author: Mr. Justice Tunnicliff

text:
    The Wabash, St. Louis and Pacific Railway Company et al. v. Isaac McDougal et al.

      Filed at Springfield

      May 14, 1885.

    1. Swamp and ovebfdowed lands—of their identification as such— os to time and manner of so doing. The act of Congress approved September 28, 1850, vested the legal title to all the swamp and overflowed lands in the State, without any further act being done to identify or segregate them from other lands; and the legislature, by its several acts, granted the same *° tí16 counties in which they were situated. The fact that lands fell within the description of “swamp and overflowed lands,” can be proved by witnesses whose personal knowledge enables them to testify as to" their character and condition.
    2. The several counties in'this State were absolutely invested with the legal title of all the swamp and overflowed lands situated within their boundaries, without the Auditor’s certificate of what lands were of that character, and parol evidence was competent to show that a tract fell within the description of swamp and overflowed lands. The Auditor’s certificate, whether issued before or after the sale of such lands by a county, is made evidence of the character of the same. The words in such certificate, “not heretofore patented to the county, ” will not vitiate it, and may be disregarded.
    3. Same—sale by a county—presumption in favor thereof—who may dispute its validity. If the county court could not sell and convey swamp land until after the return of plats and a valuation thereof, in the absence of proof,to the contrary it will be presumed that this was done before a sale and conveyance of a tract of land. But a party claiming no title can not be allowed to dispute the validity of a conveyance by the county, where it retains the consideration paid therefor, and no steps have been taken to set the same aside.
    4. Same—deed for swamp lands from a county—as to the mode of its execution—acknowledgment. A conveyance of a tract of swamp land made by a county, under the act of 1854, is not required to be acknowledged by the county clerk; and an order of the county board requiring him to acknowledge the deed, will be construed to mean nothing more than to attest it with the seal of the court and deliver it to the purchaser, as the county court has no power to require anything more than that.
    5. Same—misredtal in deed, as to the date of the act under which it is made. It being wholly unnecessary for the county clerk to recite in his deed for swamp land sold by the county court, the act under which it is made, a mistake in the date when the act was approved will be immaterial, and may be disregarded.
    6. Pbaotioe—waiver of error assigned. Where an appellant in his argument insists only upon one of the various errors assigned, the others will be considered as waived.
    Appeal from the Circuit Court of Menard county; the Hon. Lyman Lacey, Judge, presiding.
    Mr. George B. Burnett, for the appellants.
    Mr. Edward Laning, and Mr. N. W. Branson, for the appellees.
   Mr. Justice Tunnicliff

delivered the opinion of the Court

This was an action of ejectment, brought by appellees, against appellants, to recover a strip of land, fifty feet wide, on each side of the railroad track of the latter, running through the north-west quarter of section 11, and the north fractional half of section 10, in township 19, north of range 8, west, in Menard county, which resulted in a judgment for appellees, and appellants bring the case to this court, and assign various errors upon the record, but in argument insist only upon those relating to the power of the county court of Menard county to sell and convey the land in controversy, and the admissibility in evidence of the deed purporting to have been made by the county clerk in pursuance of an order of the county court, to Bennett, through whom plaintiffs, by mesne conveyances, derive their title. The other exceptions may therefore be considered as waived.

The land is swamp land granted by the government of the United States to the State of Illinois, by the act of Congress approved. September 28, 1850, and by the State of Illinois to Menard county, by the act of the General Assembly of 1852, (Sess. Laws of 1852, p. 178, sec. 1,) whereby the State grants directly to the counties of the State, respectively, all swamp and overflowed lands which lie within the same, that were granted to the State by said act of Congress; and the act of 1854 (Sess. Laws of 1854, p. 21, sec. 12,) reaffirms the grant of these swamp and overflowed lands, by declaring that they “are hereby granted to and invested in the several counties in which they are situated. ”

The counsel for appellants argues that no title was shown in Menard county to these lands, because the act of Congress did not specifically describe them, but only by the general term of “swamp and overflowed lands, ” and that consequently no title passed to the State without some act of segregation, as contemplated by that act, and to sustain this view cites the case of Thompson v. Prince, 67 Ill. 281, in which this court gave that construction to the act of Congress in question. At the time this decision was made, the attention of the court was not called to the case of Railroad Co. v. Smith, 9 Wall. 95, in which the Supreme Court of the United States had held that under the act of Congress the title to swamp and overflowed lands became, ipso facto, vested in the State, and that it could not be deprived thereof because the Secretary of the Interior had neglected his duty, and failed to furnish the State with the evidence, as he was directed to do by the act, as to what lands came within the description of “swamp and overflowed lands,” but that such fact could be proved by any witnesses whose personal knowledge would enable them to testify as to the character and condition of the tracts. Afterwards, this question again came before this. court in Keller v. Brickey, 78 Ill. 133, when it was held, on the authority of Railroad Co. v. Smith, supra, that the act of Congress vested the title to these lands in the State without any further act being done, and that Thompson v. Prince must be overruled. The court say: “Whatever this court may have decided in respect to the condition of the title to these lands, the Supreme Court of the United States, whose prerogative it is to construe acts of Congress, must be regarded as authoritative on this question. That court having decided that by the terms of the act of September 28, 1850, the title to these lands vested, ipso facto, in the State, the State, having competent authority, passed the title to the counties.”

It is said the ease of Railroad Co. v. Smith, supra, has been shaken by the subsequent ease of French v. Fyan et al. 93 U. S. 169; but even if that be granted, we should not feel authorized to depart from the rule it announces until the same has been clearly and distinctly overruled by that court.

It is said the county court could not know that these lands were swamp lands, till that fact was certified to it by the Auditor, whose certificate is made evidence of that fact by the act of the legislature of 1854, and that as his certificate bears date August 4, 1870, whereas the action of the county court in selling the land to Bennett was on March 30, 1870, therefore the sale to him must be void. We think the authorities above cited refute that position, and establish that the county would be absolutely invested with the title to the land whether the certificate which would be evidence of the fact was granted or not. Without the Auditor’s certificate, parol evidence would be competent to prove the character and condition of the land, but with the certificate, whether issued béfore or after the sale, no other evidence would be needed. The words added by the Auditor in his certificate, “not heretofore patented to the county, ” could not vitiate his certificate or change the fact that these were swamp lands, and may be disregarded. No “patents” were issued to the county, but only certificates from the Auditor, and that is the word he doubtless intended to use.

It is also urged that the power of sale by the county did not arise till after the surveyor had returned the plats and the valuations had been made, as required by the sixth section of the act of 1852. If this provision is not to be regarded as directory, merely, as held in Trustees of Schools v. Allen, 21 Ill. 120, the presumption should be, in the absence of proof to the contrary, that the county court discharged its duty in that respect, and did not sell till after the land had been platted and appraised, and that they did not sell for a less sum than they were authorized to do. There is no proof of any fraud on the part of the county court, or on the part of Bennett, the purchaser from it, in this transaction, and the presumption of law is there was none. If there had been, it is probable that some tax-payer of the county would have filed a bill to set aside the sale before the land had passed into the hands of an innocent purchaser. The appellants set up no title in themselves to the land in controversy, but are insisting that the county has not parted with its title, if it ever had any. They occupy no better position than the county would had it brought suit to recover back this land after having once sold it and received the purchase money, and it had been conveyed in pursuance of its order.

But if any question could arise as to the power of the county to sell, and order a conveyance of the land, as it did, under the previous statutes referred to, it is clear to us that they were clothed with ample power to do so under the act of the General Assembly of 1859, (Sess. Laws 1859, p. 201,) by the first section of which it is enacted, that “the county courts of the several counties of this State are hereby authorized and empowered to sell and dispose of, at public or private sale, for cash or credit, or for such securities as the counties may think proper to accept, all or any of the swamp or overflowed lands lying within the respective counties, including, also, all and every interest, claim, demand and gift granted to them by the State of Illinois, arising under the act of Congress passed September 28, 1850, and acts amendatory thereof. ” This act is very broad, and was intended to, and does, cover every tract of land in the county, whether em- . braced in the act of Congress or not, to which the county had or could have any claim, title or interest, as swamp or overflowed lands. That this was swamp land, and was embraced in the act of Congress granting it to the State, and in the act of the legislature granting it to tihe county, can not be successfully controverted, and the deed made by the clerk of the county court, by its order, was sufficient to pass the title to Bennett, under whom appellees claim title. The land in controversy was included in that specifically described in the deed.

The objection that the clerk did not acknowledge the execution of this deed before some officer authorized to take acknowledgments of deeds, is not tenable. The act of the General Assembly authorizing him to make the deed did not so require. It was executed in pursuance of the laws of 1854 and 1859. Section 11 of the act of 1854 is as follows: “The clerks of the county courts, respectively, shall -execute all deeds for swamp and overflowed lands, and affix the seal of the county courts thereto, which deeds shall vest in the purchaser title in fee simple to the lands therein described. ” This deed was executed, and the seal of the county court was affixed thereto, precisely as required by the statute. Had the legislature designed to have had any further evidence of the execution of the deed than this, it is fair to presume that they would have so expressly provided in the act. The order of the county court directing the clerk to acknowledge the deed, should be construed to mean nothing more than to attest it with the seal of the court and deliver it to the purchaser, as that was all the statute required him to do, and the county court had no power to require him to do more than that.

