveyance or other disposition of lands or real estate, as aforesaid, shall be bound and concluded by the same in respect to her right, title, claim, interest or doiver in such estate, as if she were sole and of full age, as aforesaid; and the acknowledgment or proof of such deed, mortgage, conveyance, power of attorney or other writing may be the same as if she were sole.”

Under the provisions of this act it is clear that a married woman above the age of eighteen years would, by joining in a deed with her husband, be concluded as to any interest she might have in the land conveyed, including that of dower, without any acknowledgment of the deed on her part; and the question is, whether the law in this respect is changed by the amended Conveyance act of 1872, which is embodied in the revision of 1874. Sections 17, 18 and 19 of that act, as found in the revision of 1874, (pages 275, 276,) are the only ones that have any material bearing on this question, and are as follows:

“Sec. 17. A married woman may relinquish her right of dower in the real estate of her husband, or in any real estate, by joining with her husband in a deed, mortgage, conveyance, or power of attorney, release, or other writing of or relating to the sale, conveyance or other disposition thereof. In all cases where the interest of the husband in any tract or parcel of land has been divested, by process of law or otherwise, the wife may, by deed duly executed and acknowledged, release and convey to the purchaser or purchasers, his or their grantee or grantees, all her interest in such tract or parcel of land, whether in possession or expectancy, in the same manner and with the like effect as though she -were sole and unmarried; and any deed by her so executed and acknowledged shall be a valid and sufficient bar, in law and equity, to any right or choice of dower or other interest which she may thereafter assert in such premises.
“Sec. 18. Any married woman, being above the age of eighteen years, joining with her husband in the execution of any deed, mortgage, conveyance, power of attorney, or other writing of or relating to the sale, conveyance or other disposition of her lands or real estate, or any interest therein, shall be bound and concluded by the same in respect to her right, title, claim or interest in such estate, as if she were sole.
“Sec. 19. The acknowledgment or proof of any deed, mortgage, conveyance, release of dower, power of attorney, or other writing of or relating to the sale, conveyance or other disposition of land or real estate, or any interest therein, by a married woman, may be made and certified the same as if she were a feme sole, and shall have the same effect. ”

The 17th section, as punctuated, consists of two sentences, the first ending with the word “thereof, ” in the fifth line, and as we understand it, these sentences constitute distinct, independent divisions of the section, as much so as if in separate sections, and respectively provide for two distinct modes by "which the right of dower may be relinquished or barred. By the first division or clause of the section a married woman is enabled to relinquish her dower in any ease, whether the fee is in the husband or a third party, by the husband joining with her in the deed. By the second division or clause of the section she is empowered, in all cases where she has dower or other interest in land in which the husband has no interest, by reason of the same having been divested, by legal process or otherwise, to release or convey such dower or other interest as though she were sole and unmarried, without her husband joining in the deed; but in such case her deed must be duly acknowledged and properly certified, as required by the statute, otherwise it will be inoperative. The first division of this section relates to the relinquishment of dower by a married woman, generally, and is applicable to all cases where the husband joins in the release or conveyance, while the second division is limited to cases where the husband has ceased to have any interest in the land to which the wife’s dower or other interest attaches, in which case, by a properly acknowledged deed, she may convey or relinquish the same without her husband joining in the conveyance.

While the language of the 18th section is manifestly broad enough to include the right of dower, whether inchoate or otherwise, yet we think that section was intended to apply specially to lands or tenements belonging to the wife, as the relinquishment of dower was fully provided for in the preceding section. Whether in such cases it is indispensable that the wife’s deed should be acknowledged before some officer, where the husband does not join in the deed, may be regarded as doubtful, (see sec. 9, chap. 68, Rev. Stat.,) yet we decline to express any decided opinion on the question.

The 19th section is in the nature of a supplement to the other two sections, by which the acknowledgment or proof of the deed of a married woman, relating to her dower or other interest in land, is put upon the same footing with deeds made by a feme sole.

It is earnestly insisted, however, that this view of the matter is inconsistent with the 16th section of the Dower act, viz:

“Sec. 16. No judgment or decree confessed or recovered against a husband or wife, and no laches, default, coven, forfeiture or crime of either, no deed or conveyance of either, without the assent of the other, evinced by the acknowledgment thereof, as required by law, shall prejudice the right of the other to dower or jointure, or preclude the other from the recovery thereof, if otherwise entitled thereto. ”

It is to be observed, in the first place, the object of the legislature in adopting this section of the Dower act was manifestly not to prescribe the mode of relinquishing dower, that having been fully accomplished by the 17th section of the Conveyance act, which was adopted for that express purpose. This being the case, it is clear, even conceding there is some apparent conflict in this respect between the two sections, the latter section should control. But we see no necessary conflict in the two sections, and even the apparent repugnancy vanishes when we consider the object of the section in the Dower act, which was simply to prevent either the husband or wife from making any conveyance, or doing any act whatever, whereby the dower interest of the ottier might be prejudiced or defeated without the latter’s sanction,—or, in other words, it is a legislative declaration that neither party’s right in this respect shall be prejudiced or defeated without his or her assent; and it will certainly be doing no violence to the language of this section to hold, as we do, that when either party having a dower interest in land joins the other in a conveyance or release thereof, such joinder in the conveyance will be, within the meaning of the section, an “assent evinced by the acknowledgment” of such party, “as required by law,” for the joinder in the deed is all the acknowledgment the law requires to “evince” such assent.

The view we have taken of this branch of the case of course renders it unnecessary to notice the other questions discussed in the briefs.

The decree of the court below being in accord with what is here said, it will therefore be affirmed.

Decree affirmed.