The clerk, in the deed,- states, by way of recital, that he makes it by virtue of the provisions of an act of the General Assembly of the State of Illinois, approved February lé, 1870, entitled “An act for the sale of swamp lands, and an order and decree of the county court, ” etc., and it is urged that this misrecital of the year in which the act was approved, renders the deed void. It is familiar law that even in the granting part of a deed, if there are two descriptions of the premises intended to be conveyed, one true and the other-false, the latter will be rejected as surplusage, and the deed will not thereby be vitiated. A priori, such a rule should prevail as to a mere recital. It was wholly unnecessary for the clerk to have recited this act in his deed. He did correctly recite the order of the county court directing him to make the deed, as well as the title of the act authorizing the county to make the sale, and this mere clerical mistake as to the date when it was approved is immaterial, and should be disregarded.

The judgment of the court below is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Samuel H. Kerfoot et al. v. Bernard Steele et al.

      Filed at Ottawa

      May 15, 1885.

    1. Contract of sale of land—failure of conditions, as rendering the transaction a mere option to sell. Where a contract for the sale and conveyance of real estate was subject to a condition that if the vendors were unable, by reasonable diligence and expense, to make a good title within ninety days, the contract should be canceled and the deposit made by the purchaser returned to him, and the vendors were unable to make title within the time named, it was held, that the contract was no longer binding, and became only an option to sell.
    2. Purchase through a broker—■compensation of the broker—of the services of the broker having relation thereto. A person desirous of purchasing certain real estate, employed a real estate broker to negotiate the purchase, and agreed to pay him $3500 in consideration “for his services in connection with the purchase. ” The agent or broker procured a contract for the sale of the property to be executed by four persons, one of whom had only a life estate in a one-fourth part of the premises, the remainder being in her minor children, so that it became necessary to foreclose a mortgage on the property to pass the title to such fourth interest, which was afterward done. The broker, after having been paid the $3500, as agreed upon, sued his principal to recover for his services in consummating the title, rendered after the date of the contract of sale: Held, that the broker’s service did not end, under the contract, with the procuring of the agreement to sell, as the purchase was not then completed, and that he could not recover for subsequent services rendered, whereby the title was in fact acquired.
    3. So where, it being uncertain whether the sale could be closed, and the purchaser being desirous of renting the property, the broker secured a lease of it for him, which was canceled as soon as he acquired the title through the foreclosure, it was held, that the lease was made in the carrying out of the purpose of acquiring the property by purchase, and that the services of the broker in procuring its execution were to be considered as rendered in connection with the purchase, and as paid for in the $3500 allowed him.
    4. So where it became necessary for the purchaser to borrow one-half of the purchase money for the property bought, and the broker assisted in negotiating the loan’, to enable the purchaser to complete the purchase, without notice that an extra charge should be made therefor, it.was held, that such voluntary service might be treated as connected with the purchase, and as falling under the contract of employment, and that no recovery in addition to the sum agreed upon could be had for such services.

      5. Where a real estate broker is employed, under a special contract, to negotiate for his principal the purchase of real property, at a fixed sum as his compensation for his services in connection with such purchase, his services will not end or his contract be completed until all necessary arrangements are made whereby the principal may acquire the title to the property. It is not enough to procure a contract for a sale from parties who are unable to make a valid conveyance.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Or. Rogers, Judge, presiding. '
    Mr. Frank J. Crawford, and Mr. Emery A. Stores, for the appellants:
    As a general rule, all that a broker employed to sell land has to do, is to furnish an eligible purchaser. It is then for the principal to decide whether the person thus presented is acceptable. The duties of the broker are at an end, and his commission is earned as soon as an enforceable contract is entered into. Coleman’s Executor v. Meade, 13 Bush, 353; McGavock v. Woodlief, 20 How. 21; Koch v. Emmerling, 22 id. 69; Rice v. Mayo, 107 Mass. 550; Schmidt v. Opie, 33 N. J. Eq. 140; Lane v. Albright, 49 Ind. 275; Moses v. Bier-ling, 31 N. T. 462; Knapp v. Wallace, 41 id. 477; Barnard v. Monnot, 42 id. 204; Smith v. McGovern, 65 id. 574; Glentworth y. Luther, 21 Barb. 145; Doty v. Miller, 43 id. 529; Vanlien v. Byrnes, 1 Hilt. 137; Corning v. Calvert, 2 id. 56; Lynch v. McKenna, 58 How. Pr. 42; Chilton v. Butler, 1 E. D. Smith, 150.; Goldsmith v. Obermeier; 3 id. 121; Holly v. Gosling, id. 262; Finnerty v. Fritz, 5 Col. 174; Phelan v. Gardner, 43 Cal. 306; Gonzales v. Broad, 57 id. 224; Watson v. Brooks, 8 Sawyer, (Cir. Ct.) 316; Vreeland y. Vetterlein, 33 N. J. L. 247; Bailey v. Chapman, 41 Mo. 536; Veazie v. Parker, 72 Maine, 443; Cavendar v. Waddingham, 2 Mo. App. 551; Same case, 5 id. 437; Kentucky Bank v. Combs, 7 Pa. St. 543.

      Although there is a special agreement as to the compensation of an agent, it does not follow but that he may "be entitled to additional compensation for additional services rendered in reference to his agency. Dunlap’s Paley on Agency, 101, note 1; Perkins v. Hart, 11 Wheat. 237.
    Mr. A. M. Pence, for the appellees:
    Where a contract is subject to a contingency, the happening of which suspends the agreement and resolves it into a mere option on the part of the vendors to put an end to it or go on and.make their title good, then no title vests in the vendee, and the contract of sale is not complete, and the purchaser obtains no interest in the land. He does not become a purchaser. Such was the case of Lombard v. Chicago Sinai Congregation, 64 Ill. 477.
    The so-called contract of purchase provided that no title or rights of ownership should pass to appellees until the delivery of the deed, after examination and approval of title. The title was actually passed under the deed of foreclosure of the mortgage held by the Connecticut Mutual Life Insurance Company, and all services rendered by appellants prior thereto fell under the clause of appellants’ contract of employment that all services in connection with such purchase were to be compensated by payment of the $3500 therein provided.
    The contract of purchase was not executed by all the heirs of Couch, and the insurance company never consented to the contract. .
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a suit by S. H. Kerfoot & Co., real estate brokers, against Steele, Wedeles & Co., to recover commissions for services • rendered in respect • to a real estate transaction. There was judgment in favor of the defendants, in the circuit court, which was affirmed hy the Appellate Court for the First District, and the plaintiffs appeal to this court.

It appears that Steele, Wedeles & Co. were tenants of a store in the building on' the south-west corner of South Water and LaSalle streets, in the city of Chicago, whose lease would expire May 1, 1885, and there were tenants of two other stores in the building, whose leases would expire May 1,1883; that Steele, Wedeles & Co. were desirous of purchasing the whole of that property, and employed S. H. Kerfoot & Co. to act for them, under the following memorandum of agreement: ■

“Chicago, February 8, 1883.
“Messrs. S. H. Kerfoot & Co.:
“Dear Sirs—We hereby authorize you, as our agents, to purchase for us, from the Couch estate, for the sum of one hundred and fifty thousand dollars, ($150,000,) the premises known as lot one (1), in block nineteen (19), in the original town of Chicago, fronting eighty (80) feet north on South Water street, and one hundred and fifty (150) feet east on La Salle street, on such terms of payment as may be required by said Couch estate. And in consideration of’your services in connection with said purchase, we hereby agree to pay you, as commissions, the sum of thirty five hundred dollars ($3500), said commissions to be paid to you whether said property be bought by or for us, directly or indirectly, in our names or another, or by any one in our interest, whether through you or any one representing said estate, either at public or private sale, or otherwise,—said purchase to be made in the name of Frederic Consor.
Steele, Wedeles & Co. ”
“We hereby accept the agency established by the above authority and agreement, upon the terms therein set forth.
Febr’y 8, 1883. S. H. Kerfoot & Co.”

For some reason, Steele, Wedeles & Co. did not wish their name to appear in the transaction, and the name of Mr. Consor was used, as above. Thereupon, the plaintiffs, on February 12, 1883, obtained a contract in writing for the sale and conveyance of said premises for $150,000, purporting to be signed by Caroline E. Couch, Caroline E. Johnson, and Elizabeth G. Couch, by William H. Wood, their attorney in fact, and by Howard Potter, by Henry B. Mason, his attorney in fact, parties of the first part, and by Frederic Consor, party of the second part.

The makers of this agreement, of the first part, could not and did not convey the title. As to one-fourth of the interest purported to be contracted for by Caroline E. Johnson, it was only a life estate in her, her minor children owning the remainder in fee. It was found, by advice of counsel, that title could be obtained only through the foreclosure of a mortgage, which was then being foreclosed in the United States court, and which had been executed by Wood, trustee under the will of Couch, to the Connecticut Mutual Life Insurance Company, and passed the fee according to the provisions of the will. It was through foreclosure of this mortgage that the defendants finally obtained title.- The $3500, stipulated commissions, was paid. This suit was brought to recover $4700 for services rendered after obtaining the agreement for sale of February 12, 1883, they being claimed to be additional and extra services not covered by the $3500 commission.

The cause was tried in the circuit court, by the court, without a jury, and four written propositions were submitted to the court by the plaintiffs, to be held as law in the decision of the case. The court refused- to holds the propositions as law. The first proposition was, substantially, that the plaintiffs were entitled to have from the defendants the $3500 stipulated for, as soon as plaintiffs had obtained the signing of the agreement dated February 12, 1883. The substance of the other propositions was, that all services rendered by the plaintiffs for the defendants after the obtaining of the signing of said agreement of February 12, were additional services, not covered by the commission of $3500, and that for such subsequent services plaintiffs were entitled to recover what they were reasonably worth.

Counsel for plaintiffs contend that the latter had earned their stipulated commission of $3500 when they had secured the contract of sale of February 12 to be signed, and that all services rendered by plaintiffs after that time were extra and additional, and to be paid for what they are reasonably worth. Defendants’ position is, that the $3500 was earned when the title was finally vested in them by the deed of foreclosure of the Connecticut Mutual Life Insurance Company mortgage, and that all the services rendered by plaintiffs were in connection with such purchase, and which they had agreed to render by their written agreement.

Plaintiff’s counsel plant themselves on the rule that a written contract for the purchase of an estate; binding both vendor and purchaser, is a sale, within the meaning of an agreement to pay a commission to a broker upon a sale of the estate, although a deed had not been executed and delivered, and say the brokers here obtained a written contract for a sale, and so the purchase had been effected,—that all services in connection with the purchase then came to an end, and that any subsequent services were not in connection with the purchase, but rendered after the purchase had been made. The rule relied upon we .do not think can be applied so as to make the contract of sale which was here obtained, to be considered as a completion of the purchase, and an ending of the brokers’ services in connection with the purchase, within the meaning of their agreement, for commissions. The purchase of the property was to be from the Couch estate. The written contract which was obtained, of February 12, did not purport to be, and was not, an agreement of sale by the Couch estate. It was not an enforceable contract for the title which was in the Couch estate. As to the one-fourth interest which was in the Couch estate, wherein Caroline E. Johnson had only a life estate, the remainder in fee being held by her minor children, such estate in remainder was not at all represented in the contract, and could not be bound thereby.

Again, the contract of February 12 did not purport to make an absolute sale of the premises. It was subject to conditions, as follows: “Provided, the Connecticut Mutual Life Insurance Company assent to such a conveyance: And provided, the said party of the first part can, with reasonable diligence and expense, make title to the said lot, piece or parcel of land within ninety days from the execution of this contract, satisfactorily to the said party of the second part. * * * Possession and ownership of said land are to pass to the said party of the second part at the time of the delivery of the deed of conveyance, after title has been examined and approved. * * * In ease of the inability of the said party of the first part to make good title within ninety days, as aforesaid, this contract to be canceled, and the $1000 deposit to be returned to the said party of the second part. ” The parties signing the contract could not make title within ninety days, and there was no binding contract of sale, the agreement becoming but only an option to sell. (See Lombard v. Chicago Sinai Congregation, 64 Ill. 477.) It does not appear that the consent of the Connecticut Mutual Life Insurance Company to the sale was obtained, but the company sold the property under its mortgage. By the contract the ownership of the property was only to be passed when the deed of conveyance was delivered which passed the title, after the title had been examined and approved. The examiner only passed the title which was made under the foreclosure of the Connecticut Mutual Life Insurance Company mortgage, and upon the delivery of the deed under that foreclosure then only was there a purchase and a passing of the title, either at law or in equity. The plaintiffs’ contract of employment was, that for their services in connection with the purchase they were to have $3500. The services sued for were all performed anterior to the execution of such foreclosure deed, and in and about the consummating of the title in the defendants, and we .think may fairly be considered as services “in connection with said purchase,” and as covered by the stipulated compensation of $3500.

One of these items for additional services is $1875 for securing a lease of the whole property from Wood, the receiver, to defendants. We understand this came from the uncertainty of the sale being closed, and that in case it was not, defendants were willing to rent the whole property, and so such lease was made, and that the lease was canceled when the deed was made to defendants. The lease was made in the carrying out of the purpose of acquiring the property by purchase. Another item is $750 for negotiating a loan for the defendants on the premises, for the sum of $75,000. It was necessary for defendants to borrow this amount, in order to pay the purchase money,—$150,000. Defendants might well understand, and so take it, in the absence of notification to the contrary, that this was an assistance rendered in connection with the purchase, and under the contract of employment,—and the same may be said with respect to all the services claimed as being additional and extra. Plaintiffs appear to have gone on and voluntarily performed all the services, without intimation that it was not under the written agreement for $3500 compensation. Defendants might very well suppose, under the wording of the agreement, the services were all being done under that agreement, and that $3500 was all they were to pay for whatever plaintiffs did in the matter. To found a claim for additional compensation, fairness would seem to have required that defendants should have been given distinctly to understand, before rendering the services, that additional compensation would be asked for them.

Without special mention of the other items, it may be said they were more clearly services in the effecting of the purchase than the ones above naméd.

We can not say there was any error in the circuit court’s ruling on the propositions submitted, and the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scholfield

text:
    John Hudson v. The Green Hill Seminary Corporation.

      Filed at Ottawa

      May 15, 1885.

    1. Corporation—plea of mil tiel corporation—evidence required. In a suit by a corporation upon an agreement in writing to pay it a sum of money, a plea of nul tiel corporation will not impose upon the plaintiff the burden of proving that it is in all respects a perfectly legal corporation. The plaintiff will be entitled to recover on the issue presented by such plea, by making proof that it has a de facto existence.
    2. Same—proof of de facto existence of corporation—admissibility of evidence—in the case of a foreign corporation. In a suit in this State in the name of an alleged corporation claimed to have been organized under the laws of Indiana, a special act of the General Assembly of that State purporting to legalize its incorporation, even though the act be invalid, as falling under the provision of the constitution of that State prohibiting the passage of special laws, is properly admissible in our courts as evidence of the recognition by that State pf the fact that the plaintiff assumes to exist and act as a corporation, and has a de facto existence.
    3. Upon the question of the de facto corporate existence of a corporation of the State of Indiana, in a suit by it in this State, in which nul tiel corporation is pleaded, a decision of the Supreme Court of the State of Indiana not pertinent to the issue being tried, is properly excluded as evidence to the jury.
    4. Same—what'will show the defacto existence of a corporation. In a suit by a corporation upon a promissory note or written obligation made by the defendant for the payment of money, the execution of such note or obligation will afford sufficient prima facie evidence of the de facto corporate existence of the plaintiff, and no further proof thereof is necessary until such proof is rebutted.

      5. An association may be regarded as a de facto corporation when there is a law authorizing the creation of a corporation of its class and powers, and when there is an attempt, in good faith, to comply with the law; and the only error is in filing a certified copy of the articles of association with the proper depositary, instead of a duplicate of such articles, and when there is also an exercise of corporate functions by the association.
    6. Same—corporate existence—when strict proof required—distinction in the application of the rule. Where a corporation brings suit to recover for a subscription to its capital stock, the existence of the corporation and its capacity to lawfully issue stock are conditions precedent to its right of recovery. If the stock can not be lawfully issued, the subscriber can not get what he has contracted for, and there is an entire failure of consideration. In such a case it is necessary to give strict proof of incorporation,—in other words, that the plaintiff is a corporation de jure.

    7. But this rule has no application to the case of a subscription to a corporation for which the subscriber is to receive no stock in consideration of his undertaking. The real consideration in such case upon which the plaintiff is entitled to recover, is that it has expended money, furnished materials or bestowed labor upon the faith of the subscription, and not any special benefit derived, or to be derived, by the promisor from the corporation.
    8. Same—who may question validity of a foreign corporation. The authority to inquire by quo warranto whether a corporation de facto, organized and acting under the laws of another State, is in all respects a legal and valid corporation, belongs to such State, and to it alone. If such' State fails to institute proceedings to divest it of its assumed franchises, no one else can do so.
    9. Foreign statutes—statutes of Indiana—conditions to their taking effect—as to time, etc. The constitution of Indiana provided that no act should take effect until the same was published, and circulated in the several counties by authority, except in case of emergency, which should be declared in the preamble or body of the act. In 1855, an act was passed which declared an emergency existed, and that it should be in force from and after its passage, and publication in the “Indiana State Sentinel” and “Journal:” Held, that the publication in the papers named was a condition, only, of the law taking effect before it otherwise would, and that a failure to have the same so published did not prevent its becoming a law upon the publication and distribution of the body of the laws passed at that session.
    10. Same—authentication. An act of the legislature of the State of Indiana authenticated by the Secretary of State of that State, by having the seal of State affixed thereto, in conformity with section 905 of the United States Revised Statutes, is a sufficient authentication, without the attestation of any officer or any other proof; and it is no objection that it does not appear upon the face of the act that it was signed by the Governor.

      Appeal from the Appellate Court for the Second District;—• heard in that court on appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    This was an action of assumpsit upon an instrument of which the following is a copy:
    “$1000. Watseka, III., March 2, 1874.

    “On the presentation of this note, with the accompanying certificate, signed by the agent of the Green Hill Seminary, for value received, I promise to pay to the order of the treasurer of said seminary one thousand dollars, with six per cent interest from date of said certificate until paid. Payable at Watseka, Illinois, without relief from valuation or appraisement laws. John Hudson.”
    The following certificate was attached in blank, but which, on the first of June, 1874, was filled up and dated as of May 1, 1874, and signed:
    “This is to certify that there is now raised, by note, subscription and otherwise, the sum of $10,000, for the endowment of one professorship in Green Hill Seminary, located at Milford, Warren county, Indiana, this 1st day of May, 1874.
    ■ J. Cowgill, Agent. ”
    The defendant pleaded as follows: First, nul tiel corporation; second, that the note sued on was signed upon the representations (which were false,) that plaintiff was a corporation, that James Cowgill was treasurer, that plaintiff was fully authorized to establish and run said seminary, and was fully empowered to collect subscriptions that should be made; third, the same as the second, with the addition that none of the sums donated should become due till $10,000, that could be collected, were donated; and fourth, the same, with the addition that it was fully organized, and had been for a long time, was fully empowered to appoint all kinds of agents of said corporation, and that the agent would sign the certificate when $3 0,000 was subscribed that it could collect. Plaintiff (demurred to each of these pleas, but the court overruled the demurrer, and plaintiff thereupon, under leave of the court to reply double, filed a general replication to each of the pleas, and also a special replication setting up the statutes of Indiana of February 28, 1855, March 9, 1867, and February 19,1881; and to these the defendant filed twelve rejoinders, as follows, to-wit:
    First—That the act of February 28, 1855, was never published in the “Indiana State Sentinel” and “Journal.”
    Second—That the act of February 19, 1881, was unconstitutional in this, that it conflicted with the constitution of Indiana, which provides that “corporations, other than banking, shall not be created by special act, but may be formed under general laws.”
    Third—That the act of February 19, 1881, never became a law, because not signed by the Governor of Indiana.
    Fourth—That the attempts at organization by plaintiff, under act of February 28, 1855, were null and void because a duplicate certificate of organization was never filed with the Secretary of State.
    Fifth—That the law of February 19,1881, in effect creates plaintiff a corporation, and is in conflict with the constitution of Indiana, which provides: “In all cases where a general
    law can be made applicable, all laws shall be general, and of uniform operation throughout the State. ”
    Sixth—The same as the fourth.
    Seventh—That the act of February 19, 1881, was void because it conflicted with the constitution of Indiana, which provided: “No act shall be revised or amended by mere
    reference to the title, but the act revised or section amended shall be set forth and published at full length. ”
    Eighth—That the act of February 19,1881, embraced more than one subjept, and was in conflict with the constitution, which provides: “Every act shall embrace but one subject and matter properly connected therewith, which subject shall be expressed in‘the title.”
    Ninth—That the act of February 19, 1881, is void because a majority of all the members elected to the House of Representatives did not vote for said bill, as the constitution of Indiana requires.
    Tenth—That the same act is void because a majority of the Senators did not vote for it.
    Eleventh—That the same act is void because the vote on the passage of the bill was not taken by yeas and nays, as the constitution of Indiana requires.
    Twelfth—That the same act is void because the bill was not read by sections in the House of Representatives on three several days, as the constitution requires.
    The circuit court sustained demurrers to the second, fourth, fifth, sixth, seventh and eighth of these rejoinders, and to the other rejoinders the plaintiff sur-rejoined.
    On final trial, judgment was rendered in favor of the plaintiff, for the sum of $1313.30. On appeal to the Appellate Court for the Second District this judgment was affirmed, and this record is brought here by appeal from the last named judgment.
    Other matters material to an understanding of the questions discussed appear in the opinion of the court.
    Messrs. Doyle, Morris & Pierson, for the appellant:
    The acts done under the statutes of 1855 or 1867, so far as incorporation is concerned, were void, and no power to appoint agents or collect debts, as such corporation, existed thereby.
    - The act of 1855 being a foreign law, we are bound by the construction put upon it by the courts of that State. The Supreme Court of Indiana, under a similar law, decided, in an action by an assignee of a purported corporation against a subscriber to the capital stock, that it was necessary that the assignee should prove that a duplicate was filed in the office of the Secretary of State, before it could recover the subscription, and that a copy did not fulfill the law. (Nelson v. Blakely, 54 Ind. 30.) The court erred in refusing to admit this decision in evidence.
    A corporation can not be created by agreement of parties. It can only be created by legislative act, and the statute must be complied with. If the act requires a license, that must issue before it becomes a corporation. Stone v. Flagg, 72 Ill. 401; Bigelow v. Gregory, 73 id. 197.
    Courts will not take notice of foreign laws, but they must be proved as other facts. Hyman v. Bayne, 83 Ill. 265.
    The act of 1881 was unconstitutional, as the effect of it was to create a corporation other than banking, by a special act, and a general law could have been made applicable. Kimball v. Town of Rosendale, 42 Wis. 407; Marshall v. Silliman, 61 Ill. 218; Concord v. Portsmouth Bank, 92 U. S. 625; Aspinwall v. County of Davis, 22 How. 376.
    A curative act must be confined to validating such acts as the legislature might previously have authorized. The legislature can not ratify what it could not authorize at the time of the ratification. Cooley’s Const. Lim. 381; Wiester v. Hade, 52 Pa. 474; Mills v. Charlton, 29 Wis. 400; Cass v. Dillon, 2 Ohio, 607; State v. Trustees, 8 id. 394.
    Section 23, article 11, of the Indiana constitution, reads: “Corporations other than banking shall not be created by special act, but may be formed under general laws.” If the legislature could not have created this corporation by special act, it can not bring it into existence by a special curative act. Cooley on Taxation, 227; Wilson v. McKinney, 52 Ill. 44; 12 Pet. 731.
    The law of 1855 should not have been read without proof that it had been published in the two papers named. The legislature declared, by section 9, that the act should be in force after its publication in these journals, and it could no more take effect until this was done than if it was never passed. State v. Donelly, 8 Clark, 396.
    It follows, from the very principles upon which the proof of foreign laws is required, that such proof should be addressed to the jury, and not to the court. Charlotte v. Choteau, 33 Mo. 194; State v. Twitty, 2 Hawks, 441; De Sobry v. DeLaistre, 2 Har. & J. 191.
    Messrs. Kay & Euans, and Mr. Charles H. Wood, for the appellee:
    It is enough, in ordinary actions by a corporation under the plea of nul tiel corporation, to prove the existence of the corporation de facto. It is enough to prove existence under color of law, without proving a regular origin of existence in conformity to law. Abbott’s Trial Evidence, 18; Baker v. Backus, 32 Ill. 81; Chiniquy v. Catholic Bishop of Chicago, 41 id. 149; Mitchell v. Deeds, 49 id. 417; Railroad Co. v. Railway Co. 75 id. 113; Jones v. Dana, 24 Barb. 398.
    By executing a deed to a corporation the grantor recognizes its existence, and that is sufficient to overcome -his plea of nul tiel corporation. a Wood v. Kingston Coal Co. 48 Ill. 356.
    ' The second rejoinder was bad, as attempting to tender an issue for a jury as to the constitutionality of the statute of 1881. Such a matter could only be for the court. Hall v. Costello, 48 N. H. 179; Ely v. James, 123 Mass. 37; Kline v. Baker, 99 id. 255.
    The constitutional power of the legislature to pass such an act can not be questioned. Schofield v. Watkins, 22 Ill. 66; Mitchell v. Deeds, 49 id. 416.
    In the following cases the Supreme Court of Indiana has held it was competent, by a curative statute, to make a void thing valid: Maxey v. Wise, 25 Ind. 1; Walpole v. Elliott, 18 id. 258; Board of Comrs. v. Bright, id. 93; Andrews v. Russell, 7 Blackf. 474; Grimes v. Doe, 8 id. 381.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

First—The plea of mil tiel corporation did not impose the burden upon appellee of proving that it was, in all respects, a perfectly legal corporation. It was entitled to recover on the issue presented by that plea, on making proof that it had a de facto existence, and the execution of the instrument upon which the suit is brought was sufficient prima facie evidence of the existence of appellee as a corporation, and no further proof thereof was necessary until such proof was rebutted by appellant. Brown et al. v. Scottish-American Mortgage Co. 110 Ill. 235; Wood v. Kingston Coal Co. 48 id. 356; Mitchell et al. v. Deeds, 49 id. 417. See, also, Cincinnati, Lafayette and Chicago Railroad Co. v. Danville and Vincennes Railroad Co. 75 Ill. 113; Illinois Grand Trunk Railroad Co. v. Cook, Admr. 29 id. 237; Tarbell v. Page et al. 24 id. 46; Louisville, New Albany and Chicago Ry. Co. v. Shires, 108 id. 617; Osborn v. The People ex rel. 103 id. 224.

In Baker et al. v. Neff, 73 Ind. 68, objection was urged that a corporation could not exist, under the general law of that State, until a duplicate of the articles of incorporation was filed in the office of the Secretary of State; but the objection was overruled, the court, among other things, observing: “If appellants were correct in their theory that there was no corporation until the duplicate of the articles of association was filed in the office of the Secretary of. State,— a point we need not, and do not, decide,—they are not in a situation to successfully urge it, because they are conclusively estopped by the deed made to the association, wherein it is recognized and acknowledged to be a corporation.” And there was like ruling, by the same court, in Williamson v. Kokomo Building and Loan Association, 89 Ind. 389. In that ease, as here, a copy, instead of a duplicate, was filed with the Secretary of State, and the court said: “Where persons assume to incorporate under the laws of the State, and in part comply with their requirements, assume corporate functions and transact business as a corporation, private persons can not collaterally question the right of such an association to a corporate existence, although there has not been a full compliance with the provisions of the statute. (Baker et al. v. Neff, 73 Ind. 68.) This rule is not limited to cases where one, by contract, admits corporate existence, but is a rule of general application. ” And, after some further discussion, the court proceeds: “The rule stated by us does not go to the extent of precluding strangers from showing that there was no law authorizing a corporation, nor from showing that there was no attempt at corporate organization, nor any assumption of corporate powers. (Oroville Railroad Co. v. Plumas Co. 37 Cal. 354.) Where, however, the acts done by persons assuming to act as a corporation are such as to constitute them a de facto corporation, a collateral attack by a private person will, as a general rule, be unavailing. Without attempting to define what a de facto corporation is, we adjudge that an association may be regarded as a de facto corporation where there is a law authorizing the creation of a corporation of its class and powers, and where there is an attempt, in good faith, to comply with the law, and the only error is in filing a certified copy of the articles of association, instead of a duplicate, with one of two designated depositaries, and where there is also an exercise of corporate functions. ” And so it follows this was a good de facto corporation in the State of Indiana, where it had its origin, notwithstanding the objection of appellant in regard to the non-filing of the duplicate articles of association.

Abbott, in his work on Trial Evidence, page 19, sec. 3, says: “The cases in which it is necessary to give strict proof of incorporation,—that is, to prove not only the being, but the right to be,—are: First, actions by the State to ascertain or to put an end to corporate existence; second, proceedings by a private corporation in the exercise of a franchise in derogation of common right,—for instance, to divest title to private property; third, proceedings of a penal character by a private corporation; fourth, actions on contracts, like subscriptions for stock, if the very consideration is the organization of a corporation having a right to existence,—in such cases the inquiry may extend to the due compliance with all the requirements of the law, but often, in these cases, it is narrowed or precluded by estoppel or admission; fifth, where the question is whether there is corporate power to take by will, sufficient regularity of origin to show an attempt in good faith to comply with the law may be required. ”

There can be no reasonable pretence that the present case falls within either of these exceptions; but Nelson v. Blakely, 54 Ind. 30, Stowe v. Flagg et al. 72 Ill. 401, and Bigelow v. Gregory, 73 id. 197, cited by counsel for appellant, and Gent v. Manufacturers and Merchants’ Ins. Co. 107 Ill. 652, and Allman v. Havana, Rantoul and Eastern Railroad Co. 88 id. 521, fall within the principle of the fourth exception. Nelson v. Blakely, and Allman v. Havana, Rantoul and Eastern Railroad Co., were suits to recover for subscriptions to the capital stock of corporations. The contract in such cases is to pay for stock of a corporation, and the existence of the corporation, and its capacity to lawfully issue stock, are therefore necessarily conditions precedent to the right to sue upon the subscription. If stock can not lawfully be issued, the subscriber can not get what he contracted for. There is an entire failure of consideration,—as much so as where one contracts to buy a thing which the seller is afterwards unable to deliver because it has no existence. But appellant made no contract of subscription for stock, here. He is entitled to no stock. His promise to pay was a mere offer until acted upon; but when money was expended or materials furnished, or labor bestowed, upon the faith of it, it became irrevocable, and binding as a promise to pay, (Pratt, Admx. v. Trustees, 93 Ill. 475,) and this, although at the time the writing was executed the corporation was only in contemplation. (Johnston v. Ewing Female University, 35 Ill. 518,; Snell v. Trustees M. E. Church of Clinton, 58 id. 290.) The real consideration upon which the plaintiff is entitled to recover, in such cases, is, that it has expended money, furnished materials, or bestowed labor, upon the faith of the promise in writing, and not any special benefit derived or expected to be derived by the promisor from the corporation. (McClure v. Wilson, 43 Ill. 356, and eases there cited.) In Stowe v. Flagg, the question was whether, in a contest between parties who had taken some, but insufficient, steps to organize a corporation, certain property belonged to these parties as individuals, or to the corporation they had ineffectually attempted to organize; and in Bigelow v. Gregory, the defendants, who were sought to be made liable as individuals, interposed the defence that the liability was corporate,—and in that case it was said: “And there would seem to be a distinction between the case where, in a suit between a corporation and a stockholder or other individual, the plea of nul tiel corporation is set up to defeat a liability which the one may have contracted with the other, and the case of a suit against individuals who claim exemption from individual liability on the ground of their having become a corporation formed under the provisions of a general statute. In the latter case a stricter measure of statutory requirements will be required than in the former. ”

Second—Appellee was organized, or attempted to be organized, under an act of the legislature of the State of Indiana, entitled “An act for the incorporation of high schools, academies, colleges, universities, theological institutions and missionary boards,” approved February 28, 1855. The ninth section reads as follows: “As an informality exists in regard to the amendment to the high school law passed in 1853, rendering corporations formed under it of doubtful legality, it is therefore deemed that an emergency exists, and therefore this law shall be in force from and after its passage, and publication in the ‘Indiana State Sentinel,’ and ‘Journal.’ ” On the trial, the act was read from a book purporting to be printed under the authority of the State of Indiana, entitled as follows: “Laws of the State of Indiana, passed at the thirty-eighth session of the General Assembly, begun on the fourth day of January, A. D. 1855—By authority—Indianapolis—Austin H. Brown, State printer.” But appellant objected to the reading of the same because it had not been previously proved that the act had been published in the Indianapolis “Sentinel” and “Journal,” as provided in the ninth section.

By article 4, section 28, of the constitution of the State of Indiana, it is provided that “no act shall take effect until the same shall have been published, and circulated in the several counties of this State, by authority, except in case of emergency,—which emergency shall be declared in the preamble, or in the body of the law. ” The publication required by the ninth section was only for the purpose of giving effect to the statute, as an emergent one, before the publication and circulation of the laws of that session as a body; and whether it was thus published or not, manifestly could not prevent its taking effect upon the publication and circulation of the body of laws passed at that session. (Mark v. State, 15 Ind. 98.) Inasmuch, therefore, as this corporation was not attempted to be organized until July 23, 1868,—more than fifteen years after the enactment of the statute,—the question whether it took effect immediately, on account of publication in those journals, or only after the publication and circulation of the body of laws passed at that session, does not, in the remotest degree, affect the parties to this suit. Section 10, chapter 51, of the Revised Statutes of 1874, entitled “Evidence and Depositions, ” expressly provides that “the printed statute books of the United States, and of this State, and of the several States, * * * purporting to be printed under the authority of said United States, any State or territory, shall be evidence in all courts and places in this State, of the acts therein contained.” The objection is utterly destitute of merit.

Third—Objection is urged that the court erred in admitting in evidence an act of the Indiana legislature assuming to validate and legalize the appellee- as a corporation, approved February 19, 1881. We deem this question immaterial. The evidence was sufficient of the organization of at least a defacto corporation, under the act of 1855. The question whether it was also one dejare, we have shown, under point first, is immaterial. But we are also of opinion that the objections urged against the admission of the act in evidence are, in any view, not well taken. Those objections are, first, that it does not appear upon the face of the act that it was signed by the Governor; and second, that inasmuch as the act is special, it is in contravention of a provision of the constitution of the State of Indiana, which provides that “corporations, other than banking, shall not be created by special act, but may be formed under general laws.” The act is authenticated by the Secretary of State of the State of Indiana, by having the seal of State affixed thereto, in conformity with section 905 of the United States Revised Statutes, (2d ed.) 1878, title 13, chapter 17, and this is held to be a sufficient authentication, without the attestation of any officer, or any other proof. 1 Greenleaf on Evidence, sec. 489; United States v. Amedy, 11 Wheat. 392; Henthorn v. Doe ex dem. 1 Blackf. 157; United States v. Johns, 4 Dall. 412.

Conceding that, under the constitutional provision referred to, it is incompetent for the legislature to render the corporation absolutely legal and valid in all respects, about which we express no opinion, still the authority to inquire, by quo warranto, whether, there being a corporation de facto, it is, in all respects, a legal and valid corporation, belongs to the State of Indiana alone. If that State does not choose to institute such a proceeding, and oust it of its assumed franchise, no one else can do so. This act may be regarded, therefore, as evidence that that State has treated the appellee as a corporation cle facto, for that much is recited in the preamble to the act, and that it has acquiesced in its acting as such. Although, in other words, this act might be no defence to a proceeding by the State of Indiana by quo warranto, or in that nature, against appellee, it is evidence of the recognition by that State that appellee assumes to exist and act as a corporation within that State, and so is competent evidence under the issue. Central Agricultural Association v. Alabama Company, 70 Ala. 120.

Fourth—There was evidence tending to prove, even apart from this legislative recognition and the signature to the contract, that appellee, in good faith, attempted to organize under the general law of 1855, and afterw'ards proceeded to act as a corporation. The weight and effect of this evidence are not within our province' to discuss.

Fifth—It is very earnestly contended by counsel for appellant that the court erred in refusing to allow the decision of the Supreme Court of Indiana, in Nelson v. Blakely, 54 Ind. 30, to be read in evidence to the jury. But it has been seen, under point first, that the decision in that case is not pertinent to any question in this case. It could have only tended to confuse the minds of the jury, and lead them from the real questions to be decided. It was very properly excluded.

Sixth—The court below, in giving and refusing instructions, conformed substantially to the views we have here expressed, and there was no error in that regard. There was no evidence tending to prove fraudulent misrepresentations on the part of appellee’s agent, or a failure of consideration in any other way, and we have been unable to discover any error in excluding or admitting evidence in any respect.

All the questions discussed upon this record have now been twice carefully considered by the court, and we remain of the opinion, heretofore expressed, that there is no error in the record for which the judgment below should be reversed. The judgment is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Joseph Spear v. The Drainage Commissioners.

      Filed at Ottawa

      May 15, 1885.

    1. Costs—apportionment, on appeal. On the trial of an appeal in the county court from a special assessment under the Drainage act, the assessment on appellant’s land, was reduced from $302.50 to $250. On appellant’s motion to apportion the costs, the court ordered and adjudged that he pay two-thirds of the costs: Held, that this was not such an abuse of the discretion of the court as to justify a reversal.
    2. Evidence—opinions of witnesses as to benefits from drainage. Persons residing in the neighborhood of lands proposed to be improved by drainage, are competent witnesses to give their opinions as to how much such land will be benefited by the proposed drainage, on the trial of an appeal from a special assessment, without its being first shown that they have some special knowledge or training on the subject.
    3. Same—opinions of non-expert witnesses, generally. The opinions of non-professional witnesses about the ordinary affairs of life are admissible in evidence in all eases where, from the nature of the question involved, its answer necessarily depends upon mere opinion. This is peculiarly so in respect to questions of value, time, distance, weight, etc.
    4. Drainage—elements of benefits to land. On the trial of an appeal from the assessment of benefits to a party’s land by a proposed drainage, the jury may take into consideration not only the benefit to the party’s land assessed, by the drainage of the same, but also the benefit he may derive by the drainage of a slough which separates him from his other land, and thereby obviates the necessity of his bridging the slough to reach such other land; and there is no error in the admission of evidence showing such additional benefit,.

      Writ of Error to the County Court of Whiteside county; the Hon. William J. McCoy, Judge, presiding.
    Mr. C. L. Sheldon, for the plaintiff in error:
    Opinions of witnesses as to amount of benefits or damages sustained by a party, are not competent. Yost v. Convoy, 92 Ind. 464; Railroad Co. v. Fitzpatrick, 10 id. 120.
    Messrs. Bennett & Green, for the defendants in error:
    The opinions of witnesses, based upon a thorough acquaintance with the land, and in most instances upon considerable experience in drainage, were certainly competent. Green v. City of Chicago, 97 Ill. 370; Railroad Co. v. Henry, 79 id. 290; Hayes v. Railroad Co. 34 id. 373; Railroad Co. v. Haslam, 73 id. 495.
   Mr. Justice Mulkey

delivered the opinion of the Court:

In a proceeding under the Drainage act, commenced by the commissioners of Union district No. 5, in Montmorency and Caloma townships, Whiteside county, this State, for the purpose of constructing certain ditches for drainage purposes, and assessing the cost thereof upon such of the lands lying within the district as would be specially benefited thereby, they assessed a certain tract of land lying therein, and belonging to Joseph Spear, the plaintiff in error, at $302.50. This assessment, on appeal by Spear, was reviewed and confirmed by three supervisors. From the order of confirmation Spear then appealed to the county court of Whiteside county, where the cause was tried de novo, before the court and a jury, resulting in a reduction of the assessment to $250, for which latter sum final judgment was entered.

Upon a motion by plaintiff in error to apportion the costs, on the ground the amount of the assessment had been materially reduced, the court adjudged and directed that plaintiff in error pay two-thirds of the costs,—and the ruling of the court in this respect is assigned for error. We do not think there was such an abuse of the discretion of the court in thus apportioning the costs, as to warrant a reversal for that reason.

We also regard as equally untenable the claim of plaintiff in error that the evidence is so manifestly insufficient to sustain the verdict of the jury as to require a reversal of the judgment. Assuming the witnesses on behalf of defendants in error are trustworthy, of which it was the special province of the jury to determine, we think the evidence is quite sufficient to sustain the finding.

It is also objected that the court erred in permitting witnesses to give their opinions as to how much the land of plaintiff in error would be benefited by the proposed drainage, without its being first shown they had some special knowledge or training on that subject, and the cases of Evansville Railroad Co. v. Fitzpatrick, 10 Ind. 120, and Yost v. Convoy, 92 id. 464, cited by plaintiff in error, seem to support the position. The reasoning of the court in those cases seems to be, that to admit such testimony “would put the witnesses in the places of the jurors, and commit them to the amount of recovery. ” If this reasoning is to be extended, it would certainly lead to the exclusion of this kind of testimony in many cases where the right to introduce it has never been questioned. It is a matter of every day experience to introduce testimony of this kind in condemnation cases, and other cases where the question is "how much an adjacent piece of land has been injured by some improvement, such as the excavation of a ditch, the throwing up of an embankment, and the like; and the right to do so is fully recognized by this court. (Green v. City of Chicago, 97 Ill. 370.) Indeed, the right to introduce in evidence the opinions of non-professional witnesses about the ordinary affairs of life, is admissible in all cases where, from the nature of' the question involved, its answer necessarily depends upon mere opinion or judgment. This is particularly so in respect to questions of value. It is only in cases where “a previous habit or study” is essential to the formation of the opinion sought to be put in evidence, that all but experts are excluded. It is the constant practice to permit non-professional witnesses to give their opinions upon matters relating to time, distance, weight, values, etc. So, also, in respect to the appearance of persons or things, when such an inquiry becomes important in a judicial proceeding. Thus, a non-professional witness may state whether a given individual, at a particular time, appeared to be sad or cheerful, angry or pleased, thoughtful or frivolous, drunk or sober, and the like. So we have no doubt that it is competent for farmers living in the immediate neighborhood of low lands which it is proposed to drain, to give their opinions as to what extent, if any, it would increase their value,—and that is substantially what was done in this case. It may be conceded if the question had simply been whether the system of drainage indicated by the plan and specifications of the work would be successful or not, the opinions of these witnesses would not have been competent; but that was not the question upon which their opinions were received in evidence.

It is also objected that the court erred in admitting evidence tending to show that the value of the land of plaintiff in error would be thereby materially enhanced in excess of such increased value as would result from the mere drainage of the land, and that the court also erred, in this connection, in giving to the jury the following instruction:

“The court further instructs the jury, that in determining the question of benefits to be conferred, if any, upon the lands in question by the proposed ditches, they are at liberty to take into account not only any increase in the value, for agricultural purposes, of those portions of such tracts from which water will be drained by said ditches, if any such has been shown by the evidence, but also any increase in value of tracts assessed, if any, so far as shown by the evidence, resulting from such drainage of the wet portions of such tracts, making the dry portions of the same tract more accessible and available for farming purposes. ” •

Defendants in error had been permitted to show, against the objections of plaintiff in error, that the latter was the owner of a piece of land lying on the south side of a certain slough running through the lands proposed,to be drained, which he cultivated by a tenant of his living on the north side, and that at certain times the tenant, in going to and from his work, had to seek a crossing over the land of an adjoining owner, by means of a bridge which the latter had constructed for his own convenience. Upon the hypothesis the proposed drainage would give the plaintiff at all times a direct crossing to his lands on the south side of the slough without the construction of such a bridge, the defendants in error were permitted to further show what it would cost to construct a bridge over the slough, so as to give plaintiff and his tenants a direct crossing. It is to this evidence the above instruction specially relates. Other evidence of a similar character was admitted, and instructions given recognizing the same view of the law, against the objections of plaintiff in error. A majority of the court are of opinion there was no error in the admission of the evidence or in the giving of the instruction in question,—a view in which the writer of this opinion does not concur. Upon a careful consideration of the various provisions of the statute, he is of opinion there is no authority for assessing or estimating any benefits except such as directly result from the drainage of the land; but a majority of the court being of a different opinion, it follows there was no error in the respect stated.

The judgment will therefore be affirmed.

Judgment affirmed.


text:
    Alfred L. Fussey v. Hugh A. White et al.

      Filed at Ottawa

      May 15, 1885.

    1. Will—a devise construed as giving only a life interest, and that confined to the income of the estate. A testator directed, by his will, first, that all his debts be paid, and then devised all the residue of his property to his executors, to be held by them for the following uses, to-wit: to pay out of the income, $250 per annum to his sister during her life, and $500 to the Methodist Episcopal Church of Evanston; third, that his executors should hold and use the residue of the estate, improve the same, and produce an income, and that his widow should have as much of the income as she might desire for her use and support, and the balance thereof be divided, as equally as possible, between his two children, with the exception of the homestead of his daughter, which his executors were to complete paying for, and then convey the same to her; and fourthly, upon the decease of the widow said property was to be held for the use and benefit of his two children, or their heirs, share and share alike, and stating that it was his desire that each one of his two children should have one-half of the income therefrom, and that upon their decease, their children to have and receive one-half part thereof, etc.: Held, that his two children, after the death of the sister and his widow, and the payment of the bequest to the church, took but a life interest as tenants in common, and that their interest was in the income only.
    2. Same—devise construed as to the character of estate which should go to the ultimate takers—and as to the time of distribution. The same will further provided: “That upon the decease of my wife, said property be held for the use and benefit of my said children (being a son and a daughter,) or their heirs, share and share alike, it being my desire that each one of them, or their heirs, shall have and receive one-half of the income therefrom, and that upon their decease their children to have and receive one-half part or portion thereof, or in case they, or either of them, leave no children, or descendants of a deceased child or children, then that the whole go to the children or descendants of a deceased child or children of my other child:” Held, that the word “thereof,” in the clause, “upon their decease their children to have and receive one-half part or portion thereof,” referred to the property, and not to the income, and that upon the decease of either one of his children, his or her children should take one-half of the property immediately, without waiting for the death of the testator’s other son or daughter.
    3. A devise or gift to A and B, as tenants in common, for their lives, and then at their death, or at their deaths, or at the death of A and B, to their children, goes, upon the death of each tenant for life, to his children. In such case the court will not construe the will as postponing the distribution of every part until the death of the surviving tenant for life, unless an intention to do so is clearly indicated.
    4. Same—rule of construction, so as to give effect to a will. Such a construction of a will should be adopted, if it consistent!;' may be, as will uphold it, and not cause it to be rendered of no effect. A devise will not be construed as attempting to create a perpetual trust, and thus render it inoperative, if the words used may be reasonably construed otherwise.
    Writ of Error to the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.
    Mr. William A. Montgomery, for the plaintiff in error:
    To hold that the word “thereof,” in the fourth clause, relates to the income, would render the devise inoperative, as being an attempt to create a perpetuity. It refers to the property.
    The life tenancy created by the will is a tenancy in common. Cheney v. Teese, 108 Ill. 473; 2 Jarman on Wills, 8.
    ■A court will not construe a will as postponing the distribution of every part until the death of the surviving tenant for life, unless an intention to do so is clearly manifested, although the gift in remainder is in terms of the whole fund. 3 Jarman on Wills, (5th Am. ed.) 16; 2 id. 758; Theobold on Law of Wills, 254.
    The trust as to one-half the property was terminated by the death of one of the tenants for life, and the property held for such tenant for life was set free. Turner v. Whittaker, 23 Beav. 196; Sarel v. Sarel, id. 87; Willis v. Douglas, 10 id. 47; Taviere v. Pearkes, 2 Sim. & St. 383; Arrow v. Millish, 1 De G. & S. 355; Doe v. Royle, 66 Eng. C. L. 98; Abrey v. Newman, 16 Beav. 431; Swan v. Holmes, 19 id. 471; Wills v. Wills, L. R. 20 Eq. 342; Smith v. Streatford, 1 Meriv. 358; Archer v. Legg, 31 Beav. 187; Woolston v. Beck, 34 N. J. Eq. 74; Jackson v. Luquan, 5 Cow. 221; Bool v. Mix, 17 Wend. 119; Campbell v. Rawden, 18 N. T. 412; Doe v. Jackman, 5 Ind. 2S3; Adams v. Spaulding, 12 Conn. 350; Williamson v. Williamson, 18 B. Mon. 329; Seely v. Seely, 44 Pa. St. 434.
    . If the tenants for life take as tenants in common, then, as the share of any one will, on his decease, go over immediately, without waiting for the other shares, it is probable that the testator intended it to continue separate and distinct from the other shares, and consequently.to devolve on the children per stupes. 2 Jarman on Wills, 757, 788.
    One point of distribution' was at the death of John C. Fussey the elder. Flinn v. Jenkins, 1 Coll. 365, and eases cited supra.

    Mr. William C. Wilson, and Mr. David L. Zook, for the defendants in error:
    Under the will, Anna E. Wilson and John C. Fussey, children of the testator, took a life estate only. The capital of the estate was to be kept together as one entire estate, and the point of. distribution was at the decease of his last surviving child. Upon the happening of that event the whole estate was to be divided between the grand-children then living, share and share alike,—that is, per capita. Brittain v. Carson, 46 Md. 186; Maddox v. State, 4 Har. & J. 529; Tyndale v. Wilkinson, 23 Beav. 74; Abrey v. Newmam, 16 id. 74.
    It is a rule that where a gift is made to the children of several persons, whether it be to the children of A and B, or to the children of A and the children of B, they take per capita, and not per stirpes. Weld v. Bradbury, 2 Vern. 705; Lugar v. Harman, 1 Cox, 250; Blockler v. Webb, 2 P. Wms. 383; Lady Lincoln v. Pelham, 10 Ves. 176; Pitney v. Brown, 44 Ill. 363; Richards v. Miller, 62 id. 425.
    Distributees take per stirpes only when they stand in unequal degrees; but they always take per capita when they stand in equal degrees”, without reference to the number of the preceding generation which 'they represent. 3 Redfield on Wills, (2d ed.) 425.

      When a legacy is to the children of several persons, they take per capita, and not per stirpes. 2 Jarman on Wills, 111.
    The rule as above stated is the established law of this State. Pitney v. Brown, 44 Ill. 363; Richards v. Miller, 62 id. 425.
    A bequest to a class gives the individuals embraced therein an equal share per capita, if they are to share and share alike. Richards v. Miller, 62 Ill. 425; 2 Redfield on Wills, p. 34, par. 25.
    Where there is an intervening life estate, all born into that class during that life estate must be let in. Mason v. White, 8 Jones’ L. 421; Sims v. Smith, 6 Jones’ Eq. 347.
    In the case of Richards v. Brown, 62 Ill. 425, the court says: “The words, too, ‘equally,’ or ‘share and share alike,’ or ‘to be equally divided,’ import an intention,”—and in the case at bar refer not only to testator’s children, but to their children,—that is, their children as a class.
    If a gift is to a class, even as tenants in common, yet if the members of that class are not to be recorded until a future date, those dying before that period take no interest. Wigram on Wills, 418.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On August 22, 1872, John Fussey, the grand-father of plaintiff in error, died, leaving a widow, and John C. Fussey • and Anna E. Wilson, his only children, surviving him. He left a will, by the terms of which he first required the payment of his debts. He next devised all the rest and residue of his property to the executors named in the will, to be held by them for the following uses and purposes, to-wit: to pay out of the income, $250 per annum to his sister, Rebecca Fussey, during her life, and $500 to the Methodist Episcopal Church of Evanston. Third, that his executors should hold and use the residue of the estate as they might deem best, to improve the same and produce an income; that his widow should have as ample an allowance therefrom as she might desire, for her use and support, and in case there should b'e more income than she needed, that the rest of the income be equally divided, as near as may be, between the two children of the testator, John C. Fussey the elder, and Anna E. Wilson, with the exception of the homestead used by the daughter, Anna E. Wilson, and her husband, at Goshen, in the State of Indiana, which the executors were to complete paying for, and then convey to said daughter, for her own and the use of her children. Fourth, “that upon the decease of my wife, said property be held for the use and benefit of my said children, or their heirs, share and share alike, it being my desire that each one of them, of their heirs, shall have and receive one-half of the income therefrom, and that upon their decease their children to have and receive one-half part or portion thereof, or in case they, or either of them, leave no children, or descendants of a deceased child or children, then that the whole go to the children or descendants of a deceased child or children of my other child.”

On September 7, 1876, Hugh A. White, administrator de bonis non with the will annexed, filed his petition in the circuit court of Cook county, praying for a construction of the will, and in case the court was of opinion that the estate of John Fussey, deceased, should be held in trust, that a trustee should be appointed to execute and carry out the provisions of the will. Mary Fussey, widow of the testator, died March 3, 1874, before the filing of the petition, leaving her surviving, her two children, John C. Fussey the elder, and Anna E. Wilson, her only heirs at law. John C. Fussey the elder died January 16, 1876, also before the filing of the petition, leaving him surviving his widow, Josephine, (who, since the entry of the decree herein, has married, and is now known as Josephine Cook,) and his two sons, John C. Fussey the younger, and Alfred L. Fussey, plaintiff in error, his only heirs at law. Rebecca Fussey, the annuitant under the will, died pending the suit in the lower court, and the bequest to the Methodist Episcopal church was paid before the entry of the decree.

The circuit court, upon final hearing, found that under the will the interests and estates of Mary Fussey, widow, and John C. Fussey the elder, son of the testator, were life estates, which had determined by reason of their decease, and that Anna E. Wilson, daughter of the testator, had also, under the will, only a life estate, and that the income from the estate, after paying for the Goshen homestead, should be divided into two equal parts, and one part thereof paid to Anna E. Wilson for the remainder of her natural life, and the other part thereof to the descendants of John C. Fussey the elder; and in case the descendants of John G. Fussey the elder should become extinct before the death of Anna E. Wilson, then the whole income should be paid to said Anna E., and that upon the death of said Anna E. the whole of said estate then remaining should be divided between the descendants of said John C. Fussey the elder, and Anna E. Wilson, then living, per stirpes. The court also appointed Hugh A. White trustee. Since the entry of the decree John C. Fussey the younger has died intestate, leaving him surviving his mother, (now Josephine Cook,) and his brother, Alfred L., plaintiff in error, his only heirs at law.

The controversy arises upon the fourth clause of the will. The widow having deceased, the property, by this clause, is to be held for the use and benefit of the testator’s two children, or their heirs, share and share alike. It is clear enough that the children take but a life interest as tenants in common, and that that interest is in the income, only. The doubt is as to the disposition upon the death of one of the children. The reading of the clause is, “that upon their decease, their children to have and receive one-half part or portion thereof.” There is somewhat of uncertainty as to what “thereof” refers—whether to income or property. If to income, then there would be nothing disposed of by the will except the income, and there would be established a perpetual trust in favor of the testator’s children and their heirs, and so a perpetuity created, which would render the whole clause void, and the estate would become intestate, thus producing the same result as that to which we arrive in holding the word “thereof” refers to property. Such a construction should be adopted, if it consistently may be, as will uphold the will, and not cause it to be rendered of no effect. The true construction, in our opinion, is, that the word “thereof” refers to property spoken of in the next preceding sentence, so that it is the property, and not the income from the property, which is to pass to the grand-children. This being so, there is another question, as to the time when the property passes, —whether the one-half part upon the death of one tenant for life, or only-upon the death of the surviving life tenant, Anna E. Wilson. The devise is, “that upon their decease,” their children to have and receive one-half part or portion thereof. The meaning of this is, that upon the decease of either one of the two, his or her children are to take one half of the property. The construction is very well settled that in such cases “upon their decease” means upon their respective deaths. “It seems clear that a gift to A and B, as tenants in common, for their lives, and then, at their death, or at their deaths, or at the death of A and B, to their children, goes, upon the death of each tenant for life, to his children.” Theobold’s Law of Wills, 254, and cases there cited. And see Woolston v. Beck, 34 N. J. Eq. 74; Jackson v. Luquere, 5 Cow. 221. In such a case the court will not construe the will as postponing the distribution of every part until the death of the surviving tenant for life, unless an intention so to do is clearly indicated. 3 Jarman on Wills, 16.

It may be said that there is here an intention manifested that nothing but the income should be paid over until the decease of both the life tenants, in the use of these preceding words: ■ “It being my desire that each one of them, or their heirs, shall have and receive one-lialf of the income therefrom.” To give full effect to this language would be to limit the heirs’ interest to income only, which we find not to be the true meaning. As it is the property, and not the income, merely, from the property, which we find to be given to the heirs, it does not appear to be a reasonable construction that intermediate the deaths of the two children of the testator the children of the one first deceased should take but income, and postpone their taking of the property itself until the death of the surviving life tenant. There is a very clear expression that the testator’s children should take but income, but there is no distinct indication of intention that any interest which their heirs are to take is to be limited to income, only. The mere expression that each one of the children, “or their heirs, ” shall, receive one-half of the income, we do not take as doing so. A child might die leaving accrued income in arrear, not having been paid over to him, and that would go to his heirs. In this way the words, “or their heirs,” may be satisfied, and find scope for their operation.

Our conclusion is, that the court below erred in postponing the distribution of one-half of the property to the descendants of John C. Fussey the elder, to the time of the death of Anna E. Wilson,—that the proper time for such distribution was upon the death of John C. Fussey the elder.

The decree will be reversed, and' the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.


text:
    Herman Birr v. The People of the State of Illinois.

      Filed at Ottawa

      May 15, 1885.

    1. Selling intoxicating liquors to minor—of the burden of proof to show authority for so doing. The People, in a prosecution under section 6 of the Dram-shop act, for unlawfully selling intoxicating liquors to a minor, without the consent of his parent, guardian or family physician, make out a prima facie case by showing a sale of intoxicating liquors to the party specified in the indictment or complaint, and that such party is a minor; and then the burden is thrown upon the accused to show that the sale or sales proven were made upon the written order of the parent, guardian or family physician of the minor.
    2. Same—of a gift, as distinguished from a sale—variance. Under a complaint charging the defendant with the offence of selling intoxicating liquors to a minor without the proper authority, proof of a gift of such liquors to the minor will not authorize a conviction. Proof that the minor, within eighteen months prior, drank such liquor in the defendant’s saloon, in connection with others, without showing who paid for the same, is insufficient.
    3. Same—of an instruction in respect to a written order—although erroneous, worked no injury. On the trial of a dram-shop keeper for selling intoxicating liquors to a minor, when such sale is proved, and no written order is shown justifying the act, the defendant can not insist on an instruction submitting the question whether such sale was without the written order of the parent, etc., of the ininor; and an error in an instruction for the prosecution, making the defendant liable- for a sale “without the written consent of his (the minor’s) parents,” instead of “the written order of his parent, guardian or family physician,” there being no evidence of any written order from any one, is harmless, and can work no injury. In such case the qualification might properly be wholly omitted.
    4. Cross-examination—latitude allowed—discretion in trial court. "Where there is evidence tending to show there had been some difficulty between the defendant in a criminal case and the prosecuting witness, there should be no abridgment of ,the right of cross-examination of such witness, but rather an extension of it. But this court will not interfere with the exercise Of the discretion of the trial court in that regard, except for such an abuse of discretion as may have materially affected the result reached.
    5. Instruction—must be based on evidence. An instruction which is' not based upon evidence, should not be given; and the same rule applies to a modification or qualification of an instruction.

      Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kankakee county.
    Messrs. Rubens, McGaffey & Ames, for the plaintiff in error.
    Mr. George Hunt, Attorney General, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is a writ of error to the Appellate Court for the Second District, affirming a judgment of the circuit court of Kankakee county, for the sum of $60, recovered by the People of the State of Illinois, against Herman Birr, for an alleged unlawful selling of intoxicating liquors to Ernest Kemnitz, a minor, “without the written order of his parent, guardian or family physician. ” The questions presented for determination arise upon the rulings of the trial court in respect to the evidence and the giving of instructions.

Ernest Kemnitz, the minor, was the principal witness in the case on behalf of the People, and it is first objected that the right of cross-examination was unduly restricted. There was evidence tending to show there had been some difficulty between the defendant and the prosecuting witness, and in view of this fact there should have been no abridgment of this right, but rather an extension of it. While, under the circumstances, we regard the complaint of plaintiff in error in this respect not without foundation, yet the examination of witnesses is a matter resting so largely in the discretion of the trial court, we are not inclined to interpose, except where there has been such an abuse of it as may have materially affected the result reached. We do not think that such is .the case here.

The ruling of the court in giving the first and sixth instructions on behalf of the People, presents the most serious question involved in the case. The first is as follows:

“That if you believe, from the evidence, beyond a reasonable doubt, the defendant, or his wife, acting as a bar-tender for him, sold intoxicating liquor to Ernest Kemnitz, without the written consent of his parents, then you should find the defendant guilty of as many offences as you believe there were s.ales of intoxicating liquor, and on the question of sales it makes no difference whether Kemnitz paid for himself, or others may have purchased intoxicating liquor there. ”

This instruction manifestly does not follow the language of the statute. The offence with which the defendant is charged in this case is the selling (not giving away) of intoxicating liquors to Ernest Kemnitz, a minor, “ivithout the written order of his parent, guardian or family physician. ” The instruction, it will be perceived, does not follow the language of the statute, or its substance, scarcely in any respect. Yet-, if we except the latter part of it, which relates to sales made by others, we do not think there is anything in it of which the defendant has a right to complain, or that, under the facts proven, could have injured him. While it is conceded there is a conflict of authority on the question, yet we are of opinion the logic of our own decisions requires us to hold, as we do, that the People, in a prosecution under the sixth section of the Dram-shop act, for unlawfully selling intoxicating liquors to a minor, “without the consent of his parent, guardian or family physician, ” make out a prima facie case by showing a sale of intoxicating liquors to the j>arty specified in the indictment or complaint, and that such party was a minor at the time of the sale; that when such prima facie case is made out, the burthen is then shifted upon the accused to show that the sale or sales proven were made upon the written order of the parent, guardian or family physician of the minor. (Metzker v. The People, 14 Ill. 101; Harbaugh v. City of Monmouth, 74 id. 371; Noecker v. The People, 91 id. 468.) In this case there is no evidence whatever tending to show that the alleged sales were made upon the order of any one, or that Ernest Kemnitz had a guardian other than his father, his natural guardian. Nor is there any evidence in the record tending to show that there is or was any one in esse answering the description of family physician. In short, there was no proof before the court upon which to base the qualification which it is insisted should have been added to the instruction, and if any such evidence existed, it is the fault of the accused that it was not produced, and not of the People. Under the evidence, the court might well have told the jury that if they believed, from the evidence, beyond a reasonable doubt, that defendant, within eighteen months next before the commencement of the prosecution, sold intoxicating liquors to Ernest Kemnitz, and that at the time of such sale the latter was a minor, they should find the defendant guilty, etc. It is a familiar principle there must be evidence upon which to base an instruction, otherwise it should not be given. The same principle applies to modifications of instructions, when insisted on, to bring them within some special or general rule. In such case there must be evidence upon which to base the modification, otherwise it should not be made.

The objection to this instruction that the word “parents,” instead of “parent,” is used, is, for reasons already stated, without force. If the facts were such as to require an instruction of this kind to be limited so as to conform to the statute, it might be a serious question whether the expression, “without the written consent,” etc., is an equivalent for the words of the statute, “without the written order.” But under the evidence, as we have already seen, this question is of no importance.

There is, however, as already intimated, a fatal objection to this instruction. The statement in the latter part of it, in reference to sales of liquor, to the effect that “it makes no difference whether Kemnitz paid for himself, or others may have purchased intoxicating liquors there, ” is not warranted by the construction already placed upon that provision of the statute. (Siegel v. The People, 106 Ill. 89. See, to the same effect, Goddard .v. Burnham, 120 Mass. 578.) The sixth instruction given on behalf of the People is equally objectionable in this respect, and is much more clear and specific in its statement. In referring to the sales charged, it is stated “it makes no difference who called for it, (the liquor,) or who paid for it.” In the view taken by the court, all that was necessary to make out a case against the defendant was to show that he was present and drank a portion of the liquor purchased, whether he purchased it or not. At any rate, if this was not the view of the court, the instructions were so drawn as to mislead the jury upon that subject. The entire instruction is as follows:

“The prosecution are not obliged to prove the exact time when liquor is sold, in such a case as this, if it is proven, at any time within eighteen months prior to the commencement of the prosecution, beyond a reasonable doubt, that at different times within that time the boy, Ernest Kemnitz, got intoxicating liquor of Birr, the defendant, at his saloon, whether the same was paid for by himself or not. It makes no difference who called for it or paid for it. ”

By it the jury are also told that it is sufficient to make out the case, to show that Kemnitz got intoxicating liquor at the defendant’s saloon at any time within the Statute of Limitations, “whether the same was paid for by himself or not.” The court probably proceeded upon the theory that inasmuch as the giving of liquor to a minor is as much of an offence, under the statute, as the selling of it to him, it made no difference whether the proofs showed a sale or a gift. But the answer to this is, that the defendant was not charged with the giving of liquor to a minor. The charge against him ivas for selling, only. The selling is one offence, and the giving of it is another, and so it has been expressly decided. (Wheke v. The People, 14 Bradw. 447.) While the evidence clearly shows the minor drank intoxicating liquor at the defendant’s saloon, as often or oftener than three times, the proof of sales to him was not so satisfactory. It was important, therefore, that the instructions should have properly distinguished between sales and mere gifts of liquor. This the sixth instruction did not do.

For the errors indicated, the judgment of the Appellate Court will be reversed, and the cause remanded, with directions to that court to reverse the judgment of the circuit court, and remand the cause for further proceedings in conformity with this opinion.

Judgment reversed.